The Buyer’s attention is particularly drawn to Clause 15

1. Definitions

Seller                                      Means Balance & Test Limited of 1-3 College Yard, Worcester, United Kingdom, WR1 2LB.

Buyer                                      The person who buys or agrees to buy the Goods/and or Services from the Seller.

Conditions                              The terms and conditions of sale as set out in this document and any special terms and conditions agreed in writing by the Seller.

Goods                                      The items which the Buyer agrees to buy from the Seller as set out in the Order.

Price                                        The price for the Goods, excluding VAT and any carriage, packaging, insurance, duties and import costs.

Intellectual Property Rights Patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order                                      The Buyer’s order for the supply of Goods and/or Services, as set out the Buyer’s written acceptance of the Seller’s quotation.

Services                                  The services supplied by the Seller to the Buyer as set out in the Order.

Seller Materials                      Has the meaning set out in clause 12.1.6.

2. Conditions

2.1       These Conditions shall form the basis of the contract between the Seller and the Buyer in relation to the sale of Goods and/or Services, to the exclusion of all other terms and conditions including the Buyer’s standard conditions of purchase or any other conditions which the Buyer may purport to apply under any purchase order or confirmation of order or any other document.

2.2       All orders for Goods and/or Services shall be deemed to be an offer by the Buyer to purchase Goods and/or Services from the Seller pursuant to these Conditions.  

2.3       Acceptance of delivery of the Goods or commencement of the Services shall be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.

2.4       These Conditions may not be varied except by the written agreement of a director of the Seller.

2.5       These Conditions represent the whole of the agreement between the Seller and the Buyer and supersede any other conditions previously issued. No addition to or variation of these Conditions shall be binding unless expressly agreed in writing and signed by a duly authorised representative of the Seller.

3. Price

The Price shall be the price quoted on the Sellers Order Acknowledgement. 

4. Payment and Interest

4.1       Payment of the Price and VAT shall be due within the timeframe stated on the Seller’s invoice, typically 30 days.   

4.2       Interest on overdue invoices shall accrue from the date when payment becomes due calculated on a daily basis until the date of payment at the rate of 5% per annum above the Bank of England base rate from time to time in force.  Such interest shall accrue after as well as before any judgment.

4.3       The Buyer shall pay all accounts in full and not exercise any rights of set-off or counterclaim against invoices submitted by the Seller.

5. Goods

5.1       The Goods are described in the Order.

5.2       The Seller reserves the right to amend or change the specification of the Goods if required by any applicable statutory or regulatory requirements.

5.3       The Seller shall be bound only by specifications, drawings, standards, and requirements expressly referenced in the Seller’s quotation or order acknowledgment. Any subsequently disclosed, indirect, or general reference to standards, procedures, or project requirements not supplied to the Seller in writing prior to order acceptance shall have no contractual effect unless agreed in writing by the Seller.

5.4       Where test pieces, tooling, or components are to be supplied by the Buyer for setup, or testing, such items shall conform to the specifications and delivery dates agreed with the Seller. If such items are unavailable or non-conforming, the Seller may use a representative test piece, and successful operation with that part shall constitute satisfactory performance and acceptance of the machine functionality.

6. Warranties

6.1       The Seller warrants that for a period of thirty-six (36) months commencing on the date the Goods are dispatched from the Seller’s premises (the “Warranty Period”), the Goods and/or Services shall:

6.1.1     conform in all material respects with their description and any agreed specifications;

6.1.2     be of satisfactory quality within the meaning of the Sale of Goods Act 1979;

6.1.3     be fit for any purpose expressly held out by the Seller; and

6.1.4     in the case of Services, be performed with reasonable care and skill in accordance with the Supply of Goods and Services Act 1982.

6.2       The Seller’s sole liability and the Buyer’s exclusive remedy for any breach of the warranty in clause 6.1 shall be, at the Seller’s option, the repair or replacement of the defective Goods (subject to inspection and acceptance by the Seller at its premises); or
(b) the re-performance of the Services.

6.3       Replacement parts supplied under warranty shall be provided free of charge and dispatched DAP (Delivered at Place). Labour and travel costs associated with their replacement are excluded unless expressly stated in the Seller’s quotation.

6.4       This warranty shall not apply to defects or failures arising from:

(a)        normal wear and tear;

(b)        misuse, neglect, or improper installation, handling, or repair by any person other than the Seller;

(c)        failure to follow the Seller’s operating instructions or preventative maintenance schedule;

(d)        the use of non-approved spare parts, consumables, or accessories; or

(e)        external factors such as accident, contamination, electrical faults, or environmental conditions beyond those specified by the Seller.

6.5 For this warranty to remain valid:

(a)        the Buyer must follow the preventative maintenance schedule provided by the Seller and maintain a written log evidencing that maintenance has been completed in accordance with that schedule;

(b)        the Buyer must purchase and pay for annual servicing by the Seller or a Seller-approved service provider during the Warranty Period; and

(c)        the Buyer shall provide reasonable and suitably qualified on-site support personnel to assist during remote diagnostic or service activities.

6.6       Except as expressly provided in this clause, all other warranties, conditions, or terms implied by statute, common law, or otherwise are excluded to the fullest extent permitted by law.

7. Delivery of Goods

7.1       Delivery of the Goods shall be made in accordance with the Incoterm® 2020 specified in the Seller’s proposal or order acknowledgment (“Delivery Term”). The point of delivery, transfer of risk, and allocation of transport, customs, and insurance responsibilities shall be determined by that Delivery Term.

7.2       Where the Delivery Term requires the Buyer to take receipt of the Goods, the Buyer shall make all arrangements necessary to do so on the date notified by the Seller. If the Buyer fails to take delivery or is not present to receive the Goods at the agreed time and place, the Seller may arrange redelivery or storage at the Buyer’s risk and expense, and the Buyer shall pay all related charges including redelivery, insurance, and storage costs.

7.3       The Seller shall use reasonable endeavours to dispatch the Goods by any delivery date agreed in writing, but time for delivery shall not be of the essence of the Contract. Any delivery date is an estimate only and the Seller shall not be liable for any delay, regardless of cause.

7.4       The Seller shall not in any circumstances be liable for late delivery, non-delivery, or short delivery of the Goods, or for any loss of profit, loss of production, loss of use, consequential, indirect, or special losses or damages arising from or related to delayed or failed delivery, whether in contract, tort, or otherwise.

7.5       If short delivery occurs, the Buyer shall accept the Goods delivered as part performance of the Contract and a reasonable pro-rata adjustment to the Price shall be made. The Buyer shall have no right to reject the Goods.

7.6 Unless otherwise agreed in writing, all customs duties, import taxes, clearance charges, freight, and related costs for delivery of the Goods to the Buyer’s premises or final destination shall be borne by the Buyer.

8. Acceptance of the Goods

8.1       Factory Acceptance

Unless otherwise agreed in writing, the Goods shall be inspected and tested at the Seller’s premises prior to dispatch. A Factory Acceptance Test (FAT) shall be conducted in the presence of the Buyer or its representative (in person or by virtual means).

Successful completion of the FAT shall constitute acceptance of the Goods as conforming to the Contract specifications and authorises shipment. Such acceptance shall not relieve the Seller of its warranty obligations under clause 6, but it shall constitute formal approval for dispatch and trigger the corresponding payment milestone.

8.2       Site Acceptance (where applicable)

If the Contract specifies a Site Acceptance Test (SAT) at the Buyer’s facility, this shall verify correct installation and functional performance of the Goods in the Buyer’s environment. Completion of the SAT shall constitute final acceptance of the Goods. Unless otherwise agreed:

(a)        the Buyer shall pay not less than ninety per cent (90 %) of the Contract Price prior to shipment following successful FAT;

(b)        the remaining ten per cent (10 %) shall become payable upon successful completion of the SAT or, if delays in SAT are not attributable to the Seller, within thirty (30) days of the Seller’s readiness to perform the SAT; and

(c)        the Buyer shall not withhold acceptance or payment unreasonably for minor defects not materially affecting performance.

(d)        Any modification, adjustment, or intervention made by the Buyer or any third party prior to completion of the Site Acceptance Test (SAT), without the Seller’s prior written consent, shall immediately suspend the Seller’s obligations for installation, commissioning, and warranty until such alteration has been inspected, tested, and approved by the Seller in writing. Any time or cost incurred by the Seller as a result shall be chargeable in addition to the Contract Price.

8.3       Inspection and Notice of Defects

Following delivery or installation (as applicable), the Buyer shall carry out a reasonable inspection of the Goods within two (2) days and shall give written notice to the Seller of any defect or non-conformity discovered. Where such notice is validly given, the Seller may, at its option, repair or replace the defective Goods or refund the relevant portion of the Price.

8.4       Shipping Damage

If any loss of, or damage to, the Goods occurs during shipment, the Buyer shall:

(a)        immediately notify the Seller and the carrier in writing;

(b)        take clear photographs and video recordings showing the extent and location of the damage; and

(c)        provide a written statement describing the circumstances of receipt and the nature of the damage.

The Buyer shall retain all packaging materials for inspection and cooperate fully with the Seller and its insurers in processing any claim. Failure to provide such evidence and cooperation may invalidate any claim under the Seller’s transit insurance.

8.5       Deemed Acceptance

Where the Buyer has accepted, or is deemed to have accepted, the Goods under clauses 8.1 or 8.2, the Buyer shall not be entitled to reject the Goods, and the Seller’s liability shall be limited to its warranty obligations under clause 6.

9. Title and risk

9.1       Risk in the Goods shall pass to the Buyer in accordance with the applicable Incoterm® 2020 stated in the Contract or, if none is specified, upon delivery of the Goods to the Buyer’s address. From that time the Buyer shall be responsible for insuring and safeguarding the Goods.

9.2       Notwithstanding the passing of risk, title in the Goods shall remain with the Seller and shall not pass to the Buyer until the Seller has received payment in full for the Goods and for all other sums then due from the Buyer to the Seller under the Contract (including any interest or costs).

9.3       Until title passes:

(a)        the Buyer shall hold the Goods as bailee for the Seller and shall keep them in good condition, separate from other goods, and clearly identifiable as the property of the Seller by reference to any serial or identification numbers;

(b)        the Buyer shall not sell, pledge, charge, dispose of, or otherwise encumber the Goods without the Seller’s prior written consent;

(c)        the Buyer shall maintain adequate insurance for the full replacement value of the Goods against all normal risks and shall note the Seller’s interest on the policy; and

(d)        the Buyer shall not attach or install the Goods in a manner that makes them a permanent fixture or causes them to lose their separate identity before title has passed.

9.4       The Seller may, at any time before title passes and without prejudice to any other right or remedy, by written notice to the Buyer:

(a)        require the Buyer to deliver up the Goods; and

(b)        where lawful and safe to do so, enter any premises of or occupied by the Buyer (or any third party holding the Goods on the Buyer’s behalf) to recover or inspect the Goods.

9.5       The Buyer’s right to possession of the Goods shall terminate immediately if the Buyer becomes insolvent, enters into administration, liquidation, or any composition with creditors, or fails to make any payment when due.

9.6       The Seller may maintain an action for the price of any Goods notwithstanding that title in them has not passed to the Buyer.

10. Carriage of Goods

10.1      Unless otherwise stated in the Seller’s quotation or order acknowledgment, carriage shall be chargeable on all sales and will be invoiced to the Buyer at the rate determined by the Seller at the time of shipment.

10.2      Where the Seller’s quotation or order acknowledgment specifies that the price includes carriage, such inclusion shall relate only to the transport arrangements defined by the applicable Incoterm® 2020 stated in the Contract. Any additional or exceptional freight, storage, handling, or delivery requirements requested by the Buyer shall be charged extra.

10.3      Where carriage is not included in the Contract Price, it shall be shown as a separate line item on the invoice and shall be payable under the same payment terms as the Goods.

10.4      Unless otherwise agreed in writing, all costs associated with import duties, taxes, customs clearance, unloading, or local delivery beyond the point defined by the applicable Incoterm® 2020 shall be the responsibility of the Buyer.

11. Supply of Services

The Seller agrees:

11.1     The Seller shall provide the Services described in the Seller’s quotation or order acknowledgment (the “Services”) with reasonable skill, care, and diligence in accordance with generally accepted industry standards.

11.2     Unless otherwise agreed in writing, the Seller shall determine the manner, method, and timing of performance of the Services and may use such suitably qualified and experienced personnel, whether directly employed or subcontracted, as it considers appropriate.

11.3     The Seller shall use reasonable endeavours to perform the Services within any timescales agreed in writing, but time shall not be of the essence. Any dates or response times given are indicative only and the Seller shall have no liability for failure to meet them.

11.4     The Seller shall not be obliged to accept any order or request for Services. No contract for the supply of Services shall be formed until the Seller issues a written order acknowledgment or commences performance.

11.5     The Buyer shall provide the Seller with such access, facilities, equipment, utilities, documentation, data, and cooperation as the Seller may reasonably require to perform the Services. Any delay, restriction, or failure by the Buyer to do so shall entitle the Seller to a reasonable extension of time and to charge the Buyer for any additional costs or losses incurred as a result.

11.6     Where the Services involve installation, commissioning, testing, or on-site support, the Buyer shall ensure that the site is ready, safe, and accessible, and complies with all applicable health, safety, and legal requirements. The Seller reserves the right to suspend or postpone the Services if site conditions are unsuitable or unsafe, and to charge for any resulting delay or abortive costs.

11.7     The Seller may substitute or reallocate personnel, subcontractors, or resources provided that such personnel or subcontractors are suitably qualified and experienced to perform the Services. The Seller shall remain responsible for the acts and omissions of its subcontractors as if they were its own.

11.8     The Seller shall not be liable for any delay or failure to perform the Services arising from causes beyond its reasonable control, including but not limited to delays by the Buyer, unavailability of equipment, materials, or personnel, transport interruptions, or force majeure events under clause [Force Majeure reference].

11.9     Except as expressly agreed in writing, the Seller does not guarantee any specific response time, completion date, or performance outcome in relation to the Services.

12. Buyer’s obligations

12.1      The Buyer shall:

12.1.1   Ensure that the terms of the Order are complete and accurate;

12.1.2   Co-operate with the Seller in all matters relating to the Services;

12.1.3   Provide the Seller, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises as reasonably required by the Seller to provide the Services;

12.1.4   Provide the Seller with such information and materials as the Seller may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;

12.1.5   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; and

12.1.6   keep and maintain all materials, equipment, documents and other property of the Seller (Seller Materials) at the Buyer’s premises in safe custody at its own risk, maintain the Seller Materials in good condition until returned to the Seller, and not dispose of or use the Seller Materials other than in accordance with the Seller’s written instructions or authorisation.

12.1.7 ensure that the installation or service site is properly prepared, safe, and complies with all relevant health and safety, environmental, and legal requirements before the Seller attends site.

12.1.8 ensure that all site rules, inductions, and permits are completed promptly and that the Seller’s personnel are not exposed to any unsafe working conditions.

12.2      If the Seller’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):

12.2.1   the Seller shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Seller’s performance of any of its obligations;

12.2.2   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 clause 12.2; and

12.2.3   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.

12.2.4   without prejudice to the foregoing, where the Seller’s personnel are unable to commence or continue work due to a Buyer Default, the Seller shall be entitled to charge reasonable waiting time, travel, accommodation, and associated expenses in addition to the Contract Price.

13. Confidentiality

13.1      13. Confidentiality

13.1      Each party undertakes that it shall at all times, both during the term of the Contract and indefinitely thereafter, keep confidential and shall not disclose to any third party any technical, commercial, or financial information relating to the other party’s business, operations, or products that is designated as confidential or that a reasonable person would understand to be confidential (“Confidential Information”). Confidential Information includes, without limitation, information concerning machine and software functionality, control algorithms, balancing and test processes, calibration data, system architecture, drawings, specifications, pricing, source code, service procedures, and operational methods.

13.2      The receiving party may use the disclosing party’s Confidential Information solely for the purpose of performing the Contract and shall disclose it only to those of its employees, agents, subcontractors, or professional advisers who need to know it for that purpose and who are bound by equivalent confidentiality obligations.

13.3      The obligations in this clause shall not apply to information which:

(a)        is or becomes publicly available other than through a breach of this Contract;

(b)        was lawfully in the receiving party’s possession before disclosure;

(c)        is lawfully disclosed by a third party without restriction; or

(d)        is independently developed by the receiving party without use of or reference to the Confidential Information.

13.4 The Seller may disclose the Buyer’s Confidential Information to its subcontractors, agents, insurers, and professional advisers as necessary for performance of the Contract, provided those parties are subject to confidentiality obligations no less stringent than those contained herein.

13.5 The Buyer shall not, without the Seller’s prior written consent:

(a)        copy, reproduce, reverse engineer, decompile, or modify any Goods, software, or system supplied by the Seller;

(b)        disclose or make available to any third party any drawings, schematics, software, machine logic, source code, configuration files, or service procedures supplied by the Seller; or

(c)        use any such information for the manufacture, servicing, modification, or competitive evaluation of any equipment other than the Goods supplied under this Contract.

13.6      The obligations of confidentiality and non-use in this clause shall survive termination or expiry of the Contract, however arising, and shall continue for so long as the relevant information remains confidential.

14. Intellectual Property Rights

14.1      All Intellectual Property Rights (including but not limited to patents, copyright, design rights, database rights, trade secrets, know-how, software, and technical information) subsisting in or arising out of or in connection with the Goods or the performance of the Services shall remain the sole and exclusive property of the Seller (or its licensors, where applicable). Nothing in this Contract shall operate to transfer any such rights to the Buyer.

14.2      The Buyer is granted a non-exclusive, non-transferable, revocable licence to use the Goods and any embedded or supplied software, documentation, or data solely for the Buyer’s internal business purposes and only in connection with the operation, maintenance, or repair of the Goods supplied under this Contract. The Buyer shall not copy, modify, adapt, reverse engineer, decompile, or otherwise attempt to derive source code or know-how from any such software or materials, except as expressly permitted by law.

14.3      The Buyer acknowledges that, where the Goods or Services include or incorporate Intellectual Property Rights of a third party, the Buyer’s right to use such rights is conditional upon the Seller obtaining and maintaining an appropriate licence from the relevant third-party owner.

14.4      All drawings, specifications, manuals, service data, PLC programs, control logic, calibration software, and other technical materials provided by the Seller (collectively, “Seller Materials”) are and shall remain the exclusive property of the Seller. The Buyer shall not disclose, reproduce, or use the Seller Materials for any purpose other than the installation, operation, or maintenance of the Goods supplied under this Contract.

14.5      The Seller shall retain all rights to any improvements, modifications, or developments it makes to the Goods, Services, or Seller Materials, whether or not such improvements arise out of or in connection with the Buyer’s requests, cooperation, or feedback.

15. Limitation of Liability

15.1      Nothing in these Conditions shall limit or exclude the Seller’s liability for:

(a)        death or personal injury caused by its negligence, or the negligence of its employees, agents, or subcontractors;

(b)        fraud or fraudulent misrepresentation;

(c)        breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or

(d)        liability for defective products under the Consumer Protection Act 1987.

15.2 Subject to clause 15.1:

(a)        the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution, or otherwise, for:

• any loss of profit, production, business, contracts, revenue, or anticipated savings;
• loss or corruption of data, software, or information;
• loss of goodwill or reputation; or
• any indirect, special, or consequential loss or damage, howsoever arising; and

(b)        the Seller’s total aggregate liability to the Buyer for all other losses, damages, costs, or expenses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the lesser of:

• the total price paid for the Goods and/or Services giving rise to the claim; or
• the amount recoverable by the Seller under its relevant insurance policy in respect of the

   claim.

15.3 The Seller shall not be liable for:

(a)        damage caused to any property or equipment of the Buyer except where such damage results directly from the Seller’s negligence;

(b)        any loss or damage arising from use of the Goods other than in accordance with the Seller’s instructions; or

(c)        any defect resulting from alterations or repairs made to the Goods without the Seller’s written consent.

15.4      After expiry of the Warranty Period, all warranties, conditions, and terms implied by statute, common law, or otherwise (including, without limitation, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded.

15.5      The limitations and exclusions of liability set out in this clause shall apply to every liability of the Seller arising under or in connection with the Contract, including liability in respect of acts or omissions of its employees, agents, and subcontractors, and shall survive termination of the Contract.

16. Termination of Agreement

16.1      The Contract shall commence on the date of the Seller’s written order acknowledgment and shall continue until completion of the Goods and/or Services, unless terminated earlier in accordance with this clause.

16.2      Termination for Convenience – Services only

Where the Contract relates solely to the provision of Services, either party may terminate the Contract for convenience by giving not less than thirty (30) days’ written notice to the other party.

If the Buyer terminates the Contract under this clause, the Buyer shall pay the Seller for:

• all Services performed up to the effective date of termination;

(b)        all non-recoverable commitments or costs incurred by the Seller in preparation for or performance of the Services; and

(c)        a reasonable allowance for overhead and profit on work performed to date.

16.3      Termination for Cause – All Contracts

Without prejudice to any other rights or remedies, either party may terminate the Contract with immediate effect by written notice if:

(a)        the other party commits a material breach which (if capable of remedy) is not remedied within thirty (30) days after written notice specifying the breach;

(b)        the other party becomes insolvent, enters administration, receivership, or liquidation (other than for a solvent restructuring), makes any arrangement with creditors, or ceases to carry on business; or

(c)        the other party repeatedly breaches its obligations such that its conduct reasonably indicates an inability or unwillingness to perform the Contract.

16.4      Additional Seller Rights

The Seller may also terminate or suspend performance of all or part of the Contract with immediate effect by written notice to the Buyer if:

(a)        the Buyer fails to make any payment due within fourteen (14) days of written notice of non-payment;

(b)        the Buyer’s financial position deteriorates so that, in the Seller’s reasonable opinion, its ability to fulfil its obligations is placed in jeopardy; or

(c) the Buyer delays, obstructs, or prevents performance of the Services or delivery of the Goods.

16.5      Consequences of Termination

Upon termination or expiry of the Contract for any reason:

(a)        the Buyer shall immediately pay all outstanding invoices, together with interest, and shall pay for all Goods and Services supplied or work in progress up to the effective date of termination, plus any materials, components, or commitments made by the Seller in reliance on the Contract and any reasonable demobilisation or cancellation costs;

(b)        the Seller may suspend or cancel any further deliveries or Services and may retain possession of any Goods until all sums due have been paid in full;

(c)        the Buyer shall, within seven (7) days, return or—at the Seller’s written request—destroy all Seller Materials, Confidential Information, technical data, software, and documentation belonging to the Seller, and shall remain responsible for their safekeeping until returned; and

(d)        termination shall be without prejudice to any rights, remedies, obligations, or liabilities of either party that have accrued up to the effective date of termination.

16.6      Any provision of the Contract which expressly or by implication is intended to survive termination or expiry—including clauses 6 (Warranty), 9 (Title and Risk), 13 (Confidentiality), 14 (Intellectual Property Rights), and 15 (Limitation of Liability)—shall remain in full force and effect.

18. Insurance

18.1      The Seller shall, at its own cost, maintain in force throughout the term of the Contract (and for a reasonable period thereafter where relevant):

• Product liability and public liability insurance with a minimum cover of £10 million per occurrence (or such other amount as may be agreed in writing);

(b)        Employers’ liability insurance in accordance with applicable UK legislation; and

(c)        Professional indemnity insurance, where design, engineering, or advisory Services are provided, with a minimum cover appropriate to the nature and value of the work.

18.2      The Seller shall, upon reasonable written request, provide the Buyer with evidence of such insurance by way of a certificate of insurance or similar confirmation from its insurer or broker. The Buyer shall have no right to inspect the full terms of any policy or to approve its wording.

18.3      The Seller’s liability to the Buyer shall not be increased by virtue of the existence of such insurance, and any claim under the Contract shall remain subject to the limitations of liability set out in clause 15.

18.4      The Buyer shall maintain its own insurance for its premises, equipment, and property, and shall ensure that such insurance extends to cover the Seller’s personnel and equipment while on the Buyer’s site, except to the extent caused by the Seller’s negligence.

19. Data Protection and Data Processing

19.1      Each party shall comply with all applicable requirements of the Data Protection Legislation, being the UK GDPR, the Data Protection Act 2018, and any other applicable laws and regulations relating to personal data and privacy.

19.2      For the purposes of the Data Protection Legislation, each party acts as a separate and independent data controller in respect of the personal data it processes under the Contract, unless otherwise expressly stated in writing. Nothing in the Contract shall make either party the data processor of the other.

19.3      Each party shall ensure that it has all necessary notices and consents in place to lawfully transfer and process any personal data exchanged under the Contract.

19.4      Where, by written agreement, the Seller processes personal data on behalf of the Buyer, the Seller shall:

(a)        process such personal data only on the Buyer’s documented instructions;

(b)        maintain appropriate technical and organisational measures to protect it against unauthorised or unlawful processing, loss, or damage;

(c)        ensure that all personnel with access are subject to duties of confidentiality;

(d)        not transfer personal data outside the United Kingdom without adequate safeguards; and

(e)        notify the Buyer without undue delay upon becoming aware of any personal data breach affecting such data.

19.5      The Seller may engage reputable third-party sub-processors (for example, IT hosting or cloud-backup providers) provided that equivalent data-protection obligations are imposed on those sub-processors and the Seller remains liable for their acts and omissions.

19.6      Each party shall cooperate reasonably with the other to enable compliance with the Data Protection Legislation, including responding to any lawful request, complaint, or enquiry from a competent supervisory authority or data subject.

19.7      This clause is in addition to, and does not relieve, remove, or replace, either party’s own obligations under the Data Protection Legislation.

20. No Employment or Partnership

20.1      The Seller is an independent contractor and nothing in this Agreement shall render or be deemed to render the Seller an employee, worker or agent of the Buyer and the Seller shall not hold himself or herself out as such.  This Agreement does not create any mutuality of obligation between the Seller and the Buyer and neither party seeks to create or imply any mutuality of obligation between the parties in the course of the performance of this engagement or during any notice period.  The Buyer is not obliged to offer work to the Seller, nor is the Buyer obliged to accept work where it is offered.

20.2      The Seller may choose to delegate performance of the Services to such suitably qualified and experienced personnel as he or she may from time to time deem appropriate. The Buyer has the right to refuse the replacement if, in the reasonable view of the Buyer, the replacement is not sufficiently qualified to undertake the work.  The Seller must provide details of the name of the delegate/substitute.  The Seller will be responsible for remunerating the delegate/substitute, such that there will be no further payments outside of the agreed terms to pay for any handover period between the Seller and the delegate/substitute. When a delegate/substitute is appointed, the provisions relating to sub-processor obligations under Clause 19 will apply.

20.3      This Agreement constitutes a contract for the provision of services and not a contract of employment and accordingly the Seller shall be fully responsible for and shall indemnify the Buyer for and in respect of:

20.3.1   Any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the performance of the Services, where the recovery is not prohibited by law. The Seller shall further indemnify the Buyer against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by the Buyer in connection with or in consequence of any such liability, deduction, contribution, assessment other than where the latter arise out of the Buyer’s negligence or wilful default;

20.3.2   Any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Seller or any substitute against the Buyer arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of the Buyer.

20.4      The Buyer may at its option satisfy such indemnity (in whole or in part) by way of deduction from any payments due to the Seller.

20.5      Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

21. Notices/Communications

21.1      Any notice or other communication given to a party under or in connection with this agreement shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or e-mail.

21.2      A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address stated in this Agreement or to such other address (being in Great Britain) as the addressee may from time to time have notified for the purpose of this Clause; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by ore-mail, one Business Day after transmission.

21.3      The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

22. Entire Agreement

22.1      This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

22.2      Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

23. Force Majeure

23.1      Neither party shall be liable for any failure or delay in performing any of its obligations under the Contract (other than a failure to make payment) if and to the extent that such failure or delay is caused by circumstances beyond its reasonable control (“Force Majeure Event”). Force Majeure Events include, without limitation, acts of God, war, terrorism, riot, civil commotion, industrial dispute, strike or lock-out (whether involving the workforce of the affected party or any other person), fire, flood, earthquake, explosion, epidemic, pandemic, public-health restriction, governmental or regulatory action, embargo, sanction, export or import restriction, shortage of materials, component or energy supply, failure of utilities, breakdown of plant or machinery not caused by the affected party’s negligence, or interruption of transport or logistics networks.

23.2      The party affected by a Force Majeure Event shall:

(a)        promptly notify the other party in writing, giving reasonable particulars of the event and its expected duration; and

(b)        use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.

23.3      The time for performance of the affected obligations shall be extended for the period during which performance is prevented, hindered, or delayed by the Force Majeure Event, plus a reasonable period for remobilisation once the event has ceased.

23.4      If the period of delay or non-performance continues for more than ninety (90) days, either party may terminate the Contract by giving written notice to the other. Such termination shall be without liability, save that the Buyer shall remain liable to pay for all Goods and Services supplied or committed by the Seller up to the effective date of termination.

23.5      A Force Majeure Event shall not relieve the Buyer of any obligation to make payment for Goods or Services delivered or performed before or during the Force Majeure Event.

24. Assignment and Other Dealings

24.1      The Seller may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.

24.2      The Buyer shall not, without the prior written consent of the Seller, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.

25. Survival of Causes of Action

The termination of this Agreement howsoever occurring shall not affect the rights and liabilities of the parties already accrued at such time nor affect the continuance in force of such of its provisions as are expressed as or capable of having effect after such termination.

26. Severability

If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction, such provision shall be severed and the remainder of the provisions of this Agreement shall continue in full force and effect as if this Agreement had been executed with the illegal or unenforceable provision eliminated.

27. Waiver

A waiver of any right under the Contract or law 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 prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

28. Variation

28.1      No variation of this Agreement shall be effective unless it is in writing and signed by both parties (or their authorised representatives).

28.2      The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement.

29. Law and Jurisdiction

29.1      This Agreement 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 the law of England and Wales.

29.2      Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).