Terms and Conditions

Conditions of Sales

Definitions and interpretation

In these Conditions the following definitions apply:

Affiliate

means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;

Applicable Law

means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national;

Business Day

means a day other than a Saturday, Sunday or bank or public holiday;

Conditions

means the Supplier’s terms and conditions of sale set out in this document;

Confidential Information

means any commercial, financial or technical information, information relating to the Deliverables, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Supplier in performing its obligations under, or otherwise pursuant to the Contract;

Contract

means this agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work;

Control

has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and Controls, Controlled and under common Control shall be construed accordingly;

Customer

means the named party in the Contract which has agreed to purchase the Deliverables from the Supplier and whose details are set out in the Order;

Customer’s Fixtures and tooling

means the fixtures and tooling of the Customer supplied by the Customer to the Supplier but this excludes any fixtures and tooling produced by the Supplier for the Customer;

Customer’s Tooling

means the tooling of the Customer;

Deliverables

means the Goods or Services or both as the case may be;

Documentation

means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;

Force Majeure

means any act, event, omission or accident beyond the reasonable control of a party, which prevents it from, or delays it in, performing its obligations under the Contract, including, any of the following: (a) acts of God, flood, earthquake, windstorm or other natural disaster, (b) war (or threat of, or preparation for, war), armed conflict (or threat of, or preparation for, armed conflict), (c) imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, (d) terrorist attack, civil war, civil commotion or riot (or the threat of, or preparation for, a terrorist attack, civil war, civil commotion or riot), (e) nuclear, chemical or biological contamination or sonic boom, (f) epidemic or pandemic, (g) fire or explosion (other than, in each case, one caused by breach of contract by, or with the assistance of, the party seeking to rely on it as a force majeure event or by a member of the same group as such party), (h) loss at sea, (i)   adverse weather conditions, (j) any labour dispute, including, but not limited to, strikes, industrial action or lockouts (other than, in each case, by the party seeking to rely on it as a force majeure event or by a member of the same group as such party), (k) non-performance by suppliers or sub-contractors other than by a member of the same group as a party seeking to rely on it as a force majeure event, (l) collapse of building structures, (m) failure of plant machinery, machinery, computers or vehicles, (n) interruption or failure of utility service, including but not limited to electricity, gas or water, (o) accidental damage or other act, (q) any law or governmental order, rule, regulation or direction; or (p) any action taken by a government or public authority, local authority or health authority including, but not limited to, a failure to grant a necessary licence or consent or the imposition of an export restriction, import restriction, quota or other restriction or prohibition, lockdowns national or local; restrictions but does not include any obligation of the Customer to pay the Price to the Supplier;  

Goods

means the goods (including but not limited to castings and dies) and related accessories, spare parts and Documentation and other physical material set out in the Order or understood by the parties to be included in the Goods and to be supplied by the Supplier to the Customer in accordance with the Contract;

Intellectual Property Rights

means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:

whether registered or not

including any applications to protect or register such rights

including all renewals and extensions of such rights or applications

whether vested, contingent or future

to which the relevant party is or may be entitled, and

in whichever part of the world existing;

Location

means the address or addresses for delivery of the Goods and performance of the Services as set out in the Order or such other address or addresses as notified by the Supplier to the Customer at least 5 Business Days prior to delivery;

Order

means the Customer’s purchase order for the Deliverables quoting the Supplier’s reference number;  

Price

has the meaning given in clause 3.1;

Services

means the services set out in the Order and to be supplied by the Supplier to the Customer in accordance with the Contract;

Specification

means the description   provided for the Deliverables set out or referred to in the Contract; 

Supplier

means Numachine Limited;

Supplier Personnel

means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors  ;

VAT

means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.

In these Conditions, unless the context otherwise requires:

a reference to the Contract includes these Conditions, the Order, and their respective schedules, appendices and annexes (if any);

a reference to a ‘party’ means either the Supplier or the Customer and includes that party’s personal representatives, successors and permitted assigns; 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; and a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;

words in the singular include the plural and vice versa;

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;

a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (excluding email);

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 the Contract.

Application of these Conditions

These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.

No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.

No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.

Each Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to the Contract including these Conditions.

If the Supplier is unable to accept an Order, it shall notify the Customer in writing as soon as reasonably practicable, for the avoidance of doubt the Supplier is under no obligation to accept an Order.

The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for 7 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.

The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:

the Supplier’s written acceptance of the Order, an email acknowledgment of the Order is sufficient evidence that the Supplier has accepted the Order; or

the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).

Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer and in any case a quotation expires within 30 days of the date of the quotation.

Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.

The Supplier does nor represent, warrant or undertake that all goods listed in its price list or in any quotation shall be available for order at all times, or if an Order for the Goods has been made until the Order is accepted.

Price

The price for the Deliverables shall be as set out in the Order or, where no such provision is set out, shall be as advised by the Supplier from time to time before the date the Order is placed (the Price). 

The Prices are exclusive of:

packaging, delivery (unless otherwise agreed the Supplier delivers the Goods to the Customer Ex Works (Incoterms 2020) for collection), insurance, shipping carriage, and all other related charges or taxes which the Supplier shall be entitled to charge for, 

the storage and insurance of the Customer’s Tooling and the Customer’s fixtures and tooling;

VAT.

The Customer shall pay any applicable VAT to the Supplier.

The Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice in writing provided that the increase does not exceed 5% of the Price in effect immediately prior to the increase.

Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Deliverables which exceeds 5% and which is due to any factor beyond the control of the Supplier.

Unless otherwise agreed in writing between the Supplier and the Customer, all Prices of the Goods are the price for the Goods unmachined and self-coloured. 

Payment

The Supplier shall invoice the Customer for the Deliverables, partially or in full, at any time following acceptance of an Order.  The Supplier may invoice the Customer in stages as more particularly described in the Order.

The Customer shall pay all invoices:

in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and

to the bank account nominated by the Supplier.

Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:

the Supplier may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of National Westminster Bank plc from time to time in force, and

interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.

Credit limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

Delivery and performance

Unless otherwise agreed, the Supplier shall deliver the Goods to the Customer Ex Works (Incoterms 2020) for collection from the Supplier’s premises or other location as notified by the Supplier to the Customer. The Supplier shall notify the Customer that the Goods are available for collection.  The Customer shall collect the Goods during working hours at a time notified agreed between the Supplier and the Customer within 5 Business Days of the date of the notice that the Goods are available for collection.  Loading the Goods at collection shall be at the costs and risk to the Customer. 

The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the date or dates specified in the Order. 

The Goods shall be deemed delivered where the Supplier arranges for delivery on arrival only of the Goods at the Location.  Where the Customer arranges for its own delivery whether by the Customer or its nominated carrier, the Goods shall be deemed delivered on completion of loading the Goods.

The Services shall be performed by the Supplier at the Location on the date or dates specified in the Order. 

The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services at the Location unless otherwise agreed between the parties.

The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied.  

The Customer acknowledges that any variation in the quantities of the Goods ordered within five percent above or below the quantity specified in the Order shall not be regarded as a failure of the Supplier to supply the Goods ordered, provided that the Supplier shall only invoice the Customer for, and the Customer shall only be obliged to pay for, the quantity actually delivered.

The Supplier may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.

Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:

the Price;

the date of the Order;

if Goods, the product description and quantity of Goods in the consignment;

if Services, the category, type and quantity of Services performed;

any special instructions, handling and other requests; and

in the case of Goods, whether any packaging cases and materials are to be returned to the Supplier, in which case the Customer shall, after the Goods are unpacked, return such packaging to the Supplier and provided that such packaging is returned to the Supplier in a good and reusable condition without one month of delivery or deemed delivery the Supplier may return the costs of such packaging to the Customer unless there are any monies outstanding from the Customer to the Supplier.

Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only. 

The Supplier shall not be liable for any delay in or failure of performance caused by:

the Customer’s failure to make the Location available;

the Customer’s failure to prepare the Location in accordance with the Supplier’s instructions or as may be required for the Deliverables;

the Customer’s failure to provide the Supplier with adequate instructions for performance or delivery or otherwise relating to the Deliverables;

the Customer’s failure to collect the Goods when notified by the Supplier;

Force Majeure;

the Customer’s lack of co-operation with the Supplier and the lack of instructions including but not limited to provisions of clauses 9.2 and 9.3.

If the Customer fails to collect the Goods or accept delivery of the Goods the Supplier may store and insure the Goods pending delivery, and the Customer shall pay promptly all storage and insurance charges at costs and expenses incurred by the Supplier in doing so.

If 30 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 without any obligation or liability to the Customer. The Supplier shall:

deduct all storage and insurance charges and all costs of resale; and

account to the Customer for any excess of the resale price over or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.

Where the Supplier is required by the Customer to use the Customer’s Tooling, the Customer shall ensure that each item of the Customer’s Tooling is clearly identified as belonging to the Customer.  Where the Supplier has not used the Customer’s Tooling for a period of 12 continuous months, the Supplier shall be entitled to charge the Customer for storage and insurance for such Customer’s Tooling at costs and expenses incurred by the Supplier in doing so, the storage costs to be calculated on floor space occupied by such Customer’s Tooling.  

Where the Customer supplied the Supplier with the Customer’s Fixtures and tooling to enable the Supplier to provide the Customer with a quotation, the Customer shall ensure that each Customer’s Pattern is clearly identified as belonging to the Customer.  The Supplier shall be entitled to charge the Customer for storage and insurance for such Customer’s Fixtures and tooling stored by the Supplier for the purpose of providing the Customer with a quote.

During the term of the Contract, the Supplier agrees to store, subject to clause 6.17, the Customer’s fixtures and tooling at its own cost subject to the Customer being fully liable for the costs of replacement and repair of the Customer’s Fixtures and tooling due to their wear and tear or where the Customer’s Fixtures and tooling are no longer suitable for the production. 

The Supply agrees to store the Customer’s Fixtures and tooling for a period of maximum of 3 years from and including completion of the Order and always subject to provisions of clause 6.16.  If the Customer does not collect the Customer’s fixtures and tooling within the period of 3 years from and including completion of the Order, the Supplier may return or   dispose of the Customer’s Fixtures and tooling without any obligation or liability to the Customer.

For the avoidance of doubt, where any fixtures and tooling are not supplied by the Customer to the Supplier i.e. such fixtures and tooling are not the Customer’s Fixtures and tooling, title to such fixtures and tooling shall not pass to the Customer unless the Supplier has received payment from the Customer in respect of such fixtures and tooling and provisions of clauses 6.12 and 6.13 shall apply

Risk

Risk in the Goods shall pass to the Customer on delivery when transferred to the carrier..  Where the Customer arranges for its own delivery whether by the Customer or its nominated carrier, risk in the Goods shall pass to the Customer when the Goods are ready for loading.

Title

Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for all debts owed by the Customer to the Supplier (including payment for the Goods) at any given time.

Until title to the Goods has passed to the Customer, the Customer shall:

hold the Goods as bailee for the Supplier;

store the Goods separately from all other material in the Customer’s possession;

take all reasonable care of the Goods and keep them in the condition in which they were delivered;

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;

ensure that the Goods are clearly identifiable as belonging to the Supplier;

not remove or alter any mark on or packaging of the Goods;

inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 15.2.1 – 15.2.9; and

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.

Notwithstanding clause 8.2, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 15.2.1 -15.2.9 has occurred or is likely to occur.

If the Customer resells the Goods in accordance with clause 8.3, title to the Goods shall pass to the Customer immediately prior to the resale.

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 of the events specified in clauses 15.2.1-15.2.9, the Supplier may:

require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and

if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

Quality 

Where a sample has been produced and the Supplier has approved the sample, the Customer shall have no claim against the Supplier for manufacturing the Goods based on such sample.   

Where samples are to be provided, the Supplier shall provide the samples to the Customer for inspection and approval.  The Supplier will not commence the manufacturing of the particular product to which the sample relates to until the Customer has approved in writing the sample (such approval not to be unreasonably withheld or delayed). 

In the event the Customer does not approve the sample, the Customer shall provide reasons to the Supplier for withholding its approval to manufacturing the Goods.  Any changes the Customer requires shall be at the cost and expense of the Customer. The Supplier shall make changes to the sample in order to achieve the approval of the Customer (such approval not to be unreasonably withheld or delayed) and shall provide a further sample to the Customer for its approval. The process set out in this clause 9.3 shall be repeated until the Customer (acting reasonably) has approved in writing the sample for manufacture.

The approval by the Customer shall constitute irrevocable confirmation that the Goods which are manufactured in conformity with the samples shall comply in material respects (or differing only within normal industry limits) with the Specifications. 

The Supplier shall ensure that the Goods supplied to the Customer under the Contract at the date of delivery or deemed delivery:

conform in material respects to the Specifications;

be free from material defects in design, material and workmanship;

for the purposes of this clause 9.5, small adjustments, alignments, and distortions (or the Goods differing only within normal industry limits) shall not be seen as a material defect provided that such adjustments, alignments and distortions are within the permitted tolerance as specified in the Specifications or otherwise agreed between the parties in writing or are within the normal industry limits.

The Customer shall make every effort to ascertain any possible defects as soon as possible after delivery or deemed delivery, including carrying out any necessary test or inspection.  The Customer may reject any Goods which do not meet the requirement in clause 9.5 provided that:

the Customer serves a written notice on the Supplier not later than [three] Business Days from delivery or deemed delivery in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or deemed delivery in the case of latent defects provided that the Supplier shall not be liable for any failure of the Goods if clause 9.10 applies;

  1. such notice specifies that some or all of the Goods do not comply with clause 9.5  identifying in sufficient detail the nature and extent of the defects; and

  2. gives the Supplier a reasonable opportunity to examine the claim of the defective Goods.

If the Customer fails to reject the defective Goods within the time allowed by clause 9.6 the Customer shall be deemed accepted the Goods and to the fullest extent permitted by law, the terms implied by sections 13-15 of the Sale of Goods Act 1979 are excluded.   

If the Customer rejects the defective Goods pursuant clause 9.6, as the Customer’s sole and exclusive remedy, the Supplier shall, at its option inspect the Goods at the Customer’s site or require the Customer to deliver the Goods to the Supplier for inspection and the Supplier shall, at its option re-work, correct, repair and remedy the fault or replace the faulty item or refund the Goods that do not comply with this clause 9.   

The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.

The Supplier shall not be liable for any failure of the Goods to comply with clause 9.5:

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;

to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;

to the extent caused by the Supplier following any specification including the Specifications, instruction or requirement of or given by the Customer in relation to the Goods;

where the Customer modifies or repairs any Goods without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or

where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.5.

Except as set out in this clause 9:

the Supplier gives no warranty and makes no representations in relation to the Deliverables; and

shall have no liability for their failure to comply with clause 9.5,

and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.

Each party shall notify the other party in writing of any changes it requires to the Specifications.  The receiving party shall be entitled, acting reasonably, to reject any request to change the Specifications except it shall not reject a request to change where the change is required by Applicable Laws.

All changes to the Specifications and the basis on which the Supplier is to be compensated for its costs of implementing the change, shall be agreed between the parties, both acting reasonably.  The Customer acknowledges and agrees that any change to Specification may result in the increase of the Price and provisions of conditions 3.4 and 3.5 shall not apply to such increase.  For the avoidance of doubt, the Customer shall not have the right to terminate the Contract due to the increased Price in these circumstances.  

For operational, technical or commercial reasons the Supplier may from time to time change a) the Goods or their Specifications by giving the Customer not less than 30 Business Days written notice and such change shall have no effect on any Orders already placed prior to such notice taking effect; b) components, functionality or performance of Goods supplied under an Order already places provided that the Goods continue to conform in all material respect to the Specification in force at the time of the Order.  

The Customer shall at its own cost and expense, disclose to the Supplier information necessary to enable the Supplier, its Affiliates or sub-contractors to manufacture the Goods in accordance with the Specifications. 

Where a Customer provides the Customer’s Fixtures and tooling to the Supplier, the Supplier shall be entitled to assume that such Customer’s Fixtures and tooling are in good condition, precise and suitable for production and the Supplier shall have no liability if this is not the case. The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs and all Customer’s Fixtures and tooling are in good condition and precise.   

Indemnity and insurance

The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract including but not limited to the Customer’s failure to comply with provisions of clause 12.

The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or such other country by agreement in writing with the Supplier to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.

Limitation of liability

The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.

Subject to clauses 11.5-11.7 the Supplier’s total liability (including liability for the acts or omissions of their respective employees, agents and sub-contractors) shall not exceed the sum of £2,000,000.00.

Subject to clauses 11.5-11.7, the Supplier shall not be liable for consequential, indirect or special losses.

Subject to clauses 11.5-11.7, the Supplier shall not be liable for any of the following (whether direct or indirect):

loss of profit;

loss or corruption of data;

loss of use;

loss of production;

loss of contract;

loss of opportunity;

loss of savings, discount or rebate (whether actual or anticipated);

harm to reputation or loss of goodwill.

The Supplier shall not be liable for any act or omissions of any sub-contractor including a sub-contractor the Customer has recommended or required the Supplier to use.

Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:

death or personal injury caused by negligence;

fraud or fraudulent misrepresentation;

any other losses which cannot be excluded or limited by Applicable Law;

any losses caused by wilful misconduct.

Intellectual property

The Customer shall indemnify the Supplier 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 of the Customer’s Fixtures and tooling or Customer’s Tooling or delivering the Goods or the Services infringes the Intellectual Property Rights of any third party

Except as expressly set out in these Conditions, no Intellectual Property Rights of either party are transferred or licensed as a result of the Contract. 

All Intellectual Property Rights in the Customer’s Tooling and the Customer’s Fixtures and tooling shall remain the exclusive property of the Customer (or, where applicable, the third party licensor from whom the Customer  derives the right to use them), and the Customer grants to the Supplier and the Supplier Personnel a non-exclusive, royalty-free licence (including the right to grant sub-licences to sub-contractors) to use any Intellectual Property Rights in the Customer’s Tooling and the Customer’s Fixtures and tooling for the purposes of, and to the extent necessary to perform its obligations and exercise its rights under these Conditions.

All Intellectual Property Rights in any software used by the Supplier including but not limited to Magna software shall remain the exclusive property of the Supplier (or, where applicable, the third party licensor from whom the Supplier derives the right to use them).  The Customer shall not acquire any Intellectual Property Rights to any computer models and drawings provided by the Supplier.

The Supplier grants to the Customer a non-exclusive fee paid licence to use the Intellectual Property Rights in any modification made by the Supplier to the Customer’s Tooling.

Confidentiality and announcements

The Customer shall keep confidential all Confidential Information of the Supplier and of any Affiliate of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:

any information which was in the public domain at the date of the Contract;

any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;

any information which is independently developed by the Customer without using information supplied by the Supplier or by any Affiliate of the Supplier; or

any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.

except that the provisions of clauses 13.1.1 to 13.1.3 shall not apply to information to which clause 13.4 relates.

This clause shall remain in force for a period of 10 years from the date of the Contract and, if longer,10 years after termination of the Contract.

The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.

Force majeure

14.1 Where a Force Majeure event occurs or is reasonably likely to occur, a party shall not be liable to the extent that it is delayed in or prevented from performing its obligations under the Contract due to Force Majeure event, and the obligations of the party affected by the Force Majeure event shall be suspended for the duration of the Force Majeure event, provided that the affected party:

14.1.1 promptly notifies the other party of the Force Majeure event and its expected duration;

14.1.2 uses reasonable endeavours to minimise the effects of the event of Force Majeure; and

14.1.3 keeps the other party informed of the status of the event and its impact on the performance of the Contract.

For the avoidance of doubt where the affected party is delayed in or prevented from performing its obligation under the Contract due to Force Majeure event, where the other party depends on the affected party to perform its obligations under the Contract in order to comply with its own obligations under the Contract, the other party’s obligations shall be also suspended if applicable. 

14.2 If, due to Force Majeure, a party:

14.2.1 is or is likely to be unable to perform any of its obligations under the Contract; or

14.2.2 is or is likely to be delayed in or prevented from performing its obligations for a continuous period 90 days;

the parties aim to renegotiate the Contract in good faith to achieve , as nearly as possible, its original commercial intent.  If the parties, acting in good faith, unable to renegotiate the Contract within reasonable time, either party may terminate the Contract on written notice.  

Termination

The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:

the Customer commits a material breach of the Contract and such breach is not remediable;

the Customer commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;

the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or

any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.

Either party may terminate the Contract at any time by giving notice in writing to the other party  if the other party :

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 party reasonably believes that to be the case; 

becomes the subject of a company voluntary arrangement under 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 in those items;

is subject to any events or circumstances analogous to those in clauses 15.2.1 to 15.2.9 in any jurisdiction.

The Supplier may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.

The right of the party to terminate the Contract pursuant to clause 15.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.

If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 15, it shall immediately notify the Supplier in writing.

The Supplier shall be entitled to suspend the supply or manufacturing of the Goods or supply of the Services to the Customer if the Customer becomes or the Supplier reasonably believes that the Customer is about to become subject to any of the events listed in clauses 15.2.1-15.2.9 or the Customer has not settled the invoices issued by the Supplier. 

Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the parties at any time up to the date of termination.

Upon expiry or termination of the Contract for whatever reason:

the Supplier shall notify the Customer of and may at its option require the Customer to purchase:

(a) all stock of the Goods held by the Supplier at the date of termination of the Contract or its schedule (where applicable);

(b) all work-in-progress stock of the Goods which is held by the Supplier which shall be completed by the Supplier within three months of termination or expiry or termination of the Contract or its schedule (where applicable);

and the Customer shall pay the Supplier the Price for such Goods not later than 30 days following such termination. The Supplier shall deliver the Goods to the Customer within a reasonable period following receipt of payment for the same;

each party shall return to the other party all equipment, materials and property belonging to the other party that the other party has supplied to it in connection with the Contract.

 

 

 

Notices

Any notice given by a party under these Conditions shall be in writing and signed by, or on behalf of, the party giving it and be sent to the relevant party at the address set out in the Contract or any other address notified by a party to the other party in writing.

Notices may be given, and are deemed received by hand: on receipt of a signature at the time of delivery; or by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting.

This clause does not apply to notices given in legal proceedings or arbitration.

A notice given under these Conditions is not validly served if sent by email of fax.

General

The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.

The parties agree that the Contract constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.

No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.

The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent. 

The Supplier may sub-contract any or all of its obligations under this Agreement to a third party.

The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.

The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.

The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages. 

If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.

No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract 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, power or remedy.

No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.

Except as expressly provided for, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.

Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in order to rescind or vary the Contract or any provision of it.

The Contract 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 and 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 Contract, its subject matter or formation (including non-contractual disputes or claims).

Dispute resolution

OPTION A 

Any dispute arising between the parties out of or in connection with these Conditions shall be dealt with in accordance with the provisions of this clause 18.

The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice must include reasonable information as to the nature of the dispute.

The parties shall use reasonable endeavours to reach a negotiated resolution through the following procedures:

within seven days of service of the notice, the authorised representatives of the parties shall meet to discuss the dispute and attempt to resolve it; and

if the dispute has not been resolved within seven days of the first meeting of the authorised representatives, then the matter shall be referred to the chief executives/managing directors (or persons of equivalent seniority). The chief executives/managing directors (or equivalent) will meet within seven days to discuss the dispute and attempt to resolve it.

The specific format for the resolution of the dispute under clause 18.3.1 and, if necessary, clause 18.3.2 will be left to the reasonable discretion of the parties, but may include the preparation and submission of statements of fact or of position.

If the dispute has not been resolved within 14 days of the first meeting of the chief executives/managing directors (or equivalent) under clause 18.3.2, then the matter shall be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.

Until the parties have completed the steps referred to in clauses 18.3 and 18.5, and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief from the courts or emergency arbitrator relief.

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OPTION B

18.1 Each dispute under or arising out of these Conditions shall be referred to a single arbitrator in accordance with the provisions of the Arbitration Acts 1950–1996 or any statutory modification or re-enactment of those Acts in force for the time being. 

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OPTION C

18.1 Any dispute or difference arising out of or in connection with these Conditions, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration rules (the LCIA Rules), which LCIA Rules are deemed to be incorporated by reference into this condition.  The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be England. The language to be used in the arbitral proceedings shall be English.