General Terms and Conditions
General Terms and Conditions (GTC) of UNTHA UK LIMITED
– these General Terms and Conditions are part of the contract for the sale of goods and services –
Updated: 14 November 2024
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO CLAUSE 10 OF THESE TERMS AND CONDITIONS
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or Services, consisting of the General Arrangement Drawing, the Sales Order, the Order Confirmation, and any documents attached to or referred to in them, and incorporating these Conditions.
Costs: has the meaning given in clause 8.3
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Customer Default: any act or omission of the Customer which results in the Supplier being prevented from or delayed in delivering the Goods and/or performing the Services, including those matters set out in clauses 4.6(b) to (g), or any breach by the Customer of any of its obligations pursuant to the Contract.
Extended Warranty Terms: the terms applicable to the extended warranty provided in respect of the Goods (if the Customer chooses to purchase the extended warranty).
Force Majeure Event: any event beyond a party’s, or any holding company (as defined in s1159 Companies Act 2006) of any party’s, reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
General Arrangement Drawing: the document setting out details of the Goods and Services, as issued by the Supplier to the Customer for approval.
General Warranty Terms: the standard warranty terms that apply to Goods once paid for in full, as provided to the Customer by the Supplier.
Goods: the goods (or any part of them) set out in the Order Confirmation.
Initial Payment: has the meaning given in clause 8.5.
Location: has the meaning given in clause 4.1.
Normal Working Hours: 08:00 to 17:00 on Monday to Thursday and 08:00 to 15:30 on Friday, except for public holidays.
Order Confirmation: the document of the same name issued and signed by the Supplier to the Customer confirming the Customer’s order and summarising the key details of the Goods and Services.
Price: has the meaning given in clause 8.1.
Sales Order: the document issued by the Supplier to the Customer setting out the details of the Goods and Services, these Conditions, any Variable Terms & Conditions, the General Warranty Terms and the Extended Warranty Terms (if applicable).
Services: the services to be performed in relation to the Goods by the Supplier as set out in the Order Confirmation, or as otherwise agreed between the Supplier and the Customer in writing.
Specification: the specification setting out the details of the Goods, including any related plans and drawings, as set out or referred to in the Order Confirmation.
Supplier: UNTHA UK Limited (registered in England and Wales with company number 04545791 and registered office address at Excel House Becklands Close, Bar Lane Roecliffe, Boroughbridge, York, YO51 9NR)
Variable Terms & Conditions: the terms and conditions which are particular to the supply of Goods and Services to the Customer, as included within the Sales Order (if applicable).
1.2 Construction. In these Conditions, the following rules apply:
(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 or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes emails.
2. BASIS OF CONTRACT
2.1 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 trade, custom, practice or course of dealing.
2.2 The Order Confirmation constitutes an offer by the Supplier to supply the Goods and/or Services in accordance with these Conditions. The Order Confirmation is based on information provided by the Customer, and the Customer is responsible for ensuring that the Order Confirmation is (and the documents referred to in it are) complete and accurate.
2.3 The Order Confirmation shall be deemed to be accepted when (i) the Customer countersigns and returns the Order Confirmation to the Supplier and (ii) the Supplier receives the Initial Payment (whether from the Customer or its funder), or if the Order Confirmation provides for a Letter of Credit to be provided instead, upon issuance of that Letter of Credit in accordance with the Order Confirmation, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 If there is any conflict between the provisions of any of the documents which constitute the Contract, the conflict shall be resolved by reference to the following descending order of priority:
(a) the Order Confirmation;
(b) the Sales Order (and within the components of the Sales Order, the following descending order of precedence applies:
(i) the body of the Sales Order;
(ii) Extended Warranty Terms (if any);
(iii) Variable Terms & Conditions;
(iv) the General Warranty Terms; and
(v) these Conditions;
(c) the General Arrangement Drawing.
2.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier other than the Order Confirmation, Sales Order or General Arrangement Drawing, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force. Any figures provided as to throughput capability of the Goods are illustrative only and are not binding, unless the Supplier has carried out adequate testing specifically for the Customer as detailed in the Order Confirmation, in which case those figures are only applicable to the particular type of throughput material used in the testing.
2.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue unless agreed in writing by the Supplier.
2.8 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3. GOODS
3.1 The Supplier shall supply the Goods on the terms set out in the Contract and in accordance with the Specification (if applicable).
3.2 The Supplier reserves the right to make any changes to the Specification, design, materials or finishes of the Goods in order to ensure that they comply with applicable statutory or regulatory standards.
3.3 Notwithstanding clause 3.2 above, any variation to the Specification, design, materials or finishes of the Goods which in the Supplier’s reasonable option does not adversely affect the suitability of the Goods for the purpose required by the Customer shall not constitute a breach of the Contract or impose any liability on the Supplier.
3.4 The ownership of all copyright in any drawings of the Goods issued by the Supplier including the General Arrangement Drawing shall remain at all times with the Supplier.
4. DELIVERY OF THE GOODS
4.1 Delivery of the Goods shall be made in accordance with the applicable Incoterms® 2010 delivery term, and to the location (Location), set out in the Order Confirmation, and in the absence of any such delivery term being specified, FCA (Incoterms® 2010) Excel House Becklands Close, Bar Lane Roecliffe, Boroughbridge, York, YO51 9NR.
4.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Location.
4.3 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.
4.4 Any dates quoted for delivery of the Goods in the Order Confirmation are approximate only, and the time of delivery is not of the essence. Where a delay in delivery of the Goods is caused by a reason not listed in clause 4.6(a) to (f) below, the Supplier shall notify the Customer of any revised delivery date within a reasonable period of becoming aware of such delay.
4.5 The Customer shall obtain all licences, consents, declarations and any other documentation needed for delivery of the Goods to be completed, and provide copies or evidence of the same to the Supplier upon request.
4.6 Notwithstanding clause 4.4 above, the Supplier shall not be liable for any delay in delivery of the Goods that is caused by:
(a) a Force Majeure Event;
(b) 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;
(c) the Customer’s failure to allow sufficient access to the Location and other facilities and documentation as reasonably required to enable the Supplier or its employees or agents to deliver the Goods;
(d) the Customer’s failure to prepare the Location to allow for sufficient access to and egress from the Location for the delivery of the Goods by the Supplier, its employees, agents, consultants and sub-contractors;
(e) the Customer’s failure to obtain and maintain all necessary licences, permissions and consents which may be required for the delivery of the Goods before the date on which the Goods are to be delivered; or
(f) the Customer’s failure to perform any of its obligations as instructed by the Supplier, or set out in any document forming part of the Contract, including in respect of operational conditions, utility connections and air supply.
4.7 If there is a Customer Default:
(a) the Supplier shall without limiting its other rights or remedies have the right to delay delivery of the Goods or any instalment thereof 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;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s delay of delivery of the Goods, including any laytime, demurrage or similar costs; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default, including in relation to storage and insurance of the Goods, and any laytime, demurrage or similar costs.
4.8 If 3 Business Days after the day the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, 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 the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until the Customer is ready to accept them, and charge the Customer for all related costs and expenses (including insurance).
4.9 If 10 Business Days after the day the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken 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, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5. SUPPLY OF SERVICES
5.1 The Supplier shall perform the Services for the Customer in accordance with the Contract in all material respects.
5.2 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
5.3 The Supplier shall perform the Services at the Location, and shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such instance.
5.4 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Location, other Customer’s premises and other facilities as reasonably required by the Supplier to perform the Services;
(c) ensure that the Location and/or other Customer’s premises (and related vehicular access and egress) are safe and comply with all health and safety legislation, best practices and other legal requirements from time to time in force;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require to perform the Services, and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(f) perform its obligations set out in the Contract; and
(g) at its own cost, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to these Conditions and use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to these Conditions.
5.5 If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed due to a Customer Default:
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services 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 to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations pursuant to this clause 5.5; and
(c) the Customer shall reimburse the Supplier on written demand for any costs, claims, liabilities, damages, expenses and losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. QUALITY OF GOODS
6.1 The Supplier provides the warranty set out in, and subject to the terms of, the General Warranty Terms in respect of any Goods which constitute Machinery.
6.2 Unless UKCA certified, the machine component of the Goods bears a Declaration of Incorporation indicating:
(a) that it may only be put into circulation for the purpose of installation in a machine (plant) or for assembly with other machines or machine components;
(b) that taking into operation of the component will be prohibited until a declaration of conformity for the entire machine exists in accordance with the Machine Safety Regulation, Federal Law Gazette II no. 282/2008, and Machinery Directive 2006/42/EG as amended by. Due its type (open interface to other machines), the machine component does not comply fully with the Machinery Directive and the Customer shall be responsible for proceeding according to the above (proper and directive-conforming connection to other machine components). The Supplier does not assume any obligation for CE certification of the entire system or parts thereof. Any costs of CE certification outside this scope of supply will not be borne by the Supplier.
6.3 Except as set out in these Conditions, the Supplier gives no warranties and makes no representations in relation to the Goods, and shall have no liability for their failure to comply with the General Warranty Terms or warranties in clause 6.2, and all warranties and conditions (including the conditions implied by sections 13 to 15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
6.4 Unless otherwise expressly agreed in writing by the parties, the Supplier accepts no responsibility or liability for the Customer’s choice of Goods and Services and does not warrant that they will be suitable for the Customer’s purposes (whether expressly or impliedly made known to the Supplier or not).
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery of the Goods.
7.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if the Customer becomes subject to any of the events listed in clause 9.2;
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
(g) not resell the Goods,
but the Customer may use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods 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.
8.PRICE AND PAYMENT
8.1 The price of the Goods and/or Services shall be the price set out in the Order Confirmation (Price).
8.2 The Supplier may, by giving notice to the Customer at any time up to 30 Business Days before the proposed delivery date (as set out in the Order Confirmation or otherwise agreed between the parties), increase the Price to reflect any increase in the cost of the Goods and/or Services that is due to:
(a) any factor beyond the Supplier’s control (including increases in taxes and duties, increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change any of the following after the Order Confirmation is issued and to which the Supplier in its discretion agrees: 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, or caused by the Customer failing to pay an instalment of the Price on time.
8.3 The Price is exclusive of the costs and charges of packaging, insurance, export and transport of the Goods and any plant hire costs (Costs), which shall additionally be invoiced to and payable by the Customer. The Customer shall be responsible for payment of any import duties which are applicable upon delivery of the Goods to the Customer.
8.4 The Price is exclusive of amounts in respect of value added tax (VAT) or other equivalent tax chargeable in the UK or elsewhere. The Customer shall, on receipt of a valid VAT or other tax invoice from the Supplier, pay to the Supplier such additional amounts as are chargeable on the supply of the Goods and/or Services. If a finance option has been put in place, VAT will be paid by the third-party funder at the point of delivery, or directly by the Customer before delivery unless otherwise agreed between the parties in writing.
8.5 Unless otherwise specified in the Order Confirmation the Customer will pay to the Supplier an initial payment of 30% of the Price, Costs and VAT or other tax thereon (or such other amount as may be specified in the Order Confirmation) (Initial Payment) within 7 days of the date of the Order Confirmation, and the balance of the Price, Costs and VAT or other tax thereon by 14 days prior to the proposed date of dispatch of the Goods as notified by the Supplier to the Customer(and if the Goods are to be dispatched in instalments, the balance of the total Price, Costs and VAT or other tax for all Goods is payable prior to the date that the first instalment is to be dispatched).
8.6 The Supplier shall not be obliged to start performing the Contract until the Initial Payment has been received by the Supplier in cleared funds or the Letter of Credit has been issued in accordance with the Order Confirmation (as applicable), and the Supplier shall not be obliged to deliver the Goods to the Customer until payment for the Goods has been made in full (or the Letter of Credit has been accepted by the advising bank and the documentation required by the terms of the Letter of Credit is in place (as applicable). The Price and the estimated timescales to dispatch are subject to the Initial Payment being paid (if applicable) (within 7 days of the date of the Order Confirmation. Accordingly, any delay in the foregoing may delay delivery of the Goods (including by more than the length of delay in payment) and may result in an increased Price. In the event of any conflict between the provisions of a Letter of Credit and these Conditions, the relevant provision of the Letter of Credit shall prevail to the extent of such conflict only.
8.7 Payment shall be made to the bank account nominated in writing by the Supplier. If the Customer pays by cheque, the Supplier may charge the Customer an additional amount equal to 2% of the amount so paid, which shall be payable at the same time as the corresponding payment. Time of payment is of the essence for all sums due to the Supplier.
8.8 Without prejudice to clause 8.5, if the Customer has any query in relation to any invoice, it must raise this with the Supplier (including with full details of the query) no later than 14 days after the date of invoice.
8.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8.10 The Customer acknowledges that each order is manufactured to order, and that accordingly the Supplier incurs significant cost upon starting to process each order. Accordingly, the Initial Payment is non-refundable, including upon termination of the Contract.
9. CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2(a)to clause 9.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(k) 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 the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE 10
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s 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;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1 the Supplier shall not be liable in contract, tort (including negligence) or otherwise howsoever for any claim (including without limitation a claim pursuant to an indemnity), damage, loss or costs in respect of:
(a) any direct loss of profit;
(b) any direct loss of anticipated savings;
(c) any indirect loss or damage howsoever caused including (without limitation):
(i) any indirect loss of profit;
(ii) loss of anticipated profit including loss of profit on contracts;
(iii) loss of anticipated savings;
(iv) loss of anticipated revenue;
(v) loss of opportunity;
(vi) loss of goodwill;
(vii) loss of reputation; and/or
(viii) loss of data,
and the parties agree that the sub-clauses of this clause 10.2 shall be severable.
10.3 Subject to clause 10.1, the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. If the Force Majeure Event hinders or delays a party’s performance of its obligations for a continuous period of more than 6 months, either party may terminate the Contract by giving written notice to the other party. Upon termination of the Contract under this clause 11, the Customer shall immediately pay the Supplier all work in progress costs incurred by the Supplier up to the point notice of termination is given (including manufacturing costs and costs of any materials that the Supplier has purchased specifically for the Order).
12. CONFIDENTIALITY
12.1 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 (or of any member of the group of companies to which the other party belongs), except as permitted by clause 12.2.
12.2. Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, contractors or subcontractors or advisors 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 advisors to whom it discloses the other party’s confidential information comply with this clause 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 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.
12.1 Assignment and subcontracting.
(a) The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at an email address specified to the other party in writing, its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3 Severance.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
12.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
12.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
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