Terms and conditions for the supply of goods

1. INTERPRETATION

1.1 Definitions:

Affiliate: the Supplier’s holding company and ultimate holding company and each of its subsidiary companies and joint ventures and it’s holding company’s and ultimate holding company’s subsidiary companies and joint ventures as at the Commencement Date or as the same may vary from time to time, “holding company” and “subsidiary” having meanings given to them in section 1159 of the Companies Act 2006.

Agreement: this agreement as amended from time to time in accordance with clause 13.4.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Commencement Date: the date nominated as the commencement date on the Order.

Control: has the meaning given in the Corporation Tax Act 2010, s 1124 and Controls and Controlled shall be interpreted accordingly.

Customer: the person or firm who purchases the Goods from the Supplier.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Goods: the goods (or any part of them) set out in the Order.

Intellectual Property Rights: copyright, rights related to copyright such as moral rights and performers’ rights, patents, rights in inventions, rights in Confidential Information, know-how, trade secrets, trade-marks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.

IPR Claim: shall have the meaning given in clause 9.4.

Order: the Customer's order for the Goods, as set out in the Customer's purchase order form.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

Supplier: PEAK Scientific Instruments Limited a company incorporated in Scotland under number SC175368 whose registered office is at Fountain Crescent, Inchinnan Business Park, Inchinnan, PA4 9RE.

Year: the period of 12 months from the Commencement Date and each consecutive period of 12 months thereafter.

1.2 Interpretation

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

2.1 This Agreement applies to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with this Agreement. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point this Agreement shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with this Agreement.
2.5 Any samples, drawings or advertising produced by the Supplier and any illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of this Agreement nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.

3. GOODS

3.1 The Goods are described in the Supplier's specification subject to any agreed modifications.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of this Agreement.
3.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.

4. DELIVERY

4.1 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier shall make available and/or deliver the Goods at or to the location set out in the Order or such other location as the parties may agree from time to time.
4.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.5 If the Customer fails to accept delivery of the Goods within five (5) Business Days of receipt of the Goods or the Supplier notifying the Customer that the Goods are ready for collection (as applicable), then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under this Agreement:
(a) delivery of the Goods shall be deemed to have been completed at 9:00 am on the sixth Business Day after the day on which the Customer took receipt of the Goods or the Supplier notified the Customer that the Goods were ready; and
(b) in the case where the Customer elects to collect the Goods the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.6 If ten (10) Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.7 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY

5.1 The Supplier warrants that (unless otherwise agreed between the parties in writing or as documented at: https://www.peakscientific.com/terms) for the period of twelve (12) months from the date of installation, subject to a maximum period no longer than fifteen (15) months from the date of shipment of the Goods in fulfilment of the relevant Order (warranty period), the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier place of business at the Customer’s cost,
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.1;
(b) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of the Supplier;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from this Agreement.
5.6 Clause 5.1 to clause 5.5 shall also apply to any replacement Goods supplied by the Supplier but shall not apply to any Goods which are repaired by the Supplier only.

6. TITLE AND RISK

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1.

7. PRICE AND PAYMENT

7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may invoice the Customer for the Goods on or at any time as set out in the Order.
7.3 The Supplier may, by giving notice to the Customer at any time up to thirty (30) Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.4 The price of the Goods:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods (if applicable/as agreed), which shall be invoiced to the Customer.
7.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within thirty (30) days of the date of the invoice or as otherwise specified in the Order; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
(c) time for payment shall be of the essence under this Agreement.
7.6 The Supplier reserves the right in its absolute discretion to reduce the period of any advance payment terms in the event that:
(a) the Customer’s credit rating (as measured by the Supplier through Creditsafe UK Limited or any other industry standard credit rating system) falls below fifty out of one hundred; and/or
(b) the Supplier has reasonable concerns regarding the financial viability of the Customer which the Customer is unable to address to the reasonable satisfaction of the Supplier.
7.7 If the Customer fails to make a payment due to the Supplier under this Agreement by the due date, then, without limiting the Supplier's remedies under clause 10 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.8 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. LIMITATION OF LIABILITY

8.1 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.2 Nothing in in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
8.3 Subject to clause 8.2, the Supplier's total liability to the Customer shall not exceed the fees paid or payable under the Order in the Year in which the relevant claim arose.
8.4 Subject to clause 8.2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
8.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve (12) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
8.6 This clause 8 shall survive termination of this Agreement.

9. INTELLECTUAL PROPERTY

9.1 Intellectual Property Rights in connection with the Goods shall remain the Supplier’s (or its licensor’s) property and nothing in this Agreement is intended to pass ownership of such rights to the Customer.
9.2 Except as necessary to permit the Customer to possess and make use of the Goods, nothing in this Agreement grants the Customer a licence in relation to Intellectual Property Rights in connection with the Goods.
9.3 In relation to trade-marks affixed to or incorporated within the Goods:
9.3.1 use of the trade-marks shall be in accordance with this Agreement and with the Supplier’s (or licensor’s) brand guidelines (if any) supplied to the Customer from time to time;
9.3.2 all goodwill associated with such use of trade marks shall accrue to the benefit of the Supplier (or its licensor) and, at the request of the Supplier, the Customer shall at its own cost sign all documents and do all things necessary to assign such goodwill to the Supplier or the Supplier’s licensor, as the case may be;
9.3.3 the Customer shall not apply to register, or register, the same trade-mark or any confusingly similar trade mark, or procure or assist someone else to do so; and
9.3.4 except to the extent authorised by the Supplier from time to time in writing, the Customer shall not alter or remove such trade-marks from the Goods.
9.4 The Supplier shall indemnify and hold harmless the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use or possession of the Goods infringes the Intellectual Property Rights of any third party (IPR Claim), provided that the Supplier shall have no such liability if the Customer:
9.4.1 does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
9.4.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
9.4.3 does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
9.4.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
9.4.5 does not, at the Supplier’s request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer.
9.5 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
9.5.1 procure for the Customer the right to continue using and possessing the relevant Goods; or
9.5.2 modify or replace the infringing part of the Goods so as to avoid the infringement or alleged infringement, provided the Goods remain in material conformance to their Specification.
9.6 The Supplier’s obligations under clause 9.5 shall not apply to Goods modified or used by the Customer other than in accordance with this Agreement or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.

10. TERMINATION

10.1 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
10.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under this Agreement or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Agreement on the due date for payment.
10.3 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment.
10.4 On termination of this Agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted or Goods which have been manufactured but not yet delivered to the Customer, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.5 Termination or expiry of this Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
10.6 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

11. RETURNS

All sales of Goods under this Agreement are final, Customer shall not have the right to return any Goods to the Supplier, except in the case of a defective product under clause 5 or as otherwise agreed between the parties in writing.

12. FORCE MAJEURE

Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for thirty (30) days’, the party not affected may terminate this Agreement by giving thirty (30) days’ written notice to the affected party.

13. GENERAL

13.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) The Supplier may perform any of its obligations and exercise any of its rights granted under this Agreement through any Affiliate.
(c) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the Supplier.
13.2 Confidentiality.
(a) Each party undertakes that it shall not at any time during this Agreement and for a period of 5 years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party and its Affiliates, except as permitted by clause 13.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 13.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
13.3 Entire agreement.
(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
13.4 Variation. No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.6 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of this Agreement is deemed deleted under this clause 13.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
13.7 Notices.
(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Order.
(b) Any notice or other communication shall be deemed to have been received
(i) if delivered by hand, on signature of a delivery receiptor at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the two Business Day after posting; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
13.8 Third party rights.
(a) Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement .
(b) The Affiliates of the Supplier shall have the right to enforce the provisions of this Agreement.
(c) The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
13.9 Governing law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
13.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

 

Terms and conditions for the supply of services

1. INTERPRETATION

1.1 Definitions:

Affiliate: the Supplier’s holding company and ultimate holding company and each of its subsidiary companies and joint ventures and it’s holding company’s and ultimate holding company’s subsidiary companies and joint ventures as at the Commencement Date or as the same may vary from time to time, “holding company” and “subsidiary” having meanings given to them in section 1159 of the Companies Act 2006.

Agreement: this agreement as amended from time to time in accordance with clause 12.4.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Commencement Date: the date nominated as the commencement date on the Order.

Control: has the meaning given in the Corporation Tax Act 2010, s1124 and Controls and Controlled shall be interpreted accordingly.

Customer: the person or firm who purchases the Services from the Supplier.

Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.

Good Industry Practice: the procedures and standards which would reasonably be expected to be met by a reputable supplier providing the Services.

Initial Term: the initial term for which the Services will be provided to the Customer by the Supplier as set out in the Order.

Intellectual Property Rights: copyright, rights related to copyright such as moral rights and performers’ rights, patents, rights in inventions, rights in Confidential Information, know-how, trade secrets, trade-marks, geographical indications, service marks, trade names, design rights, rights in get-up, database rights, databases, domain names, business names, rights in computer software, the right to sue for infringement, unfair competition and passing off, and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing.

Order: the Customer's order for the Services, as set out in the Order.
Performance Location: any location specified in the Order at which the Supplier shall perform, or procure the performance of, the Services.

Services: the support services and any other services specified in the Order or as otherwise agreed in writing.

Supplier: PEAK Scientific Instruments Limited a company incorporated in Scotland under number SC175368 whose registered office is at Fountain Crescent, Inchinnan Business Park, Inchinnan, PA4 9RE.

Supplier Material: any material owned by the Supplier or its Affiliates relating to the Services (and any modifications to that material).

Supplier Personnel: all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their subcontractors who are engaged in the performance of the Services from time to time.

1.2 Interpretation

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re- enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.

2. SCOPE

2.1 This Agreement governs the Supplier’s performance of the Services.
2.2 The Customer hereby engages the Supplier to perform the Services in accordance with this Agreement.

3. SUPPLIER OBLIGATIONS

3.1 The Supplier shall perform the Services as set out in the Order.
3.2 The Supplier shall use its reasonable endeavours to perform the Services in accordance with any commencement or end dates specified for performance as set out in the Order. Any Services which do not have specified commencement or end dates shall be performed by the Supplier within a reasonable period of time.
3.3 Where the Supplier deems itself unable to perform the Services in whole or in part for any reason the Supplier shall notify the Customer as soon as reasonably practicable and shall refund the price of the affected Services in full. The foregoing shall be the Customers sole and exclusive remedy for a failure by the Supplier to perform the Services in whole or in part under this Agreement.
3.4 The Supplier shall not be liable for any delay in the performance of the Services caused by:
3.4.1 the Customer’s failure to make the Performance Location available;
3.4.2 the Customer’s failure to prepare the Performance Location in accordance with the Supplier’s instructions;
3.4.3 the Customer’s failure to provide the Supplier with adequate instructions for performance of the Services;
3.4.4 for any costs or losses sustained by the Customer as a result of any suspension of the Services;
3.4.5 the Customer’s failure to comply with the provisions of clause 4.1; or
3.4.6 Force Majeure.

4. CUSTOMER OBLIGATIONS

4.1 The Customer shall at all times and in all respects:
4.1.1 perform its obligations in accordance with the terms of this Agreement;
4.1.2 co-operate with the Supplier in all matters arising under this Agreement or otherwise relating to the performance of the Services;
4.1.3 make the Performance Location accessible to the Supplier and the Supplier Personnel as may be necessary for the Supplier to perform the Services and otherwise comply with its obligations under this Agreement;
4.1.4 inform the Supplier in a timely manner of any matters (including any health, safety or security requirements) which may affect the provision of the Services;
4.1.5 ensure that all tools, equipment, materials or other items provided to the Supplier for the provision of the Services are suitable for the performance of the Services, in good condition and in good working order;
4.1.6 obtain and maintain all necessary licences, permits and consents required to enable the Supplier to perform the Services and otherwise comply with its obligations under this Agreement; and
4.1.7 to the fullest extent permitted by law and provided it is not the Supplier’s regulatory responsibility, dispose of all waste and parts resulting from the Services.
4.2 Where the Supplier has any concerns regarding the health and safety of the Customers premises it shall notify the Customer as soon as reasonably practicable and the Services shall be suspended in accordance with clause 6.

5. WARRANTY

5.1 The Supplier warrants that the Services shall be performed with reasonable care and skill and in accordance with Good Industry Practice during the Initial Term.
5.2 The Customer warrants that it has the right, power and authority to enter into this Agreement and grant to the Supplier the rights (if any) contemplated in this Agreement.
5.3 Subject to the provisions of clause 5.4, if the Customer gives written notice to the Supplier within five Business Days of completion of the Services that some or all of the Services do not comply with clause 5.1, the Supplier shall, at its option, remedy or re-perform the Services, or refund the price of the Services in full.
5.4 The Supplier shall not be liable for any failure of the Services to comply with the provisions of clause 5.1 where the same arises directly or indirectly and whether in whole or in part as a result of:
5.4.1 a breach by the Customer of any of its obligations under this Agreement;
5.4.2 an event of Force Majeure; or
5.4.3 any design, specification or requirement of the Customer.
5.5 Except as set out in this clause 5 the Supplier gives no warranty and makes no representations in relation to the Services;
5.6 The provisions of this clause 5 set out the Customer’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach of clause 5.1 or for any other error or defective performance of the Services.

6. SUSPENSION OF SERVICES

6.1 If the Supplier is prevented or delayed in performing the Services by any cause attributable to the Customer, the Supplier (without prejudice to its other rights):
6.1.1 may suspend performance of the Services until the Customer remedies its default; and
6.1.2 may charge the Customer (and the Customer shall pay under this Agreement) costs or losses incurred by the Supplier arising from the Customer’s default.

7. PRICE AND PAYMENT

7.1 In consideration of the Supplier’s provision of the Services in accordance with the provisions of this Agreement the Customer shall pay the fees in accordance with this clause 7 and the relevant Order.
7.2 The fees for the Services and the frequency of each invoice shall be set out in the Order.
7.3 The fees for the Services:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 [excludes any out-of-pocket expenses (including travelling expenses) incurred by the Supplier and the Supplier Personnel in the proper provision of the Services.]
7.4 The Customer shall pay each invoice submitted by the Supplier:
7.4.1 within thirty (30) days of the date of the invoice or as otherwise specified in the Order; and
7.4.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
7.4.3 time for payment shall be of the essence under this Agreement.
7.5 The Supplier reserves the right in its absolute discretion to reduce the period of any advance payment terms in the event that:
7.5.1 The Customer’s credit rating (as measured by the Supplier through Creditsafe UK Limited or any other industry standard credit rating system) falls below fifty out of one hundred; and/or
7.5.2 The Supplier has reasonable concerns regarding the financial viability of the Customer which the Customer is unable to address to the reasonable satisfaction of the Supplier.
7.6 If the Customer fails to make a payment due to the Supplier under this Agreement by the due date, then, without limiting the Supplier's remedies under clause 11 (Termination), the Customer shall pay simple interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
7.7 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. INTELLECTUAL PROPERTY RIGHTS

8.1 All right, title and interest (including all Intellectual Property) in any Supplier Material shall (subject to any rights of any third party) belong to the Supplier. The Supplier Material including without limitation all software, programs, documents, information, ideas, concepts, know-how, techniques and other materials, things or items (including all Intellectual Property therein) supplied or provided by the Supplier shall be and shall remain the exclusive property of the Supplier and the Customer shall acquire no right, title and interest in or to the same.

9. LIMITATION OF LIABILITY

9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with this Agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in in this Agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(b) fraud or fraudulent misrepresentation.
9.3 Subject to clause 9.2, the Supplier's total liability to the Customer shall not exceed the fees paid or payable under the Order in the year in which the relevant claim arose.
9.4 Subject to clause 9.2, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
9.5 Unless the Customer notifies the Supplier that it intends to make a claim in respect of an event within the notice period, the Supplier shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire twelve (12) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.
9.6 This clause 9 shall survive termination of this Agreement.

10. INSURANCE

10.1 During the Initial Term the Supplier shall maintain adequate insurance for the Services being provided.

11. TERMINATION

11.1 This Agreement shall commence on the Commencement Date and shall continue unless terminated in accordance with clause 11.3.
11.2 [Clause Deleted]
11.3 Without limiting its other rights or remedies, the Supplier may terminate this Agreement and/or any Order with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of this Agreement and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of being notified in writing to do so;
(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy.
11.4 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under this Agreement or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.3(b) to clause 11.3(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Agreement on the due date for payment.
11.5 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Agreement on the due date for payment.
11.6 On termination of this Agreement and/or any Order (as applicable) for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of the Services supplied or parts previously purchased by the Supplier as part of the Services offering but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
11.7 Termination or expiry of this Agreement, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
11.8 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect.

12. GENERAL

12.1 Assignment and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this Agreement.
(b) The Supplier may perform any of its obligations and exercise any of its rights granted under this Agreement through any Affiliate.
(c) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of the Supplier.
12.2 Confidentiality
(a) Each party undertakes that it shall not at any time during this Agreement and for a period of 5 years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party and its Affiliates, except as permitted by clause 12.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
12.3 Entire agreement
(a) This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
12.4 Variation
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance
If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of this Agreement is deemed deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7 Notices
(a) Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
(ii) or sent by email to the address specified in the Order.
(b) Any notice or other communication shall be deemed to have been received
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9:00 am on the second Business Day after posting; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.8 Third party rights
(a) Unless it expressly states otherwise, this Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
(b) Notwithstanding clause 12.8(a) the Affiliates of the Supplier shall have the right to enforce the provisions of this Agreement.
(c) The rights of the parties to rescind or vary this Agreement are not subject to the consent of any other person.
12.9 Governing law
This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.10 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation.

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