Selmach Machinery Ltd
Registered company number 08513664
TERMS AND CONDITIONS OF SUPPLY
SELMACH MACHINERY LTD
The Customer’s attention is particularly drawn to the provisions of clause 12 (Limitation of liability).
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Acceptance: has the meaning given in clause 7.3, (and ‘Accepted’ shall be interpreted accordingly).
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 18.8.
Contract: the contract between Selmach and the Customer for the supply of Goods and/or Services in accordance with these Conditions, comprised of these Conditions, the Sales Order Confirmation and (if any) the Specification.
Customer: the person or firm who purchases the Goods and/or Services from Selmach.
Delivery Location: has the meaning given in clause 4.1.
Force Majeure Event: has the meaning given in clause 17.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form or written acceptance of Selmach’s quotation, as the case may be.
Sales Order Confirmation: written acknowledgment of the Order, issued by Selmach to the Customer under the terms of this Contract.
Selmach: Selmach Machinery Ltd registered in England and Wales with company number 08513664.
Services: the services supplied by Selmach to the Customer as set out in the Specification.
Specification: any specification for the Goods and/or Services, including any relevant plans or drawings, that is included in or attached to the Sales Order Confirmation.
Selmach Materials: has the meaning given in clause 8.1(i).
Used Goods: any Goods that are pre-used, including Goods that are pre-owned, refurbished, or reconditioned.
Warranty Period: has the meaning given in clause 5.2.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 A reference to a party includes its personal representatives, successors and permitted assigns.
1.4 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
1.6 A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when Selmach issues a Sales Order Confirmation, at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by Selmach and any descriptions of the Goods or illustrations or descriptions of the Services contained in Selmach’s catalogues or brochures or displayed on Selmach’s website are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
2.4 These Conditions apply to the Contract 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. 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 these Conditions.
2.5 Any quotation given by Selmach shall not constitute an offer and is only valid for a period of 20 Business Days from its date of issue or for such alternative period as may be communicated to the Customer by Selmach.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.7 If there is any conflict between any terms of this Contract then, to the extent necessary to resolve the conflict, these Conditions shall prevail, unless the conflicting term is included in the Sales Order Confirmation and expressly states that it is intended to override a specific term within these Conditions (in which case the term in the Sales Order Confirmation shall prevail).
3. GOODS
3.1 To the extent that the Goods are to be supplied in accordance with a Specification supplied by the Customer, the Customer shall indemnify Selmach 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Selmach arising out of or in connection with any claim made against Selmach for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Selmach’s use of the Specification. This clause 3.1 shall survive termination of the Contract.
3.2 Selmach reserves the right to amend the Goods (or the Specification) at any time:
(a) where doing so would not materially adversely affect the nature or quality of the Goods; or
(b) if required by any applicable statutory or regulatory requirement, code of practice or in accordance with best industry practice, and Selmach shall notify the Customer in any such event.
3.3 The Customer is not entitled to cancel or amend an Order after a Sales Order Confirmation has been issued to the Customer by Selmach. Any deposit paid by the Customer is non-refundable unless Selmach, at its sole discretion, expressly agrees otherwise in writing.
3.4 Where the Customer’s Order includes spare or additional parts, unless otherwise agreed in writing in the Contract, Selmach shall be entitled to charge the Customer separately for those parts at such cost as is notified to the Customer by Selmach.
4. DELIVERY OF GOODS
4.1 Unless otherwise agreed in writing between the parties, Selmach shall deliver the Goods to the location set out in the Sales Order Confirmation or such other location as the parties may agree in writing (Delivery Location) on the delivery date communicated to the Customer by Selmach (Delivery Date). Selmach may confirm the estimated week of delivery upon (or promptly following) acceptance of the Order. Selmach will confirm the Delivery Date either by telephone or in writing at any time after accepting the Order.
4.2 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location, if Selmach has expressly agreed in writing in the Contract to unload the Goods. If Selmach has not expressly agreed to unload the Goods, the Customer agrees to unload them and:
(a) delivery is completed at the time of arrival at the Delivery Location; and
(b) the Customer accepts full risk in unloading the goods including damage to the Goods themselves and/or damage to Selmach’s (or any third party’s) property and/or personnel; and
(c) the Customer shall ensure that it has in place all risk assessments, method statements and health and safety requirements in order to safely unload the Goods.
4.3 Any Delivery Date (or week) quoted is approximate only, and the time of delivery is not of the essence. Selmach 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 Selmach with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Customer fails to accept delivery of the Goods on the Delivery Date, then except to the extent that such failure or delay is caused by Selmach’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) Selmach shall be entitled to notify the Customer that delivery of the Goods is deemed to have been completed at 9.00 am on the Delivery Date (or on such later date as Selmach may determine) and delivery shall be deemed to occur in accordance with the notice. Clause 6.1 shall apply so that risk in the Goods transfers to the Customer on the deemed delivery date;
(b) to the extent that the goods have not already been paid for in full, Selmach shall be entitled to invoice the Customer for the Goods as though actual delivery, installation and commissioning had occurred on the date referred to in clause 4.4(a) (regardless of whether delivery has been rescheduled), and the Customer shall pay the invoice in accordance with the payment terms set out in the Contract; and
(c) Selmach shall store the Goods until actual delivery takes place and charge the Customer (on a full indemnity basis)
(i) a fixed storage fee of £150 per week; and
(ii) for all other related costs and expenses relating to the Goods (including storage and insurance). Subject to Clause 4.5, the Customer authorises Selmach to store and insure the Goods until actual delivery takes place. Selmach will release the Goods to the Customer only once all such charges are paid.
4.5 If 10 Business Days following the Delivery Date, the Customer has not accepted actual delivery of them, Selmach may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the price of the Goods and all costs incurred in the sale or disposal of the Goods.
4.6 The Customer is deemed to have Accepted the Goods on completion of delivery (or deemed delivery in accordance with the above provisions), unless Selmach has agreed to provide installation and related Services as described at clause 7.3 (in which case Acceptance is deemed to occur in accordance with that clause).
4.7 Selmach may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 Unless otherwise agreed by the parties in writing, Selmach shall deliver the Goods EXW Incoterms® 2020 Delivery Location.
5. QUALITY OF GOODS
5.1 Selmach warrants that on delivery and for the duration of the Warranty Period the Goods shall:
(a) conform in all material respects with the Specification; and
(b) be free from material defects in design, material and workmanship.
5.2 The Warranty Period shall be the shorter of:
(a) 12 months from the Delivery Date; or
(b) 2000 operating hours.
5.3 The warranty set out at clause 5.1 above does not apply to any Used Goods. Where the Customer purchases Used Goods, the Customer acknowledges that Selmach has given the Customer a reasonable opportunity to inspect the condition of the Goods prior to the Customer placing the Order, and that the Goods are supplied ‘as is’ and without any representation, condition or warranty (express or implied) given as to nature, quality, or fitness for any purpose.
5.4 Any extension to the Warranty Period must be expressly referred to in the Sales Order Confirmation in order to be binding, and shall be subject to any additional terms communicated by Selmach to the Customer in respect of the extended warranty (any such additional terms are incorporated into the Contract).
5.5 Subject to clause 5.6, if:
(a) the Customer gives notice in writing to Selmach during the Warranty Period and promptly upon discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) Selmach is given a reasonable opportunity of examining such Goods;
(c) the Customer (if asked to do so by Selmach) returns such Goods to Selmach’s place of business at the Customer’s cost,
Selmach shall, at its option, repair or replace the defective Goods, or refund the Customer for any part of the price paid for such Goods (or relieve the Customer from the payment of any balance relating to the Goods).
5.6 Selmach shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 or for any other defect in the Goods if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.3;
(b) the defect arises because the Customer failed to follow Selmach’s (or any third party’s) oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same. This includes any instructions relating to the intended daily operating hours applicable to the Goods;
(c) the Customer fails to ensure that all user routine maintenance on the Goods is completed by a suitably qualified Selmach engineer, or otherwise fails to keep the Goods well maintained, serviced and in full working order at all times;
(d) the Customer fails to comply with the terms of the Contract (including by failing to pay any sum due to Selmach on the due date for payment);
(e) the defect arises as a result of Selmach following any drawing, design or specification supplied by the Customer;
(f) the Customer alters or repairs such Goods without the written consent of Selmach;
(g) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(h) the Goods differ from the Specification as a result of changes made in accordance with clause 3.2.
5.7 Except as provided in this clause 5, Selmach shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1 or for any other defect in the Goods.
5.8 Except as set out in this clause 5 or as otherwise expressly agreed in writing by Selmach, no term, representation, condition or warranty (express or implied) is given as to the nature, quality or fitness for any purpose of the Goods or their conformity with any specification and any liability for such express or implied terms, conditions or warranties (including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982), and (subject to clause 12) any other liability howsoever arising in respect of the Goods is, to the fullest extent permitted by law, hereby excluded.
5.9 Selmach shall have no liability in respect of the Goods after the end of the Warranty Period.
5.10 Any repaired or replacement components in the Goods supplied by Selmach will benefit from a renewed warranty period as detailed at clause 5.2. Where the Goods are subject to any extended Warranty Period as described at clause 5.4, any repaired or replacement Goods (or parts thereof) will benefit from a renewed standard warranty period only, in accordance with clause 5.2. The remainder of the Goods will be subject to the original Warranty Period.
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 Selmach receives payment in full (in cash or cleared funds) for the Goods, and any other goods that Selmach has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
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 Selmach’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 on Selmach’s behalf from the date of delivery;
(d) notify Selmach immediately if it becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(e); and
(e) give Selmach such information as Selmach may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
6.4 Subject to Clause 6.5, the Customer may resell or use Goods in the ordinary course of its business (but not otherwise) before Selmach receives payment for the Goods (and any other goods that Selmach has supplied to the Customer in respect of which payment has become due). However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as Selmach’s agent; and
(b) title to those Goods shall pass from Selmach to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, Selmach may:
(a) by notice in writing, terminate the Customer’s right under Clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. SERVICES AND ACCEPTANCE
7.1 Selmach shall supply the Services to the Customer using reasonable care and skill and in accordance with the Specification in all material respects.
7.2 Selmach shall use all reasonable endeavours to meet any performance dates for the Services agreed between the parties in writing, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 Where the Services include installation, testing, commissioning and training, Selmach shall notify the Customer once all of the Goods have been installed, tested and commissioned, and the training completed. As soon as practicable and in any event without undue delay, upon receipt of such notice, the Customer shall sign the commission completion form (in such form as is used by Selmach from time to time) issued by Selmach, to confirm that the Goods have been delivered and Services have been completed in accordance with the Contract (Acceptance) Acceptance does not affect the Customer rights under the Goods warranty at clause 5.1. If a commission completion form is not signed by the Customer, any use of the Goods by the Customer following completion of installation, testing, commissioning and training by Selmach shall constitute Acceptance. Following Acceptance, without affecting the Customer rights under the Goods warranty at clause 5.1, Selmach shall have no liability to the Customer in respect of the Goods or Services.
7.4 Where the Services include maintenance services the Customer shall, throughout the period of the Contract:
(a) take good care of the Goods and operate the same in a proper manner consistent with Selmach’s (or any third party’s) oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(b) ensure all user routine maintenance on the Goods is completed by a suitably qualified individual, and maintain a written record of the same;
(c) order and pay for such consumable items as Selmach shall require to operate and use the Goods;
(d) permit Selmach and any person authorised by Selmach to have safe uninterrupted access to the Goods at all reasonable times when required to carry out its duties hereunder.
7.5 Where the Services include maintenance services, the scope of such services does not include:
(a) user routine maintenance;
(b) work on material, equipment or goods other than the Goods identified in the Sales Order Confirmation;
(c) repairs required as a result of accident or misuse, or by the neglect, act or default of the Customer or any other user of the machinery (including if there is a failure to undertake routine user maintenance), or by any factor external to the relevant Goods.
7.6 Services will be provided by Selmach during Selmach’s normal working hours. In the event that Selmach agrees to provide Services outside normal working hours the Customer agrees to pay Selmach, in addition to the relevant price, Selmach’s standard extra charge for the provision of Services outside normal working hours.
8. CUSTOMER’S OBLIGATIONS
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;
(b) co-operate with Selmach in all matters relating to the performance of the Contract;
(c) provide Selmach, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Selmach to perform the Contract;
(d) provide Selmach with such information and materials as Selmach may reasonably require in order to supply the Goods and/or Services, and ensure that such information is complete and accurate in all respects;
(e) prepare the relevant site for the delivery of Goods and the supply of the Services and provide suitable access to and unhindered possession of the site at which any installation (or other) services are to be carried out by Selmach, including a clear and safe working area;
(f) be responsible for the supply of all electrical or other service or utility connections that are required for the performance of the Services or the use of the Goods. Goods are supplied with standard utility connection components as referred to in the Specification;
(g) obtain (before the date on which the Services are to start) and maintain all necessary licences, permissions and consents which may be required in connection with the Goods and/or Services;
(h) comply with all applicable laws, including health and safety laws, and ensure all statutory inspections and risk assessments are undertaken with written evidence of completion prior to delivery of the Goods or provision of the Services;
(i) keep all materials, equipment, documents and other property of Selmach (Selmach Materials) at the Customer’s premises in safe custody at its own risk, maintain Selmach Materials in good condition until returned to Selmach, and not dispose of or use Selmach Materials other than in accordance with Selmach’s written instructions or authorisation;
(j) comply with any additional obligations as set out in the Specification;
(k) ensure that all Goods are positioned, levelled, installed, commissioned and operated by competent and appropriately trained technicians (save where Selmach has agreed to perform these as part of the Services); and
(l) ensure that all staff, workers and contractors who are to use or work on the Goods are appropriately trained.
8.2 If Selmach’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Selmach shall have the right to suspend performance of the Contract until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Selmach’s performance of any of its obligations;
(b) Selmach shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Selmach’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
(c) the Customer shall reimburse Selmach on written demand for any costs or losses sustained or incurred by Selmach arising directly or indirectly from the Customer Default.
8.3 Without prejudice to Selmach’s other rights, if the Customer or any third party acting on behalf of (or as supplier to) the Customer causes a delay in the performance of the Contract which, in Selmach’s opinion, is material (Material Delay):
(a) Selmach may confirm to the Customer in writing that a Material Delay has arisen for the purpose of this clause; and
(b) Selmach shall be entitled to invoice the Customer for any Goods, and any work carried out by Selmach in connection with the Contract, and any other costs or losses sustained or incurred by Selmach arising directly or indirectly from the Material Delay, and the Customer shall pay such invoice within 30 days of receipt, in each case without affecting Selmach’s rights under clause 4.4.
9. CHARGES AND PAYMENT
9.1 Unless otherwise agreed in the Sales Order Confirmation, Selmach shall be permitted to invoice the Customer:
(a) for the price of the Goods before, on or after delivery of Goods; and
(b) for the price of the Services before, on or after commencement of Services.
9.2 The price for Goods and Services shall be the price set out in the Sales Order Confirmation and (unless otherwise agreed in the Sales Order Confirmation) is exclusive of all costs and charges relating to the packaging, insurance and transport of the Goods.
9.3 Selmach shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Selmach engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses.
9.4 Selmach reserves the right to:
(a) increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date;
(b) increase the price of the Goods and/or Services, by giving notice to the Customer at any time to reflect any increase in the cost to Selmach of performing the Contract that is due to:
(i) any factor beyond the control of Selmach (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the Delivery Date(s), quantities or types of Goods ordered, or the Specification; or
(iii) any delay caused by any instructions of the Customer in or failure of the Customer to give Selmach adequate or accurate information or instructions in respect of the Goods or Services.
9.5 The Customer shall pay each invoice submitted by Selmach:
(a) within 30 days of the date of the invoice, unless otherwise agreed in the Sales Order Confirmation or separately between the parties in writing (including in connection with advance or pro-forma payments); and
(b) in full and in cleared funds to a bank account nominated in writing by Selmach, and
time of payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Selmach to the Customer, the Customer shall, on receipt of a valid VAT invoice from Selmach, pay to Selmach such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods or both, as applicable, at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to Selmach under the Contract by the due date, then, without limiting Selmach’s remedies under clause 13, Selmach is entitled to:
(a) cancel the balance, if any, of the Order and to recover from the Customer damages for any loss suffered by Selmach as a result of such cancellation; and/or
(b) retain any deposit monies paid by the Customer; and/or
(c) cancel any other Order(s) which Selmach may have accepted and to recover from the Customer any loss suffered by Selmach as a result of such cancellation; and/or
(d) enter the Customer’s premises to repossess any Goods in which Selmach retains title; and or
(e) recover from the Customer interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 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%.
9.8 All amounts due from the Customer under the Contract 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).
9.9 Selmach may at any time without notice set off any liability of the Customer to Selmach against any liability of Selmach to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in the Goods and any deliverables, and in or arising out of or in connection with the Services, including in all drawings, patterns, data, literature photographs, illustrations, specifications, performance data, dimensions, weights, manufacturing and operating techniques, and similar materials or information created or developed by or on behalf of Selmach, shall (as between the parties) be the property of Selmach. To the extent that those rights do not vest in Selmach (or its suppliers) pursuant to this clause or automatically by law, the Customer hereby assigns (by way of present and future assignment) all such Intellectual Property Rights to Selmach.
10.2 The Customer grants Selmach a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Selmach for the term of the Contract for the purpose of providing the Services to the Customer.
10.3 The Customer shall not alter or deface any of Selmach’s (or any manufacturer’s) trademarks as included on the Goods when the Goods are so marked, or apply to them any other trademark of written matter which is likely to adversely affect the reputation of Selmach or the manufacturer.
11. DATA PROTECTION
11.1 The following definitions apply in this clause 11:
(a) Agreed Purposes means the performance by each party of its obligations under the Contract.
(b) controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures are as defined in the Data Protection Legislation.
(c) Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
(d) Permitted Recipients: the parties to the Contract, the employees of each party, any third parties engaged to perform obligations in connection with the Contract.
(e) Shared Personal Data: the personal data to be shared between the parties in connection with the Contract.
(f) UK GDPR means has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
11.2 This clause sets out the framework for the sharing of personal data between the parties as controllers. Each party acknowledges that one party (referred to in this clause as the Data Discloser) may disclose to the other party Shared Personal Data collected by the Data Discloser for the Agreed Purposes.
11.3 Each party shall comply with all the obligations imposed on a controller under the Data Protection Legislation
11.4 Each party shall:
(a) ensure that it has all necessary notices and consents and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients for the Agreed Purposes, and process personal data in accordance with those documents. Selmach’s current Customer Privacy Notice is available on request;
(b) process the Shared Personal Data only for the Agreed Purposes;
(c) not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
(d) ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this agreement;
(e) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
(f) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with the Information Commissioner or other regulators;
(g) provide the other party with reasonable assistance in complying with any data subject rights request; and
(h) at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the Shared Personal Data.
11.5 The Customer irrevocably consents to Selmach:
(a) appointing and using from time to time of any third party processors for the processing of personal data of the Customer (including IT providers, sub-contractors, accountants and manufacturers of the goods); and
(b) transferring personal data outside of the UK, provided that the transfer is in accordance with Data Protection Legislation.
12. LIMITATION OF LIABILITY
12.1 References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; and
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
12.3 Subject to clause 12.2, Selmach’s total liability to the Customer under or in connection with the Contract shall not exceed the aggregate price of the Goods and/or Services referred to in the Sales Order Confirmation.
12.4 Subject to clause 12.2, Selmach shall not be liable to the Customer for any of the following types of loss:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of use or production;
(e) loss of anticipated savings;
(f) loss of use or corruption of software, data or information;
(g) loss of or damage to goodwill; and
(h) indirect or consequential loss.
12.5 Selmach shall not be liable to the Customer for any loss, damages, costs or expenses that arise as a result of any act or omission of the Customer.
12.6 This clause 12 shall survive termination of the Contract.
13. INDEMNITY
13.1 The Customer shall indemnify Selmach against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Selmach howsoever arising out of or in connection with:
(a) any claim made against Selmach by a third party for death, personal injury, damage to property or otherwise, arising as result of any act or omission of the Customer or its personnel, agents, subcontractors or consultants;
(b) any damage to Selmach’s property caused by an act or omission of the Customer or its personnel, agents, subcontractors or consultants;
(c) any breach of the Contract by the Customer or its personnel, agents, subcontractors or consultants, or any act, omission, negligence or wilful misconduct on the part of the Customer or its personnel, agents, subcontractors or consultants; and
(d) the enforcement of this Contract or any part of it by Selmach, including any legal costs arising in connection with a claim made by Selmach for breach of the Contract.
13.2 This clause 13 shall survive termination of the Contract.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, Selmach may terminate the Contract for convenience at any time by giving the Customer not less than 14 days’ written notice.
14.2 Without affecting any other right or remedy available to it, Selmach may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment;
(b) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of the Customer being notified in writing to do so;
(c) 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), obtaining a moratorium, 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;
(d) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
(e) the Customer or anyone appointed to act on the Customer’s behalf displays unprofessional conduct such as abusive language towards Selmach or any of Selmach’s employees or sub-contractors;
(f) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy; or
(g) there is a change of control of the Customer (where control has the meaning given in section 1124 of the Corporation Tax Act 2010).
14.3 Without affecting any other right or remedy available to it, Selmach may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Selmach if the Customer fails to pay any amount due under the Contract on the due date for payment, or the Customer commits or becomes subject to any of the actions or events listed in clause 14.2(a) to clause 14.2(e), or Selmach reasonably believes that the Customer is about to commit or become subject to any of them.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
(a) the Customer shall immediately pay to Selmach all of Selmach’s outstanding unpaid invoices and interest and, in respect of Goods and Services supplied but for which no invoice has been submitted, Selmach shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of Selmach Materials or Goods which have not been fully paid for. If the Customer fails to do so, then Selmach may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. CONFIDENTIALITY
16.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 16.2.
16.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. 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 16; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
17. FORCE MAJEURE
(a) Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(i) acts of God, flood, drought, earthquake or other natural disaster;
(ii) epidemic or pandemic;
(iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(iv) nuclear, chemical or biological contamination or sonic boom;
(v) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(vi) collapse of buildings, fire, explosion or accident;
(vii) non-performance by or delays on the part of suppliers or subcontractors;
(viii) any shipping or transport delays not caused by that party; and
(ix) interruption or failure of utility service.
(b) If a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
(c) If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 3 months, the party not affected by the Force Majeure Event may terminate this agreement by giving 30 days’ written notice to the Affected Party.
18. GENERAL
18.1 Assignment and other dealings
(a) Selmach may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Selmach.
18.2 Notices.
(a) Any notice given to a party under or in connection with the Contract 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 addresses confirmed between the parties for such purposes.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission, or, if this time falls outside the hours of 9.00 am to 5.00 pm on any Business Day (Business Hours) in the place of receipt, when Business Hours resume.
(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.
18.3 Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 18.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
18.4 Waiver.
(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
18.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties.
(b) Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
18.7 Third party rights.
(a) The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
18.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
18.9 Governing law. The Contract 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.
18.10 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 the Contract or its subject matter or formation.