Eyre Industries Ltd T/A Panel Production Machinery – Standard Terms and Conditions of Sale
The Buyer's attention is particularly drawn to the provisions of clause 13 (Limitation of liability) and clause 15 (Consequences of Termination).
1. Interpretation
1.1. Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyer Default: has the meaning given in clause 8.2.
Collection Location: has the meaning given in clause 4.2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 24.
Contract: the contract between the Seller and the Buyer for the supply of Goods and/or Services in accordance with these Conditions in respect of the applicable Order.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Buyer: the person, company, partnership or firm who purchases the Goods and/or Services from the Seller.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.
Delivery Location: has the meaning given in clause 4.2.1
Deposit: means a sum equivalent to 30% of the Order value or any other amount paid in advance at or by the start of the Contract.
Force Majeure Event: has the meaning given to it in clause 16.1.
Formation Date: has the meaning given to it in clause 2.1.
Goods: the goods (or any part of them) more particularly described, set out or incorporated by reference in the Goods Specification.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Buyer and the Seller.
Eyre Industries Approved Fitter: means any person that is appointed, selected or approved by the Seller to install, fit, alter, maintain or repair the Goods (including, without limitation, modifying, improving, removing or replacing any parts in the Goods). – it being accepted that anyone other than an employee of the Seller, acting for and on behalf of the Seller, will need an express prior-written appointment, selection or approval from the Seller.
Eyre Industries Entity: means any company within the same corporate or VAT group as the Seller or with the same ultimate majority beneficial ownership as the Seller.
Insolvency Event: means an event where a party is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986) or becomes insolvent or an order is made or a resolution passed for the administration, winding-up or dissolution of the other (otherwise than for the purposes of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring 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, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Buyer's order for the supply of Goods and/or Services under an order form, purchase order, quotation or other document agreed in writing by the parties.
Product Recall: has the meaning given to it in clause 8.3.
Services: the services and/or works to be supplied by the Seller to the Buyer under the Contract, more particularly described, set out in or incorporated by reference in the Service Specification.
Service Specification: the description or specification for the Services provided or otherwise expressly confirmed in writing by the Seller to the Buyer.
Seller: Eyre Industries Ltd registered in England and Wales with company number 09539054, whose registered office address is at 4 Bridgeman Terrace, Wigan, England, WN1 1SX
Seller Materials: has the meaning given in clause 8.1.8.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in
the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Warranty Non-Compliance: has the meaning given in clause 5.2.
Warranty Period: means the shortest of the following (unless and until expressly agreed otherwise in writing by the Seller and the Buyer):
(a) the warranty period (if any) specified in the Order;
(b) a period of 12 months from the date of delivery of the Goods; or
(c) the Goods (where they are a machine) operating in excess of 2,500 operating hours (or for such other period specified in the Order).
1.2. Interpretation:
a) Headings, sub-headings and content lists in the Contract do not affect its interpretation.
b) A reference to a clause or schedule is to a clause or schedule of the Contract.
c) A reference to an attachment, appendix or annex is to an attachment, appendix or annex to the schedule in which is mentioned unless stated otherwise.
d) A reference to a paragraph or section are to a paragraph or section of the schedule in which it appears unless stated otherwise.
e) A reference to specific legislation by name or otherwise includes all amendments, extensions, restatements and subordinate legislation in effect at the time.
f) A reference to a party by name or otherwise includes references to its administrators, liquidators, trustee in bankruptcy or other applicable insolvency official, deputies, personal representatives, heirs or successors in title (as the case may be).
g) Wording introduced by ‘including’, ‘include’, ‘in particular’, ‘for example’ or similar expressions provides non-exhaustive illustrative examples only.
h) ‘person’ includes a natural person, body corporate or unincorporated body, association, organisation, society, agency, office or department.
i) Subject to clause 17.8, a reference to ‘writing’ or ‘written’ includes email and any document signed in wet/ink form or through e-signature on a platform like DocuSign.
j) Translations of the Contract (which is in English) in whole or in part into other languages are not binding.
k) Where a party is prohibited or restricted from doing something under the Contract, such party will also be deemed to ensure that such thing is not done with, through or for any principal, employer, partner or agent of that party.
l) Each party's rights and remedies under the Contract apply independently without prejudice to each other.
m) Rights and remedies under the Contract are cumulative and repeatable.
2. Basis of contract
2.1. The Contract shall come into existence on the date the Order is signed (whether or not preceded by an accepted quotation) (Formation Date).
2.2. The Buyer shall pay the Deposit to the Seller on the Formation Date. The Deposit is not refundable except to the extent that a refund is required pursuant to clause 2.3.2, clause 5.2 or clause 10.7.
2.3. Prior to the order acknowledgement by the Seller, the Seller will take steps to determine whether they can fulfil the Order. In that regard:
2.3.1. if the Seller is able to fulfil the Order, and the Buyer has paid the Deposit in full under clause 2.2 above, the Seller shall provide an order acknowledgement in writing to the Buyer, which may include updated specifications, pricing and other terms as by then agreed with the Buyer.
2.3.2. If the Seller is unable to fulfil the Order, the Seller will promptly notify the Buyer (at which point the Contract will be deemed terminated) and as the sole remedy for the Buyer, the Seller shall refund the Deposit (to the extent received from the Buyer) in full as soon as practicable.
2.4. Any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Seller's catalogues or brochures 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.
2.5. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6. Any quotation given by the Seller shall not constitute an offer and is only valid for a period of 30 days from its date of issue.
2.7. All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.8. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. Goods
3.1. The Goods are described in the Goods Specification. The Buyer is fully and solely responsible for checking the accuracy of any Goods Specification and promptly notifying the Seller of any inaccurate information. By signing and returning the Goods Specification to the Seller (where a signature is required), the Buyer accepts it is correct and assumes full liability for any inaccuracies in the Goods Specification which are not notified to the Seller prior to signature.
3.2. To the extent that the Goods are to be manufactured in accordance with a goods specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any claim made against the Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller's use of the Goods Specification
3.3. The Seller reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Seller shall notify the Buyer in any such event.
4. Delivery of Goods
4.1. The Seller shall ensure that:
4.1.1. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2. it states clearly on the delivery note any requirement for the Buyer to return any packaging material to the Seller. The Buyer shall make any such packaging materials available for collection at such times as the Seller shall reasonably request.
4.2. Subject to what it is agreed between the parties in the Order:
4.2.1. the Seller 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 Seller notifies the Buyer that the Goods are ready; or
4.2.2. the Buyer shall collect the Goods from the Seller's premises at such location as is notified to the Buyer before delivery (Collection Location) within seven days of the Seller notifying the Buyer that the Goods are ready.
4.3. Delivery of the Goods shall be completed at the arrival of the Goods at the Delivery Location or loading of the Goods at the Collection Location (as the case may be).
4.4. Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Under no circumstances shall delivery times be, or be capable of being, made of the essence of the Contract.
4.5. If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
4.6. For the avoidance of doubt, the Seller shall not be liable for any delay in delivery of the Goods (including without limitation, any delay that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods).
4.7. If the Buyer fails to take or accept delivery of the Goods within seven (7) days of the Seller notifying the Buyer that the Goods are ready, then:
4.7.1. delivery of the Goods shall be deemed to have been completed at 9.00 am on the seventh day following the day on which the Seller notified the Buyer that the Goods were ready. Accordingly, the Buyer shall pay the Seller for the Goods in accordance with the payment terms set out in clause 9; and
4.7.2. the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including without limitation insurance, haulage, crane hire, storage, and admin costs).
4.8. If, ninety (90) days after the day on which the Seller notified the Buyer that the Goods were ready for delivery, the Buyer has not taken or accepted delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting storage, insurance, admin and selling costs, charge the Buyer for any shortfall below the price of the Goods.
4.9. If the Seller delivers up to and including 5% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, the Seller shall make a pro rata adjustment to the invoice for the Goods.
4.10. Subject to clause 5, the Buyer will be deemed to have accepted the Goods on delivery unless the Buyer notifies the Seller to the contrary within seven (7) days in writing following delivery. The Goods will at the Buyer’s request (but subject to any additional charges arising) be made available for inspection and demonstration before delivery at the Seller’s premises prior to dispatch. Payment in connection with the said demonstration must be made to the Seller by the Buyer in cleared funds at or before the time of such inspection and/or demonstration.
4.11. The Seller 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 Buyer to cancel any other instalment.
5. Quality of Goods
5.1. The Seller warrants that on delivery and for the Warranty Period:
5.1.1. the Goods shall conform in all material respects with the Goods Specification; and
5.1.2. the Goods shall be free from material defects in design, material and workmanship.
5.2. Subject to clause 5.3 and clause 5.4, the Seller shall, at its sole discretion, repair or replace the Goods (or parts of Goods) that do not comply with the warranty under clause 5.1 (such non-compliance being a Warranty Non-Compliance), or refund the price of the said Goods (or parts of Goods), to the extent received from the Buyer, in full, as the sole remedy, if:
5.2.1. the Buyer gives notice in writing to the Seller:
a) within 48 hours of delivery for a Warranty Non-Compliance that is or can reasonably be considered to be apparent on normal visual inspection at delivery of the Goods;
b) within 48 hours of the Buyer in any way becoming aware of a Warranty-Non-Compliance that could not reasonably be apparent on normal visual inspect at the delivery of Goods, provided the notice is not given after the Warranty Period;
5.2.2. the Seller is given a reasonable opportunity of examining such Goods after receiving the notice under clause 5.2.1; and
5.2.3. the Buyer (if asked to do so by the Seller) returns such Goods to the Seller's place of business at the Buyer's cost.
5.3. The Seller shall not be liable for any Warranty Non-Compliance and/or liable to provide a remedy under clause 5.2 or otherwise, in each case to the fullest expect permitted by the law, if:
5.3.1. the Buyer has not paid for the Goods in full by the applicable due date(s);
5.3.2. the Buyer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.3. the Buyer does not give any notice as required under clause 5.2 for the Warranty Non-Compliance;
5.3.4. the Buyer does not allow reasonably examination of the Goods as required by clause 5.2;
5.3.5. the Buyer does not return the Goods as required by clause 5.2;
5.3.6. the defect arises because the Buyer failed to follow the Seller'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;
5.3.7. the defect arises as a result of the Seller following any drawing, design, specification or other information supplied by the Buyer;
5.3.8. the defect arises as a result of the Seller following any drawing, design, specification or other information supplied by the Buyer;
5.3.9. the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions or failure to follow the Seller’s and/or manufacturer’s instructions (whether oral or in writing);
5.3.10. the Buyer installs, fits, alters, maintains or repairs the Goods (including, without limitation, modifying, improving, removing or replacing any parts in the Goods):
a) using any person other than an Eyre Industries Approved Fitter; and/or
b) without the express prior written consent of the Seller (such consent not to be unreasonably withheld or refused); however, consent is not required from the Seller for emergency repairs to the Goods carried out by an Eyre Industries Approved Fitter;
5.3.11. the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards; or
5.3.12. any combination of any of the above applies.
5.4. In respect of any parts, materials or equipment that are supplied by the Seller but which are not manufactured by the Seller, Buyer shall only be entitled to the benefit from any applicable manufacturer’s warranty (to the extent that the same can be legally passed on by the Seller by way of assignment or otherwise).
5.5. Except as provided in this clause 5, the Seller shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.6. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7. The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Seller; however, the Warranty Period shall not be extended or replaced by virtue of the applicable Goods being replaced or repaired (for example if the Warranty Period is twelve (12) months, and the Goods are repaired or replaced six (6) months after the date of delivery, there will be six (6) months remaining on the Warranty Period for the repaired or replaced Goods).
6. Title and risk
6.1. The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2. Title to the Goods shall not pass to the Buyer until the earlier of:
6.2.1. the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Buyer 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; and
6.2.2. the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 6.4.
6.3. Until title to the Goods has passed to the Buyer, the Buyer shall:
6.3.1. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;
6.3.2. not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3. maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Seller's behalf from the date of delivery;
6.3.4. notify the Seller immediately if it becomes subject to any of the events listed in clause 14.3.3 to clause 14.3.5; and
6.3.5. give the Seller such information as the Seller may reasonably require from time to time relating to:
a) the Goods; and
b) the Buyer’s ongoing financial position.
6.4. Subject to clause 6.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time:
6.4.1. it does so as principal and not as the Seller's agent; and
6.4.2. title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs.
6.5. At any time before title to the Goods passes to the Buyer, the Seller:
6.5.1. may by notice in writing, terminate the Buyer's right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
6.5.2. require the Buyer to deliver up all Goods in its possession that have not been resold or irrevocably incorporated into another product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them. The Buyer shall procure entry to any such third party's premises if requested to do so by the Seller.
7. Supply of Services
7.1. The Seller shall supply the Services to the Buyer in accordance with the Service Specification in all material respects.
7.2. The Seller shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, 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 Seller reserves the right to amend the Service 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 Seller shall notify the Buyer in any such event.
7.4. The Seller warrants to the Buyer that the Services will be provided using reasonable care and skill.
8. Buyer's obligations
8.1. The Buyer shall:
8.1.1. ensure that the terms of the Order and any information it respectively provides in the Service Specification and the Goods Specification are complete and accurate;
8.1.2. co-operate with the Seller in all matters relating to the Services and/or Goods;
8.1.3. provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer's premises, office accommodation and other facilities as reasonably required by the Seller to provide the Services (and, if applicable, deliver or inspect or test the Goods for the purposes of the Contract);
8.1.4. provide the Seller with such information and materials as the Seller may reasonably require in order to supply the Services and/or Goods, and ensure that such information is complete and accurate in all material respects;
8.1.5. prepare the Buyer's premises for the supply of the Services (and, if applicable, delivery and installation of the Goods);
8.1.6. 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 or required for Goods before the date the Goods are to be delivered to or collected by or for the Buyer;
8.1.7. comply with all applicable laws, including health and safety laws, bribery laws and anti-corruption laws (including, but not limited to, the Bribery Act 2010);
8.1.8. keep all materials, equipment, documents and other property of the Seller (Seller Materials) at the Buyer's premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller's written instructions or authorisation; and
8.1.9. comply with any additional obligations as notified by the Seller from time to time.
8.2. If the Seller's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
8.2.1. without limiting or affecting any other right or remedy available to it, the Seller shall have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations in each case to the extent the Buyer Default prevents or delays the Seller's performance of any of its obligations;
8.2.2. he Seller shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Seller's failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.3. the Buyer shall reimburse the Seller on written demand for any costs or losses sustained or incurred by the Seller arising directly or indirectly from the Buyer Default.
8.3. If the Buyer becomes aware of or is the subject of a request, notice, court order or other directive of a governmental or regulatory authority to recall or withdraw any Goods from the market (Product Recall) it shall promptly notify the Seller in writing enclosing a copy of the applicable request, notice, order or directive for the Product Recall. Unless required by law, the Buyer may not undertake any recall or withdrawal of any Goods without the written permission of the Seller and only then in strict compliance with the Seller's instructions about the process of implementing the withdrawal. The Buyer will, in any event, fully and promptly co-operate with the Seller’s requests or requirements in respect of all Product Recalls.
9. Charges and payment
9.1. The price for Goods shall be:
9.1.1. the price set out in the Order or, if no price is quoted, the price set out in the Seller's published price list as at the Commencement Date;
9.1.2. inclusive of all costs and charges of packaging and transport of the Goods (if the same is stated in the Seller’s quotation);
9.1.3. inclusive of all costs associated with installation and training, if the same is stated in the Seller’s quotation;
9.1.4. exclusive of any costs for pallets and containers, which shall be charged to the Buyer, if the same are not returned to the Seller within fourteen (14) days of the date of delivery. All such items must be returned in good condition.
9.2. The charges for Services shall be calculated in accordance with the terms set out in the Order.
9.3. The Seller shall be entitled to charge the Buyer for any expenses reasonably incurred by the individuals whom the Seller engages in connection with the Services including travelling expenses, hotel costs, subsistence and associated expenses, and for the cost of services provided by third parties and required by the Seller for the performance of the Services, and for the cost of any materials.
9.4. The Seller reserves the right to increase the price of the Goods and/or Services, by giving 7 days’ notice to the Buyer, to reflect any increase in the cost of the Goods to the Seller that is due to:
9.4.1. any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification or the Service Specification; or
9.4.2. any delay caused by any instructions of the Buyer in respect of the Goods or Services or failure of the Buyer to give the Seller adequate or accurate information or instructions in respect of the Goods or Services.
9.5. The Seller shall invoice the Buyer in accordance with the invoicing terms set out in the Order.
9.6. the Buyer shall pay each invoice submitted by the Seller in full and in cleared funds to a bank account nominated in writing by the Seller within 30 days of the date of the invoice (or such other period that is stated within the Order).
9.7. Time for payment shall be of the essence of the Contract.
9.8. All amounts payable by the Buyer 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 Seller to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller 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.
9.9. If the Buyer fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller's remedies under clause 14 (Termination), the Buyer 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 9.9 will accrue each day at 4% a year above Lloyds Bank Plc’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.10. 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).
9.11. Without prejudice to clause 9, an invoice shall be deemed undisputed if a good-faith dispute has not been notified in writing to the Seller, by or for the Buyer, concerning the calculation or content of the invoice, within 10 (ten) days of the date of the invoice.
10. Intellectual property rights
10.1. The Buyer grants the Seller a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Buyer to the Seller for the duration of the Contract for the purpose of providing the Goods and/or Services to the Buyer.
10.2. All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services including to any designs, drawings, work or other material created or provided under the Contract (other than Intellectual Property Rights in any materials provided by the Buyer) shall be owned by the Seller and/or any other Eyre Industries Entity or their respective licensors (in each case whether or not existing from before the Contract and whether or not created under or independently of the Contract).
10.3. Where the Goods or Services are supplied by the Seller, or any items of any kind are use by the Seller to provide the Services, which are subject to third party mandatory licensing terms and conditions, such terms and conditions shall take precedence over the terms for any Goods or Services set out in the Contract, including but not limited to, any licence terms (including those in clause 10.4), warranties or limitations of liability contained therein.
10.4. Subject always to clause 10.2 (and clause 5 concerning repairs and maintenance), the Seller grants to the Buyer a personal, non-exclusive, non-transferable, non-sublicensable, irrevocable licence of the Seller’s Intellectual Property Rights for the Buyer to use any software, including its documentation, for operational and contractual use, for maintenance and servicing purposes, and for repairing of the Goods, in each case subject to any restrictions set out in this Contract or under the terms and conditions of the software supplier. All other rights to the software and documentation, as well as specialist knowledge contained in information and drawings provided by the Supplier, including copies, shall remain with the Seller or the software supplier unless the Buyer is granted further rights on the basis of mandatory statutory provisions.
10.5. The Buyer shall not itself (or with, for or through any third party), acting in any capacity whatsoever:
10.5.1. reverse engineer, manufacture or otherwise handle the Goods and/or any output of the Services in breach of the Intellectual Property Rights of the Seller or any other Eyre Industries Entity or any of their respective licensors;
10.5.2. remove copyright notices or trademarks of any Eyre Industries Entity or its licensors on any Goods or output of Services provided to the Buyer under the Contract;
10.5.3. use any Eyre Industries Entity’s brand, logo or trade-mark in any marketing, promotional, broadcast, publishing, packaging or other marketing or sales activity without the express prior written consent of the Seller; or
10.5.4. do any combination of any of the above.
10.6. The Seller shall indemnify the Buyer against the damages awarded or settlement agreed for any claim by a third party that the use by the Buyer of the Goods or Works provided by the Seller under the Contract infringes the third party's Intellectual Property Rights in the UK, and the Buyer shall indemnify the Seller against the damages awarded or settlement agreed for any claim by a third party that the use by the Seller of the Buyer's Intellectual Property Rights infringes the third party's Intellectual Property Rights – in each case provided that the indemnified party:
10.6.1. has not modified the Goods and/or Works or the claim arises because of their use in combination with any other equipment, hardware or software,
10.6.2. promptly notifies the indemnifying party in writing of any allegation of infringement of a third party's Intellectual Property Rights;
10.6.3. gives the indemnifying party the sole conduct of the defence to any third-party claim relating to Intellectual Property Rights infringement;
10.6.4. does not admit liability, attempt to settle or compromise the third-party claim except upon the express instructions of the indemnifying party; and
10.6.5. gives such assistance as shall be reasonably required in respect of the third-party claim at the indemnifying party's cost.
10.7. In respect of an indemnity claim against the Seller under clause 10.6, the Seller is entitled at its sole discretion to, as the Buyer’s sole remedy for such indemnity claim:
10.7.1. procure the right for the Buyer to continue using the relevant Goods and/or Services and/or output of the Services; and/or
10.7.2. make or procure such modifications, adjustments or substitutions to all or any part of the Goods and/or Services and/or output of the Services so that they become non-infringing; and/or
10.7.3. make a refund of a reasonable proportion of any price for the infringing Goods and/or Services and/or output from the Services.
10.8. If the Buyer ceases to use the Goods and/or Services and/or output of the Services in order to mitigate damages or for other important reasons, it is obligated to advise the third party alleging or claiming infringement that cessation of use does not imply any acknowledgment of infringement of Intellectual Property Right. Any cessation of use within the meaning of this clause 10.8 must be agreed with the Seller in advance.
11. Data protection
11.1. For the purposes of this clause 11, “Data Protection Legislation” means:
11.1.1. all applicable data protection and privacy legislation in force from time to time in the UK (including, but not limited to, (i) the retained EU law version of General Data Protection Regulation ((EU) 2016/679) (“UK GDPR”); (ii) the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder), (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426), (iv) all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications)); and
11.1.2. the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party concerning data protection or privacy in the UK.
11.2. Each party is a controller of personal data (as in each case defined in the Data Protection legislation) for the purposes of the Contract.
11.3. Each party, at its own expense, 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.
11.4. Each party will, at its own expense, provide reasonable assistance for the other party’s compliance with the Data Protection Legislation.
11.5. If at any time one party is or becomes a processor under the Data Protection Legislation for the other party, the parties will fully co-operate with each other to promptly agree and enter into a data processing Contract that is compliant with the Data Protection Legislation.
12. Confidentiality
12.1. Each party undertakes that it shall not at any time disclose to any person (and shall keep confidential) any of the following except as permitted by clause 12.2:
12.1.1. the trade secrets and know-how of the other party, for as long as the law permits
12.1.2. any information concerning the business, affairs, customers, clients or suppliers of the other party, for the duration of the Contract until its termination/expiry/fulfilment plus sixty (60) months; and
12.1.3. the contents of the Contract, the contracts of any previous versions of the Contract, the contents of any letter, email, or other communication of any kind concerning the Contract, information communicated, created or established under the Contract which is expressly agreed by the parties or can reasonably concluded to be imparted/shared in confidence, any grievance, complaint, concern, dispute or settlement in any way concerning the Contract any other information that the parties from time to time agree to be confidential – in each case for the duration of the Contract until its termination/expiry/fulfilment plus fifty (50) months.
12.2. Each party may disclose the other party's confidential information:
12.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under 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/or
12.2.2. 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 BUYER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION.
13.1. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
13.1.1. death or personal injury caused by negligence;
13.1.2. fraud or fraudulent misrepresentation;
13.1.3. 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);
13.1.4. defective products under the Consumer Protection Act 1987;
13.1.5. any other liability which cannot be limited or excluded under applicable law.
13.2. Subject to clause 13.1, 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. Subject to clause 13.1, the Seller's total liability to the Buyer under legislation, contract law, common law, equity or otherwise (including, but not limited to, for breach of contract and negligence) concerning the Contract specific Goods and/or Services shall not exceed a sum equal to 110% in aggregate of the value of those Goods and/or Services, in turn subject to an aggregate maximum cap of 110% of the total fees paid by the Buyer to the Seller under the Contract.
13.4. Subject to clause 13.1, the following types of loss listed are wholly excluded by the Seller in respect of its liability:
13.4.1. loss of profits;
13.4.2. loss of sales or business;
13.4.3. loss of agreements or contracts;
13.4.4. loss of anticipated savings;
13.4.5. wasted expenditure
13.4.6. loss of use or corruption of software, data or information;
13.4.7. loss of or damage to goodwill; and
13.4.8. indirect or consequential loss of any kind (whether or not anticipated or known at the time of the parties entering into the Contract.
13.5. The Seller 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.
14. Termination
14.1. Without affecting any other right or remedy available to it, the Seller may terminate the Contract by giving the Buyer not less than one (1) months' written notice.
14.2. The Buyer may terminate the Contract without cause, upon providing the Seller with written notice, but the Buyer shall, in such circumstances:
14.2.1. subject to clauses 5.2 and 10.7, forfeit the Deposit and the same shall not, for the avoidance of doubt, be refunded to the Buyer, in the event of termination under this condition 14.2;
14.2.2. pay to the Seller, immediately on demand, a cancellation charge equal to 20% of the full Order value (or such other cancellation charge as is notified by the Seller to the Buyer); and
14.2.3. pay to the Seller, immediately on demand, all costs, charges, expenses incurred or otherwise suffered by the Seller in fulfilling the Order up until the date on which the cancellation notice is received by the Seller.
14.3. Without affecting any other right or remedy available to it, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer, if the Buyer:
14.3.1. commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within seven (7) days after receipt of notice in writing to do so;
14.3.2. fails to pay any amount due under the Contract on the due date for payment;
14.3.3. is subject to an Insolvency Event;
14.3.4. suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.3.5. 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.
14.4. Without affecting any other right or remedy available to it, the Seller may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer fails to pay any amount due under the Contract on the due date for payment, the Buyer becomes subject to an Insolvency Event or the Seller reasonably believes that the Buyer is about to become subject to an Insolvency Event.
14.5. Each party may only terminate the Contract as permitted under clause 14.
15. Consequences of termination
15.1. On termination of the Contract:
15.1.1. the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest;
15.1.2. in respect of Goods Services performed by the Seller and/or Goods supplied by the Seller, but for which no invoice has been submitted, the Seller shall be entitled to submit an invoice, which shall be payable by the Buyer immediately on receipt;
15.1.3. to the extent not covered in clause 15.1.1 or condition 15.1.2 in respect of costs incurred by the Seller in respect of the Buyer’s ordered Goods not yet supplied and/or ordered Services not yet performed by the Seller by the termination of the Contract, the Seller shall be entitled to submit an invoice to the Buyer for the same;
15.1.4. the Buyer shall return all of the Seller Materials and any Goods which have not been fully paid for. If the Buyer fails to do so, then the Seller may enter the Buyer's premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
15.1.5. at the Seller’s request the Buyer shall return or destroy all hard copy (and delete all digital versions) of all confidential information of or concerning the Seller within the scope of clause 12, promptly on request, except for information that must be retained by the Buyer under applicable laws.
15.2. Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties or any Eyre Industries Entity that have accrued up to the date of termination or expiry, including the right to claim fees, charges, costs or expenses or damages of any kind and to any extent in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3. Clauses 3.2, 10, 11, 12, 13, 15, 16 and 17 of these Conditions (and all other parts of the Contract relevant to understand, apply and enforce the same) shall survive (and continue to apply after) termination of the Contract.
15.4. Without prejudice to clause 15.3, any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. Force majeure
16.1. In this clause 16 “Force Majeure Event” means any circumstance not within a party's reasonable control including, without limitation
16.1.1. acts of God, flood, drought, earthquake or other natural disaster;
16.1.2. epidemic or pandemic;
16.1.3. terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
16.1.4. nuclear, chemical or biological contamination or sonic boom;
16.1.5. any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
16.1.6. collapse of buildings, fire, explosion or accident; and
16.1.7. any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this condition, or companies in the same group as that party);
16.1.8. non-performance by suppliers or subcontractors; and
16.1.9. interruption or failure of utility service.
16.2. Subject to condition 13.1, the Seller shall be excused from liability if the performance of the Contract (or any part of it) is prevented, delayed or hindered by a Force Majeure Event and the Seller’s performance or delivery timeline shall be deemed extend Force Majeure Event.
17. Assignment and other dealing
17.1. The Seller 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.
17.2. The Buyer 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 Seller.
18. Notices.
18.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
18.1.1. delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
18.1.2. sent by email to the address specified in the Order.
18.2. Any notice shall be deemed to have been received:
18.2.1. if delivered by hand, on signature of a delivery receipt;
18.2.2. if sent by pre-paid first-class post or other next Business Day delivery service, at the time recorded by the delivery service; and
18.2.3. if sent email, at the time of transmission, or, if this time falls outside business hours in the place of receipt when business hours resume.
18.3. This above terms of this condition do 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.
19. 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 19, 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.
20. Waiver.
20.1. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
20.2. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
21. 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.
22. Entire agreement.
22.1. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes the Buyer’s own standard/general terms and conditions and all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral or arising from course of conduct or custom and practice, relating to its subject matter.
22.2. 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.
22.3. Nothing in this condition shall limit or exclude any liability for fraud and, in any event, shall apply subject to clause 13.1.
23. Third party rights.
23.1. A third party (other than an Eyre Industries Entity or any licensor, director or other officer or employee of the Seller or any other Eyre Industries Entity) is not entitled to enforce any purported right or benefit under, or other aspects of, the terms of the Contract under the Contracts (Rights of Third Parties) Act 1999.
23.2. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
24. Variation
Except as set out in these Conditions, no variation of the Contract shall be effective unless and until it is expressly and specifically agreed in writing and signed by the parties in wet/ink form or using e-signatures (or their authorised representatives) – with no content set out in an email itself (as opposed to an signed document attached to an email) being treated as a signature. Subject to the first sentence of this clause 24, delivering a document or communication to the Seller with the Buyer’s own terms and conditions stated or incorporated in that document or communication is not binding on the Seller.
25. Approvals
25.1. Any purported representation, promise, concession, settlement, consent, approval, authority, or agreement of any kind in any way about or arising from the Contract, for and on behalf of the Seller, will only be valid and binding on the Seller if:
25.1.1. recorded expressly in writing in the Contract;
25.1.2. given or approved expressly in writing by (or in accordance with the express written authority of) a registered director of the Seller or an employee of the Seller that can reasonably be considered as having express authority to bind the Seller in the applicable context; or
25.1.3. any combination of the above applies.
26. Verification
The Buyer will promptly on request allow the Seller and/or its representatives to attend the premises of the Buyer or any of its agents or representatives, and review any documentation (and take copies of the same) for the purposes of checking and verifying the extent of the Buyer’s compliance with the Contract. The Buyer will promptly on request provide correct, up to date non-misleading information and responses to the Seller and/or its representatives concerning anything to do with the Buyer’s compliance with the Contract.
27. Relief
27.1. The parties acknowledge that damages will or may not be an adequate remedy for every breach of the Contract by the Buyer and that the Seller will be entitled to an injunction or restraining order for restraining the other party from committing or continuing to commit any breach or threatened breach of the obligations under the Contract, and/or other equitable relief.
27.2. For such remedies, each party agrees that proof will not be required that monetary damages for breach or threatened breach of the obligations would be difficult to calculate or otherwise that remedies at law would be inadequate.
28. Disputes
The parties will work together in good faith to promptly notify, discuss and seek to resolve grievances, allegations, complaints, concerns, disputes or claims of any kind concerning or arising from the Contract (including those concerning or arising from the conduct or performance of any party). Such working together includes reasonably prompt investigations and information sharing to a reasonable extent.
29. Governing law and Jurisdiction
29.1. 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.
29.2. 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.
30. Signature.
The Order documentation or Contract may be signed as a single document or in counterparts, in wet/ink form or using e-signatures. Each emailed signature page will be just as valid as the originals if circulated with or incorporated in the final agreed form of the Contract.