GENERAL TERMS AND CONDITIONS
1. SCOPE AND INCORPORATION OF THE GENERAL TERMS AND CONDITIONS
These General Terms and Conditions shall apply to any Contract between the Supplier and the Customer concerning the Services and/or Parts and Components and/or Machinery. These General Terms and Conditions shall supersede and exclude any other terms and conditions of sale or purchase, confirmation or order, specification or any other document whatsoever and whenever provided, even if the Supplier has not explicitly excluded them.
Each order for Services and/or Parts and Components and/or Machinery by the Customer from the Supplier shall be deemed to be an offer by the Customer to purchase Services and/or Parts and Components and/or Machinery subject to these General Terms and Conditions. No order placed by the Customer shall be deemed to be accepted by the Supplier until a written acknowledgement of order is issued by the Supplier or (if earlier) the Supplier commences performance of the Services or manufacture or procurement of the Parts and Components and Machinery; or dispatches Parts and Components and or Machinery to the Customer. Any order shall be accepted entirely at the discretion of the Supplier.
The description of the Machinery, Parts and Components or Services shall be set out in the Supplier’s acknowledgement of order or, in its absence, the Supplier’s quotation.
All drawings, descriptive matter, specifications and advertising issued by the Supplier and any descriptions, details or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Parts and Components or Services described in them and they will not form part of the Contract unless otherwise agreed in writing.
Any quotation or estimate made by the Supplier is given subject to these General Terms and Conditions. Without prejudice to the Supplier’s right not to accept an order, quotations will be valid for thirty (30) days from the date of issue.
The object and scope of the Services, price, terms of payment, contract period as well as the other essential terms of the agreement are defined in the Contract. The Contract (including any Annexes and these General Terms and Conditions) shall supersede any and all prior agreements and understandings between the Parties in respect of the Services. Any variations, modifications to or deviations from these General Terms and Conditions and any representations about the Machinery and/ or Parts and Components and/or Services shall be agreed in writing by the parties.
The Supplier does not accept responsibility for civil works or foundations or for compliance with statutory regulations or by-laws or for the fulfillment of any special requirements binding upon the Customer. Where the Machinery is supplied for use in conjunction with equipment and / or structures which are not supplied by the Supplier, the customer shall be solely responsible for ensuring that such equipment and / or structures are in all respects suitable and adequate for the purpose, and are properly installed. The Supplier shall not be liable for any adaptation of its designs by someone other than the supplier to suit the Customers own circumstances.
The Customer can only cancel an order (or any part of an order) which the Supplier has already accepted, with the Supplier’s prior agreement in writing and provided that the Customer indemnifies the Supplier in full in terms established by the Supplier. The Supplier is not bound to agree to any such cancellation and may complete such order even if the Customer purports to cancel it.
2. DEFINITIONS
“Contract” shall mean the agreement between the Customer and the Supplier for the supply of Services and/or Parts and Components and/ or Machinery (including annexes if any) into which these General Terms and Conditions are incorporated.
“Customer” shall mean the legal entity or entities to which the Services are performed by the Supplier.
“Equipment” shall mean the equipment as determined exhaustively in the Contract that forms the object of the Services.
“Equipment Usage Data” shall mean any data relating to the Equipment and/or its usage collected and/or processed by the Supplier in connection with the Services.
“Field Modernisations” shall mean any retrofit and upgrade works performed to the Equipment by the Supplier.
“General Terms and Conditions” shall mean these general terms and conditions.
“Inspection and Consultation Services” shall mean any inspection and/or analysing and/or other consultation services performed by the Supplier (including but not limited to the compliance inspections, condition inspections, measuring services and equipment reliability surveys). Unless otherwise agreed, Inspection and Consultation Services are limited exclusively to the observations of the Equipment that the Supplier makes visually in accordance with the Service Methods during the performance of the Service and on the information provided by the Customer.
“Intellectual Property Rights” shall mean patents, utility models, trademarks (registered or unregistered), service marks, designs, copyrights (including software), database rights, moral rights, know-how, utility models and any similar right recognized from time to time in the relevant jurisdiction (regardless of their nature or type, whether or not registered) and, where relevant, any application for any such rights and including any modification, improvement or development of any such rights.
“Portable Electronic Tool” shall mean a portable electronic device and software used by Supplier’s personnel in connection with the Services (including but not limited to PDA’s and notebooks).
“Customer Portal” shall mean an internet-based customer portal to which the Supplier may from time to time give access to the Customer.
“Machinery” shall mean any crane, hoist or associated lifting device.
“Maintenance Service” shall mean any maintenance work and/or maintenance service performed by the Supplier (including but not limited to preventive maintenance and corrective maintenance).
“Normal Working Hours” shall mean the hours of 08:00–16:30 on any Working Day.
“On-call Services” shall mean the on-call support provided by the Supplier in accordance with the Contract in order to carry out unplanned Maintenance Services and/or Repairs.
“Parts and Components” shall mean parts, elements and/or components (including any Condition Monitoring Unit) included in or delivered in connection with the Services.
“Party” shall mean the Customer and/or the Supplier, as the case may be.
“Performance Obligation” shall mean any obligation set forth in the Contract based on which the compensation received by the Supplier is depended on the actual performance of the Equipment.
“Repair Services” shall mean preventive and/or corrective repair works performed by the Supplier to the Equipment.
“Report” shall mean reporting on any support (whether in writing, in electronic form or by way of system integration) and information included therein prepared by the Supplier in connection with the Services (including but not limited to inspection reports, maintenance reports, remote service reports, equipment reliability survey reports and safety alerts).
“Safety Alert” shall mean a Report that the Supplier shall provide the Customer without undue delay if, during the maintenance or inspection visit, the Supplier actually becomes aware of a condition that endangers the trouble-free operation of the Equipment or safety at work.
“Service Methods” shall mean Supplier’s methods for providing the Services defined exhaustively in the Contract.
“Service Objects” shall mean the objects defined exhaustively in the Contract to which the scope of the Services is limited.
“Services” shall mean any services relating to cranes, hoists, and other similar equipment (including but not limited to such Maintenance Services, Inspection and Consultation Services, Repair Services, Field Modernisations, On-call Services, Parts and Components and Machinery as are defined within the Contract as well as related Reports) as set out exhaustively in the Contract.
“Supplier” shall mean CraneServe Limited, registered number 08070667 or a sub-supplier appointed to perform the Services on behalf of it, as set forth in the Contract.
“Technical Documentation” shall mean the information concerning the Equipment, its application, use, safety, location and environment, including but not limited to the technical documentation, manuals, guides, drawings, descriptions, schemes and instructions as well as operating and service manuals.
“Visually” shall mean readily observable items apparent to the inspecting technician that are safely and conveniently accessible to the technician without dismantling the object.
“Working Day” shall mean any day other than Saturday, Sunday or bank or public holiday.
3. GENERAL OBLIGATIONS OF THE SUPPLIER
The Supplier shall perform the Services with reasonable care and skill and in accordance with the Contract in all material respects.
The Supplier 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.
The Services will be deemed to have been completed and the relevant element of the Contract price due and payable forthwith:
(a) When the Supplier issues written notice to the Customer confirming such completion; or
(b) If the Supplier is available to perform the Services but is prevented from doing so by reason of:
(i) lack of relevant assistance from the Customer (such as lack of availability to test components or parts and/ or Machinery from the Customer); and/or
(ii) the condition of the Customer’s premises on the site and/or the facilities at which the Services are to be provided at the time agreed for the performance of the Services.
4. TIMING AND DELAYS
The timing of the Services are estimates only and shall be agreed in the Contract. The Supplier shall use reasonable endeavours to meet these timings, however, time shall not be of the essence for the performance of the Services. Unless otherwise agreed, the Supplier shall perform the Services during the Supplier’s Normal Working Hours.
The Parties shall use their reasonable endeavors to ensure that the performance of the Services does not disturb Customer’s production.
The Supplier shall inform the Customer if the performance of the Services will be delayed. The Parties shall use their reasonable endeavors to agree upon a new timing for performing the delayed Services. In the event that the Customer’s production will be interrupted due to a delay notified by the Supplier, the Customer has, at its risk and expense, the right to perform or subcontract such service task. The Supplier shall be liable to return to the Customer any payments that the Supplier has received for such non- performed service tasks. Subject to Section 17 under no circumstances shall the Supplier be liable for any other costs, losses or damages whatsoever relating to the delay.
The Customer shall ensure that production does not disturb or endanger the performance of the Services. In case the performance of the Services shall be delayed for any reason not imputable to the Supplier, the Customer shall compensate any additional costs incurred by the Supplier in connection with such delay. In addition, any relevant other timings and Performance Obligations shall be adjusted accordingly.
5. PRICE AND PAYMENT
Unless otherwise agreed by the Supplier in writing the price for Services and/or Parts and Components and/or Machinery shall be the price set out in the Supplier’s price list published on the date of completion or deemed completion of performance of the Services or the date of delivery or deemed delivery of Parts and Components and / or Machinery.
Unless otherwise agreed in writing the price for the Services and/or Parts and Components and / or Machinery shall be exclusive of any value added tax or other similar taxes or levies and all costs or charges in relation to packaging, labeling, loading, unloading, carriage, freight and insurance all of which amounts the Customer will pay, where appropriate, in addition when it is due to pay for the Services and/or Parts and Components and / or Machinery.
The Supplier may deliver the Machinery by separate installments. Each separate installment, including any deposits due with order, shall be invoiced and paid for in accordance with the provisions of these conditions.
The failure of the Customer to pay for one or more of the said installments of the Machinery on the due dates shall entitle the Supplier (at the sole discretion of the supplier);
- Without notice to suspend further deliveries of the Machinery pending payment by the Customer; and / or
- To treat this contract as repudiated by the Customer.
Payment of the price for the Services (and/or Parts and Components and/or Machinery) is due 30 days after the date of the invoice unless otherwise agreed in writing.
Time for payment shall be of the essence.
The Customer shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise.
If any sum due from the Customer to the Supplier under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Customer to the Supplier shall become due and payable immediately and, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
(a) cancel or suspend its performance of the Contract or any order including suspending deliveries of the Parts and Components and suspending delivery of any other goods to the Customer and suspending provision of the Services or other services until arrangements as to payment or credit have been established which are satisfactory to the Supplier;
(b) appropriate any payment made by the Customer to such of the Parts and Components or such of the Services (or any goods or services supplied under any other contract between the Customer and the Supplier) or as the Supplier may think fit;
(c) require the Customer to pay for Parts and Components and/ or Machinery prior to their dispatch or collection from the Supplier’s place of business;
(d) suspend performance of Services remaining to be carried out; and
(e) charge the Customer:
(i) interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of eight per cent (8%) per annum above the three-month sterling LIBOR rate prevailing from time to time until payment is made in full; and
(ii) The cost of obtaining judgment or payment to include all reasonable professional costs (including legal fees) and other costs of issuing proceedings or otherwise pursuing a debt recovery procedure.
Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the seller until the seller has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the seller to the buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer.
6. TECHNICAL DOCUMENTATION
The Customer shall provide the Supplier in due time before as well as during the performance of any Services with the Technical Documentation as the Supplier may reasonably require to enable it to carry out the Services.
7. REPORTING
The Supplier shall provide the Customer with Report(s) as set forth in the Contract. Unless otherwise agreed, the Supplier reserves absolute discretion regarding the technology through which the Report is provided, and shall not be responsible or liable in any circumstances whatsoever for Customer’s technology, electronic distribution channels or any problems arising from incompatibility in Data Communication.
The Customer accepts and agrees that the findings included in the Report(s) are based exclusively on the Service Methods and limited only to the Service Objects in the Equipment. The conditions identified during the Services are reported by the Supplier in the Report derived there from are representative of the conditions of the Components as they appeared during the Services. These conditions can and will change immediately following operation of the Equipment after which the Supplier shall not be liable for the accuracy or completeness of the information contained in the Report.
The Customer further accepts and agrees that the Supplier shall not actively monitor, inspect or otherwise follow any Equipment, Equipment Usage Data, Report including Equipment Usage Data or other information that is generated by using Control Monitoring Unit, Data Connection and/or otherwise. Any such Equipment Usage Data, Report and/or other data shall be created and provided to the Customer on “as is” and as available basis and without warranties of any kind either express or implied made in relation to the correctness, accuracy or reliability of such Equipment Usage Data, Report and/or other data.
Unless otherwise agreed in the Contract, the decision concerning whether or not to repair or replace the Components and/or Equipment lies exclusively with the Customer. By preparing the Report the Supplier expressly recommends that the Customer authorise the repair and/or replacement of the Equipment and/or Component identified during the performance of the Services or listed in the Report derived there from as deficient in any manner or degree prior to operating the Equipment.
8. SITE RESPONSIBILITIES OF THE CUSTOMER
The site responsibilities of the Customer shall be agreed in the Contract. Where the Supplier is to perform the Services at the Customer’s site or premises, unless otherwise agreed, the Customer shall at its own cost, provide the Supplier with: (i) the safe access to the Equipment; (ii) the equipment, lifts, installations, appliances and scaffolding necessary for accessing the Equipment; (iii) the required materials handling and lifting equipment; (iv) electricity, water and compressed air required to carry out the Services; (v) waste management; and (vi) facilities for the maintenance personnel such as washroom and dressing room; and such other facilities or supplies for the Supplier’s employees or agents required by any applicable legislation and as the Supplier may reasonably require.
The Customer accepts and agrees that the Supplier may at its sole discretion use any Portable Tool in connection with the Services. Any signature that the Customer’s representative makes by using a Portable Tool shall be deemed to bind the Customer as any written signature.
9. SAFETY
The Supplier shall comply with the site safety instructions communicated by the Customer. Both Parties shall provide personal safety and protective equipment for their respective employees.
The Customer shall take all necessary steps to provide for a safe work site and arrange for the safety measures (including site specific safety and protective equipment) required by applicable health, safety and environmental legislation so that any and all Services can be performed safely. The Customer shall be responsible for any fire safety related precautions.
The Customer shall provide the applicable site safety instructions in writing to the Supplier prior to commencement of any Services. The Supplier may at its sole discretion provide Supplier’s safety instructions for Customer’s acceptance that shall not be unreasonably withheld.
The Customer shall keep the Supplier’s personnel informed about the site safety instructions and the risks associated with the site, Equipment, Customer’s tools and/or third parties.
The Supplier is entitled to refuse to carry out Services, if the performance of such Services could affect the safety of the employees of the Supplier, the Customer or any third party, if the Customer has not provided the valid site safety instructions or information and/or the Customer has not approved Supplier’s safety instructions or does not comply with them.
10. TRANSFER OF RISK AND OWNERSHIP
The risk of damage to or the loss of the Parts and Components and /or Machinery shall pass to the Customer upon delivery to the Customer’s site. Full legal, beneficial and equitable title to and property in the Parts and Components and /or Machinery shall remain vested in the Supplier (even though the Parts and Components and/ or Machinery have been delivered and risk has passed to the Customer) until: (a) the total price for the Parts and Components has been paid in full; and (b) all other money payable by the Customer to the Supplier on any other account or under the Contract or any other contract has been received by the Supplier in cleared funds.
Until full legal title to and property in the Parts and Components and/or Machinery passes to the Customer: (a) the Customer shall hold the Parts and Components and /or Machinery on a fiduciary basis as the Supplier’s bailee; (b) the Customer shall store the Parts and Components and / or Machinery at its premises in a proper manner in conditions which adequately protect and preserve the Parts and Components and / or Machinery separately from any other goods (whether or not supplied by the Supplier) and ensure that they are clearly identifiable as belonging to the Supplier and shall insure them, without any charge to the Supplier; (c) the Supplier may at any time, on demand and without prior notice, require the Customer to deliver the Parts and Components and/ or Machinery up to the Supplier and the Supplier may repossess and resell the Parts and Components and/or Machinery if any of the events specified in Section 19 occurs or if any sum due to the Supplier from the Customer under the Contract or on any other account or under any other contract is not paid when due; and (d) the Supplier shall be entitled to maintain an action against the Customer for the price of the Parts and Components an d/ or Machinery notwithstanding that legal, equitable and beneficial title to and property in the Parts and Components and/ or Machinery has not passed to the Customer.
For the purposes of this Section 10 the Supplier, its employees, agents and sub-contractors will be entitled to free and unrestricted access to any premises owned, occupied or controlled by the Customer and/or any other location where any of the Parts and Components and/ or Machinery are situated at any time without prior notice.
Risk in the Equipment shall at no time transfer to the Supplier in connection with the Services.
11. CHANGES
The Customer shall inform the Supplier without delay, if the Equipment or its operation, purpose of operation or operating environment changes. If the scope and/or object of the Services or Equipment are modified, the Parties shall agree in writing on the effects that such modification has on price and other terms of the Contract.
12. CUSTOMER PORTAL
If agreed in the Contract, the Supplier shall provide the Customer with an access to the Customer Portal. The Customer undertakes to act in strict compliance with the applicable customer portal terms of use that are be applicable from time to time. Such terms shall be available in the Customer Portal and provided to the Customer upon request.
The Customer expressly accepts and agrees that the Customer Portal shall be provided “as is” and as available basis and without warranties of any kind either express or implied made in relation to the correctness, accuracy or reliability of the Customer Portal. The Supplier does not warrant that the Customer Portal or the related data transfer or the server that makes the service available are free from viruses or other harmful components. The Supplier does not warrant that the Customer Portal will be uninterrupted or error-free. The Supplier reserves the right to revise Customer Portal or withdraw access to them at any time.
13. DATA CONNECTION
The Supplier shall use its reasonable endeavors, at all times subject to availability, to arrange and maintain the Data Connection as required by the Contract. Unless otherwise agreed, the Customer shall be responsible for any and all costs related to the building up of Data Connection as well as transfer of data through the Data Connection.
The Customer shall be responsible, at its own cost, for providing access to Supplier through its own IT environment (including but not limited to data communication network as well as related hardware and software licenses) to the extent required by the Services. In addition, the Customer shall be responsible for its own software and hardware required for the data security and safe use of and access to the Customer’s IT environment (including but not limited to CMU and/or other devices used for collecting Equipment Data).
Notwithstanding the foregoing, the Supplier shall have no liability for any claim of unauthorised access to Customer’s IT environment, or for unauthorised access to, or alteration, theft or destruction of Customer’s or any third party’s data files, programs, procedures or information through accident, fraudulent means or devices, or any other method or for Customer’s network security policies and security violation response procedures, network security or security incidents, design or comprehensiveness of any security program or any security services including those provided by other providers or professionals chosen by Customer.
14. WARRANTY
14.1. Technical Warranty
The warranty period in respect of Maintenance Services, Repair Services and Field Modernisations is three (3) months from the date of performance of such Services.
The Supplier warrants that the Maintenance Services, Repair Services and Field Modernisations shall be (i) performed in accordance with the Contract and (ii) carried out using reasonable care and skill.
14.2. Warranty for Consultation Services and On-Call Services
The Supplier warrants on the date of the performance that the Inspection and Consultation Services and On-call Services shall be (i) performed in accordance with the Contract and (ii) carried out using reasonable care and skill. Notwithstanding the foregoing, the Supplier hereby expressly disclaims any warranty whatsoever, whether express or implied, with respect to the Equipment.
14.3. Warranty for Parts and Components and /or Machinery
The Supplier warrants for a period of six (6) months from the date of the delivery of the Parts and Components and/or Machinery that they are free from material defects in design, materials or workmanship. Notwithstanding the foregoing, the Supplier warrants for a period of three (3) months from the delivery that any Parts and Components and/ or Machinery including software functions materially in accordance with the Contract. However, the Supplier gives no warranty that any software included in the Parts and Components and / or Machinery will be free from faults or give any warranty in relation to the Intellectual Property Rights associated with such software.
14.4. Exclusions to the Warranty
The liability of the Supplier under this Section 14 (Warranty) does not cover any defects arising from: (i) reasons not due to the Supplier; (ii) the Customer’s failure to follow the Supplier’s oral or written instructions as to storage, installation, commissioning, use or maintenance of the Equipment and/or the Parts and Components and/ or Machinery; (iii) maintenance services carried out by the Customer or a third party; (iv) operation of the Equipment in contravention to instructions;(v) incorrect Technical Documentation; (vi) fair wear and tear of the Equipment and/or Parts and Components and/ or Machinery; (vii) any inherent defect in the Equipment; (viii) any defect which occurs after the expiration of the warranty period; (ix) abnormal operating conditions; (x) any defect which arises as a result of willful damage or negligence and/or (xi) any defect which arises after the next scheduled or performed maintenance or inspection of the Equipment after the expiry of the Contract.
14.5. Customer’s Remedies
In order to maintain its right to make a warranty claim relating to the Services provided by the Supplier, the Customer must give notice of any such circumstance by e-mail, by mail or by facsimile without delay and at the latest within seven (7) days from having become aware of the circumstance.
Subject to the Customer having first given the notice described above and having afforded the Supplier a reasonable opportunity to inspect the Equipment and/or the location at which the Services were performed within a reasonable time, the Supplier shall, at its sole discretion, without undue delay after the receipt of the Customer’s notification, re-perform any defective Service or repair or replace any defective Parts and Components and/or Machinery provided always that the performance of any one of these options will constitute an entire discharge of the Supplier’s liability under that warranty. The Supplier’s liability under Section 14 shall in no event exceed the purchase price of the Services and/or Parts and Components and/ or Machinery.
14.6. Sole and Exclusive Warranty
This Section 14 (Warranty) represents the sole and exclusive Warranty given by the Supplier to the Customer with respect to the Services and is in Lieu of and excludes all other warranties, express or implied arising by operation of law or otherwise, including but not limited to, any implied warranties of merchantability, quality or fitness for particular purpose.
15. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
Nothing contained in the Contract shall be construed as transferring from the Supplier to the Customer any Intellectual Property Rights (including rights to Equipment Usage Data) relating to the Services, Reports, other documents issued by the Supplier and/or the Customer Portal. These Intellectual Property Rights shall remain the exclusive property of and be transferred to the Supplier, or if supplied by a third-party, expressly reserved to the lawful owners thereof. To the extent such Intellectual Property Rights are included in any Report, the Customer shall receive a royalty free, non-exclusive and non-transferable license to use the Reports only in connection with the Equipment and for no other purpose whatsoever.
The Customer shall keep confidential and shall not disclose to any third parties, or use for any other purposes than those of the Contract, any information regarding Services, Reports and/or the Customer Portal provided or made available to the Customer. This obligation of confidentiality shall survive the termination of the Contract.
The Supplier shall keep confidential and not disclose Equipment Usage Data to any third parties in such manner that the identity of the Customer would remain recognisable, but may use the said Equipment Usage Data without restriction.
16. NON-SOLICITATION
The Customer agrees that during the term of the Contract and for a period of one (1) year thereafter the Customer shall not directly or indirectly solicit, entice, approach, offer employment to, or employ in any capacity any employee of the Supplier associated in any way with the Supplier’s performance of the Service. The terms of this paragraph shall be binding on the Customer, its parents, subsidiaries, affiliates, successors and assigns.
17. LIMITATION OF THE SUPPLIER’S LIABILITY
THE SUPPLIER’S LIABILITY SHALL NOT BEGIN PRIOR TO THE FIRST ACTUAL ON-SITE SERVICE VISIT REGARDING THE EQUIPMENT.
NOTHING IN THESE GENERAL TERMS AND CONDITIONS EXCLUDES OR LIMITS THE LIABILITY OF THE SUPPLIER FOR DEATH OR PERSONAL INJURY CAUSED BY THE SUPPLIER’S NEGLIGENCE, OR FOR FRAUDULENT MISREPRESENTATION.
THE SUPPLIER’S TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION OR OTHERWISE, ARISING IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS CONTRACT SHALL IN NO EVENT EXCEED THE VALUE OF THE CONTRACT.
THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF PROFIT OR OTHER ECONOMIC LOSS (DIRECT OR INDIRECT), INDIRECT OR SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL LOSS OR DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS FOR CONSEQUENTIAL COMPENSATION WHATSOEVER (HOWSOEVER CAUSED) OR LOSS OR DAMAGE (CONTRACTUAL, TORTIOUS, BREACH OF STATUTORY DUTY OR OTHERWISE) WHICH ARISES OUT OF OR IN CONNECTION WITH THE CONTRACT, OR FOR ANY LIABILITY INCURRED BY THE CUSTOMER TO ANY OTHER PERSON FOR ANY ECONOMIC LOSS, CLAIM FOR DAMAGES OR AWARDS HOWSOEVER ARISING UNDER OR IN CONNECTION WITH THE CONTRACT.
EXCEPT AS SET OUT IN THESE GENERAL TERMS AND CONDITIONS, ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE CONTRACT.
18. FORCE MAJEURE
Either Party shall be entitled to suspend the performance of its obligations under the Contract, except to the obligation to make payments, to the extent that such performance is impeded by circumstances beyond the control of the Party and unforeseeable at the time of entering into the Contract including but not limited to war, revolution, strike, failure or restriction of supplies of power, fuel, transport, equipment or other goods or services, natural disaster, acts of government, export or import ban, fire, explosion, flood, sabotage, civil disturbance or delay of delivery by sub- supplier (when caused by force majeure as herein defined).
A Party loses its right to plead force majeure, if it does not notify the other Party in writing without undue delay after having become actually aware of it.
If an event force majeure continues for a continuous period in excess of one month, the Supplier shall be entitled to give notice to the Purchaser to terminate the Contract with immediate effect.
19. TERMINATION OF THE MAIN AGREEMENT
Either Party shall be entitled to terminate a Contract by notice in writing if the other Party is in material breach of its obligations under the Contract and where capable of remedy, such breach is not remedied within thirty (30) days from the date of receipt of written notice of the breach from the other Party.
The Supplier shall be entitled to terminate the Contract with immediate effect if:
(a) the Customer (being a partnership) or the Customer’s partner offers to make any arrangements with or for the benefit of the creditors of the Customer or the Customer’s partner generally or there is presented in relation to the Customer or the Customer’s partner a petition of bankruptcy;
(b)
(i) the Customer (being a limited company) is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986; or
(ii) the Customer calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed; or
(iii) the Customer presents, or has presented, a petition for a winding up order; or
(iv) an application to appoint an administrator is made in respect of the Customer or a notice of intention to appoint an administrator is filed in respect of the Customer; or
(v) any other steps are taken by the Customer or any other person to appoint an administrator over the Customer; or
(vi) the Customer has an administrator, administrative receiver, or receiver appointed over all or any part of the customer’s business, undertaking, property or assets; or
(vii) the Customer takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it.
Notwithstanding any such termination in accordance with this Section 19, the Customer shall pay the Supplier the Contract price for all Services and/or Parts and Components and/ or Machinery provided up to and including the date of termination and the termination of the Contract or any contract for whatever reason shall not affect the rights or the remedies of either party in respect of any antecedent breach or in respect of any such sum owing or to become owing to the other.
20. APPLICABLE LAW AND SETTLEMENT OF DISPUTES
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 the laws of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
21. GENERAL
Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
The Customer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Supplier. The Supplier may assign, charge, subcontract or transfer the Contract or any part of it to any person.
No third party shall have the benefit of or the right to enforce the Contract or these General Terms and Conditions under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
The waiver by either party of any breach of the Contract shall not prevent the subsequent enforcement of that breach and shall not be deemed to be a waiver of any subsequent breach of that or any other provision.
If at any time any one or more of the conditions of the Contract (or any sub- Condition or paragraph or any Section or part of one or more of these General Terms and Conditions) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining provisions of the Contract shall not in any way be affected or impaired as a result of that omission.
The Contract sets out the entire agreement between the parties in relation to its subject matter and supersedes any prior arrangement, understanding written or oral agreements between the parties in relation to such subject matter.
The parties acknowledge that Contract has not been entered into wholly or partly in reliance on, nor has either party been given, any warranty, statement, promise or representation by the other or on their behalf other than as expressly set out in the Contract.