BILLI UK LIMITED
TERMS AND CONDITIONS OF SUPPLY
Interpretation
The following definitions and rules of interpretation apply in these Conditions.
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.
Business Hours: the period from 9am to 5 pm on any Business Day.
Commencement Date: has the meaning given in clause 2.4.
Commissioning: the Supplier’s attendance at the Customer’s site to undertake all necessary and relevant testing to determine whether a third party’s installation of the Equipment has been done correctly, and potential sign-off of such installation.
Conditions: these terms and conditions as amended from time to time in accordance with clause 26.
Confidential Information: all information of the Supplier (in whatever medium including written, oral, visual or electronic form) which is non-public, sensitive, confidential or proprietary in nature, including but not limited to all business, financial, commercial, technical, operational, organisational, legal, management and marketing information.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services formed in accordance with these Conditions.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Customer Data: any data (including any personal data relating to the staff, customers or suppliers of the Customer), documents, texts, drawings, diagrams, images (together with any database made up of any of those), embodied in any medium, that are supplied to the Supplier by or on behalf of the Customer, or which the Supplier is required to generate, process, store or transmit pursuant to the Contract.
Customer Default: has the meaning given in clause 8.5.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Deliverables: all documents, products and materials produced by the Supplier to the Customer as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, design, pictures, computer programs, data and reports (including drafts).
Delivery Date: the Customer’s preferred date for delivery of the Goods as specified in an Order which shall be not less than 21 days from the date the Supplier receives the Order (unless otherwise agreed in an Order confirmation).
Delivery Location: has the meaning given in clause 4.1
Equipment: means the Supplier-branded equipment which is the subject of the Services.
Event of Insolvency: has the meaning given in clause 5.4
Force Majeure Event: an event beyond the Supplier’s reasonable control preventing the Supplier or delaying it from performing its obligations under the Contract (including, without limitation, Act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot, or civil unrest, interruption or failure of supplies of power, fuel, water, transport equipment or telecommunications service or materials required to perform the Contract, or any strike, lock-out, or boycott, or other industrial action).
Goods: the goods (or any part of them) set out in the Order (excluding items supplied under Services).
Incoterms: the international rules for the interpretation of trade terms 2020 prepared by the International Chamber of Commerce.
Initial Term: has the meaning given in clause 7.2.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, 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 Customer’s order for the supply of Goods and/or Services.
Renewal Term: has the meaning given in clause 7.2
Services: the services, including the Deliverables, supplied by the Supplier to the Customer (together with any replacement parts provided as part of the Services) as set out in the Order and/or the Service Specification.
Service Specification: the description or the specification for the Services provided in writing by the Supplier to the Customer or as set out in an Order.
Supplier: Billi UK Limited, Room PA029, Wolverhampton Science Park, Technology Centre, Glaisher Drive, Wolverhampton, England, WV10 9RU Company Number: 14350628.
Supplier Materials: has the meaning given in clause 8.1(h).
Supplier Personnel: all employees, staff, other workers, agents and consultants of the Supplier and of any sub-contractors who are engaged in the provision of the Services from time to time.
Tax: any present and future taxes, levies, imposts, deductions, charges, duties and withholdings and any charges of a similar nature (including interest, penalties and other liabilities with respect thereto) that are imposed by a government or other taxing authority. “Taxes” shall be construed accordingly.
Warranty Period: has the meaning given in clause 11.3(e).
1.2 Interpretation
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes email.
(f) Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
2. Basis of contract
2.1 All acceptances, Contracts, Orders and quotations are subject to these Conditions. These Conditions, together with the Contract supersede any arrangements, agreements, statements, representations or negotiations made between the Customer and the Supplier relating to the subject matter hereof and to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. For the avoidance of doubt, any other terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, Order, confirmation of Order, specification, or other document shall not form part of the Contract except to the extent that the Supplier otherwise expressly agrees in writing.
2.2 Each Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.3 The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for 10 Business Days from the date on which the Customer submitted the Order after which time it shall automatically lapse and be withdrawn.
2.4 The Supplier may accept or reject an Order at its discretion. The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.5 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.6 The Supplier may issue quotations/proposals to the Customer from time to time. Any quotations/proposals given by the Supplier shall not constitute an offer to supply goods or services and is only valid for a period of 30 calendar days from their date of issue.
2.7 Any samples, marketing and other promotional material relating to the Goods and/or Services are illustrative only and do not form part of the Contract nor have any contractual force.
3. Charges and Payment
3.1 The price for Goods:
(a) shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the Commencement Date; and
(b) shall be inclusive of the Supplier’s standard packaging but does not include the costs of delivery and insurance, which shall be invoiced to the Customer at the Supplier’s standard rates.
3.2 The charges for Services shall be the charges set out in the Order or, if no price is quoted, the price set out in the Supplier’s price list as at the Commencement Date.
3.3 The Supplier may increase its charges for the Services no sooner than 6 months after the Commencement Date. The Supplier shall give the Customer not less than 30 days’ written notice of the increase.
3.4 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
3.5 If a transaction described in the Contract is subject to any applicable Tax, the Supplier will be allowed to charge Tax to the Customer, which will be paid by the Customer to the Supplier on top of the charges set out in the Order. The Supplier is responsible for paying any applicable tax levied on the Supplier to the appropriate (tax) authorities. If the Supplier becomes aware of any situation in which it is allowed to apply for an exemption under applicable law, in such situation, it shall inform the Customer.
3.6 In respect of Goods, the Supplier shall invoice the Customer prior to delivery of the Goods, where a credit account is applicable, 30 day payment terms shall apply, and if no credit facility is in place, payment must be pro forma.
3.7 In respect of Services, the Supplier shall invoice the Customer annually in advance unless otherwise stated.
3.8 Payment for all Goods and Services must be made within 30 days from the date of the Supplier’s invoice.
3.9 The Customer shall pay all invoices:
(a) in full without deduction or set off, in cleared funds; and
(b) to the bank account nominated by the Supplier, and
time for payment shall be of the essence of the Contract.
3.10 When any sum is due under these Conditions is not paid in full by the due date:
(a) the Supplier may without limiting its other rights charge interest on such sums at 5% per year above the base rate of the Bank of England from time to time in force; interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment;
(b) the Supplier may in its discretion suspend delivery of the Goods and/or Services under the Contract or any other contract between the Customer and the Supplier until payment is made; and/or the Supplier may in its discretion cancel the Contract and/or any other contract between the Supplier and the Customer.
(c) Customers may be subject to a credit checking process, at the Supplier’s discretion, and the Customer agrees to this check being carried out ahead of the commencement of the Contract. Should the Supplier deem any Customer not to be credit worthy, the Supplier will notify the Customer in writing of its decision and offering options for resolution.
(d) The Supplier may set and vary credit limits from time to time and/or withhold all further supplies of Goods and Services if the Customer exceeds such credit limit. The Supplier may at any time require the Customer to make payment in advance or require security for payment.
4. Delivery of Goods
4.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location). The Supplier shall use its reasonable endeavours to deliver the Goods within five Business Days of the Delivery Date unless otherwise agreed.
4.2 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location, or in accordance with the Incoterms specified in the Order.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the value of the Goods paid by the Customer. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.5 If the Customer fails to take or accept delivery of the Goods at the Delivery Location, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) delivery of the Goods shall be deemed to have been completed at the time of attempted delivery by the Supplier; and
(b) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.7 Each party shall be required to pay its own costs, duties, fees etc for the Goods in accordance with its obligations under the Incoterms specified (if any) in the Order.
5. Risk and Title
5.1 The risk in the Goods shall pass to the Customer on completion of delivery, and in accordance with any Incoterms specified in the Order.
5.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full and cleared funds for the Goods.
5.3 Until title to the Goods has passed to the Customer the Customer shall:
(a) hold the Goods as bailee for the Supplier;
(b) store the Goods separately from other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) take reasonable care of the Goods and keep them in the condition in which they were delivered;
(d) insure the Goods from the date of delivery with a reputable insurer against all risks for an amount at least equal to their price and noting the Supplier’s interest on the policy;
(e) ensure the Goods are clearly identified as belonging to the Supplier;
(f) not remove, alter or mark the packaging of any of the Goods; and
(g) on reasonable notice, permit the Supplier or its agents to inspect the Goods during the Customer’s normal Business Hours and provide the Supplier with such information and return the Goods as the Supplier may properly request from time to time.
5.4 If at any time before title to the Goods has passed to the Customer:
(a) the Supplier reasonably believes that the Customer has or is likely to stop carrying on a significant part of its business or indicates that it intends to do so;
(b) the Customer is unable to pay its debts within Section 123 of the Insolvency Act 1986;
(c) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(d) the Customer has a freezing order made against it; or
(e) the Customer is subject to any event or circumstances analogous to those specified above in any other jurisdiction (each of these being hereinafter referred to as an Event of Insolvency) then in any such event the Supplier may require the Customer at the Customer’s expense to redeliver the Goods to the Supplier and if the Customer fails to do so on written demand the Supplier or its agents may enter any premises where the Goods are stored and repossess them.
6. Inspection of the Goods
6.1 If the Goods are damaged or lost while in the custody of a carrier who is delivering on behalf of the Supplier, the Supplier will (at its option) either replace such Goods or refund to the Customer the cost or price of them but the Supplier’s liability in connection with any such Goods will not exceed the cost of replacement of them or the price to be paid by the Customer for them.
6.2 The Supplier will not be under any liability under clause 6.1 above unless the following conditions are strictly complied with:
(a) in the event of non-delivery of a consignment of Goods the Customer must inform the Supplier in writing within two days of the expected date of delivery; and
(b) in the case of damage to Goods or loss of part of a consignment, the consignment must be inspected in the presence of the carrier. If any Goods are damaged or lost the consignment note must be endorsed accordingly and the Customer must notify the Supplier within twenty-four hours of delivery, and such notification must then be confirmed in writing by the Customer to the Supplier within the following five days.
6.3 Where Goods correctly supplied, but then, due to the Customer’s change of mind have subsequently been taken back by the Supplier and replaced for a credit note, a 15% handling charge and the cost for the Supplier to recover the Goods is payable and will be deducted from the credit note. A credit note will only be issued provided (i) the Customer informs the Supplier within 30 days of receiving the Goods, and (ii) the Goods returned are undamaged, unused, complete with their packaging and product literature and are suitable for resale ‘as new’. The invoice number relating to the Goods must be quoted whatever the reason for return.
6.4 The Supplier cannot accept any Goods for return if they have in any way been used, installed, further processed, or altered.
6.5 The Customer shall satisfy itself as to the quality and suitability of all Goods ordered before using, installing, further processing or altering the Goods.
7. Supply of Services
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification.
7.2 Each Contract for Services shall commence on the Commencement Date and, subject to the termination provisions set out in clause 13 and 16.3 of these Conditions, shall continue in force for an initial period of 12 months, or any other initial period stated in an Order (Initial Term), thereafter, it will automatically renew for successive periods of 12 months (each a Renewal Term) unless and until either party wishes to terminate on the last day of the Initial Term or Renewal Term (as applicable) by serving not less than 30 days’ prior written notice of termination to the other.
7.3 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.
7.4 The Supplier 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 Supplier shall notify the Customer in any such event.
7.5 The Supplier shall at all times provide the Services with reasonable care, skill and diligence and in accordance with industry standards.
7.6 The Supplier shall ensure that all Supplier Personnel:
(a) are carefully selected prior to appointment and trained to meet the high level of service required to discharge their duties; and
(b) have received such training as may be necessary to enable compliance with relevant legal obligations and all relevant requirements of the Contract.
7.7 The Supplier shall use all reasonable endeavours to perform the Services at the Customer’s premises with minimum disruption to the Customer and its personnel.
7.8 The Supplier reserves the right to use subcontractors to perform the Services. The Supplier shall ensure that its subcontractors comply with the terms of the Contract and the Supplier shall be responsible for the acts and/or omissions of its subcontractors.
7.9 Notwithstanding clause 7.8 above, the Supplier shall not be liable for any services performed by a subcontractor which are not set out in the Service Specification or in the Order.
8. Customer’s obligations
8.1 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) provide the Supplier and the Supplier Personnel with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(e) ensure the Customer’s premises is prepared for the supply of the Services and meet the required criteria set out by the Supplier as stipulated in the Supplier’s “Installation Requirements Documents”;
(f) 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;
(g) comply with all applicable laws, including health and safety laws;
(h) keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
(i) only use the Equipment exclusively with Supplier-branded internal filters. This obligation does not limit the Customer’s ability to use third party external pre-filters or scale filters with the Equipment, however the Supplier accepts no responsibility and excludes all liability to the Customer for any loss or damage to the extent such loss or damage is caused by the use of any such third party filters in conjunction with the Equipment;
(j) provide reliable and uninterrupted supply of water and electricity for the operation of the Equipment. Such supply shall meet the required criteria set out in the Supplier’s “Installation Requirements” Documents provided on request”;
(k) operate the Equipment in accordance with any additional instructions given to the Customer by the Supplier;
(l) ensure the Equipment has periodic electrical ‘PAT’ tests conducted on it;
(m) maintain the Equipment in a good, hygienic condition at all times, including emptying the drip tray and waste container where applicable and descaling the dispenser and font;
(n) permit the Supplier (on giving not less than 24 hours’ prior notice) to enter its premises during normal Business Hours to inspect the Equipment from time to time to ensure that it is being operated and maintained in accordance with the Contract and to carry out such routine checks as the Supplier deems necessary for the safe and reliable operation of the Equipment;
(o) comply with any additional obligations as set out in the Service Specification.
(p) The Client shall ensure that any equipment located on the premises and subject to this Agreement is maintained under an appropriate and effective pest control regime, sufficient to prevent infestation, contamination, or damage. Failure to implement or maintain such measures shall render the Client liable for any resulting damage, loss, or additional treatment costs reasonably incurred by the Contractor.
8.2 If the Customer is concerned about the safety of the Equipment, it must assess the risks and act in accordance with its own company policies. The Supplier shall not be liable for the Customer’s actions or negligence relating to any Equipment or its misuse of the Equipment.
8.3 The Supplier does not accept any responsibility for damage to the Customer’s property to the extent such damage is caused by the Customer failing to adhere to its obligations under this clause 8.
8.4 Call outs arising directly or indirectly from the Customer’s failure or delay to perform any of its obligations as set out in clause 8.1 will result in such call outs being charged to the Customer at the Supplier’s standard tariff call out charges.
8.5 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.5;
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default, including but not limited to any charges reasonably incurred by the Supplier in connection with call outs and any other routine service visits, and any cancelled call outs/routine service visits, which may include travelling expenses, hotel costs and any associated expenses.
9. Confidentiality
9.1 The Customer undertakes that it shall not at any time disclose to any person any of the Supplier’s Confidential Information, except as permitted by clause 9.2.
9.2 The Customer may disclose the Supplier’s Confidential Information:
(a) to its employees, officers, agents, consultants, subcontractors and professional advisers (Representatives) to the extent they need know such information for the purposes of carrying out its obligations under the Contract; or
(b) as required by law, court order or any governmental or regulatory authority.
9.3 The Customer undertakes:
(a) to take all proper and reasonable measures (which in any event shall be no less than the measures it takes to protect its own confidential information) to keep secret and treat as confidential the Supplier’s Confidential Information;
(b) not to use the Supplier’s Confidential Information for any the purpose other than to exercise its rights and perform its obligations under or in connection with the Contract; and
(c) to take all proper and reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 9 and be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause 9.
9.4 The following shall not be Confidential Information for the purposes of this clause 9;
(a) any information in the public domain otherwise than by a breach of this clause 9 or of any other duty of confidentiality in relation to that information;
(b) information obtained from a third party without that third party being under an obligation (express or implied) to keep the information confidential; or
(c) information lawfully in the possession of the Customer prior to entering discussions with the Supplier.
9.5 Nothing in the Contract shall prevent either party from using any general concepts, ideas, know how, methodologies, processes, techniques or algorithms retained in the unaided memory of such party’s personnel which were developed or disclosed under the Contract, provided that in doing so such party does not:
(a) breach its obligations of confidentiality under the Contract; or
(b) infringe the Intellectual Property Rights of the other party or of third parties who have licensed or provided materials to the other party.
10. Data Protection
10.1 In respect of any Customer Data used by the Supplier in relation to the performance of its obligations under the Contract and the Supplier’s management of its relationship with the Customer, the parties acknowledge that the Customer shall be the data controller and the Supplier shall be the data processor of any personal data.
10.2 Each party shall comply with their respective obligations under applicable Data Protection Legislation in relation to any personal data provided to the Supplier by the Customer under the Contract.
10.3 The Customer warrants that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data it provides to the Supplier for the duration of the Contract and for the Supplier to use such personal data for the purposes of managing its relationship with the Customer.
11. Warranties
11.1 The Supplier and the Customer both warrant that they;
(a) have the authority to enter into the Contract, to grant the rights contained in the Contract and to perform their obligations under the Contract;
(b) shall perform their obligations under the Contract in compliance with all applicable laws and regulations; and
(c) hold and shall continue to hold all necessary approvals and licences necessary to perform their obligations under the Contract.
11.2 The Supplier warrants that the Goods when delivered shall conform in all material respects to the Contract and any written specification provided by the Supplier and be free from material defects in design, materials, and workmanship.
11.3 If any Goods do not comply with the warranty in clause 11.2 either within:
(a) 24 months of the date of purchase of the Goods; or
(b) a period being the later of 24 months of the date of:
(i) purchase of the Goods, and
(ii) installation of the Goods – provided that the date of installation shall be deemed to have occurred no later than 12 months of the date of purchase of the Goods; or
(c) such period in line with the Supplier’s legal guarantee of conformity; or
(d) such period in line with specification of the Goods; or
(e) a period agreed elsewhere in writing, (whichever period is the longest (Warranty Period), the Supplier at its option shall repair or replace the Goods free of charge or refund the price paid for the Goods as soon as reasonably practicable provided that the Customer:
(i) serves a written notice on the Supplier as soon as the defects are discovered by physical inspection; or
(ii) in the case of latent defects within one month of the date on which the Customer became aware or should reasonably become aware of the defect;
(iii) provides the Supplier with sufficient information as to the nature and extent of the defects and in relation to Goods supplied the uses to which the Goods have been put prior to the defect arising; and
(iv) gives the Supplier reasonable opportunity to examine the defective Goods and return the defective Goods to the Supplier at the Customer’s own expense.
(v) provides the Supplier with proof of the date of purchase and if relevant proof of the date of installation.
(vi) provides the Supplier with proof of installation from a competent contractor, and proof of filter purchases from an authorised supplier.
11.4 Any Goods or parts replaced or repaired under the Warranty Period will be covered by the original Good’s remaining warranty period, or six months, whichever is the greater.
11.5 The Supplier shall not be liable for any failure in the Goods to comply within the Warranty Period if any of the following events occur:
(a) where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise through normal course or use of the Goods;
(b) where caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods including instructions for any installation, operation, storage or maintenance and/or installation through a unqualified or qualified third party without a Commissioning by the Supplier;
(c) to the extent caused by the Supplier following any specification or requirement of the Customer in relation to the Goods;
(d) where the Customer (or a third party) modifies, dismantles, alters or repairs any Goods without the Supplier’s prior written consent or has done so not in accordance with the Supplier’s instructions; or
(e) the Customer uses any of the Goods after notifying the Supplier that they do not comply with the terms of the warranty;
(f) as a result of contaminants in the Customers water supply;
(g) if the Goods serial number has been damaged or altered;
(h) if a damage or defect arises through the use of parts not provided by the Supplier;
11.6 The Warranty Period is personal to the Customer and shall not extend or apply to any subsequent purchaser, assignee or transferee of the Goods.
11.7 Except as set out in this clause 11:
(a) the Supplier shall have no other liability for failure to comply with the warranties in clause 11 and no responsibility can be accepted for consequential loss or damage; and
(b) all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
12. Limitation of Liabilities
12.1 Both parties shall maintain in force for the duration of the Contract full and comprehensive insurance policies with reputable insurers against all risks that would normally be insured against by a prudent business in connection with the risks associated with their respective obligations and liabilities under the Contract. The Customer shall produce to the Supplier on demand full particulars of such insurances and the receipt for the then current premiums.
12.2 References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract, including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
12.3 Nothing in the Contract limits any liability which cannot be legally excluded or limited, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.3, the Supplier’s total liability in respect of all claims arising out of, or in connection with the Contract shall not exceed 50% of the total fees and charges paid by the Customer (excluding Value Added Tax, delivery and insurance costs) under the Contract which gave rise to the liability during the preceding 12 months, capped at a maximum of £10,000 per Customer site, subject to proof that liability sits with the Supplier.
12.5 This clause 12.5 identifies the kinds of loss that are wholly excluded and hence limit the Supplier’s liability to the Customer. The specific types of loss excluded are:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of savings, discounts or rebates;
(e) loss of use or corruption of software, data or information;
(f) loss of damage to goodwill; and
(g) indirect or consequential loss.
12.6 The Customer shall indemnify the Supplier against any claim made by any third party against the Supplier for loss or damage to the extent such loss or damage is caused by (i) the Customer’s failure to maintain, operate or use the Equipment in accordance with the terms of the Contract; and/or (ii) the Customer’s use of any third party equipment in conjunction with the Equipment, and (iii) the installation is carried out by a competent trained professional using the Suppliers Method Statement and/or Installation Requirements Documents.
12.7 This clause 12 shall survive termination of the Contract.
13. Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so;
the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
13.2 For the purposes of clause 13.1(a) “material breach” means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the injured party would otherwise derive under these Conditions. In deciding whether any breach is material, no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
13.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment; or
(b) there is a change of control of the Customer.
13.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 13.1(b) to clause 13.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14. Consequences of termination
14.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of the Equipment, Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
(c) if a contract, all payments due and any other sums accrued and unpaid as at the date of such demand, together with any interest accrued pursuant to clause 4.4; and, in addition, Payments and other charges that would have fallen due for the remainder of the agreed contract term, which shall become immediately due and payable as a debt upon such demand, subject to any reasonable discount for accelerated payment where required by law.
14.2 On termination of a Contract for Services for any reason, the Supplier shall make itself available for the removal and/or disposal of any Equipment from the Customer’s location, in accordance with the Waste Electrical and Electronic Equipment Regulations 2006.
14.3 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
14.4 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
15. Announcements
15.1 The Supplier reserves the right to take photographs at the Customer’s location for the Supplier’s internal use (including, without limitation, for installation, training and improvement purposes). For any marketing and promotional purposes, the Supplier shall obtain the Customer’s prior written consent (such consent not to be unreasonably withheld or delayed) prior to publishing any photographs of the Customer’s location. The Supplier shall ensure that no personal data nor any confidential information of the Customer is captured in the photographs it takes at the Customer’s location.
15.2 Neither party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of the Contract, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
16. Force majeure
16.1 The Supplier shall not be in breach of the Contract or otherwise liable for any delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly.
16.2 Where a Force Majeure Event prevents the Supplier from providing Goods and/or Services, the Supplier shall promptly notify the Customer in writing of its reasons for the delay or stoppage and its likely duration and shall take all reasonable steps to overcome the delay or stoppage or to find a solution by which its obligations under the Contract may be performed despite the Force Majeure Event.
16.3 If the Supplier does not resume full provision of the affected services within 45 consecutive Business Days the Customer may (in addition to any other rights it might have) terminate the Contract on written notice to the Supplier.
17. Assignment and other dealings
17.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
17.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without obtaining the Supplier’s prior written consent.
18. Notices
18.1 Any notice or communication given to a party under or in connection with the Contract shall be in writing, in the English language, and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case), or any other address agreed between the parties and habitually used by the parties; or
(b) sent by email to the email address habitually used in communicating with each other.
18.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
18.3 This clause 18 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
19. Set off
The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction, or withholding of any kind, save as may be required by law.
20. Severance
If any provision or part of any provision of the Contract is or becomes illegal, invalid 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, 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.
21. Waiver
21.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
21.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
22. 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.
23. Entire agreement
23.1 The Contract constitutes the entire agreement between the parties.
23.2 Each party acknowledges that in entering into the Contract it does not rely on 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 misstatement based on any statement in the Contract.
24. Third party rights
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
25. Translation
These Conditions are drafted in the English language. If these Conditions are translated into any other languages, the English language version shall prevail.
26. Variation
The Supplier may from time to time, using its absolute discretion, vary these Conditions and/or the Contract. Subject to clause 3.3, the Supplier shall notify the Customer of such variation by giving not less than 15 days’ advance notice in writing, provided that any variation required by applicable law will be effective immediately.
27. Order of Precedence
In the event of any conflict or inconsistency between the terms and conditions set out in this Agreement and any terms contained in a purchase order, order confirmation, or other document issued by the Customer (including any standard terms and conditions), the terms and conditions of this Agreement shall prevail and take precedence, unless expressly agreed otherwise in writing and signed by duly authorised representatives of both parties.
28. Governing law
The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with, the laws of England and Wales.
29. Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.