Standard Terms and Conditions
FOR THE SALE OF GOODS AND SERVICES ("Conditions")
The Buyer's attention is in particular drawn to the provisions of condition 11.4
All goods and services are supplied subject to the following terms and conditions of sale:
1.1 The definitions and rules of interpretation in this condition apply in these Conditions. Buyer: the person, firm or company who purchases the Goods and/or Services from the Company; Company: Blackrow Engineering Co Limited, Blackrow Business Centre, Estate Road, 7 South Humberside Industrial Estate, Grimsby, South Humberside, DN31 2TP; Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods and/or provision of Services incorporating these Conditions (Company Number: 01522249); Delivery Point: the place where delivery of the Goods is to take place under condition 4; Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them); Services: any services agreed in the Contract to be provided to the Buyer by the Company.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these Conditions.
2. Application of terms
2.1 Subject to any variation under condition 2.3 the Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a Director of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company's liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods or Services by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods or Services subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer or performs the Services for the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 Blackrow reserves the right to vary a quoted price:
(a) to take account of changes in alloy surcharges, labour, material and other costs and expenses arising between the dates of quotation and delivery.
(b) if an alteration is made to an order upon which a quotation was made.
(c) should the customer delay taking delivery of goods due to circumstances outside the parties control.
2.9 The Company may undertake and perform works under a Contract which involves the manufacture, supply, installation and testing of Goods. In such circumstances the Company may invoice the Buyer at the times and milestones agreed between the Company and the Buyer as set out in the Company’s quotation or acknowledgment of order.
3.1 The quantity and description of the Goods and the description of Services shall be as set out in the Company’s quotation or acknowledgement of order.
3.2 All samples, drawings, descriptive matter, specifications, demonstrations and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract and this is not a sale by sample.
3.3 All Goods will be supplied to normal commercial tolerances associated with the fabrication and construction industry. The Buyer must state the required tolerances and request clarification of the tolerances of the Company's products before placing an order.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s place of business or any other nominated premises during normal working hours.
4.2 The Buyer shall take delivery of the Goods within 7 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these Conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence);
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading and/or unloading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods, which is more or less than the quantity ordered, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall notify the Company of such surplus or shortfall and pay for such Goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within 5 days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods at it’s premises in a proper manner (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
(c) the Company's interest in the Goods shall transfer to an interest in the proceeds of sale of the Goods.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(b) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
(c) the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7. Provision of Services
7.1 Where the Company is to perform Services at the Buyer’s premises or any other premises specified by the Buyer, the Buyer shall procure safe access to the premises and the provision of adequate power, lighting, heating and other such facilities or supplies for the Company’s employees or agents in accordance with the demands of any applicable legislation and as the Company shall reasonably require. The Company's obligation in the provision of the Services shall be to use reasonable skill and care.
7.2 The Services will be deemed to be completed and the relevant element of the Contract price to be due and payable immediately:-
(a) when the Company issues a written notice to the Buyer confirming such completion; or
(b) if the Company is available to perform the services but is prevented from doing so by reason of:-
(i) the lack of relevant assistance from the Buyer and/or
(ii) the condition of the Buyer’s premises or 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 Services are in any way inadequate or unsatisfactory.
8.1 Unless otherwise agreed by the Company in writing, the price for the Goods and/or Services shall be the price set out in the Company’s quotation or where no quotation is provided by the Company at the hourly rates of the Company in force at the date of delivery or deemed delivery of the Goods, or completion or deemed completion of performance of Services. 8.2 Unless otherwise agreed in writing the price for the Goods and/or Services shall be exclusive of value added tax or other similar taxes or levies and all costs or charges in relation to packaging, labelling, loading, unloading, carriage and insurance all of which amounts the Buyer will pay, where appropriate, in addition when it is due to pay for the Goods and/or Services. 9. Payment 9.1 Subject to condition 9.4 and unless otherwise agreed in writing payment of the price for the Goods and/or Services is due in pounds sterling as follows:-
(a) within 30 days from the date on the invoice for credit account Buyers unless credit facilities have been withdrawn in which case immediate payment is required;
(b) within 7 days of the delivery of Goods and/or completion of Services for all Buyers not falling within 9.1(a) above.
The dates specified in paragraphs 9 1(a) and (b) shall, whichever is applicable be the final date for payment in respect of the relevant payment in respect of which the Company shall within 5 days of the final date for payment serve notice on the Buyer of the sum due for payment and how it is calculated (the Payment Notice). In the event that the Buyer intends to pay the Company less than the sum due in the Payment Notice and shall not later than 2 days before the final date for payment provide to the Company a Pay Less Notice setting out the sum it intends not to pay and the reasons for non payment and in the case where there is more than one reason the sum applicable to each reason. Where the Buyer fails to provide a Pay Less Notice the sum set out in the Payment Notice shall be the sum due.
9.2 Time for payment shall be of the essence.
9.3 No payment shall be deemed to have been received until the Company has received cleared funds.
9.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
9.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
9.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of National Westminster (NatWest) Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9.7 Where the provision of the Goods or Services is caught by the VAT reverse charge and the Buyer is not an end user responsibility for payment of the VAT shall rest with the Buyer.
9.8 Where the Company at any time invoices the Buyer in relation to any works undertaken pursuant to a Contract entered into by the Company and the Buyer under condition 2.8 above, which would result in the Buyer making stage payments to the Company then the Buyer acknowledges and agrees as follows:
(a) the Buyer shall make payment to the Company in relation to any stage payment invoice in accordance with condition 9.5 above; and
(b) to the extent that any stage payment invoice has been assigned to or is to be assigned to an invoice financier by the Company resulting in an invoice financier providing finance to the Company on an assigned stage payment invoice, then the Buyer will not under any circumstances seek to set off, deduct or counterclaim against any payment due to the invoice financier in relation to the assigned debt, any claim the Buyer may then or later have against the Company in respect of any Goods or Services supplied or to be supplied by the Company which are not the subject of that stage payment invoice (the Buyer acknowledging that its only recourse in such circumstances being against the Company)./
10.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
10.2 The Company warrants that (subject to the other provisions of these Conditions) upon delivery ,and for a period of 12 months from the date of delivery, the Goods shall:
(a) be of satisfactory quality within the meaning of the Sale of Goods Act 1979 and the Supplier of Goods and Services Act 1982;
(b) be reasonably fit for purpose; and
(c) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
(d) in the case of machinery, carry a CE marking or equivalent standard to European Standards if the Goods have been manufactured by the Company.
10.3 The Company further warrants that the Services will be performed with reasonable care and skill to be expected of a competent professional provider of Services.
10.4 The Company shall not be liable for a breach of any of the warranties in condition 10.2 unless:
(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 5 days of the time when the Buyer discovers or ought to have discovered the defect; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Buyer’s cost for the examination to take place there.
10.5 The Company shall not be liable for a breach of any of the warranties in condition 10.2 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
10.6 The Company shall not be liable for a breach of the warranty in condition 10.3 unless the Buyer gives written notice that Services have not been carried out to an appropriate standard and the Company is given reasonable opportunity to re-perform the Services.
10.7 Subject to condition 10.4, condition 10.5 and condition 10.6 if any of the Goods and/or Services do not conform with any of the warranties in condition 10.2 and condition 10.3 the Company shall at its option repair or replace such Goods (or the defective part) or re-perform Services or refund the price of such Goods or Services at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
10.8 If the Company complies with condition 10.7 it shall have no further liability for a breach of any of the warranties in conditions 10.2 and 10.3 in respect of such Goods or Services.
10.9 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
11. Limitation of Liability
11.1 Subject to condition 4, condition 5 and condition 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract; and
(d) the provision of the Services
11.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
11.4 Subject to condition 11.2 and condition 11.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 80% of the maximum limit the Company’s insurance cover limit from time to time including where appropriate without limiting the generality of the foregoing the Company’s professional indemnity insurance cover provided that where any one event or series of two or more connected events gives rise to more than one claim that limit shall apply to all such claims as though they were a single claim.
(b) the Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
12. Export Terms
12.1 Where the Goods are supplied for delivery outside the United Kingdom or the Services are to be performed outside the United Kingdom, the provisions of this condition
12 shall apply notwithstanding the other provisions of these Conditions.
12.2 The Buyer is responsible for complying with any legislation or regulations governing the performance of Services in the relevant country or the importation, use or sale of the Goods in the country of destination, the payment of any duties or taxes on them, the transportation, carriage and storage of the Goods including without limitation any obligation to translate any instructions, labelling or packaging into another language or compliance with any import or export regulations and the cost of the same.
12.3 The Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
12.4 The Buyer shall be responsible for arranging, for testing and inspection of the Goods at the Company's premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
13.1 The Company may assign the Contract or any part of it to any person, firm or company.
13.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
14. Force Majeure
14.1 The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods or Services ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
15.1 The Company may, as it thinks fit, immediately suspend further performance of the Contract or cancel any outstanding provision of the Services or delivery of the Goods or stop any Goods in transit or by written notice to the Buyer terminate the Contract without liability to the Company if:
(a) the Buyer commits a material breach if any of its obligations under the Contract which is incapable if remedy;
(b) the Buyer fails to remedy a breach of its obligations under the Contract (except as to payment) which is capable of remedy, or persists in any breach of any of its obligations under the Contract after having been requested in writing by the Company to remedy or desist from such breach within a period of 14 days;
(c) any sum payable under the Contract is not paid within 7 days of its due date for payment in accordance with the Contract;
(d) the Buyer (being a partnership) or the Buyer’s partner offers to make any arrangements with or for the benefit of the creditors of the Buyer or the Buyer’s partner generally or there is presented in relation to the Buyer or the Buyer’s partner a petition of bankruptcy;
(e) the Buyer (being a Limited Company) is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer calls a meeting for the purpose of passing a resolution to wind up its company, presents or has presented a petition to wind up or has any receiver, administrative receiver or administrator appointed to the whole or any part of the Buyer’s business, undertaking, property or assets;
(f) the Buyer ceases or threatens to cease to carry on business; or
(g) the Company reasonably believes that any of the events specified in condition 15(a) to (e) above is about to occur in relation to the Buyer.
15.2 Notwithstanding any such termination or suspension in accordance with conditions 14 or 15 above the Buyer shall pay the Company at the Contract rate for all Goods delivered or Services provided up to and including the date of suspension or termination and the termination of the Contract or any contract for whatever reason shall not affect the rights or remedies of either party in respect of any antecedent breach or in respect of any sum owing or to become owing to the other.
16.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
16.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
(b) if delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day; or
(d) if sent by email on a working day at the time of transmission.
16.3 Communications addressed to the Company shall be marked for the attention of a Director of the Company or his successor(s) in title.
17.1 Each party undertakes that it shall not at any time, and for a period of five years after termination of this Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 17.2.
17.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 17; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this agreement.
18. Copyright and Intellectual Property
[BIM Documents [[DESCRIPTION OF BIM DOCUMENTS] OR the BIM Model Production and Delivery Table and the BIM Information Requirements].] Material all designs, drawings, models, plans, specifications, design details, photographs, brochures, reports, notes of meetings, CAD materials, calculations, data, schedules, programmes, bills of quantities, budgets and any other materials provided in connection with the Project and all updates, amendments, additions and revisions to them and any works, designs, or inventions incorporated or referred to in them for any purpose relating to the Project. Permitted Uses the design, construction, completion, reconstruction, modification, refurbishment, development, maintenance, funding, disposal, letting, fitting-out, advertisement, demolition, reinstatement[, extension], building information modelling and repair of the Project. Project the project described in the Order.
18.1 The Company owns all intellectual property rights (including copyright) relating to the Material it produces.
18.2 The Company grants to the Buyer, with immediate effect, an irrevocable, non-exclusive, non-terminable, royalty-free licence to copy and make full use of any Material prepared by or on behalf of the Company for any purpose relating to the Project including, without limitation, any of the Permitted Uses.
18.3 This licence allows the Buyer to use the Material in connection with any extension of the Project, but not to reproduce the designs contained in the Material in any such extension.
18.4 This licence carries the right to grant sub-licences and is transferable to third parties without the consent of the Company.
18.5 The Buyer grants to the Company, with immediate effect, an irrevocable, non-exclusive, non-terminable, royalty-free licence (or, as the case may be, sub-licence) including the right to grant sub-licences (or, as the case may be, sub-sub-licences), to copy and make full use of the Material produced in accordance with the BIM Documents by or on behalf of the Buyer (including any produced by the Contractor or another member of the Professional Team) for the purpose of carrying out the Project and complying with the BIM Documents.
18.6 The Company shall not be liable for use of the Material for any purpose other than that for which it was prepared and/or provided.
18.7 The Company warrants that, in respect of any Material whose copyright is vested in third parties, it is authorised by such parties to grant the licence set out in clause 18. The Company shall notify the Buyer of any Material in respect of which it is not so authorised and shall exercise all reasonable endeavours to obtain such authorisation as soon as reasonably practicable.]
18.8 The Company unconditionally and irrevocably waives, in respect of the Material and the Project, all moral rights to which the Company may now or at any future time be entitled under the Copyright, Designs and Patents Act 1988 (CDPA 1988) as amended from time to time.
18.9 This waiver is made in favour of the Buyer and shall extend to the Buyer’s sub-licensees, assignees and successors in title in accordance with this agreement.
18.10 The Company undertakes to the Buyer that it shall, at its own cost:
(a) pay all royalties payable to third parties in respect of the use of any Material in accordance with clause 1; and
(b) obtain a written waiver of all moral rights that any of its employees, agents, sub-contractors or consultants may have under the CDPA 1988 as amended from time to time in relation to the Project or any Material.
19. Compliance with relevant requirements
19.1 The Buyer shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with the Company's Ethics, Anti-bribery and Anti-corruption Policies (annexed to this agreement) as the Company may update them from time to time (Relevant Policies).
(d) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including [but not limited to] adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and will enforce them where appropriate;
(e) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Buyer in connection with the performance of this agreement;
(f) immediately notify the Company (in writing) if a foreign public official becomes an officer or employee of the Buyer or acquires a direct or indirect interest in the Buyer and the Buyer warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of this agreement);
(g) within three months of the date of this agreement, and annually thereafter, certify to the Company in writing signed by an officer of the Buyer, compliance with this clause by the Buyer and all persons associated with it. The Buyer shall provide such supporting evidence of compliance as the Company may reasonably request.
19.2 The Buyer shall ensure that any person associated with the Buyer who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Buyer in this clause (Relevant Terms). The Buyer shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Company for any breach by such persons of any of the Relevant Terms.
19.3 Breach of this clause 19 shall be deemed a material breach under clause 15.
19.4 For the purpose of this clause 19, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 19 a person associated with the Buyer includes but is not limited to any subcontractor of the Buyer.
20.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
20.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
20.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
20.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
20.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
20.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the non-exclusive jurisdiction of the English courts provided always where this Contract creates a construction contract for construction operations within the meaning set out in the Housing Grants Construction and Regeneration Act 1996 (as amended) either party may at any time refer any dispute or difference arising out of or in connection with this Contract to adjudication pursuant to the Scheme for Construction Contracts (England) Regulations 2011 provided further that any party may at any time refer any dispute or difference arising out of or in connection with this Contract to Mediation pursuant to the mediation procedure and agreement of CEDR current at the date of the dispute or difference any such mediation to be conducted by a single mediator appointed by its parties by agreement or failing agreement, within 14 days of request to do so appointed by CEDR on the written application of either party provided any such right to refer to mediation shall not prejudice the right to refer any dispute or difference to adjudication at any time.
20.7 Non-solicitation of employees or contractors
20.7.1 In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not (and shall procure that no member of The Buyer's Group shall) (except with the prior written consent of The Company):
(a) attempt to solicit or entice away; or
(b) solicit or entice away, from the employment or service of The Company or any Group Company the services of any Restricted Person other than by means of a national advertising campaign open to all-comers and not specifically targeted at such staff of The Company or any Group Company.
20.7.2 The Buyer shall be bound by the covenant set out in clause 20.7.1 during the term of this agreement, and for a period of 12 months after termination or expiry of this agreement.
20.7.3 For the purposes of this clause 20.7, a Restricted Person shall mean any firm, company or person employed or engaged by The Company or any Group Company during the term of this agreement who has been engaged in the provision of the Services or the management of this agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement and who could damage the interests of The Company or any Group Company if they were involved in any capacity in any business concern which competes with the business of The Company or the Business.
20.7.4 In the event that the Buyer breaches this clause 20.7, the Buyer shall pay to the Company as compensation 25% of the relevant employees annual remuneration.
20.8 Non-employment of employees
20.8.1 In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not (and shall procure that no member of The Buyer's Group shall) (except with the prior written consent of The Company) employ or engage or otherwise facilitate the employment or engagement of any Restricted Person.
20.8.2 The Buyer shall be bound by the covenant set out in clause 20.8.1 during the term of this agreement and for a period of 12 months after termination or expiry of this agreement.
20.8.3 For the purposes of this clause 20.8, a Restricted Person shall mean any firm, company or person employed or engaged by The Company or any Group Company during the term of this agreement who has been engaged in the provision of the Services or the management of this agreement either as principal, agent, employee, independent contractor or in any other form of employment or engagement and who could damage the interests of The Company or any Group Company if they were involved in any capacity in any business concern which competes with the business of The Company or the Business.
20.8.4 In the event that the Buyer breaches this clause 20.8, the Buyer shall pay to the Company as compensation 25% of the relevant employees annual remuneration.
20.9 Non-poaching of customers
20.9.1 In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not (and shall procure that no member of The Buyer's Group shall) (except with the prior written consent of The Company) solicit or entice away (or attempt to solicit or entice away) from The Company or any Group Company the business or custom of any Restricted Customer.
20.9.2 The Buyer shall be bound by the covenant set out in clause 20.9.1 during the term of this agreement, and for a period of 12 months after termination or expiry of this agreement. 20.9.3 For the purposes of this clause 20.9, a Restricted Customer shall mean any firm, company or person who is or has been at any time during the immediately preceding 12 months a customer or prospective customer of, or in the habit of dealing with, The Company or any Group Company or a customer or prospective customer of, or in the habit of dealing with, The Company or any Group Company in respect of engineering services serviced by The Buyer as a customer of The Company or any Group Company for the Services.
20.10.1 In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not (and shall procure that no member of The Buyer's Group shall) be involved with the provision of goods or services to any Restricted Customer.
20.10.2 The Buyer shall be bound by the covenant set out in clause 20.10.1 during the term of this agreement, and for a period of 12 months after termination or expiry of this agreement. 20.10.3 For the purposes of this clause 20.10, a Restricted Customer shall mean any firm, company or person who is or has been at any time during the immediately preceding 12 months a customer or prospective customer of, or in the habit of dealing with, The Company or any Group Company or a customer or prospective customer of, or in the habit of dealing with, The Company or any Group Company in respect of engineering services serviced by The Buyer as a customer of The Company or any Group Company for the Services.
20.11 Non-solicitation of suppliers 20.11.1 In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not (and shall procure that no member of The Buyer's Group shall) (except with the prior written consent of The Company) have any business dealings with, or solicit, entice or attempt to entice away, a Restricted Supplier, if such dealing, solicitation or enticement causes or is reasonably likely to cause such supplier to cease supplying, or to reduce its supply of goods or services to, The Company or any Group Company, or to vary adversely the terms upon which it conducts business with The Company or any Group Company.
20.11.2 The Buyer shall be bound by the covenant set out in clause 20.11.1 during the term of this agreement, and for a period of 12 months after termination or expiry of this agreement.
20.11.3 For the purposes of this clause 20.11, a Restricted Supplier shall mean any firm, company or person who is or has been at any time during the immediately preceding 12 months a supplier of goods or services to The Company or any Group Company.
20.12.1 In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not (and shall procure that no member of The Buyer's Group shall):
(a) carry on; or
(b) be engaged, concerned or interested in; or
(c) assist in any way, any business concern which is (or intends to be) in competition with the business of The Company or any Group Company or the Business in the Territory.
20.12.2 The Buyer shall be bound by the covenant set out in clause 20.12.1 during the term of this agreement, and for a period of 12 months after termination or expiry of this agreement.
In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not at any time after termination or expiry of this agreement, represent itself as connected or associated with The Company or any Group Company or use any registered names or trading names or domain names, designs or logos associated with The Company or any Group Company or which, in the reasonable opinion of The Company, are capable of confusion with such names, designs or logos.
In order to protect the legitimate business interests of The Company and each Group Company, The Buyer covenants with The Company for itself and as agent for each Group Company that it shall not at any time after termination or expiry of this agreement, say anything which may be harmful to the reputation of the business of The Company or any Group Company or the Business, whether defamatory or otherwise.
20.15.1 The Buyer undertakes that, other than in concert with The Company or with The Company's express prior written approval, it shall not, directly or indirectly:
(a) itself pursue the Project or any Substitute Project;
(b) induce, solicit, procure or otherwise encourage any third party to pursue the Project or any Substitute Project; or
(c) seek, encourage or respond to any approach from any third party to pursue the Project or any Substitute Project.
20.15.2 The Buyer shall procure that its officers, employees, agents, advisers and other representatives, and each member of its Group and their respective officers, employees, agents, advisers and other representatives, comply with clause 20.15.1 as if they were The Buyer.
20.15.3 For the purposes of this clause 20.15, Substitute Project shall mean any project involving the same customers or partners or the same or substantially similar resources, technology or work product as the Project.
20.16 Enforceability by group companies
20.16.1 The covenants in clauses 20.7 to 20.15 inclusive are intended for the benefit of, and shall be enforceable to the fullest extent permitted by law, by each of The Company and each Group Company and shall apply to actions carried out by The Buyer (or any member of The Buyer's Group) in any capacity (including as shareholder, partner, director, principal, consultant, officer, agent or otherwise) and whether directly or indirectly, on its own behalf or on behalf of, or jointly with, any other person.
20.16.2 Except as expressly provided in clause 20.16.1, a person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
20.16.3 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person. 20.17 Permitted activities Nothing in clause 20 shall prevent The Buyer (or any member of The Buyer's Group) from holding for investment purposes only:
20.17.1 units of any authorised unit trust; or
20.17.2 not more than 5% of any class of shares or securities of any company traded on a recognised investment exchange (within the meaning of the Financial Services and Markets Act 2000).
20.18 Separate covenants
Each of the covenants in this clause is a separate covenant by The Buyer and each Group Company and shall be enforceable by The Company and each Group Company separately and independently of their right to enforce any one or more of the other covenants contained in this clause.