Hermeq Terms & Conditions
Version date/applicable from September 2022
Hermeq is a supplier of temporary fencing and construction site equipment, wholly owned by Rainspell Ltd.
Company Name: Rainspell ltd. T‐A Hermeq – also referred to in the document as “we” & “us”.
Registered Address: 22 Northumberland Road, Dublin 4, County Dublin, D04 ED73, Ireland.
Company Number: IE677059 Rainspell Ltd. is a limited company registered in Ireland, and we own and operate this website (“site”).
We do not guarantee that the Site, or any content as part of it, will always be available or be uninterrupted. Access to the Site (service) is permitted on a temporary basis. We may suspend, withdraw, discontinue or change all or any part of the Service without notice. We will not be liable to you if for any reason the Service is unavailable at any time or for any period. We may also restrict access to particular parts of the site at our discretion.
Intellectual property and Information
Information contained within this site is provided on an "as is" basis. We are not responsible for ensuring the quality, accuracy or suitability of the information provided and it is your responsibility, as a user, to ensure that any products or information available through the site are suitable to your requirements.
Hermeq reserves the right to reject or cancel your order fulfillment of all orders on the Hermeq website. We explicitly reserve the right not to accept your order for any of the following reasons:
- The product is not available / in stock
- Your billing information is not correct or not verifiable
- Your order has been suspected of fraudulent activity
- We could not deliver to the address provided by yourself
- Force Majeure
- In the event of misspelling, pricing or other errors or mistakes in the website information
Any cancellations made by the customer, must be formally made via email to a member of the Hermeq team & acknowledged prior to goods being dispatched. All painted, powder coated and galvanised products must be cancelled prior to these processes having taken place.
Only one discount code can be used per order. Hermeq reserves the right to refuse or cancel the use of a discount code without any further discussion. Usage of discount codes are subject to stock availability.
Please note that all delivery dates given on the Hermeq website are estimates. For a firm delivery date please get in touch with a member of our team. Customers should also note that any lead times quoted are exclusive of non-working days (i.e. weekends & bank holidays).
Customers are advised to inspect goods upon arrival and must make HERMEQ aware of any missing, defective or damaged items within 1 hour of delivery via your HERMEQ Contact, if they are not noted on the proof of delivery / delivery note. Please note that materials that have been processed, installed or in any other way materially altered, from the state in which they were delivered, cannot be returned. HERMEQ will also not be liable for any costs associated with processing or installing any goods whether they are defective / damaged or not.
A customer is entitled to return goods, as long as they are not bespoke, within 14 days of receipt. The customer must return the items to Hermeq Ltd, Sams Lane, West Bromwich, West Midlands , B70 7ED. Once the items are received and inspected a refund will be made within 5 working days. Please note that if you, the customer, refuses to unload the goods that you wish to return, then the return fee charged by the transport company will be deducted from the value of the total refund. We strongly advise that you contact the courier to establish a price of returning these goods before asking for them to be returned.
Terms and Conditions of Supply/Hire
Version date/applicable from January 2022
The Customer's attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
The following definitions and rules of interpretation apply in these Conditions.
1) Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
2) Commencement Date: has the meaning given in clause 2.2.
3) Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8.
4) Contract: the contract between the Supplier and the Customer for the supply or hire of Goods and/or the supply of Services in accordance with these Conditions.
5) Customer: the person or firm who purchases or hires the Goods and/or purchases Services from the Supplier.
6) Deliverables: the deliverables set out in the Order produced by the Supplier for the Customer.
7) Delivery Location: has the meaning given in clause 4.2.
8) Force Majeure Event: has the meaning given to it in clause 16.
9) Goods: the goods (or any part of them) set out in the Order.
10) Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
11) Intellectual Property Rights: patents, 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.
12) Order: the Customer's order for the supply or hire of Goods and/or the supply of Services, as set out in the Customer's purchase order form, or the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be.
13) Services: the installation and other related services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Specification, or as may otherwise be agreed in writing by the Customer and the Supplier.
14) Supplier: Hermeq Limited
15) Supplier Materials: has the meaning given in clause 8.1(g).
(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 successors and permitted assigns.
(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase, hire, and/or install Goods in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date). An Order can only be cancelled by the Customer in accordance with the provisions on clause 2.7.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues, brochures or online are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods 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.
2.5 Any quotation given by the Supplier shall not constitute an offer, and unless otherwise stated is only valid for a period of 20 Business Days from its date of issue, or the end of the calendar month whichever occurs first.
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 An Order can only be cancelled by the Customer within 24 hours of it being accepted as per clause 2.2 above. The Customer may be charged a restocking or cancellation fee in accordance with the Supplier’s current price list. Any Order which specifies a specific bespoke design or colour is non-refundable at any time after the Order is accepted.
3.1 The Goods are described in the Specification or as may otherwise be agreed in writing by the Customer and the Supplier.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, or where an equivalent can be supplied which is of no less quality than the Goods originally specified, and the Supplier shall notify the Customer in any such event.
3.3 The minimum time period for the hire of Goods is 4 weeks and thereafter in one week blocks, unless otherwise agreed by the Supplier.
4. Delivery or Collection of Goods
4.1 The Supplier shall ensure that prior to delivery or collection a delivery/hire note which shows the date of the Order, the contract number, or all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), and special storage, use and return instructions (if any) will be emailed to the Customer:
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 The Customer shall collect the Goods from the Supplier's premises or such other location as may be agreed with the Customer before delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.4 Delivery of the Goods shall be completed on the completion of delivery of the Goods at the Delivery Location.
4.5 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods. Other than for the reasons mentioned earlier in this clause, if the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods
4.7 Any change to the Delivery Location must be notified in writing to and accepted by the Supplier at least 48 hours prior to the scheduled delivery date. Any change in Delivery Location may incur a further fee.
4.8 If the Customer fails to take delivery of the Goods (for example but not limited to where the Customer’s representatives are not available at the Delivery Location for delivery or if the Customer failed to specify unloading was required), the Supplier will charge for its time wasted including for expenses incurred if a repeated delivery journey is required, such charges are as set out on the Supplier’s current list of prices and charges. If the Supplier stores the Goods until delivery takes place, it will charge the Customer for all related costs and expenses (including insurance).
4.9 The Customer (or someone on their behalf) will be required to sign off acceptance of the Goods purchased immediately following delivery, and to confirm that the Goods are free from material defects or shortages. If the Customer signs the delivery acceptance form to confirm this, or refuses or in not available to sign the form, the Customer will lose the right to request a return or a refund under clause 5.1.
4.10 Please note that it is the Customer’s responsibility to arrange for unloading of delivery vehicles, unless they have paid for an offloading service as part of the Services.
4.11 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell, rehire 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.
4.12 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.13 The Supplier 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.
4.14 If the Goods are collected from the Supplier, the Customer will be required to present appropriate identification evidence to the Supplier’s satisfaction, and the bank card used for making payment for the Goods before they will be released to the Customer.
4.15 If Goods are to be installed by the Supplier, it is the Customer’s responsibility to ensure that the Supplier has full and unrestricted access to the location concerned, to include ensuring that all site health and safety and other regulatory requirements have been complied so that the Supplier’s workforce can safely complete the installation of the Goods. In the event of any claim, loss, damage or expense which is incurred or suffered by the Supplier its servants or agents arising out of the access to or attendance at the location to carry out installation, the Customer will fully and effectively indemnify the Supplier for all such loss, expense, or damage.
5. Quality of Goods
5.1 For the sale or hire of Goods, the Supplier warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and any applicable Specification;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by the Supplier.
The Customer must check the Goods immediately on delivery to identify any possible defects or shortages, and notify the Supplier in writing within 30 minutes of delivery having been completed. If no possible defects or shortages are notified in that time scale, the Supplier may refuse to allow replacements and/or refunds.
5.2 Subject to clauses 5.1 and 5.3, if:
(a) the Customer gives notice in writing to the Supplier that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,
The Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
(a) the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(b) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(e) the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards, or where a replacement item of similar quality is supplied.
5.4 To qualify for any refund following the return of any Goods sold to the Customer, the Customer must return the Goods to the Supplier’s premises at their expense (unless otherwise agreed by the Supplier) and following a satisfactory inspection of the returned Goods, the Supplier will then refund the Customer, or apply a credit to the Customer’s account to the same value. Refunds may take up to 28 days to process.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.6 Please note that for bespoke made, painted or powder coated Goods, these cannot be returned or refunded, unless they are materially defective.
5.7 Where the Goods are hired by the Customer, any damage to the Goods will be charged to Customer. Damage will be assessed by the Supplier on their return to the Supplier’s premises, and notified to the Customer in writing with an invoice for the sum payable.
5.8 The Supplier will not accept responsibility for any damage to the Goods hired caused whilst they are in transit back to the Supplier. Damage will be assessed by the Supplier and determined in their sole discretion, but shall exclude reasonable and expected weathering of the Goods.
6. Title and risk
6.1 Where Goods have been sold to the Customer, the risk in the Goods shall pass to the Customer on completion of delivery or collection.
6.2 Where Goods have been sold to the Customer, title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in 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 and during any period of hire of the Goods, the Customer shall:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
(d) allow and/or ensure the Supplier unobstructed access to the Delivery Location (or other place where they are stored or used) for the collection of the Goods in circumstances where the Customer is in breach of its obligations under this Agreement;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d); and
(f) give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
7. Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services requested by the Customer, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.
7.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
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 the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation, delivery site and other facilities as reasonably required by the Supplier to provide the Services;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and 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) comply with all applicable laws, including health and safety laws;
(g) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Delivery Location (or other place where they are stored or used) in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation; and
(h) comply with any additional obligations as set out in the Specification;
(i) ensure that the Supplier has unobstructed access for the unloading, installation and if appropriate the loading and collection of Goods at the Delivery Location, with any personnel involved in the installation, loading and unloading deemed to be under the direction and control of the Customer;
(j) in relation to Goods which are hired:
(i) ensure that the Goods are kept safe, free from damage and defect (weathering excepted), and available for return at the required time and manner; and
(ii) allow the Supplier access to inspect the Goods from time to time, and at the end of any hire period to allow them to remove the Goods without hindrance or delay; and
(iii) notify the Supplier of any damage or theft of Goods during the hire period; and
(iv) indemnify the Supplier in respect of all claims by any person whatsoever for injury to person or property caused by or in connection with or arising out of the storage, transit, transport, unloading, installation, loading or use of the Goods during the continuance of the hire period, and in respect of all costs and charges in connection therewith whether arising under statute or common law. In the event of loss of or damage to the Goods, hire charges shall continue to be payable by the Customer at the weekly rates set out in the Order until payment in full has been made;
(v) not re-hire, sub-let or otherwise part with possession of the Goods; and
(vi) not move the Goods from the Delivery Location unless otherwise agreed to in writing by the Supplier; and
8.2 If the Supplier'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, the Supplier shall 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 in each case 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 as set out in this clause 8.2; 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.
9. Charges and payment
9.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of delivery; and
(b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer; and
(c) which are hired, are charged on a weekly basis, and so if the hire goes 1 day into the following week, the whole week is chargeable.
9.2 The charges for Services shall be calculated on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its current price list at the date of the Contract;
(b) the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) the Supplier shall be entitled to charge an overtime rate of 50% of the daily fee rate on a pro rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 9.2(b); and
(d) the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.3 The Supplier reserves the right to:
(a) increase the charges for the Goods or Services on an annual basis with effect from each anniversary of the Commencement Date;
(b) increase the price of the Goods or Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (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 theSpecification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of
(a) the sale of Goods, the Supplier shall invoice the Customer prior to delivery;
(b) the hire of Goods, the Supplier shall invoice weekly starting from the date of the start of hire;
(c) the supply of Services, the Supplier shall invoice the Customer weekly. A deposit may be required before the commencement of Services.
but in each case above the Supplier is entitled to invoice as and when fees have been incurred and the date for payment of each invoice shall be as stipulated on the invoice, or if not as per clause 9.5 below.
9.5 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for 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 the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods 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 the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 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 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).
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
10.2 The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract to use the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
10.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 10.2.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.
11. Data protection
11.1 The following definitions apply in this clause 11:
(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended [and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party].
(c) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and the Supplier is the Processor.
11.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
11.5 Without prejudice to the generality of clause 11.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(a) process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(i) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, 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, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.6 Either party may, at any time on not less than 30 days' notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, 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 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 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.
13 Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 The Supplier's total liability to the Customer shall not exceed the Price paid for the Goods or Services concerned.
13.2 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.4 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;
(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); and
(d) defective products under the Consumer Protection Act 1987.
13.5 The following losses are excluded from the liability of the Supplier:
(i) loss of profits;
(ii) loss of sales or business;
(iii) loss of agreements or contracts;
(iv) loss of anticipated savings;
(v) loss of use or corruption of software, data or information;
(vi) loss of or damage to goodwill;
(vii) indirect or consequential loss; and
(viii) loss arising out of any claim relating to the design of the Goods where that design arises out of any Temporary Works Designs issued to the Supplier, by the Customer or any third party.
13.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, 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 are, to the fullest extent permitted by law, excluded from the Contract.
13.7 This clause 13 shall survive termination of the Contract.
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than one months' written notice.
14.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;
(b) the other party 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party'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.
14.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment:
14.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
15. Consequences of termination
15.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for, or which are on hire. If the Customer fails to do so, then the Supplier 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 of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
16. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 6 months the party not affected may terminate the Contract by giving 28 days’ written notice to the affected party.
17.1 Assignment and other dealings
(a) The Supplier 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 the Supplier.
(a) Any notice or other communication 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 address specified in the Order, Contract or used in email correspondence between the parties.
(b) Any notice or communication 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 pre-paid first-class post or other 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 business hours in the place of receipt, when business hours resume. In this clause 17.2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.3 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 17.3 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.
17.4 Waiver. 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 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.
17.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of 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 misrepresentation] based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Third party rights.
(a) Unless it expressly states otherwise, 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.
17.8 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).
17.9 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.
17.10 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.
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