Terms & Conditions
RSM Terms and Conditions for the Supply of Goods and/or Services
Agreement: the contract between the Supplier and the Customer for the sale and purchase of the Goods and/or provision of Services in accordance with these Conditions;
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.4.
Contract Year: each consecutive period of 12 months commencing from the date set out in the Order;
Consignment Stock: has the meaning set out in clause 18.1;
Customer: the person or firm who purchases the Goods from the Supplier.
Delivery: the time at which Goods are deemed to be delivered to the Customer under clause 5.2
Delivery Location: means the location specified in an Order to which the Supplier shall deliver, or procure the delivery of, Goods.
Financial Event: if the customer:
- stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
- is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
- becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
- the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
- has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
- has a resolution passed for its winding up;
- has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
- is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
- has a freezing order made against it;
- is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; or is subject to any events or circumstances analogous to those above in any jurisdiction.
Force Majeure Event: means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement save that an inability to pay is not a Force Majeure event.
IPR Claim: has the meaning given in clause 9.3
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights means copyright, patents, rights in inventions, rights in confidential information, Know-how, trade secrets, trade marks, service marks, trade names, design rights, rights in get-up, database rights, rights in data, semi-conductor chip topography rights, mask works, utility models, domain names, rights in computer software and all similar rights of whatever nature and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future and (v) wherever existing;
Order: the Customer’s written order for the Goods in a form acceptable to the Supplier;
Requisition: means the Customer taking Goods from the Consignment Stock or immediately on
Delivery for use contemplated by clause 18 and Requisitioned shall be interpreted accordingly;
Requisition Notice: has the meaning given to it in clause 18.11;
Services means any Services agreed in the Agreement to be provided to the Customer by the Supplier
Specification: any specification for the Goods and/or Services, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier;
Storage Facilities: means the storage facilities at the Customer Premises which are to be used to store the Goods as specified in Order; and
Supplier: RSM Lining Supplies Global Limited a company incorporated in England and Wales under number 06412005, and whose registered office is at Atkinson Court, Coalpit Road, Denaby Main Industrial Estate, Doncaster, DN12 4LH.
(a) a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;
(b) a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
(c) a reference to a gender includes each other gender;
(d) words in the singular include the plural and vice versa;
(e) any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words; and
(f) a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under this Agreement.
2. Basis of contract
2.1 These Conditions apply to the Agreement 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. Any terms and conditions of the Customer included or referred to in the Order, or any proposed variation to this Agreement set out in the Order, shall not be deemed binding on the Supplier unless accepted by the Supplier in writing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/or Services in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall not be deemed accepted, and no binding obligation to supply any Goods and/or Services shall arise, until the earlier of:
(a) the Supplier’s written acceptance of the Order; or
(b) the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be) or (if earlier) the Supplier commences the provision of the Services, at which point the Agreement shall come into existence.
2.4 Marketing and other promotional material relating to the Goods and/or Services are produced for the sole purpose of giving an approximate idea of the Goods and/or Services referred to in them and do not form part of this Agreement. The Customer agrees that, in submitting an
Order, it has not relied on any representations or statements by the Supplier other than those expressly set out in this Agreement.
2.5 A quotation for the Goods and/or Services given by the Supplier shall not constitute an offer.
A quotation shall only be valid for a period of 10 Business Days from its date of issue.
3.1 The Supplier does not represent, warrant or undertake that any or all of the Goods offered by the Supplier will be available for order at all times or, until an Order is accepted, that the Supplier can supply the volumes requested.
3.2 For operational, technical or commercial reasons the Supplier may from to time change:
(a) the Goods (or versions, models or replacements of them) available for order under this Agreement, or their Specifications, by giving the Customer not less than 90 days’ written notice. Any such change shall not affect any Orders already place prior to such notice taking effect; and
(b) components, functionality or performance characteristics of Goods supplied under an Order already placed, provided that the Goods continue to conform in all material respects to the Specifications in force at the time of the Order.
3.3 The Supplier reserves the right to amend the Specification of the Goods if required by any applicable law.
4.1 The description of the Services shall be set out in the Specification or, in its absence, the Supplier’s Order.
4.2 Where the Supplier is to perform Services at premises other than the Supplier’s premises, the Customer shall procure safe and unencumbered access to the premises and the provision of adequate power, lighting, heating and other such facilities, supplies, materials or equipment for the Supplier’s employees, subcontractors or agents in accordance with the demands of any applicable law and as the Supplier shall reasonably require.
4.3 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in this Agreement, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
4.4 The Services will be deemed to be completed and the relevant element of the Agreement price to be due and payable in accordance with the Agreement when the Supplier issues a written notice to the Customer:
(a) confirming such completion; or
(b) confirming that the Supplier is available to perform the Services but is prevented from doing so by reason of:
(i) the lack of relevant assistance from the Customer; and/or
(ii) the breach of the Contract by the Customer; or
(iii) the condition of the Customer premises on the site at which the Services are to be provided and/or the facilities at or the services available therein at the time agreed for the provision of the Services
4.5 The Supplier reserves the right to amend the Specification of the Services if required by any applicable law.
5.1 Each Order shall specify whether the Goods are to be:
(a) delivered by the Supplier, or by a carrier appointed by the Supplier, to the Delivery Location on the date(s) specified in the Order; or
(b) made available for collection by the Customer at the Supplier’s, or carrier’s, premises set out in the Order (as the case may be). The Customer shall collect the Goods within the period specified in the Order.
5.2 The Goods shall be deemed delivered:
(a) if delivered by the Supplier under clause 5.1(a), on arrival of the Goods at the Delivery Location; or
(b) if delivered by a carrier under clause 5.1(a), on delivery of the Goods by the Supplier to the carrier; or
(c) if collected by the Customer under clause 5.1(b), when the Supplier makes the Goods available for collection at the Supplier’s, or carrier’s, premises (as the case may be).
5.3 The Customer shall not be entitled to reject any delivery of Goods on the basis that an incorrect volume of Goods has been supplied provided the volumes are within the tolerances (if any) set out in the Order.
5.4 The Goods may be delivered by instalments if specified in the Order. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.5 Delivery of the Goods shall be accompanied by a delivery note stating:
(a) the date of the Order;
(b) the product numbers, type and quantity of Goods in the consignment; and
(c) any special handling instructions.
5.6 Time of delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet delivery dates but such dates are approximate only.
5.7 Unless the parties agree otherwise, packaging material is to be promptly returned to the Supplier at the Customer’s expense.
5.8 The Supplier shall not be liable for any delay in or failure of delivery caused by:
(a) the Customer’s failure to: (i) make the Delivery Location available, (ii) prepare the Delivery Location as required for delivery or (iii) provide the Supplier with adequate instructions for delivery;
(b) the Customer’s failure to collect the Goods from the Supplier’s premises; or
(c) an event of Force Majeure.
5.9 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
5.10 If 5 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. The Supplier shall:
(a) deduct the storage charges at (the Supplier’s then-applicable rate) and reasonable costs of resale; and
(b) invoice the Customer for any shortfall of the resale price below the price paid by the Customer for the Goods.
6.1 The Supplier warrants that the Goods shall, for a period of three months from Delivery or (if earlier) from performance of the Services (the Warranty Period):
(a) conform in all material respects to the Order and Specification; and
(b) be free from material defects in design, material and workmanship.
6.2 The Supplier shall perform the Services with reasonable care and skill.
6.3 The Supplier shall, at its option, repair, replace, or refund the price of, any Goods and/or Services that do not comply with clause 6.1, provided that the Customer:
(a) during the Warranty Period serves a written notice on Supplier:
(i) in the case of defects discoverable by a physical inspection not later than five Business Days from arrival of the Goods at the Delivery Location and/or upon completion of the Services; or
(ii) in the case of latent defects, within a reasonable period of time from arrival of the Goods at the Delivery Location and/or on completion of the Services;
(b) provides the Supplier with sufficient information as to the nature and extent of the defects and the uses to which the Goods and/or Services had been put prior to the defect arising;
(c) gives the Supplier a reasonable opportunity to examine the defective Goods; and
(d) returns the defective Goods to the Supplier.
6.4 The provisions of this Agreement, including the warranties set out in clause 6.1, shall apply to any Goods and/or Services that are repaired or replaced with effect from Delivery and/or completion of the repaired or replaced Goods and/or Services.
6.5 In every case, to the remaining provisions of this Condition 6 provided that the liability of the Supplier under this Condition 6 shall in no event exceed the purchase price of such Goods or Services and performance of any one of the above options shall constitute an entire discharge of the Supplier’s liability under this warranty
6.6 The Supplier shall not be liable for any failure of the Goods and/or Services to comply with clause 6.1:
(a) if the total price for the Goods or Services has not been paid by the due date for payment;
(b) where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods and/or Services;
(c) to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods and/or Services, including any instructions on installation, operation, storage or maintenance;
(d) to the extent caused by the Supplier following any specification or requirement of the Customer in relation to the Goods and/or Services;
(e) where the Customer modifies any Goods and/or Services without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or
(f) where the Customer uses any of the Goods and/or Services after notifying the Supplier that it does not comply with clause 6.1.
6.7 Except as set out in this clause 6:
(a) the Supplier gives no warranty and makes no representations in relation to the Goods and Services; and
(b) shall have no liability for their failure to comply with the warranty in clause 6.1,
and all warranties and conditions (including the conditions implied by sections 13–15 of the Sale of Goods Act 1979 and the Supply of Goods and Service Act 1982), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.
7.3 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 all other material in the Customer’s possession;
(c) take all 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: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their price (iv) noting the Supplier’s interest on the policy;
(e) ensure that the Goods are clearly identifiable as belonging to the Supplier;
(f) not remove or alter any mark on or packaging of the Goods;
(g) inform the Supplier immediately if it becomes subject to any Financial Event;
(h) on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
(a) it does so as principal and not as the Supplier’s agent; and
(b) title to those Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any Financial Events, the Supplier may:
(a) by notice in writing, terminate the Customer’s right under clause 7.4 to resell the Goods or use them in the ordinary course of its business;
(b) require the Customer the Customer’s expense to re-deliver the Goods to the Supplier; and
(c) if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
8. Price and payment
8.1 The price of the Goods and/or Services 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 in force as at Delivery or (if earlier). upon completion of the Services.
8.2 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before Delivery, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods and/or Services:
(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The price for any Services does not include the cost of any Goods which are supplied by the Supplier in the course of the performance of such Services, the price of which shall be payable by the Customer in addition when it is due to pay for the relevant Services.]
8.5 [The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the performance of the Services, including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services.]
8.6 The Supplier may invoice the Customer for the Goods and/or Services on or at any time.
(a) The Customer shall pay each invoice submitted by the Supplier:
(b) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(c) in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Agreement.
8.7 If the Customer fails to make a payment due to the Supplier under the Agreement by the due date, then, without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.8 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.9 The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
9. Intellectual property
9.1 Intellectual Property Rights in connection with the Goods and Services will remain the Supplier’s (or its licensor’s) property and nothing in this Agreement is intended to pass ownership of such rights to the Customer. Except as necessary to permit the Customer to possess and make use of the Goods and/or Services, nothing in this Agreement grants the Customer a licence in relation to Intellectual Property Rights in connection with the Goods.
9.2 In relation to trade marks affixed to or incorporated within the Goods and/or Services:
(a) use of the trade marks will be in accordance with this Agreement and with the Supplier’s (or licensor’s) brand guidelines (if any) supplied to the Customer from time to time;
(b) all goodwill associated with such use of trade marks will accrue to the benefit of the Supplier (or its licensor) and, at the request of the Supplier, the Customer will at its own cost sign all documents and do all things necessary to assign such goodwill to the Supplier or the Supplier’s licensor, as the case may be;
(c) the Customer will not apply to register, or register, the same trade mark or any confusingly similar trade mark, or procure or assist someone else to do so; and
(d) except to the extent authorised by the Supplier from time to time in writing, the Customer will not alter or remove such trade marks from the Goods and/or Services.
9.3 The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use or possession of the Goods and/or Services infringes the Intellectual Property Rights of any third party (IPR Claim).
9.4 The Supplier’s liability under the indemnity set out in clause 9.3 is conditional on the Customer discharging the following obligations:
(a) as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
(c) give the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense to assess the IPR Claim);
(d) takes all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim; and
(e) be deemed to have given the Supplier sole authority to avoid, dispute, compromise or defend the IPR Claim.
9.5 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
(a) procure for the Customer the right to continue using and possessing the relevant Goods and/or Services; or
(b) modify or replace the infringing part of the Goods and/or Services so as to avoid the infringement or alleged infringement, provided the Goods remain in material conformance to their Specification.
9.6 The Supplier’s obligations under clause 15.1 shall not apply to Goods and/or Services modified or used by the Customer other than in accordance with this Agreement or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.
10. Limitation of liability
10.1 Nothing in this this Agreement, the liability of the parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) any other losses which cannot be excluded or limited by applicable law;
(d) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(e) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession.
10.2 Subject to clause 10.1, the Supplier is not liable, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, in connection with this Agreement for loss of profit, loss of revenue, loss of business, or loss of anticipated savings, in each case whether direct or indirect.
10.3 Subject to clause 10.1, Supplier is not liable to the other for any indirect, special or consequential loss or damage, howsoever arising.
10.4 Subject to clause 10.1, the Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise in connection with this Agreement or in relation to the supply, non-supply or partial supply of the Goods and/or Services shall not exceed 100% of the price paid or payable (had this Agreement not been breached).
10.5 The price of the Goods and/or Services has been calculated on the basis that the Supplier will exclude or limit its liability as set out in these Conditions and the Customer by placing an order agrees that such exclusions and limitations are reasonable and warrants that the Customer shall insure against or bear itself any loss for which the Supplier has excluded or limited its liability in these Conditions and the Supplier shall have no further liability to the Customer.
10.6 Neither party will be liable to the other for any breach of this Agreement to the extent that such breach is caused by a breach of this Agreement by the other party.
11.1 Without limiting its other rights or remedies, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
(b) the Customer is subject to a Financial Event;
(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Agreement is in jeopardy.
11.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Agreement or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 11.1(b) to clause 11.1(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Agreement on the due date for payment.
11.3 Without limiting its other rights or remedies, the Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment.
11.4 On termination of the Agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied and/or Services performed (including any costs already incurred) but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
11.5 Termination or expiry of the Agreement, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
11.6 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
12. Force majeure
12.1 A party shall not be liable if delayed in or prevented from performing its obligations under this Agreement due to Force Majeure, provided that it:
(a) promptly notifies the other of the Force Majeure event and its expected duration; and
(b) uses reasonable endeavours to minimise the effects of that event.
12.2 If, due to Force Majeure, a party:
(a) is or is likely to be unable to perform a material obligation; or
(b) is or is likely to be delayed in or prevented from performing its obligations for a continuous period of more than 3 months,
the other party may terminate this Agreement on not less than four weeks’ written notice.
13.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Agreement.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement without the prior written consent of the Supplier.
(a) Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its affiliates including, without limitation, any details of its business, affairs, customers, clients, suppliers, plans or strategy (Confidential Information) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 13.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representative to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 13 as if it were a party;
(ii) disclose any Confidential Information as may be required by law, any court, any governmental, regulatory or supervisory authority (including, without limitation, any securities exchange) or any other authority of competent jurisdiction to be disclosed; and
(iii) use Confidential Information only to perform any obligations under this Agreement.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Agreement.
(d) Each party recognises that any breach or threatened breach of this clause 13 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
13.3 Entire agreement
(a) The 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.
(b) Each party acknowledges that it has not entered into this Agreement or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement or any documents entered into pursuant to it except in the case of fraudulent misrepresentation. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.
(c) Nothing in this Agreement purports to limit or exclude any liability for fraud.
13.4 Variation. No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
(a) No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy.
(b) No single or partial exercise of any right, power or remedy provided by law or under the Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
(c) A waiver of any term, provision, condition or breach of the Agreement shall only be effective if given in writing and signed by the waiving party, and then only in the instance and for the purpose for which it is given.
(a) If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, it shall be deemed deleted, but that shall not affect the legality, validity and enforceability of any other provision of this Agreement.
(b) If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
(a) Any notice given to a party under or in connection with the Agreement shall be in writing and sent to a party’s registered office or such fax or email address notified to the other party for this purposes. Notices may be given, and shall be deemed received:
(i) by first-class post: two Business Days after posting;
(ii) by airmail: seven Business Days after posting;
(iii) by hand: on delivery;
(iv) by fax: on receipt of a successful transmission report; and
(v) by email: on receipt of a read return email.
(b) This clause 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.
13.8 Third party rights. Unless it expressly states otherwise, the Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement.
13.9 Governing law. The Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
13.10 Jurisdiction. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Agreement, its subject matter or formation (including non-contractual disputes or claims).
14.1 Where the Order states that the Supplier shall be the exclusive supplier to the Customer of the Goods and/or Servoces, then the provisions of this clause 14 shall apply to the Agreement.
14.2 The Customer shall not purchase, directly or indirectly, any Goods and/or Services from any other person during the Term.
14.3 Nothing in the Agreement shall restrict the Supplier from supplying Goods and/or Services (or any other products) to other customers.
14.4 Any breach of this clause 14 will be deemed a material breach under clause 11.1(a).]
15. Order Commitment
15.1 Where the Order contains a commitment from the Customer to order a certain value or volume of Goods (the Order Commitment), then the provisions of this clause 14 shall apply to the Agreement.
15.2 In respect of each Contract Year during the Term, the Customer agrees to submit Orders for Goods equivalent to the Order Commitment, subject to adjustment in accordance with the provisions of clause 15.4.
15.3 In the event that the total Goods purchased by the Customer in respect of any Contract Year during the Term (the Actual Spend) is less than the Order Commitment in force for that Contract Year, the Supplier may:
(a) require the Customer to pay the price difference between the Order Commitment and the Actual Spend in accordance with the provisions of clause 8and/or
(b) terminate the Agreement in accordance with clause 11.1(a) (material breach).
15.4 The provisions of clause 15.3 shall not apply to the extent that the Customer does not meet the Order Commitment as a direct result of:
(a) the Supplier failing or choosing not to supply the Customer with any Goods ordered in accordance with the provisions of the Agreement;
(b) the Supplier’s breach of contract; or
(c) a Force Majeure event.
16.1 Where the Customer has made an Order Commitment or is purchasing Goods on a Consignment Stock Basis or the Order is being delivered outside the UK, the provisions of this clause 16 shall apply to the Agreement.
16.2 In order to assist the Supplier in meeting the Customer’s potential requirements for Goods, the Customer will, once every six months, submit a written forecast (Forecast) to the Supplier of its likely volume of requirements for Goods over the next six month period. The first Forecast will be submitted within ten Business Days of the date the Goods are to be provided.
16.3 Without prejudice to clause 16.2, the Forecast will not oblige the Customer to purchase any Goods in the relevant Forecast period.
16.4 The Customer will notify the Supplier in writing as soon as reasonably practicable on becoming aware that its actual requirements for Goods is likely to be 20% more or less than the Forecast.
16.5 The Supplier does not represent, warrant or undertake that it will be willing or able to fulfil Orders made in accordance with a Forecast.
17. International Customers
17.1 Where the Customer is based outside the UK or the Order is being delivered outside the UK, the provisions of this clause 17 shall apply to the Agreement.
17.2 The Customer will promptly obtain and maintain all licences, clearances and other consents that are necessary for the supply of the Goods and/or Services (including import licences).
17.3 Without limiting clause 17.2, the Customer will at its own cost provide to the Supplier, or (where local laws or regulations require the Supplier to do so) assist the Supplier in procuring, any documents necessary under applicable laws and regulations for the Supplier to export the Goods to the Delivery Location in accordance with such laws and regulations and/or to perform the Services internationally. .
17.4 If any amount due under the Agreement is subject to VAT, sales, withholding or any other tax (other than income tax applicable to the Supplier) which has the effect of reducing the amount of money which the Supplier would have been entitled to receive from the Customer or to retain under the Agreement but for such tax, the Customer will, at the Supplier’s request, pay to the Supplier such additional sum at the rate for the time being prescribed by law for that tax.
17.5 The Customer will pay all invoices in pounds sterling.
17.6 If the Customer has made an Order Commitment or taken on Consignment Stock, it shall irrevocably appoints a process agent located in England to receive on its behalf services of process in any proceedings in England and Wales.
18. Consignment Stock
18.1 Where the Customer is taking into stock an amount of Goods delivered to be held on consignment (Consignment Stock) and which shall remain the Supplier’s property (in accordance with clause 7) pending their Requisition, the provisions of this clause 18 shall apply to the Agreement. The Customer may only Requisition Goods in accordance with this clause.
18.2 The Customer may make a request for replacement Goods in a Requisition Notice in accordance with clause 18.11 (an Order).
18.3 The Customer shall not at any time hold more Consignment Stock than the limit detailed in the Order.
18.4 Pending their Requisition, the Customer shall keep the Consignment Stock in the Storage Facilities and may not store them in or move them to any other location except as permitted under this clause 18 or as otherwise agreed with the Supplier in writing. Save for any Goods which the Customer wishes to Requisition immediately, it shall promptly transport Goods to the Storage Facilities following Delivery.
18.5 On a quarterly basis and at any time on request the Customer shall provide the Supplier with details of all Goods held by it in the Consignment Stock, their location and the their date of Delivery.
18.6 The Customer shall give the Supplier advance notice of its intention to Requisition any Goods before they are placed into the Consignment Stock through the issue of a Requisition Notice in respect of the Goods concerned in accordance with clause 18.11 and 18.12.
18.7 The Customer shall (at its own cost) ensure that the Storage Facilities:
(a) are watertight, clean, safe and secure;
(b) meet the standards and comply with the requirements specified by ;
(c) are subject to regular inspections;
(d) generally provide optimal conditions for the storage of the Goods and keep to a minimum instances of stock loss;
(e) are only used to store the Goods and not used for any other purpose;
(f) are free from all forms of animal or insect infestation and clean and tidy having regard to the nature of the Goods; and
(g) are subject to a regular scheduled cleaning, repair and maintenance programme aimed at maintaining or improving their cleanliness, fitness for purpose condition.
18.8 The Customer shall maintain the Storage Facilities in accordance will clause 18.7 for the term of the agreement and store the Goods at the Storage Facilities in such a manner to protect them from damage or deterioration.
18.9 The Supplier shall ensure that at all times and without the need for advance notice that the Customer and its nominees have access to and use of the Storage Facilities and all associated equipment and areas in order to examine the Goods, and the conditions in which they are being stored and if required to remove them.
18.10 The Supplier shall provide all reasonable assistance to the Customer in the exercise by it of its rights under clause 18.9 and shall do all such things as may be reasonably necessary to deliver up the Goods to the Customer or its nominees, if the Customer requires.
18.11 On each day the Customer shall send to the Supplier a notice (Requisition Notice) specifying the amount of Consignment Stock which it intends to Requisition that day. The Customer may not remove Goods from the Consignment Stock unless it has first notified the Supplier of its intention to do so in a Requisition Notice. The Customer may not Requisition more Goods than the limits set out by the Supplier.
18.12 A Requisition Notice issued by the Supplier constitutes an irrevocable offer from the Customer to buy the specified Goods on the terms of the Agreement. Each Requisition Notice shall include the following information:
(a) details of the specific Goods which the Customer intends to Requisition;
(b) the times or dates when they will be Requisitioned; and
(c) whether the Customer requires the Goods concerned to be replaced (a requirement for a replacement constituting an Order).
18.13 On termination or expiry of the Agreement:
(a) the Customer shall, within 3 Business Days from date of termination, notify the Supplier, through a Requisition Notice, as to whether it wishes to buy any Goods of the Supplier which remain in its possession or control;
(b) at its own cost, promptly return to the Supplier all Goods in its possession that have not been paid for, resold or irrevocably incorporated into another product;
RSM LINING SUPPLIES LIMITED (“the Company”)
General Terms and Conditions of Purchase
We, the Company, only purchase goods, rights, and services (“Deliverables”) on these terms and conditions (“the Terms”). If you accept our order it will be on these Terms and no other standard terms. If you act in a manner calculated to appear as an acceptance of our order, that will act as an acceptance and you will be bound by our Terms, regardless of any inconsistency in your own small print. If you wish to reject our order and make a counteroffer you MUST therefore reply to our order in words explicitly and clearly indicating rejection. Equally, if you make a counteroffer which is not clearly labelled as such (or as a rejection of our order) no subsequent behaviour of ours, in accepting Performance, can be taken to imply any acceptance by us of that counteroffer. These Terms can only be changed, or other terms agreed, in written correspondence signed by a director or other senior officer of the Company. These Terms are important and should be studied carefully.
1 The Contract
1.1 Our contract with you, our supplier, will comprise our express written order, these Terms, anything else we expressly agree under section 1.2, any content imposed by law, but nothing else.
1.2 If you want us to accept a term of yours, or accept a particular responsibility, or if you wish to rely on a representation we have made, you must therefore obtain our express agreement to that. That means express written agreement, signed by a director or other senior officer of the Company and referring expressly to these Terms. We will deal with you in reliance on these Terms, so be aware that our acceptance of contractual performance by you does not imply acceptance of any terms that are different to our Terms. You must indemnify us against any consequence of your seeking to rely on any contractual terms, or any statement, understanding or representation which is not contractually agreed as set out in this section 1. For purposes of this section, written agreement can be communicated by pre-paid post or e-mail.
1.3 If any of the terms of the contract conflict with or contradict each other those terms will over-ride each other in the following order of priority: (1) any express written agreement from us; (2) our order; (3) these Terms.
1.4 We are not contractually bound until we place a formal order and then only to the extent of the issues specifically covered by that order or in writing signed by a director. We will only be contractually bound to you when you accept our order with a formal order acknowledgement in writing or (if later) when we accept Performance by you (see below).
2.1 The price of the Deliverables will be as stated in our order and, unless otherwise stated, will be:
2.1.1 exclusive of any applicable VAT (which will be payable by us subject to receipt of a valid VAT invoice);
2.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery, commissioning, or performance of Deliverables to or at the delivery address, and of any duties or levies other than VAT;
2.1.3 payable in pounds sterling, unless otherwise agreed; and
2.1.4 fixed for the duration of the Contract.
2.2 We will be entitled to any discount for prompt payment, bulk purchase or the like normally granted by you in comparable circumstances.
2.3 If we will be reliant on you for any supplies of maintenance, training, spare parts, consumables or other goods, rights or services to benefit fully from the Deliverables (“Follow-on Deliverables”) then you will provide those Follow-on Deliverables or procure them to be provided, for at least 36 months following full Performance, at fair and reasonable prices which take no advantage of our dependence on you for their supply.
3.1 Invoices for the Deliverables may be sent to us on, or after, completion of Performance (as defined in section 4.1). Each invoice must quote the number of our order. No sum may be invoiced more than six months late.
3.2 Unless otherwise stated in the order, we will pay the contract price within 60 days of the end of month in which we receive the invoice.
3.3 We will be entitled to set off against the price any money owed to us by you.
4.1 If we order goods, then unless otherwise stated the order is deemed to include the supply of all relevant documentation and certification, and of any commissioning of those goods, necessary to enable the Company to use them for their intended purposes. If we order services then, unless otherwise stated, our order includes the complete performance of those services including any employee instruction, manuals, explanations, or certifications necessary to enable the Company to benefit from them for their intended purposes. If we order goods or services then, unless otherwise stated, our order includes any legal rights necessary to use those goods or services for their intended purposes. As for those intended purposes, see section 6.3. References in these Terms to “Performance” are to complete performance of all your contract obligations as described in these Terms.
4.2 The quantity, quality and description of Deliverables will be as specified in our order and these Terms or as agreed by us in writing, subject to which then in full accordance with your representations (see section 6.1).
4.3 You have sole responsibility for complying with all applicable regulations and other legal and regulatory requirements concerning performance of the contract, and for ensuring that we can, in compliance, likewise, fully utilise the Deliverables for their intended purposes
4.4 We will be allowed to inspect any contract goods during (and your premises for) manufacture and storage so long as we request an inspection by reasonable notice. If, as a result of the inspection, we are not satisfied that the quality of the goods or the standards of their manufacture, storage or handling conforms with the contract, you will take such steps as are necessary to ensure compliance. If, after that, we are still not satisfied we can cancel the contract without penalty.
4.5 If, before Performance has occurred in the relevant respect, we notify you in writing of any change in desired specification (including as to quality and time frame) you will respond as follows. We appreciate that a change may affect the contract price or may even be unachievable. If the change would reduce your costs, the contract price will reduce to fairly reflect that saving. If the change would increase your costs you may notify us promptly, in writing, of a proposed revision of the contract price fairly and proportionately reflecting any unavoidable such increased cost: you and we will then use our reasonable efforts to agree the revised terms in full, including as to price, pending which the contract variation will not take effect. If the change would for any reason be unachievable you may notify us of that promptly and in writing, with reasons: again, both parties will then use reasonable efforts to reach a mutually acceptable contract variation.
4.6 Failing notice under one of the two preceding sentences our proposed change will be deemed to have been accepted, and the contract will be deemed to have been varied with immediate effect to reflect the requested specification change with no price increase. What amounts to “prompt” notice for this purpose will depend on feasibility for you and urgency for us, but not in any case later than 48 hours (excluding hours of days which are Saturdays, Sundays or are recognised bank holidays in England) from our notice of proposed change. In no event, agreed or not, will we be liable to you in respect of any contract variation for more than a reasonable and proportionate reflection of such increased costs as you could not reasonably have been expected to avoid. The contract price will not in any circumstance increase except with our express written agreement under, or referring explicitly to, this sub-section.
4.7 To protect our business we may need, sometimes urgently, information as to precisely how Deliverables were performed, and as to all relevant activities of any suppliers or sub-contractors of yours. You will meet any reasonable such request as soon as reasonably possible and will keep records adequate for that purpose for at least two years after completion of Performance. Without limitation, these records must provide full traceability for all goods comprised in, or used in making, any contract goods which are in any respect safety critical. They must also demonstrate compliance of the contract work with all legal or regulatory requirements and with all contractually binding quality and Performance standards.
4.8 You will comply with any reasonable requirements we may have as regards the packaging and packing of any contract goods, and as to information to be displayed on packaging or included on dispatch documentation and bills of lading. Subject to that, you will ensure that all packaging, packing, labelling, and documentation is such as to ensure full compliance with legal requirements throughout the scheduled delivery process.
5 Delivery and risk
5.1 Any goods will be delivered to, and any services performed at, the address and on the date stated in the order, or else under section 5.2, during usual business hours. If no address is specified, then delivery will be at our usual or main UK premises.
5.2 If we specify the date or delivery address after ordering, we will give you reasonable notice of the details. Failing a date, supply will be as soon as reasonably possible.
5.3 The date of delivery of any goods or rights, and the performance of any services, will be of the essence of this contract.
5.4 A packing note quoting the number of the order must accompany each delivery or consignment of goods and must be displayed prominently.
5.5 Where Deliverables are to be supplied in instalments, the contract is still to be treated as a single contract. If you fail to deliver or perform any instalment, we may treat the whole contract as repudiated.
5.6 We may reject any Deliverables which are not fully in accordance with the contract. Acceptance does not occur until we have had a reasonable time to inspect or consider the relevant Deliverables following supply and, in the case of latent defect, a reasonable time after the defect becomes apparent.
5.7 We will not be bound to return to you any packaging or packing material, but if any relevant requirement for packaging recycling applies, you will take materials back free of charge on request.
5.8 If any Deliverables are not supplied on or by the agreed date then, in addition to any other remedies available to us, we will be entitled to deduct 1% of the overall contract price for those Deliverables, for every week’s delay.
5.9 Risk of damage to or loss of any goods passes to us on delivery.
5.10 Property and ownership of any goods will pass to us on delivery unless we have paid in whole or in part for the goods in advance. In that case it will pass to us as soon as the goods have (or, if goods are being assembled for us, each successive component of the goods has) been appropriated to the contract.
5.11 If we supply any articles to you, e.g. for modification or copying, they stay our property at all times. Those articles must be kept confidential and secure and we can enter your premises at any time on reasonable notice to ensure that this is so. While those articles are in your custody you must not use them, copy them, or disseminate them, electronically or otherwise, except in the performance of our contract. We retain copyright and any other available intellectual property rights in any plans, design drawings, computer programs, compilations of data, specifications or the like which we supply to you. You must indemnify us against any loss caused to us, and account to us for any profit which you make, through breach of this provision.
5.12 If any Performance occurs on our premises this sub-section will apply. You will ensure that best industry standards are adopted for the health and safety both of your personnel and of any other individuals affected by your actions. We may refuse or terminate access to any individual whom we reasonably consider undesirable to have on our premises. Your personnel must, while on our premises, comply with our reasonable requirements as to security, health and safety routines, times, and areas of access, and otherwise. You will be responsible to us on a full indemnity basis for all damage and injury caused by your staff.
5.13 If the contract terms refer to terms such as FOB and CFR which bear defined meanings in the current edition of Incoterms, those defined meanings will apply unless expressly stated otherwise.
5.14 Any goods provided by us to you on a free issue basis will remain our absolute property throughout and will be at your risk while the goods are, or are supposed to be, in your possession. You are not to part with possession (save to us) unless with our express prior consent.
6 Warranties and liability
6.1 You promise that:
6.1.1 the quantity, quality, description, and specification for the Deliverables will be those set out in our order, apart from which then of the best standards reasonably to be expected in the market for that kind of Deliverable; and
6.1.2 any goods will be free from defects in materials and workmanship; and
6.1.3 any Deliverables will comply with all statutory requirements and regulations, and with all normally applicable quality standards, relating to their sale or supply; and
6.1.4 all claims made by you about any Deliverables, and all apparently serious claims in your advertising and promotional material, are correct and can be relied upon; and
6.1.5 any services will be performed by appropriately qualified and trained personnel; and
6.1.6 neither the sale and supply of any Deliverable, nor its proper use by us for an intended purpose, will breach any property rights in or about that Deliverable, including intellectual property rights, of any other person.
6.2 All warranties, conditions and other terms implied by statute or common law in our favour will apply to any Deliverables bought from you.
6.3 It is your responsibility to find out from us the purposes that we intend the Deliverables to be put to (including any applicable deadline affecting us). You promise that they will be suitable for those intended purposes, save only for any unsuitability which you have, as soon as might reasonably have been expected of you (and in any case before starting Performance) expressly notified to us.
6.4 You will indemnify us and keep us indemnified immediately upon our written demand against any cost, claim, expense, or liability arising from any risk for which you are responsible under this contract.
6.5 If you fail to comply with any obligation under the contract we will be entitled, at our discretion, to reject any Deliverable and you will not be entitled to receive payment for that Deliverable.
6.6 If any contract goods do not comply with all contract requirements, we can demand that you repair them or supply replacement goods within seven days or, at our sole discretion, we can reject the goods and demand the repayment of any sum already paid for them.
6.7 We will not be liable to you for any delay or failure to perform any of our obligations under this contract if the delay or failure was due to a cause beyond our reasonable control.
6.8 If any contract goods or rights were bought or obtained by you from a third party then any benefits or indemnities that you hold from that other party, in respect of those items, will be held on trust for us.
6.9 You will insure yourselves, and keep insured until Performance is complete, against all normal insurance risks relevant to your work for or with us, on terms and for amounts consistent with normal business prudence. You will demonstrate to us the terms and currency of any such insurance on request.
7.1 Any rights which you are contracted to supply must be provided to us in accordance with sections 7.2 or 7.3 as applicable.
7.2 This sub-section will apply to the following types of contract right: where the contract expressly identifies particular rights as covered by it; where the rights in question are evidently not unique to our Deliverable (for instance you evidently supply the same thing, in the relevant respect, to others); or if those rights evidently derive from a third party of whom the same would be true (for instance you supply software on what you have told us is a proprietary third party platform). In those cases, we are not to expect full ownership of those rights. You will however validly licence those rights to us, or procure them to be validly licensed to us, on the following terms: assignable; royalty-free; covering usage for any likely intended purpose; and free of any obligation on us save such as we expressly agree in the contract or as are the minimum reasonably necessary for the maintenance of the right in question.
7.3 This sub-section will apply to all contract rights to which section 7.2 does not. In that case you will transfer to us, or procure to be transferred to us, with full title guarantee the ownership of those rights to the full extent (including as to territory) that we reasonably need them for our intended purposes, and to the full extent of any wider rights available to you. You will execute any documents and make any declarations reasonably required by us, now or in future, to transfer those rights, you will not exploit those rights save for us or with our written consent, and you will (to the extent not yet legally transferred) hold all such rights on trust for us absolutely for the maximum permitted period of eighty years. We have your irrevocable power of attorney to execute any such documents and make any such declarations on your behalf if you fail to do so promptly on request.
7.4 If you carry out any development work at our request and wholly or primarily at our expense, we will own all intellectual property rights generated by that work, and section 7.3 will apply to those rights.
7.5 You will do anything reasonably required by us, during or after Performance, to perfect any transfer or licence of rights to us under this section or to assist us in registering or authenticating (but not at your cost enforcing or defending) those rights.
8.1 If goods have been offered by you as, or if they are, standard or stock items we can, by notice to you, at any time up to delivery cancel our commitment to buy them. Any other commitment of ours to receive and pay for Deliverables may be cancelled by us as follows. We will be bound to reimburse you for all irrecoverable costs incurred, or unavoidably committed, by you up to the point of cancellation. By “costs” is meant for this purpose the direct costs to you of Performance, to an aggregate amount not exceeding 80% of the purchase price for the cancelled commitment. We will be entitled, if we wish it, to the benefit of the part-finished Deliverables in question.
8.2 We may suspend performance of, or cancel, or suspend and then at any subsequent time cancel, the contract without any liability to you if you breach its terms, or if your business fails.
8.3 Your business will be treated for this purpose as having failed if:
8.3.1 you make any voluntary arrangement with your creditors;
8.3.2 (being an individual or firm) you become bankrupt;
8.3.3 (being a company) you become subject to an administration order or go into liquidation;
8.3.4 any third party takes possession of, or enforces rights over, any of your property or assets under any form of security;
8.3.5 you stop or threaten to stop carrying on business;
8.3.6 you suffer any process equivalent to any of these, in any jurisdiction; or
8.3.7 we reasonably believe that any of the events mentioned above is about to occur and we notify you accordingly.
8.4 Any right of cancellation or suspension under this section is additional to any rights available to us under the law of any relevant jurisdiction.
9.1 You will keep strictly confidential all information which you learn about us or our customers, and use that information only for the performance, in good faith, of your contractual obligations to us. By way of illustration only, you may not use such information to help our competitors, poach our staff or disparage our reputation. This restriction will apply until the fifth anniversary of the contract date and does not apply to information which was demonstrably public knowledge at the time of usage by you.
9.2 Our relationship is as independent contractors only, not as partners or as principal and agent. The contract is non-assignable by you. It is assignable by us only to a group company that is a company in the same ultimate beneficial ownership. You may sub-contract or delegate Performance in particular respects but not generally and not as regards your responsibility to us, nor your direct contact with us, in any respect.
9.3 You will procure that none of your associates behaves in a way which, had the behaviour been yours, would have breached the contract. We hold the contract on trust for ourselves and all associates of ours, and the contract is made for the benefit of all of them so that you will be liable for damage caused to our associates as well as ourselves. Our respective associates for this purpose are any parent company or ultimate controlling shareholder and any company owned by either.
9.4 No waiver by us of any breach of contract by you will be considered as a waiver of any subsequent breach of the same or any other provision, or as a release of the provision which you breached. No delay by us in enforcement, and no toleration shown by us, is to imply any waiver or compromise of our rights.
9.5 If any provision of these Terms is held by competent authority to be invalid or unenforceable in whole or in part the validity of the other Terms and of the remainder of the provision in question will not be affected. Every provision is severable from every other.
9.6 Any written notice under these Terms will be deemed to have been sufficiently served if posted by pre-paid official postal service, or if sent by e-mail (but in this case only on evidence of successful transmission and only if the parties have regularly communicated on contract matters by that e-mail route).
9.7 The contract will be governed by the law of England, and you submit to the nonexclusive jurisdiction of the English courts.