...FOR THE SUPPLY OF GOODS AND/OR SERVICES, AND/OR THE LICENSING OF SOFTWARE
1.1 Definitions: In these Conditions, the following definitions apply:
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.7.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Contractor Worker: a worker introduced and supplied by the Supplier to the Customer to provide services to the Customer not as an employee of the Customer.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Deliverables: the deliverables set out in the Order.
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's written acceptance of the Supplier's quotation.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
Software: the web-based monitoring tool known as Z-One developed and owned by the Supplier.
Supplier: Z-Tech Control Systems Limited registered in England and Wales with company number 03353499.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. 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).
2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any agreed performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
3.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
3.4 The Customer agrees that it shall not, whether directly or indirectly during, or for a period of six months following termination of the Contract, employ any key executive or Contractor Worker of the Supplier. In the event that the Customer wishes to employ any Contractor Worker direct, it shall inform the Supplier in writing if its request to do so, and the Customer and Supplier shall negotiate in good faith with a view to agreeing a fee to be paid by the Supplier in return for the Supplier agreeing to the transfer.
3.5 If the Customer reasonably considers that the services of any Contractor Worker are unsatisfactory, the Customer may reject that Contractor Worker and request the Supplier to provide a replacement to the same specification.
4. Licence of software
4.1 In return for payment of a fee to be agreed, the Supplier shall grant to the Customer a non-exclusive revocable licence on terms to be agreed to use the Software. The Customer shall not be entitled to copy, sell on, transfer, assign or otherwise make the Software available to any third party without the prior written consent of the Supplier.
4.2 Whilst the Supplier has made every effort to ensure that the Software is error free, the Customer acknowledges that no warranty can be given, due to the inherent complexities of programming, regarding the Software’s fitness for any particular purpose or regarding its reliability.
5.1 The Goods are described in the Goods Specification.
5.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
6. Delivery of Goods
6.1 The Supplier shall deliver and, where it has agreed to do so, install the Goods to/at 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.
6.2 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. .
6.3 The Supplier may deliver the Goods and/or supply the Services by separate instalments. Each separate instalment may be invoiced separately and, if so, shall be paid for as such and in full in accordance with the Contract and these Conditions.
6.4 Where the Goods are to be delivered or the Services supplied in instalments, each delivery or supply shall constitute a separate contract and failure by the Supplier to deliver or supply in whole or part any one or more of the instalments in accordance with the Contract or these Conditions, or any claim by the Customer in respect of any one or more instalment, shall not entitle the Customer to withhold or delay payment under, cancel or repudiate the Contract or these Conditions either as a whole or in part
7. Quality of Goods
7.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
(a) conform in all material respects with any applicable Goods Specification; and
(b) be free from material defects in design, material and workmanship.
7.2 The Supplier shall not be liable for the Goods' failure to comply with the warranty in clause 7.1 if:
(a) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(b) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions.
8. Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery and/or installation.
8.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for the Goods.
9. Customer's obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) comply with the Supplier’s reasonable instructions in relation to the operation of the Software;
(d) when making a request for a Contractor Worker, provide the Supplier with a full list of requirements for such worker including place of work, hours, duties, qualifications required, and (where relevant) shall in due course provide such information as is reasonably required to enable the Supplier to comply with its obligations under the Agency Workers Regulations 2010; and
(e) be responsible for the supervision and safety of all Contractor Workers working for the Customer whilst the Contractor Workers are on the Customer’s site.
10. Charges and payment
10.1 The price for Goods, Services or the Licence 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 order.
10.2 The charges for Services shall be on a time and materials basis:
(a) the charges shall be calculated in accordance with the Supplier's standard daily fee rates, as provided from time to time in writing by the Supplier to the Customer and in respect of the provision of Contractor Workers shall be based on weekly time sheets completed by each Contractor Worker and signed off by a representative of the Customer;
(b) 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, but not limited to, 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.
10.3 The Supplier reserves the right for any contracts with a term, or expected term, in excess of 12 months to:
(a) increase its standard daily fee rates for the charges for the Services, provided that such charges shall only be increased on 1 May each year. The Supplier will give the Customer written notice of any such increase one month before the proposed date of the increase.; and
(b) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier.
10.4 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice (failing which the Supplier shall be entitled to charge interest at the rate of 1.5% per month, accruing on a daily basis;
(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.
11. Intellectual property rights
11.1 All Intellectual Property Rights in or arising out of or in connection with the Services, the Goods and the Software shall be owned by the Supplier, unless otherwise agreed in writing.
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. The obligations in this clause shall not apply to any information in the public domain (other than as a result of breach of this clause), is agreed by the parties not to be confidential, or which either party is compelled to disclose as a result of any court order or other legally binding obligation. This clause 12 shall survive termination of the Contract.
13. Limitation of liability
13.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or
(b) fraud or fraudulent misrepresentation.
13.2 Subject to clause 13.1:
(a) the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the amount paid by the Customer to the Supplier pursuant to the terms of this Agreement or the amount of the Supplier’s insurance cover currently in place, whichever is the lower.
13.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
13.4 The Supplier shall be responsible for deduction and payment of all tax, National Insurance contributions and other taxes and levies in respect of Contractor Workers and shall keep the Customer indemnified against all liability to make sure statutory payments that may be suffered or incurred by the Customer.
13.5 This clause 13 shall survive termination of the Contract.
14.1 Without limiting its other rights or remedies, each 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 this Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing of the breach;
(b) the other party is subject to any form of insolvency procedure or process; or
(c) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
14.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract:
(a) by giving the Customer three months' written notice;
(b) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
15.1 Force majeure:
(a) For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
(b) The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
(c) If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 20 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party's main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at [9.00 am] on the [second] Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 15.2 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, "writing" shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
15.3 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15.6 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.7 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Supplier.
15.8 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Philip Smith, Johnson Matthey PLC