1. FORMATION AND SCOPE OF CONTRACT
1.1 All contracts made by the Seller for the supply of Plant and/or Works are made on these Conditions. In submitting its purchase order, accepting delivery or paying any part of the Contract Price, the Buyer agrees to the incorporation of these Conditions in place of any printed provisions on the Buyer’s documents. The Buyer’s purchase order constitutes an offer by the Buyer to purchase the Plant and/or Works in accordance with these Conditions. The Seller shall only be bound, and the Buyer’s purchase order deemed to be accepted, when the Seller has signed and sent to the Buyer its order confirmation or invoice on which date the Contract shall come into existence.
1.2 The Contract sets out all of the terms relating to the supply of the Plant and the Works.
1.3 The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
1.4 All illustrations and descriptions in the Seller’s price list, catalogues or sales literature are issued or published for the sole purpose of giving an approximate idea of the Plant/Works described in them. They shall not form part of the Contract or have any contractual force.
1.5 Any Proposal or quotation given by the Seller shall not constitute an offer, and is only valid for a period of 14 days from its date of issue.
1.6 All of the Conditions shall apply to the supply of both Plant and Works except where application to one or the other is specified.
2. CONTRACT PRICE
2.1. Unless otherwise stated elsewhere in the Contract, the Contract Price:
2.2. excludes VAT or other applicable taxes or duties;
2.3. excludes the costs of delivery, insurance and packing;
2.4. is subject to correction on account of typographical errors and omissions.
2.5. The Seller reserves the right to increase the Contract Price, by giving notice to the Buyer at any time before delivery, to reflect any increase in the cost of the provision of the Plant and/or Works to the Seller that is due to:
2.5.1. any factor beyond the control of the Seller including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs;
2.5.2. any request by the Buyer to change delivery date(s), quantities or types of Plant ordered or the Specification;
2.5.3. any delay caused by any instructions of the Buyer in respect of the Plant and/or Works or failure of the Buyer to give the Seller adequate or accurate information or instructions in respect of the Plant and/or Works.
3. BUYER RESPONSIBILITIES
3.1. The Buyer agrees to perform all obligations and responsibilities on it under the Contract including without limitation any specific obligations set out in the Proposal, with all due skill and care, without negligence or other breach of duty, at its own cost and by the time specified in the Contract for such compliance or, if no time is stated, in good time to allow Seller to perform its obligations.
3.2. If the Seller’s performance of any of its obligations in respect of the Works and/or the Plant is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
3.2.1. The Seller shall without limiting its other rights or remedies have the right to suspend performance of the Works 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 to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;
3.2.2. the 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 Condition 3; and
3.2.3. 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.
3.3. Unless and to the extent otherwise stated elsewhere in the Contract, the Buyer is responsible for the giving of all notices and the obtaining of all licences, consents, authorisations and permits required for the carrying out of the Works.
3.4. If the Contract does not specify that the Buyer is to provide certain services or facilities, Buyer shall provide such services and/or facilities, as the Seller reasonably requires. Except where the Contract expressly provides that the Seller is responsible for Site safety, the Buyer shall ensure that the Site is safe.
4. DESIGNS AND OTHER VARIATIONS
4.1. The Seller reserves the right to amend or vary the design or Specification of the Plant if required by any applicable statutory or regulatory requirements.
4.2. The Seller shall have the right to make any changes to the Works which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Works, and the Seller shall notify the Buyer in any such event.
4.3. Unless expressly set out elsewhere in the Contract, the Contract including the introduction of any additional terms and conditions may only be varied with the prior written agreement of the Seller. The Seller shall use all reasonable endeavours to comply with any reasonable request of the Buyer to modify the Plant or the Works, subject to the Seller and the Buyer agreeing any consequent variations to the Contract Price, or other terms of the Contract.
4.4. To the extent that Plant is manufactured or Works are carried out in accordance with a Specification, design or drawing supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damage and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller 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 Specification, design or drawings. This Condition 4.4 shall survive termination of the Contract.
5. INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY AND DRAWINGS
5.1. All drawings, specifications, manuals and other literature prepared by or on behalf of the Seller, all Intellectual Property Rights in them and all Intellectual Property Rights arising in the course of the Works or in the Plant shall belong to the Seller.
5.2. The Buyer acknowledges that, in respect of any third party Intellectual Property Rights in the Works or the Plant, the Buyer’s use of any such Intellectual Property Rights is conditional on the Seller obtaining a licence from the licensor on such terms as will entitle the Seller the license such rights to the Buyer.
5.3. The Buyer shall have a licence to use any standard operating instructions, CDs, manuals and layout drawings supplied by the Seller to the Buyer under the Contract in the servicing, repair and maintenance of the Plant. Unless the Seller is obliged to provide such information to the Buyer under the Contract, the Buyer shall return to the Seller all information provided by the Seller on the Seller’s request.
5.4. Any documents required to be approved by Buyer under the Contract shall be deemed to be approved unless returned to the Seller with full written comments within 7 days of their submission.
5.5. The Buyer 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 by the Seller to the Buyer, its employees, agents or subcontractors, and any other confidential information concerning the Seller’s business or its products or its services which the Buyer may obtain. The Buyer 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 Buyer’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 Buyer. This Condition 5 shall survive termination of the Contract.
6. INSPECTION AND TESTS
Unless expressly set out elsewhere in the Contract, the Seller will carry out such tests on the Plant as the Seller shall deem appropriate (if any) prior to delivery and/or at the Site during the Commissioning Period. The Buyer shall be entitled to receive notice of and attend all tests and shall give the Seller not less than 7 days’ notice of its intention to attend. If the Buyer fails to attend the tests or to carry out any tests or inspections which the Buyer is entitled to carry out under the Contract on the date(s) prescribed by the Seller, the Buyer shall be bound by the results of the Seller’s tests and/or inspections (if any) and may not object to them.
7. DATES FOR PERFORMANCE
If it is expressly agreed elsewhere in the Contract that the Seller is liable for a delay or default in the performance of any of its obligations under the Contract, the Seller’s liability for such delay or default shall be limited to the amount of damages (if any) stated to be payable on such delay or default. Otherwise, all dates specified for the performance of the Seller’s obligation(s) (including dates for delivery or Completion) are estimates only and time shall not be of the essence in relation to any of them. Any dates for performance may be varied by the Seller to take account of any delay resulting from any delay, default, act or omission on the part of Buyer or any variation in the Contract in accordance with these Conditions.
8. DELIVERY, RISK AND TITLE
8.1. Unless expressly set out elsewhere in the Contract, the Plant shall be delivered Ex Works (as defined in Incoterms 2020) to the Seller’s premises at Peterborough (Delivery Location).
8.2. Delivery of the Plant shall be completed on the completion of loading the Plant at the Delivery Location.
8.3. Any dates quoted for delivery of Plant are approximate only, and the time of delivery is not of the essence.
8.4. The Seller shall not be liable for any delay in delivery of Plant 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 Plant.
8.5. If the Buyer does not take delivery of the Plant on the date on which the Seller has notified the Buyer the Plant is available for delivery, delivery shall be deemed to have been completed at 9.00am on the fifth Business Day following the day on which the Seller notified the Buyer that the Plant was ready and the Seller shall store the Plant until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance and storage charges). The Seller may make partial deliveries to the extent this has been agreed in writing between the Buyer and the Seller and is otherwise legally permitted. Any delay or defect in a partial delivery shall not entitle the Buyer to cancel any other delivery.
8.6. Risk in the Plant shall pass to the Buyer on delivery or, if the Buyer does not take delivery when notified, on the date when the Buyer should have taken delivery.
8.7. Title to the Plant shall not pass to the Buyer until payment in full of the Contract Price. Until title to the Plant has passed to the Buyer, the Buyer shall:
8.7.1. hold the Plant on a fiduciary basis as the Seller’s bailee;
8.7.2. store the Plant separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
8.7.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Plant;
8.7.4. maintain the Plant in satisfactory condition and keep them insured against all risks for their full price on the Seller’s behalf from the date of delivery;
8.7.5. notify the Seller immediately if it becomes subject to any of the events listed in Condition 13.3;
8.7.6. give the Seller such information relating to the Plant as the Seller may require from time to time.
8.8. If, before title to the Plant passes to the Buyer, the Buyer becomes subject to any of the events listed in Condition 13.3, or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided the Plant has not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Plant and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Plant is stored in order to recover it.
9. TERMS OF PAYMENT
The Contract Price and all other sums due under the Contract shall be paid in accordance with the terms set out in the Proposal or, if none, prior to delivery. All payments shall be made in cleared funds by the date(s), in the currency and to the address on the Seller’s invoice. Time for payment shall be of the essence of the Contract. Where any payment is not made on the due date, the Seller may charge the Buyer interest on the amount overdue at the rate of 2% per annum above the base rate from time to time of Lloyds Bank plc from the due date for payment until payment in full, whether before or after judgment.
10. SELLER’S LIABILITY FOR DEFECTS
10.1. The Seller agrees that if any defect in the design, workmanship or materials used in that part of the Plant manufactured by the Seller arises during the Warranty Period, the Seller shall, at its option, either repair or replace free of charge the defective part of such Plant or refund to the Buyer an amount equal that part of the Contract Price as relates to the defective Plant. Where a defect arises prior to the expiry of the Commissioning Period, the Seller’s Commissioning Engineer will seek to remedy the defect in the first instance. Fitting of a replacement part is the Buyer’s responsibility. Should the Buyer require the Seller to fit a replacement part this will be chargeable in accordance with the Seller’s standard charges from time to time.
10.2. Where a defect arises in relation to any part of the Plant not manufactured by the Seller, the Seller shall transfer to the Buyer such warranties, if any, from the supplier of such Plant as are capable of transfer but makes no warranty in relation thereto and shall have no liability in respect of that Plant.
10.3. The Seller will not be liable under Condition 10.1 unless:
10.3.1. the Buyer promptly notifies the Seller in writing within the Warranty Period upon such defect arising and supplies the Seller with such information and documentation (including photographic evidence) in relation to the delivery storage installation commissioning servicing maintenance and use of the Plant as the Seller shall reasonably require;
10.3.2. the Seller is given a reasonable opportunity of examining such Plant; and
10.3.3. the Buyer (if asked to do so by the Seller) returns such Plant to the Seller’s place of business. This shall be at the Buyer’s cost but such cost will be reimbursed by the Seller if a valid warranty claim is demonstrated hereunder.
10.4. The Seller shall not be liable under Condition 10.1 if:
10.4.1. the Buyer makes any further use of such Plant after giving a notice in accordance with Condition 10.3.1;
10.4.2. the defect arises as a result of misuse, neglect, wilful damage, negligence (other than on the part of the Seller), lack of servicing or maintenance, abnormal working conditions, failure to comply with the Seller’s instructions, failure to comply with good engineering practice, use of materials other than those referred to in the Specification, dismantling, alteration or repair;
10.4.3. the defect is due to fair wear and tear;
10.4.4. the defect results from the Buyer’s instructions, designs or specifications or as a result of the installation or commissioning of the Plant other than by the Seller;
10.4.5. the defect arises as a result of any defect in, non-compatibility of or unsuitability of any plant or equipment not supplied by the Seller;
10.4.6. the Contract so provides, where the Plant has been in operation for more than the specified number of hours;
10.4.7. the Buyer has used in the Plant replacement parts not manufactured or supplied by the Seller.
10.5. Unless the Seller has expressly agreed elsewhere in the Contract to give a warranty in relation to such equipment and the period during which such warranty would apply, the obligations of the Seller under this Condition 10 shall not apply to any second hand or reconditioned Plant, in relation to which no warranties, representations or guarantees are given nor to the Software, to which Condition 11 applies.
10.6. Except as provided in this Condition 10 the Seller shall have no liability to the Buyer in respect of any defect in the Plant.
10.7. The terms of these Conditions shall apply to any repaired or replacement Plant supplied by the Seller under Condition 10.2.
11. SOFTWARE
11.1. Title to and copyright in the Seller’s Software shall at all times remain with the Seller. On Completion the Seller will grant the Buyer a non-exclusive licence to use the Seller’s Software in operating the Plant at the Site for the purposes of its business. The Buyer may make one copy only of the Seller’s Software for its own internal back up purposes and shall ensure that such copy acknowledges the Seller’s copyright and other rights in the Seller’s Software. The Buyer may use the Seller’s Software in machine readable code only and, except to the extent permitted at law, shall not copy, modify, disassemble, reverse engineer nor decompile the Seller’s Software. Without limiting any other obligation of the Buyer, the Buyer shall use all reasonable endeavours to safeguard the Seller’s rights in the Seller’s Software and shall at all times keep the Seller’s Software confidential and shall not use the same except in so far as may be necessary for the purposes of and as permitted by the Contract nor disclose the same to any third party other than with the express prior written consent of the Seller.
11.2. The Seller warrants that the Seller’s Software shall be fit for purpose and that the media on which Seller’s Software is provided is free from defects in design, materials and workmanship. Failure to comply with this warranty during the Warranty Period shall constitute a defect which Seller will, if appropriate, remedy in accordance with Condition 10.1, subject always to the limitations in Condition 10.3 and 10.4. In the event the Buyer does not require the Seller’s Software or attempts to modify such software or any Third Party Software itself, the warranty set out in this Condition shall cease to apply, and the Buyer must procure any Third Party Software itself directly from the providers thereof.
11.3. Title to and copyright in any Third Party Software shall at all times remain with the relevant third party. On Completion the Seller shall provide to the Buyer the Third Party Software and transfer to the Buyer such rights (if any) as the Seller has in respect of the Third Party Software by way of a sub-licence thereof. The Seller will provide to the Buyer copies of the licences on which such Third Party Software is provided by its owners and the Buyer agrees to comply with all provisions of such licences. The Seller gives no warranties or representations in respect of the Third Party Software and shall have no obligation to replace or repair any such Third Party Software.
11.4. Except as set out in this Condition 11, the Seller gives no other warranties and makes no representations in relation to the Seller’s Software nor the Third Party Software and all other warranties or representations are expressly excluded.
12. LIMITATIONS OF LIABILITY
12.1. This Contract is intended to be inclusive and the rights, obligations and remedies of the Seller and the Buyer under the Contract (including as to the extent of supply) are as set out in the Contract to the exclusion of all other rights and obligations arising out of or in connection with the Contract, the Plant or the Works.
12.2. The Seller has warranted to the Buyer as set out in Conditions 10.1 and 11.2 and may have provided express warranties of performance elsewhere in the Contract but otherwise the Seller makes no warranty or representation in relation to and gives no guarantee and shall have no liability in respect of the Plant or the Works and any such warranties, representations and/or liability including any terms implied by law are, to the full extent permitted by law, expressly excluded.
12.3. In relation to any claim for death or personal injury resulting from its negligence, the liability of Seller shall be unlimited. In relation to any claim for damage to tangible property resulting solely and directly from the negligence of the Seller, the liability of the Seller to the Buyer shall be limited to an amount equal to the Contract Price. All other or further liability (however arising, including in negligence) is hereby expressly excluded, even if Seller was aware of the possibility of the Buyer’s loss.
12.4. The Seller shall have no liability to the Buyer in respect of any loss of profit, loss of goodwill, loss of contract, loss of business, loss of opportunity, loss of production, additional staffing costs, loss of materials or product, recall costs nor for any financial or economic loss nor for any consequential loss or for special or punitive damages (whether in contract, statutory duty, tort including negligence or otherwise and however arising or claimed) and any such liability is excluded. Except as expressly contemplated by the Contract, neither party shall have any liability to the other for any damages or losses (whether arising in contract, statutory duty, tort including negligence or otherwise). Any limitation or exclusion of liability in the Contract shall apply to the fullest extent permitted by law, regardless of how such liability arises (including in negligence) or whether the party who would otherwise be liable may have been aware of the possibility of the other party’s loss.
13. TERMINATION AND SUSPENSION
13.1. The provisions of Conditions 4.4, 5.5 and 12 shall survive any termination of the Contract.
13.2. Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:
13.2.1. the Buyer commits a breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing of the breach;
13.2.2. if the Buyer suffers a Change of Control.
13.3. If either party shall propose a scheme or other arrangement or compromise with its, his or her creditors or shall become insolvent or (being a company) have a receiver appointed in respect of all or any part of its assets, have a petition presented for its winding up or the appointment of an administrator or shall take any steps with a view to its liquidation or (being an individual) shall have a petition presented for or otherwise file for his or her bankruptcy or in either case be subject to analogous events in any other jurisdiction, the other party may terminate the Contract by written notice effective immediately.
13.4. Without limiting its other rights or remedies, the Seller shall have the right to suspend the supply of the Works or all further deliveries of Plant under the Contract or any other contract between the Buyer and the Seller if:
13.4.1. the Buyer fails to pay any amount due under this Contract on the due date for payment; or
13.4.2. the Buyer becomes subject to any of the events set out in Condition 13.3 and 13.4, or the Seller reasonably believes that the Buyer is about to become subject to any of them.
14. CONSEQUENCES OF TERMINATION
14.1. On termination of the Contract for any reason:
14.1.1. the Buyer shall immediately pay to the Seller all of the Seller’s unpaid invoices and interest and, in respect of Works supplied but for which no invoice has yet been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
14.1.2. the Buyer shall return all of the Seller’s materials, equipment, documentation, and other property of the Seller 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 connect with this Contract;
14.1.3. the Buyer shall return any of the Seller’s confidential information;
14.1.4. the accrued rights and remedies of the parties as at termination shall not be affected including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
14.1.5. Conditions which expressly or by implication have effect after termination shall continue in full force and effect.
15. GENERAL
15.1. Neither party shall be liable in respect of any failure to perform its obligations under the Contract where such failure results from circumstances beyond that party’s control, including but not limited to fire, explosion, flood, storm, power cut, labour dispute, power, fuel or materials, failures of its subcontractors, suppliers or transport, act of government or God (Force Majeure Event). While such circumstances continue the affected party shall be granted a reasonable extension of time for the performance of its obligations and Seller shall be entitled to be paid such part of the Contract Price as relates to the Works undertaken or the Plant supplied by it at that date. If the Force Majeure Event prevents the Seller from providing any of the Plant and/or Works for more than 8 weeks, the Seller shall, without limiting its other rights and remedies have the right to terminate this Contract immediately by giving written notice to the Buyer.
15.2. The Buyer shall pay all amounts due under the Contract in full and shall not exercise any right of set off, deduction, withholding, counterclaim or other reduction in respect of any sums due to Seller. The Seller may, without limiting its other rights and remedies, set off any amount owing to it by the Seller against any amount payable by the Seller to the Buyer.
15.3. The Seller may at any time assign, transfer, change, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
15.4. The Buyer shall not, without the prior written consent on the Seller, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.5. Where either party may provide its consent or approval under the Contract, the provision of such consent or approval shall not be unreasonably withheld or delayed.
15.6. 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 the Seller in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, not 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.
15.7. 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.
15.8. 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.
15.9. Nothing in this 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.
15.10. A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.11. Any notice 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.
15.12. Any notice or other communication shall be deemed to have been received if delivered personally, when left at such address, if sent by pre-paid first-class post or recorded delivery, at 9.00am 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.
15.13. Condition 15.12 and 15.13 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Condition, “writing” shall not include emails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by email.
15.14. The Contract shall be governed by English law, shall be deemed to have been made in England and shall be subject to the exclusive jurisdiction of the English Courts.
16. GENERAL TRADE COMPLIANCE PROVISION
16.1. The performance of contractual obligations (providing goods, incl. software and technology and providing services) is subject to the condition that this does not conflict with any national, U.S., European or supranational (UN/WTO) foreign trade laws, such as export control regulations, embargos, sanctions, customs regulations or other restrictions.
16.2. Buyer acknowledges that goods and/or services may include hardware and software that are subject to customs and export control laws and regulations of the United States- wherever they are located-, and of the country in which the goods are manufactured and/or received.
16.3. Buyer undertakes to comply with all applicable national, European or supranational (UN/WTO) foreign trade laws such as export control regulations or U.S. re-export control regulations, specifically when forwarding goods (incl. software, technology and the related documentation) or services to any third party.
16.4. If required licenses are not granted or contractual services cannot be approved by competent authorities, we reserve the right to rescind the contract (Revocation). Damages of any kind, particularly due to delay or non-performance, or any other rights or remedies of the Buyer in connection with this section are excluded.
16.5. Buyer agrees to defend, indemnify and hold us harmless for any fine, penalty, claim, suit, demand, liability, cause of action, damage or cost (including attorney’s fees) for any actual or alleged violation of foreign trade laws arising from the sale and delivery of goods, incl. software and technology or from the performance of services.
INTERPRETATION AND DEFINITION
- “Change of Control” has the meaning set out in section 574 of the Capital Allowances Act 2001;
- “Commissioning Period” means the period in which a Commissioning Engineer engaged by the Seller carries out commissioning of Plant at a Site where such commissioning services have been requested by the Buyer;
- “Completion” means the date upon which the Works are complete, as determined in accordance with provisions set out elsewhere in the Contract or if none, as notified by the Seller to the Buyer;
- “Contract” means the contract between the Buyer and the Seller for the supply of the Plant and the Works in accordance with these Conditions;
- “Contract Price” means the price for the Plant and the Works set out in the Proposal;
- “Force Majeure Event” has the meaning given to that term in Condition 14.2;
- “Intellectual Property Rights” means all patents, trade names or marks, service marks, copyright, moral rights and design rights and all mask work, trade secrets, knowhow and other intellectual property rights (whether, in any case, registered or unregistered and wherever subsisting) and any right to register any of them;
- “Plant” all or any of plant and equipment (including any Software) to be supplied by the Seller to the Buyer under the Contract, as described in the Specification;
- “Proposal” the indicative proposal document issued by the Seller to the Buyer;
- “Seller’s Software” means that part of the Software as is owned or written by or on behalf of the Seller;
- “Site” the Buyer’s premises where Plant is to be used and/or Works are to be carried out;
- “Software” means all software and firmware to be supplied by the Seller to the Buyer as part of the Plant, as described in the Specification;
- “Specification” the Seller’s standard design specification of the Plant and the Works as amended from time to time in accordance with these Conditions; or such other specification as the parties shall agree in writing and set out in the Contract;
- “Third Party Software” means that part of the Software as is owned or written by or on behalf of any third party;
- “Warranty Period” means the period during which the Seller agrees to remedy defects in the Plant in accordance with Condition 10, being such period as is specified elsewhere in the Contract or, if none, twelve months from date the Plant is first used in production or eighteen months from delivery whichever is the earlier; if Installation and Commissioning is not undertaken by Baker Perkins Engineers then the Warranty Period is 12 months from the Ex-Works date.
- “Works” means all or any of the works to be undertaken by the Seller in designing, supplying, installing and/or commissioning (as appropriate) the Plant, as described in the Proposal.
Baker Perkins Ltd. Terms And Conditions Version 17032021
