1 BASIS AND SCOPE
1.1 These General Terms and Conditions (hereinafter referred to as “GTC”) shall apply as the basis for the contract concluded with the customer (the “Contract”) as well as all other contracts for the sale and delivery of products (hereinafter referred to as “Products”) and/or the provision of works and services (hereinafter referred to as “Services”) including software provided as a service (hereinafter referred to as “Software”) by ZG Lighting (UK) Limited, a company registered in England and Wales under company number 02851586 whose registered office is at Chiltern Park, Chiltern Hill, Chalfont St Peter, Buckinghamshire, SL9 9FG (hereinafter referred to as the “Company”) to its customers (hereinafter referred to as “Customers”; the Company and the Customer together also referred to as “Contracting Parties”; Products, Services and Software together also referred to as “SERVICES”) and shall supersede any other terms which the Customer purports to apply or which are implied by trade, custom or course of dealing. These GTC shall therefore also apply to future SERVICES without a separate agreement, unless expressly agreed otherwise.
1.2 These GTC of the Company apply exclusively and to the exclusion of all others. Deviating, conflicting or supplementary general terms and conditions, terms and conditions of purchase or other standardised contract forms of the Customer (hereinafter referred to as “Customer GTC”) shall only be effective if expressly agreed in writing between the Company and the Customer. An implied agreement of Customer GTC is excluded. The manner of performance of the Contract and trade customs shall not constitute grounds for a change of these GTC.
1.3 The Company may amend its GTC at any time by publishing an updated version on the Company’s website. Thus, in the absence of any agreement to the contrary, the GTC valid at the time of conclusion of the Contract and made available or updated on the Company’s website (https://www.zumtobel.com) shall apply to new Contracts.
1.4 These GTC apply exclusively to Customers which are businesses. If a Customer is a consumer as defined by Section 2 of the Consumer Rights Act 2015, it will receive an individual offer upon request.
1.5 References in these GTC to: (i) a statutory provision includes a reference to any modification, consolidation or re-enactment of the provision from time to time in force and all subordinate instruments, orders or regulations made under it; (ii) “includes” or “including” shall be construed without limitation to the generality of the preceding words; (iii) “writing” means a method of reproducing words in a legible and non-transitory form, including e-mail; (iv) “indemnify” means to indemnify on demand and hold harmless on an after tax basis; (v) the singular includes the plural and vice versa; (vi) one gender includes all genders; and (vii) any document (including the Contract) shall be construed as a reference to that document as amended from time to time.
1.6 Condition headings do not affect their interpretation.
2.1 Unless expressly designated as binding, offers or quotations made by the Company are subject to change without notice and are non-binding – they constitute an invitation to the Customer to make an offer to the Company.
2.2 Unless otherwise agreed in writing, offers or quotations stated to be binding shall be valid for a period of three months from the date of dispatch or as otherwise stated in the offer or quotation.
2.3 All catalogues, specifications, price lists or similar documents prepared by the Company are exclusively for information purposes and shall not be deemed to constitute an offer. The Company is of the opinion that these documents are complete and correct at the time of going to press. However, the Company does not warrant that these documents are complete or free of errors. The Company accepts no responsibility for damage resulting from measurement errors, descriptions, recommendations for use based on such documents or the like.
3 CONCLUSION OF THE CONTRACT
3.1 The order of a SERVICE by the Customer shall be deemed to be an offer to purchase in accordance with these GTC. The Customer shall ensure that the details of any order of a SERVICE are complete and accurate in all material respects. The Contract shall only be concluded upon written confirmation of the order by the Company (“Confirmation”). The order Confirmation does not require a signature and can also be transmitted electronically to the Customer. Mere confirmation of receipt of the offer by the Customer shall not be deemed to be an acceptance of the offer.
3.2 Deviations from an offer made by the Company or other “instructions” from the Customer, e.g. delivery requests, deadlines, discounts etc. shall be treated as non-binding suggestions from the Customer. They shall only become part of the Contract if they are expressly accepted by the Company in writing as part of the order Confirmation. Each order gives rise to a Contract, and each Contract is separate from each other Contract.
3.3 To the extent that the Customer includes in its order, or if these become part of the Contract, certain specifications, configurations and other requirements for Products and Services and their functionality, compatibility and interoperability with other Products or Services (not authorised by the Company) and their suitability for a specific use, the Customer shall be solely responsible for the correctness, accuracy and completeness of this information and the information on which it is based. The Customer warrants that the information provided to the Company as part of an agreement is complete, accurate and true and acknowledges that the Company may not be able to perform obligations in full or exercise rights under an agreement if it does not provide the Company with complete, accurate and true information or instructions.
3.4 If, after conclusion of the Contract, events occur which no longer enable the Company to fulfil the Contract at the agreed conditions in a way that covers its costs, or which make it impossible for the Company to fulfil the Contract at all, the Company shall be free to withdraw from the Contract. The Company reserves the right to make any changes in the specification of the Products, Services or Software which do not materially affect their quality or performance.
3.5 Unless otherwise agreed, no order may be cancelled by the Customer except with the Company’s written agreement and on terms that the Customer shall indemnify and hold harmless the Company against all losses incurred by the Company as a result of the cancellation.
4 ONLINE ORDERS
4.1 For orders placed by the Customer via the Company’s internet portal https://portal.zumtobelgroup.com (hereinafter referred to as “Portal”), the following provisions shall also apply:
4.2 After successful registration by the Customer and approval by the Company, the Customer shall receive a welcome e-mail with the option to set a personal password for the e-mail address specified. The Customer undertakes to keep personal login details such as user name and password confidential. The Customer is obliged to notify the Company immediately of any significant changes to the access rights of authorised persons. The Customer is responsible for the consequences of any breach of this provision by it or its bodies, officers, employees, auxiliary persons and authorised representatives.
4.3 Any person who legitimises himself/herself in the Portal using the Customer’s login details shall be deemed to be authorised vis-à-vis the Company to perform all legal transactions possible in the Portal on behalf of the Customer, irrespective of whether this person is actually the Customer or an authorised user of the Customer. The Customer accepts all legal transactions made on the Company’s Portal with its login details as binding to the Customer. The Customer reserves the right to prove that an external third party has legitimised itself on the Portal for the Customer without authorisation without any fault on the part of the Customer; in this case, the Customer shall not be liable for the processes and legal transactions by the external third party performed without authorisation.
4.4 The processing of Contracts concluded on the Portal and all related information is performed partly automated by e-mail. The Customer is therefore responsible for making sure that its stored e-mail address is at all times correct and that the receipt of e-mails is ensured.
4.5 The presentation of Products on the Company’s Portal is non-binding and is not a binding offer to conclude a Contract. Orders placed on the Portal constitute a binding offer to purchase by the Customer to the Company.
4.6 The order confirmation sent automatically by the Company after receipt of the purchase offer only serves to inform the Customer about the receipt of the order and does not lead to conclusion of the Contract. Acceptance of the Customer’s purchase offer shall be executed by a separate Confirmation from the Company in text form (e.g. e-mail) informing about execution of the order (order confirmation) or delivery of the Products (shipping confirmation).
4.7 After conclusion of the Contract, changes to the order by the Customer are only possible with the written consent of the Company and subject to indemnification.
4.8 If, after conclusion of the Contract, events occur which no longer enable the performance of the Contract at the agreed conditions in a way that covers its costs, or make the performance impossible for the Company at all, the Company shall be free to withdraw from the Contract.
4.9 The Company does not guarantee the faultless functioning of its Portal and expressly excludes liability for damages arising from the use of its Portal. Any responsibility and liability for access disruptions, such as insufficient or deficient availability of the Portal or faulty transmission of information and explanations when using the Portal, is also excluded.
4.10 The Customer acknowledges that by using the Portal from abroad it may violate rules of foreign law, e.g. by using the encryption procedures used on the Portal. The Company disclaims all liability and responsibility in this regard. The Customer undertakes not to use the Portal in a way which may violate rules of foreign law or any applicable law.
5 PRICES AND TERMS OF PAYMENT
5.1 The prices stated for the respective SERVICES in the respectively transmitted offer or order Confirmation or the respectively agreed price list shall apply. All prices are in UK pounds sterling and exclusive of value-added tax.
5.2 The Company reserves the right, upon notifying the Customer, to adjust prices for SERVICES not yet delivered or supplied, as the case may be, to reflect changes in attributable and verifiable direct costs, including changes in currency exchange rates and changes in raw material prices, other manufacturing costs, distribution costs, costs of utilities (including gas, electricity and water), charges relating to delivery or customs requirements and labour costs, if such changes exceed five percent (5%) of the original direct costs and if such changes take effect between the date of the Contract and the date of delivery of the Products and/or performance of the Services.
5.3 Unless otherwise specified, the prices stated for the respective SERVICES in the respectively transmitted offer or order Confirmation or the respectively agreed price list includes insurance and transportation to the Customer’s premises within the mainland of Great Britain, Northern Ireland and the Republic of Ireland. The Company reserves the right to choose the method of transport and to charge for: (i) changes to the delivery location (ii) timed deliveries (iii) out of hours deliveries (iv) deliveries that require the use of specialist vehicles and/or (v) deliveries outside the mainland of Great Britain, Northern Ireland and the Republic of Ireland.
5.4 The Company shall further be entitled to increase the price (whether before or after issuing an order Confirmation) to include payment of any reasonable and properly substantiated additional costs it incurs and to a reasonable extension of time as the case may be for (i) border delays affecting the importation of goods into the United Kingdom from the European Union and to payment of any unexpected new costs arising from the United Kingdom’s trading relationship with the European Union following 31 December 2020, and/or (ii) in relation to present and future outbreaks of COVID-19 and mutations and variants thereof (“COVID-19”) any mandatory shutdown or other disruption of the Company’s manufacturing facility or the Customer’s site or premises by (a) the United Kingdom government or competent devolved administrations of the United Kingdom or competent government of any other relevant jurisdiction (b) any preventative action taken independently by the Company or Customer to reduce or minimise the impact of COVID-19 on its personnel and/or business operations, so as to render it more difficult or impossible for the Company to carry out the manufacture of the Services; transport and deliver the Services to the Customer’s site, works or premises (c) install and commission the Services at the Customer’s site or premises or (d) carry out the Services or commissioning or performance tests at the Customer’s site or premises, or otherwise perform its obligations under the Contract.
5.5 If and to the extent that, the Company is required to perform services which are in addition to any Services specified in an order, the Customer shall pay the Company’s charges (at the Company’s then prevailing rates) and all costs and expenses suffered or incurred by the Company for such services performed by the Company. Payment shall be made by the Customer in accordance with this Clause 5.5.
5.6 Terms of payment
5.6.1 Unless expressly agreed otherwise, the Customer shall in principle make an advance payment of the total purchase price or remuneration.
5.6.2 The Company shall carry out such credit reference checks from time to time in relation to the Customer as it considers reasonable. If the final result of the credit reference check justifies it, the Company may, notwithstanding Clause 5.6.1, (i) require the Customer to pay according to fixed payment dates; (ii) require a partial payment; (iii) invoice separately for individual phases, time periods or milestones of an order processing.
5.6.3 Unless expressly agreed otherwise payment of the invoice amount shall be made within 14 days (receipt of payment) of the transmission of a legally compliant invoice to an account to be separately notified by the Company. The date on which the Company’s account is credited shall be decisive for compliance with the payment deadline. Time for payment of the invoice shall be of the essence. The Customer agrees to receive electronic invoices. Electronic invoices are sent to the Customer in PDF format by e-mail. Invoices may be issued by the Company at any time on or after delivery of the Products (including upon delivery of any instalments of the Products) or performance of the Services.
5.6.4 Notwithstanding any of the terms of these GTC, the Company reserves the right to cancel or suspend the Contract at any time prior to delivery and/or performance of the SERVICES if, in its reasonable opinion, it is not satisfied with the credit rating of the Customer.
5.6.5 Payment may not be refused or delayed by reason of any defect in the SERVICES. The customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement, withholding or otherwise.
5.7 In the event of partial deliveries or partial SERVICES, the Company shall be entitled to issue partial invoices.
5.8 Upon expiry of the payment deadline pursuant to 5.6.3, the Customer shall automatically be in default. In the event of default, interest shall be payable at a rate of 10% above the base rate of the Bank of England from time to time. The right of the Company to claim further damages for delay remains unaffected.
5.9 The Company shall have the right to suspend or terminate performance of its obligations under this Contract until all outstanding charges due have been paid in full, without prejudice to any claim for damages or other claims of the Company.
5.10 If the supply of SERVICES is suspended or terminated for any reason, the Company may raise an invoice within sixty (60) days of the suspension or termination in respect of SERVICES performed by the Company but not yet invoiced by the Company. Any invoice raised by the Company under this Clause 5.10 shall become immediately due and payable by the Customer to the Company.
6.1.1 The Company sells to the Customer, in accordance with the offer and Confirmation underlying these GTC, Products in the quantity specified therein.
6.1.2 Unless expressly agreed otherwise all prices are CPT (Carriage Paid To) in accordance with INCOTERMS 2020, whereby only ground level unloading is owed.
6.1.3 Unless expressly agreed otherwise, any delivery periods and delivery dates notified shall be non-binding and are approximate only, and shall always be understood as the expected time of provision and handover of the Products to the Customer. Time for delivery shall not be of the essence.
6.1.4 If a delivery period has been agreed, it shall commence at the latest of the following dates:
(a) date of written Confirmation of order by the Company;
(b) date of fulfilment of all technical, commercial and other prerequisites incumbent on the Customer which are necessary for performance of the SERVICE;
(c) date on which the Company receives an advance payment, deposit or security to be made by the Customer prior to performance.
6.1.5 Products not accepted by the Customer by the agreed date shall be stored at the risk and expense of the Customer, for which the Customer shall owe the Company a reasonable storage fee for each calendar day commenced. At the same time, the Company is entitled either to insist on performance of the Contract or to withdraw from the Contract after setting a reasonable grace period.
6.1.6 If the Customer fails or refuses to take delivery of the Products or the Company is unable to deliver the Products because the Customer has not provided adequate instructions, documents, licences, authorisations, equipment, manual labour, assistance or access, then the Products shall be deemed delivered and the Company may (at its option): (i) raise an invoice for the Products concerned as if delivery had occurred; (ii) store the Products at the Customer’s risk until actual delivery and charge the Customer for the reasonable costs (including insurance) in connection with such storage; (iii) if, five days after the Company has delivered the Products in accordance with the Confirmation, the Customer has not accepted delivery of them or agreed alternative delivery arrangements with the Company in writing, then the Company may sell the Products at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price or charge the Customer for any shortfall below the price of the Products; or (iv) terminate the Contract without any liability to the Customer.
6.1.7 Insignificant defects do not entitle the Customer to refuse or suspend acceptance of SERVICES. Subject to Clause 12.8, the Company shall remedy such defects within a reasonable period of time. “Insignificant defects” are non-conformities or anomalies that do not impede the operation and intended use of SERVICES in accordance with their specifications.
6.1.8 The place of performance for the delivery of Products is always the Company’s works or warehouse from which the dispatch of the Products takes place. This shall also apply if the delivery is made as part of an assembly or if the transport is carried out or organised by the Company.
6.1.9 Unless otherwise agreed between the parties in writing, the Company may deliver the Products in instalments. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other installment.
6.2 RISK AND TITLE
6.2.1 Subject to Clause 6.2.2, risk of loss or damage to the Products shall pass to the Customer on delivery in accordance with the Confirmation.
6.2.2 Where the price does not include insurance and transportation of the Products and the Customer makes its own arrangements in this regard, risk shall pass to the Customer when the Products are loaded onto the Customer’s transport or otherwise collected by or on behalf of the Customer or (if the Company agrees to deliver them using its own transport) they are off-loaded at their destination as specified in the order Confirmation or otherwise agreed in writing between the parties. The Company takes reasonable care and precautions in packaging the Products and therefore cannot accept responsibility for damage during transit unless it has failed to take such reasonable care.
6.2.3 The Customer shall arrange insurance cover for the full replacement value of the Products against all risks from the time when risk passes to the Customer.
6.3 SAMPLE DELIVERIES
6.3.1 At the written request of the Customer, the Company may provide Products from the delivery programme as samples for inspection purposes, free of charge for a maximum period of four weeks, whereby a delivery shall only be deemed to be a sample delivery if it is expressly designated as such in the delivery note and/or in the invoice of the Company. Lamps, electronic wear parts and custom-made products cannot be obtained as samples.
6.3.2 In the case of delivery of Products as samples, invoicing shall be carried out at the agreed standard conditions. A credit note will be issued for the invoice after the Products have been returned in due time in original packaging.
6.3.3 If the Products are not returned to the Company within the time limit, they shall be deemed to have been purchased on the basis of these GTC. The same applies if returned Products have been partially or completely exchanged, modified or damaged or bear traces of mounting.
6.4 RETENTION OF TITLE
6.4.1 The Company retains title to all Products delivered by it until full payment of the charges plus any interest and costs, and is furthermore entitled to publicise this retention of title until receipt of full payment and to notify and register it with the competent domestic and foreign authorities.
6.4.2 Subject to Condition 6.5.5 and Condition 6.5.6, the Customer may resell or use the Products in the ordinary course of its business before the Company receives payment for the Products. However, if the Customer resells the Products before that time it does so as principal and not as the Company’s agent and title to the Products shall pass from the Company to the Customer immediately before the time at which resale by the Customer occurs.
6.4.3 The Customer hereby assigns to the Company, as security for the Company’s purchase price claim, its claim arising from a resale of Products subject to retention of title – even if these are processed, transformed or mixed – and undertakes to make a note to that effect in its books or on its invoices. Upon request, the Customer shall inform the Company of the assigned claim and its debtor, provide all information and documents required for collection of the claim and notify the third-party debtor of the assignment.
6.4.4 In the event of seizure or other claim to the Products subject to retention of title, the Customer shall be obliged to draw attention to the Company’s right of ownership and to notify the Company without delay.
6.4.5 Until ownership of the Products passes to the Customer in accordance with Clause 6.5.1 and without prejudice to clause 6.5.2, the Customer shall: (i) hold the Products as the Company’s fiduciary bailee; (ii) store the Products separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property; (iii) not destroy, deface or obscure any identifying mark or packaging of the Products; (iv) maintain the Products in a satisfactory condition insured for their full price against all risks for their full price from the date of delivery (maintaining the proceeds of insurance on trust for the Company); (v) notify the Company immediately if it becomes subject to an Insolvency Event; and (vi) give the Company such information relating to the Products as the Company may require.
6.4.6 At any time before title to the Products passes to the Customer, the Company may take any action to recover or resell the Products so as to discharge any overdue payment from the Customer under the Contract.
6.4.7 In order to verify the Customer’s compliance with its obligations and to exercise its rights under these GTC, employees or agents of the Company shall be entitled without notice to enter the Customer’s premises or warehouse, or such other premises where the Products are stored. Where the Products are stored at a premises which is owned by a third party, the Customer shall use all reasonable endeavours to procure entry to such premises by the Company (and its employees or agents) in order to exercise the right set out in Clause 6.5.6.
6.4.8 The Customer’s right to sell the Products before title passes shall terminate automatically if the Customer suffers an Insolvency Event or on written notice by the Company.
6.4.9 Nothing in this Clause shall give the Customer the right to return Products to the Company except with the Company’s prior written consent.
6.4.10 “Insolvency Event” means each and any of the following in relation to the Customer or the Company (being, in either case, the “Relevant Party”): (a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Relevant Party (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of the Relevant Party or any of its assets; (iii) the enforcement of any security over any assets of the Relevant Party; or (iv) the expropriation, attachment, sequestration, distraining upon or execution over or affecting any material asset of the Relevant Party; (b) the Relevant Party is unable to pay its debts as they fall due or is insolvent; (c) the Relevant Party enters into a composition or arrangement with its creditors or any class of them; (d) the Relevant Party ceases to carry on business or substantially all of its business, or is struck off; or (e) the commencement of any analogous procedure or step in relation to the Relevant Party in any jurisdiction other than England and Wales.
7.1 The Company shall endeavour to provide Services in accordance with the offer and Confirmation underlying these GTC to the extent agreed therein and at the prices agreed therein or in the price list. Services will be provided during normal working hours (Monday to Thursday between 07:30 a.m. and 4:30 p.m., and Friday between 07:30 a.m. and 12:00 noon), unless otherwise agreed in writing between the Parties. Time of performance of the Services is not of the essence.
7.2 Where the Company provides Services at the Customer’s premises, the Company shall comply with all security, safety and health standards and any other regulations or instructions specified by the Company or the end customer or as required by applicable local legislation.
7.3 The place of performance for Services under this Clause 7 shall be where the relevant SERVICE is performed; in case of doubt, the Company’s works or premises.
7.4 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Customer in any such event.
7.5 The Customer hereby grants the Company and its personnel full, safe and uninterrupted access, (including remote access, where appropriate), to the premises, systems, Products and its software of the Customer or any other entity as may reasonably be required for the purpose of performing its obligations under the Contract, in particular to perform the Services and inspect the Products or to remove the Products in accordance with these GTC. Unless otherwise agreed, such access shall be permitted within working hours as noted in Clause 7.1 above.
7.6 Where the Services are to be performed at the premises of the Customer or any other entity, the Customer shall provide or arrange for the provision of adequate working space and office (including telephone and WIFI) facilities for use by the Company’s personnel and take reasonable care to ensure their safety by notifying them in advance of any of the policies of the Customer or of any other entity which must be complied with on site.
7.7 The Customer shall make available to the Company’s personnel any aids and equipment reasonably requested by the Company (including but not limited to ladders, scaffolding, façade and cradle or other access equipment). The Company shall not be obliged to provide any Services, or shall be entitled to increase the price of the affected Services, where the Company is reasonably required to perform additional work (including dismantling the Customer’s cladding, false ceilings or any other structure) to gain access to the existing components in order to perform the Services.
7.8 The Customer shall not instruct any third party to carry out any maintenance or repairs on the Products, without the express prior written agreement of the Company.
7.9 The Customer shall:
7.9.1 co-operate with the Company in performing the Services and provide any assistance or information as may reasonably be required by the Company;
7.9.2 make available a person familiar with the Products and Services to liaise with the Company; and
7.9.3 report faults promptly to the Company including a description of the fault, containing as much detail as possible, and of the circumstances at the time it occurred.
7.10 The Customer shall not postpone performance of the Services except with the prior written consent of the Company. Where the Company agrees to postpone performance of the Services at the request of the Customer, the Company is discharged from performing the Services where, to the extent, and for so long as the Customer has requested to postpone the Services and the Company shall be entitled to charge the Customer for the reasonable costs in connection with the postponement.
7.11 Where the Services include any work which falls within the definition of “construction work” under the Construction (Design and Management) Regulations 2015 (“CDM Regulations”), the Customer shall be responsible for ensuring compliance with any obligations under the CDM Regulations. The Company shall not assume any responsibility or role under the CDM Regulations unless specifically agreed in advance and in writing with the Customer.
8.2.1 If the Company provides the Software to the Customer as a service and unless otherwise agreed in the individual case, the Company shall grant the Customer a non-exclusive, non-transferable, non-sublicensable right to use the Software within the scope of its functionalities and according to the purpose of use approved by the Company, limited to the territory of the state in which the Customer has its registered office, for the duration of the Contract and subject to the timely payment of licence fees.
8.2.2 If the Company sells the Customer Products in which Software is embedded, and unless otherwise agreed in individual cases, the Company shall grant the Customer a worldwide, non-exclusive, transferable and sublicensable right to use this embedded Software within the scope of its functionalities and in connection with the Product on which it was pre-installed upon delivery, subject to the timely payment of any licence fees and the purchase price for the Products.
8.3 The Customer is prohibited from: (i) Reverse engineering, disassembling or decompiling the Software or any part thereof unless such restriction is expressly limited by applicable mandatory law; (ii) Removing, altering or defacing any copyright or other proprietary or intellectual property notices from the Software; (iii) Modifying, merging or combining the whole or any part of the Software with any other software or documentation; (iv) Developing or manufacturing software development kits or related products using the Software or marketing or distributing such products in any manner; (v) Sub-licensing, distributing, assigning, transferring, sell, leasing, renting, charging or otherwise dealing in or encumbering the Software or making it available as separate components without the Products of the Company or use on behalf of or make available the same to any third party; (vi) Appointing sub-distributors except as expressly permitted in this agreement; (vii) Otherwise distributing, sub-licensing or otherwise transferring the Software to third parties except as expressly permitted in these GTC or in a written agreement between the Company and the Customer; (viii) Bringing an action or otherwise asserting a claim against the Company, its licensors or other customers in any court or administrative authority alleging that the Software or documentation or any part thereof or the use, implementations or other derivative works of the Software or documentation infringe any Intellectual Property Rights of the partner, the Customer or any third party; (ix) Copying, exporting, re-exporting, sub-licensing, renting, loaning, leasing, disclosing, selling, marketing, re-licensing, otherwise transferring the Software (or any part thereof) to a third party or using or permitting use of the Software (or any part thereof) if not otherwise expressly agreed. The Software as modified or merged pursuant to this Clause 8.3 shall remain subject to these GTC.
8.4 All documentation provided by the Company in connection with the Products, Software and Services, such as user manuals or instructions, catalogues, specifications, data, drawings, plans, designs or other documents or information received from or created by the Company in any form, including in electronic or printed form (“documentation”), shall remain the property of the Company. No documentation is sold to the Customer, but only a licence to use it is granted for the duration of the Contract. Unless otherwise agreed, the intellectual property in the documentation shall belong to the Company or to a person designated by the Company. The Customer may only use, publish, copy or disclose the documentation in accordance with these GTC.
8.5 Licence fees
The use of the Software is subject to licence fees in accordance with the offer underlying these GTC or the agreed price list.
8.6 Proprietary rights of third parties
8.6.1 If a third party asserts claims against the Customer on the grounds that the use of the Software or components thereof, information, instructions or data provided to and used by the Customer under the contractual relationship existing with the Company infringes the third party’s Intellectual Property Rights and associated proprietary rights, the Company shall indemnify the Customer if the Customer complies with the following provisions:
(a) immediate written notification of the Company in writing, but not later than 14 days after the Customer has been notified of the claim, or earlier if required by applicable law;
(b) transfer to the Company, to the extent permitted by law, of sole control of the legal defence and all settlement discussions at the request of the Company at any time, and
(c) providing the Company with the information and reasonable assistance necessary and useful for the legal defence or settlement negotiations and granting the Company the relevant power of attorney.
8.6.2 If the Company has reason to believe, or if it is determined, that the Software or any component thereof may have infringed the proprietary rights, copyrights or other Intellectual Property Rights of a third party, the Company shall have the option of either modifying the Software or the affected components thereof so that its use is no longer infringing (whilst substantially preserving its usability and functionality) or procuring a licence for its continued use. If none of these options is economically justifiable, the Company shall be entitled to terminate the right of use for the Software component concerned, to demand the return of the same and to reimburse the Customer for any fees paid and expenses incurred in this respect.
8.6.3 The Company has no obligation to indemnify the Customer if the Customer modifies the Software or components thereof or uses it outside the scope of use determined in this Contract.
8.6.4 This Clause 8.6 conclusively regulates the remedies of the Customer for claims and damages in respect of indemnification for infringement of intellectual property rights and related proprietary rights (defects of title).
8.7 All Intellectual Property Rights in or arising out of or in connection with the SERVICES shall belong to the Company (or its licensor) notwithstanding that any specification may have been prepared in whole or in part by or on behalf of the Customer and, to the extent not otherwise owned by the Company (or its licensor), the Customer hereby assigns all right, title and interest (including all Intellectual Property Rights) in the SERVICES and in any specification developed by the Company prepared in whole or in part or on behalf of the Customer.
8.8 The Customer warrants that any specification or other information provided by or on its behalf for use by the Company will not infringe the Intellectual Property Rights or other rights of any third party, and the Customer shall indemnify the Company from and against all and any Losses suffered or incurred by the Company (or its affiliates) arising out of or in connection with any such infringement or alleged infringement. “Losses” means all loss, damage, claims, cost and expenses.
8.9 The Customer shall, promptly at the Company’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Company may from time to time require for the purpose of securing for the Company the full benefit of the Contract, including all right, title and interest in and to the intellectual property rights assigned to the Company.
8.10 The Software contains Confidential Information of the Company (and/or its licensor) and the Software and all such Confidential Information are the exclusive property of the Company or its licensor, as appropriate.
“Confidential Information” means in relation to the Purchaser or the Supplier all information and trade secrets relating to its business or customers which come into the possession of the other party pursuant to the Contract, in any form.
9 “INTELLECTUAL PROPERTY RIGHTS” MEANS ANY AND ALL PATENTS, TRADE-MARKS, BUSINESS NAMES AND DOMAIN NAMES, COPYRIGHT, MORAL RIGHTS, DATABASE RIGHTS, RIGHTS IN DESIGNS, RIGHTS IN INVENTIONS, AND ANY AND ALL OTHER INTELLECTUAL PROPERTY RIGHTS, WHETHER OR NOT REGISTERED OR CAPABLE OF REGISTRATION AND WHETHER SUBSISTING ANYWHERE IN THE WORLD AND INCLUDING ALL APPLICATIONS AND RIGHTS TO APPLY FOR ANY OF THEM TOGETHER WITH ALL OR ANY ASSOCIATED GOODWILL. COMMON PROVISIONS FOR PRODUCTS, SOFTWARE AND SERVICES
9.1 The Customer may use the Products, Software and Services only for their intended purposes and in accordance with all instructions contained in the manuals, guidelines, warranty terms and any other general terms and conditions applicable to such Products, Software and Services, or given by members of the personnel employed or subcontracted by the Company to perform a Contract.
9.2 The Company may make changes to the design, materials, fit and finish of the Products or change working methods, communication systems, Software or other elements of the Services and their documentation, provided that such changes do not substantially affect the functionality of the Product or the Services. Unless otherwise agreed, the Company does not guarantee the availability, accuracy, completeness, reliability, timeliness or performance or result of Products, Software and Services. The Customer may only use the Products, Software and Services for the contractually agreed applications and purposes.
9.3 The Customer shall not perform (or permit to be performed) any work on any Products or Software supplied and/or used by the Company as part of the Services, beyond normal use in accordance with the specifications without prior consent of the Company. In the event of unauthorised acts, the Company may suspend the Services until the equipment or Software is restored to its original compliant state and may charge the Customer for any modification. Pending confirmation, any warranty and guarantee obligations of the Company in respect of these Services are suspended. All modifications to equipment or Software owned by the Company (or the licensors) are the exclusive property of the Company (or the licensors), even if such modifications are made by or for the Customer.
9.4 The Customer expressly acknowledges that certain features and functions of Products, Software and Services depend on the availability and proper provision of the Company’s designated external services such as power supply, data storage, network connectivity and communications. The Company has no control over this service and thus accepts no responsibility or liability in this respect.
9.5 The Customer shall be responsible for all information, orders, instructions, materials and activities provided or performed by the Customer or third parties commissioned by the Customer (other than the Company’s subcontractors) in connection with the supply of Products, Software and Services by the Company. The Company shall have the right to rely on the accuracy and completeness of all information provided by the Customer even in cases where the Company provides data collection, design or audit services. Upon the Company’s request, the Customer shall promptly provide any other information, services or support services that the Customer controls and that are relevant to the Company’s performance under the Contract.
9.6 Any cancellation, delay or other change by the Customer of any order accepted by the Company shall be subject to the prior approval of the Company, and such approval shall be without prejudice to any rights or remedies available to the Company in compliance with the Contract or compliant to law. If the Company, at the written request of the Customer, agrees to a change in the order or a change in the Contract, including a (partial) cancellation, delay or suspension, addition, omission, modification, substitution or change in design, quality, standard, quantity, place of manufacture or performance (including sequence, quantities or timing) of Products or Services (each designated as “change”), or agrees to a change due to (i) changes in applicable laws, regulations or industry standards, (ii) emergency situations, (iii) inaccurate or incomplete information provided by the Customer or (iv) failure of the Customer to comply with its obligations under the Contract, the Customer shall reimburse the Company for all costs and expenses incurred as a result of such changes promptly after the first request.
10 OBLIGATIONS OF THE CUSTOMER TO COOPERATE
10.1 The Customer shall provide the Company, at its own expense, with all necessary and appropriate information in good time and to the extent required for performance of the Contract, and shall immediately fulfil all other necessary cooperation and provision services from its area of responsibility.
10.2 The Customer’s obligations to cooperate shall in any case include:
10.2.1 provision of access to the place of the intended delivery and/or SERVICE, in particular for carrying out planning, installation and implementation work;
10.2.2 provision of low-value work equipment (e.g. office workstations, writing materials, etc.) for on-site work;
10.2.3 in the case of requests for a fault intervention, the transmission of a detailed fault description containing as many details as possible as well as a description of the circumstances at the time the fault occurred;
10.2.4 provision of a server infrastructure with the specifications stated by the Company (if agreed);
10.2.5 provision of access to the server infrastructure via the Internet for performance of maintenance and support services; and
10.2.6 provision of physical access to the server infrastructure on site, in particular for the performance of maintenance and support services.
10.3 The Customer shall provide the Company in a timely manner with all the information and other cooperation required for performance of the Contract free of charge. If certain safety precautions are to be taken or certain safety regulations are to be complied with in the performance of the Contract, the Customer is obliged to inform the Company in writing without delay. Should appropriate training of the Company’s personnel be required, this shall be at the expense of the Customer. Where appropriate or necessary, the Customer shall cooperate in the planning, installation and implementation work and in the maintenance and support services if requested by the Company. In particular, the Customer shall provide the personnel qualified for this purpose in good time and free of charge. If, in the opinion of the Company, the Customer does not sufficiently fulfil these obligations to cooperate and thus jeopardises the Company’s fulfilment of its obligations, the Company shall warn the Customer accordingly. If the Company is unable to properly fulfil its obligations due to the delayed or insufficient cooperation of the Customer, the Company shall not be liable for the resulting consequences and damages, but the Customer shall be solely responsible for these and, if applicable, liable to pay costs or pay for damages to the Company.
10.4 The Customer shall notify the Company immediately in writing or by e-mail if circumstances arise and become apparent which may lead to non-compliance with agreed deadlines or dates.
10.5 Official permits and third-party permits required for the execution of installations shall be obtained by the Customer. The Company bears no responsibility in this respect.
10.6 If performance under the Contract is conditional upon the approval, confirmation or acceptance by the Customer of any proposal, design, work result, plan or act to be undertaken by the Company, the Customer shall declare such approval, confirmation or acceptance to the deadline specified in the Contract or, if no deadline is specified, within seven (7) days of receipt of a request to do so from the Company. If the Customer does not respond within this period, its approval, confirmation or acceptance shall be deemed declared.
11.1 If the Company is in default with the delivery of the Products or the provision of Software or with the provision of Services, this shall initially not affect the continued existence of the underlying Contract. In the event of default, the Customer may grant the Company a reasonable – at least 4-week – grace period for performance of the Contract. If the Company allows the period of grace granted in this way to elapse without fulfilling the obligation reminded therein, the Customer shall be entitled to terminate the Contract to the extent reminded or – insofar as a partial delivery or partial performance is concerned – only to terminate the partial delivery or partial performance.
11.2 If SERVICES cannot be performed within an agreed period or on an agreed date due to circumstances that (i) are beyond the Company’s control, such as in particular force majeure, difficulties due to lack of raw materials, operational restrictions and operational shutdowns as well as unforeseen production disruptions, floods, storms, official orders and/or inspections and other circumstances, or (ii) are within the Customer’s sphere of influence (e.g. lack of material, no access to the installation site, lack of official permits etc.), the Company shall be released from its obligation to perform for the duration of the existence of the circumstances or their effects and shall not be in default with respect to these SERVICES. Furthermore, the Company may charge all additional costs (e.g. storage costs, frustrated internal costs, frustrated costs for subcontractors etc.) which arise due to such a delay and which the Company can at least plausibly present, in addition to the agreed price. If the Company uses its own personnel for this purpose, the hourly rates usually charged by the Company and plausibly presented shall be applied.
12.1 The Company warrants, subject to the terms and conditions set out in these GTC, that the SERVICES will be delivered or performed in accordance with this Contract and will be substantially free from material defects and defects of title. The burden of proof for the existence of a material defect or defect of title shall in any case lie with the Customer. In any case, it must be possible to reproduce it. A presumption of defectiveness is excluded. All descriptions, performance figures or technical data, dimensions, samples, illustrations and similar information or documentation issued by the Company prior to supply are intended merely to present a general idea of the SERVICES described and do not form part of the Contract.
12.2 Unless expressly agreed otherwise, the warranty period for Products, Software and Services is 24 months from delivery. It shall commence at the time of the transfer of use and risk. A replaced or repaired part is warranted until expiry of the original warranty period. The warranty in this Clause is conditional upon the satisfaction of the following terms:
12.2.1 the Products are used by the Customer in conformity with the order and any instructions or other specification(s) provided by the Company;
12.2.2 where relevant, the Products were professionally installed and placed in service according to the installation instructions accompanying the Products and in accordance with good industry practice;
12.2.3 the maintenance and repair services on the Products have been performed in accordance with the Company’s specifications and in accordance with good industry practice;
12.2.4 services including software upgrades, updates, added functionality or re-commissioning, have been performed exclusively by the Company or a third party nominated by the Company in accordance with good industry practice;
12.2.5 the acceptable limits for temperatures and voltages according to the relevant technical or standards notified to the Customer in respect of the Products are not exceeded; and
12.2.6 the Products are not exposed to any unintended mechanical and/or chemical stresses.
12.3 The Company shall not be liable under the warranty under Clause 12.2 if any of the terms set out in Clause 12.2 are not satisfied.
12.4 Unless expressly agreed otherwise, the Company provides no warranty or accepts no other liability for the suitability of the SERVICES for a particular purpose or for the functionality and safety of any system into which the Customer integrates the Products or Software or has them integrated (where applicable by the Company) or for which the SERVICES are intended. In this context, the Parties agree, subject to any express agreement to the contrary, that the Company makes no representation, warranty, guarantee or other undertaking as to the functionality of any system for the purpose of performing, controlling, safeguarding or otherwise supporting any particular operation or other particular purpose, and any liability for this purpose is expressly excluded.
12.5 A warranty on the part of the Company is excluded in any case in the following cases:
(a) in the event of improper use of the Products or the Software, unauthorised modification or repair, by the Customer, in particular in contradiction to this Contract and its appendices, to instructions for use, warnings, cleaning instructions, maintenance instructions or other information of which the Customer is aware or should have been aware;
(b) overvoltage, undervoltage, power failure, lightning, water damage, floods, fire, explosions, earthquakes, tornadoes, attacks, acts of war or similar phenomena;
(c) discharging of the batteries of the Products;
(d) use of harsh chemicals, cleaning solutions or strong detergents (only a little water and little soap or a dry cloth must be used to clean the surface of components);
(e) varnishing, painting or other changes to the surfaces of the Products;
(f) defects due to normal wear and tear;
(g) changes to the installation and/or configuration and/or server infrastructure and/or components or Software without consultation with the Company;
(h) failure to perform maintenance if the causes for this lie within the sphere of the Customer;
(i) presence of intentional or unintentional jammers or other sources of interference that interfere with signal transmissions (especially Bluetooth);
(j) displacement, theft or destruction of one or more Products or Software;
(k) incidents or accidents related to installation of the Products if the Customer performs the installation;
(l) signal interruption to one or more Products or the server infrastructure or other components of the system (power failure, shutdown of one or more such elements);
(m) non-availability outside the planned coverage area;
(n) radio frequency configuration (frequency range, power, transmission characteristics) or position of a component that does not correspond to the recommended position;
(o) poor LAN connection between locators and edge device;
12.6 violation of obligations to cooperate.The Customer is obliged to inspect the Products and give written notice to the Company of:
(a) any damage caused to the Products in the course of delivery within four (4) days of delivery (“Delivery Damaged Products”);
(b) any errors in the quantity of Products delivered within forty eight (48) hours of delivery; and
(c) any material defects in the Products within fourteen (14) days of delivery of the Products.
12.7 After unused expiry of these periods, the assertion of any warranty claims and claims for damages by the Customer due to recognisable defects shall be excluded. In any case, the Customer shall notify the Company in writing of all deficiencies in performance.
12.8 In the event of material defects in the Products notified to the Company within 14 days, the Company shall initially have the option in all cases of improvement (rectification or addition of what is missing) or replacement; with regard to the components, the Company shall, at its own discretion, provide the Customer with new, defect-free components or shall repair the defective components; temporary rectification of defects shall also be deemed to have taken place if the Company demonstrates to the Customer reasonable options of preventing the effects of the defect.
12.9 In the event the Customer has a claim in respect of Delivery Damaged Products notified in accordance with Clause 12.6 (a), the Company shall assess the claim in accordance with its policies and, if accepted in writing, shall arrange for replacement of any such delivery damaged Products to be delivered. If the claim is not accepted by the Company, then the Company shall notify the Customer accordingly. The Customer shall provide the Company with any information or evidence relating to the Delivery Damaged Products as the Company may reasonably request.
12.10 Even in the case of defects of title, the Company shall in any case first have the right to remedy the defect at its own discretion by improvement or replacement. The Company shall, at its discretion, provide the Customer with a legally flawless possibility of using the Products to the agreed extent or with replaced or modified equivalent Products.
12.11 Within the scope of the warranty, the Customer shall accept new or modified Products if the contractual scope of functions remains unchanged and the acceptance does not lead to significant disadvantages to be proven by the Customer.
12.12 If two attempts at improvement fail, the Customer shall be entitled to set a reasonable grace period for the rectification of defects. In doing so, it shall expressly point out in writing that it reserves the right to demand a price reduction in the event of renewed failure or – insofar as the defect is not minor – to rescind the contract. If the further improvement also fails, the Customer may reduce the remuneration or withdraw from the Contract, the latter, however, only if there is no minor defect, whereby the Customer must prove the contrary.
12.13 Clause 14 of this Contract applies to liability for damage caused by defects and consequential damage caused by defects.
12.14 If the Company provides SERVICES, e.g. in troubleshooting or fault rectification, without there being a defect or if it turns out that the defect was caused by the Customer, the Company may demand an appropriate fee for these SERVICES.
12.15 No warranty beyond the warranty obligations in this Clause 12 is assumed. 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. Nothing in this Clause 12 shall operate to exclude or limit the liability of either party for fraudulent misrepresentation.
12.16 The Company shall have no obligation to perform the Services where faults arise from: (i) items which enable the Company to perform its obligations under the Contract being missing or defective (including without limitation, electricity lines or cables, control or main fuses, energy supply, water or fire damage); (ii) use of the Software in combination with any equipment or Software not provided by the Company, or any fault in any such equipment or Software; or (iii) any delay in or breach or other failure of the Customer’s obligations under the Contract.
12.17 Where faults arise from: (i) failure to install or commission the Products correctly (other than by the Company); (ii) misuse, incorrect use of or damage to the Products; (iii) failure to maintain the necessary environmental conditions for use of the Products; (iv) alteration, modification, repair or servicing of the Products and/or Software by any person other than the Company; or (v) relocation of the Products and/or the Software by any person other than the Company and the Customer, the Company may (at its discretion) perform additional services which are in addition to any Services specified in an order and the Customer shall pay for such additional work in accordance with Clause 5.5.
12.18 Without affecting acceptance of the SERVICES in accordance with applicable law and the terms of these GTC, the Customer shall be deemed to have accepted the SERVICES where: (i) the Customer asks for, or agrees to, the repair or replacement of the Products or re-performance of the Services; (ii) the Products are delivered to a third party under a sub-sale or other disposition; (iii) the Customer has not notified the Company of any damage, defect or error in relation to the SERVICES within the timescales set out at Clause 12.6, as appropriate (iv) the Customer has signed a certificate issued by the Company to the Customer in respect to the SERVICES.
13.1 Unless expressly agreed otherwise, the Company provides no guarantee for the Products, for the Software or for the provision of SERVICES.
13.2 Insofar as the Company has provided a guarantee for the Products, this guarantee shall not apply or shall expire immediately in the following cases:
13.2.1 For wear parts, such as all standard lamps, batteries and hard disks, as well as for computers and servers that contain such wear parts;
13.2.2 Electronic components, products and luminaires that the Company sells as merchandise, such as touch panels, printers and computers under third-party labels, as well as luminaires from other manufacturers;
13.2.3 any incidental costs arising in connection with the correction of defects (guarantee fulfilment), such as for installation and removal, transport of the defective and repaired or new goods, disposal, travel and transit time, and any delivery costs); these costs are borne by the Customer;
13.2.4 plastic parts (e.g. made of polycarbonate) to the extent they discolour or embrittle due to the natural ageing process;
13.2.5 settings or parameter settings on equipment that change based on wear and tear, fatigue or soiling;
13.2.6 product defects that are attributable to software errors, bugs, viruses or the like;
13.2.7 services including but not limited to software upgrades, updates, added functionality or re-commissioning, that have not been performed exclusively by the Company or a third party nominated by the Company;
13.2.8 any item which is intended by the Customer to be used up and then replaced, including for example bulbs and fuses;
13.2.9 any Products which are not sold to the Customer in new condition; or
13.2.10 any Products which are not placed in service in the United Kingdom or Republic of Ireland by the Customer.
13.2.11 In all cases specified in Clause 12.5.
13.3 Any guarantee provided by the Company shall expire immediately if the Customer or third parties (if applicable) make or perform changes, repairs, maintenance, service work or troubleshooting in respect of the Products or any replacement goods without the prior written consent of the Company. The Company shall not be liable under any guarantee provided to the Customer: (a) until the price has been paid in full by the Customer (b) if any defect in the Product arises as a result of any information, drawing, instruction or specification supplied by the Customer; or (c) if any defect in the Product arises due to fair wear and tear, wilful damage, negligence of the Customer or any persons into whose control the Product may pass, abnormal storage or working conditions, failure to follow the Company’s instructions (whether oral or written), misuse or alteration or reworking of the Product without the Company’s prior approval
14 DAMAGES AND OTHER LIABILITY AND LIMITATION OF LIABILITY
14.1 The Company shall be liable for damages due to a breach of Contract – except in the case of personal injury or death – only in the event of gross negligence. Likewise, the Company shall not be liable in the cases described in Clause 12.5.
14.2 Except in the case of intentional or wilful gross negligent damage, the Company shall not be liable for consequential damage (caused by defects) or indirect damage, direct damage, loss of profit, loss of revenue or loss of interest, or damage resulting from the loss of data or the unlawful use of data.
14.3 The Company’s total liability arising out of and in connection with the Contract shall be limited to the relevant Contract value. The Contract value within the meaning of this Clause 14.3 corresponds to the amount of the total remuneration agreed and paid by the Customer for the respective Products or SERVICES or Software under the Contract, but not more than the respective remuneration for the last 12 calendar months preceding the event of damage.
14.4 The period of limitation for damage claims and other compensation claims is 1 year.
14.5 The Parties expressly waive the right to contest this Contract on the grounds of frustration of contract.
14.6 The Customer acknowledges that any recommendations given by the Company as to the use, application, storage, handling or disposal of the Products (whether before or after delivery) in sales or technical literature or in response to an enquiry or in any other form are provided in good faith and the Customer shall be responsible for assessing the suitability and appropriateness of such recommendations for itself and the Company shall not have any liability for such recommendations.
14.7 In no event shall the Company be liable, whether for breach of contract, any tortious act or omission (including negligence) or otherwise, under or in connection with the Contract for any Loss for which the Customer has assumed the risk under the Contract, loss of profit, loss of reputation, loss of business, revenue or goodwill, anticipated savings, loss or damage to data, or for any consequential or indirect loss, and regardless of whether the loss or damage would arise in the ordinary course of events, is reasonably foreseeable, is in the contemplation of the parties, or otherwise.
14.8 The Company shall have no liability to the Customer for Losses which could have been avoided by the Customer undertaking adequate testing of the Products upon delivery or prior to installation.
14.9 The Company has given commitments as to compliance of the Products and Services under Clause 12. In view of those commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
14.10 Subject to Clause 14.1, the Customer undertakes that it shall not bring any claim against any individual employee or officer of the Company in respect of or relating to the Contract.
14.11 The rights of the Customer under the Contract are the Customer’s only rights relating to the subject matter of the Contract, and are to the exclusion of any other legal rights other than the right to claim damages for breach of contract which is not otherwise excluded by the terms of the Contract or which cannot be excluded by law.
14.12 Except to the extent the Company may be liable to the Customer under the Contract, the Customer agrees to indemnify and hold harmless the Company against all and any Losses incurred by the Company: (a) arising in connection with the Company’s use of any information, instructions, specifications, materials or products supplied by the Customer to the Company in respect of the SERVICES; and (b) toward a third party arising out of or in connection with the Products supplied by the Company or their operation or use, or the performance or use of the Services, and whether arising by reason of the negligence of the Company or otherwise (including any claims by customers of the Customer and any liability arising due to the use of the Customer for counterfeiting purposes).
14.13 Nothing in the Contract shall affect the Company’s liability for death or personal injury, fraud, fraudulent representation or any other liability to the extent it cannot be excluded or limited by law.
14.14 All warranties, conditions or terms not set out in the Contract and which would otherwise be implied or incorporated into the Contract by statute, common law or otherwise (other than as to statutory interest, or title to the Products) are hereby excluded except to the extent they may not be excluded or limited by law
15 FORCE MAJEURE
15.1 If a Party is prevented from performing its obligations by a force majeure event (the “affected Party”), provided that it has complied with Clause
15.3, it shall not be in breach of the Contract and shall not be liable for any failure or delay in performing the affected obligations. The deadline for performance of the affected obligations shall be extended for the duration of the force majeure event and, if the force majeure event continues to have an effect thereafter, for as long as and to the extent that it has an effect.
15.2 The affected Party shall:
15.2.1 as soon as possible after commencement of the force majeure event, inform the other Party of the force majeure event, the date of its commencement, if foreseeable, its probable or possible duration and the effect of the force majeure event on its ability to perform its obligations.
15.2.2 make all reasonable efforts to mitigate the effects of the force majeure event on the performance of its obligations.
15.3 “Force majeure event” means any unusual and unforeseeable circumstance beyond the sphere of influence of a Party, including, but not limited to, the following circumstances (provided in each case that such circumstance is in fact unusual and unforeseeable and beyond the sphere of influence of the Party): (i) storms, floods, droughts, earthquakes or other natural disasters; (ii) epidemics or pandemics; (iii) sabotage, terrorist attacks, civil war, civil commotion, rebellion or insurrection, war, threat of war or preparation for war, armed conflict, imposition of sanctions, embargo, severance of diplomatic relations, interference with the production chain or supply chain by civil or military authorities (whether these are legal or de facto); (iv) nuclear, chemical or biological contamination; (v) building collapse, fire, explosion; (vi) cyberattacks; (vii) interruption or failure of utilities; (viii) strikes and lawful lockouts; (ix) inability to obtain or procure supplies, labour or means of transportation from a third party if such inability is caused by an event beyond the control of the third party which, if it had happened to the Party, would constitute a force majeure event under this clause. If a force majeure event occurs, the affected Party shall notify the other Party as soon as possible, but no later than 3 days after the event, and provide appropriate evidence.
15.4 In addition to the foregoing provisions, the currently ongoing COVID-19 (coronavirus SARS-CoV-2) epidemic/pandemic and/or its consequences shall continue to be considered a force majeure event to the extent that it delays or prevents the performance of an obligation of a Party and such delay or prevention could not have been foreseen at the time of concluding the Contract.
16 DATA PROTECTION
16.1 The Parties undertake to comply with all applicable data protection and privacy legislation in force from time to time in the United Kingdom including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party (“Data Protection Legislation”) and to ensure compliance with these provisions, in particular by their employees.
16.2 Both parties will comply with all applicable requirements of the Data Protection Legislation including section 28 of the UK GDPR. This Clause 16 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
16.3 The Customer is the “data owner” within the framework of the Contract as well as within the meaning of Data Protection Legislation. Whether and to what extent third parties enter or access personal data in the system remains solely at the discretion of the Customer and the Customer shall assume sole responsibility for any resulting violations of Data Protection Legislation.
17.1 The Parties shall treat as confidential and keep secret from third parties all information and documents, in particular trade secrets and business secrets, which come to their knowledge in connection with the performance of this Contract and which are not generally known. Trade secrets also include technical know-how, operating methods and safety and security measures (hereinafter collectively referred to as “information”).
17.2 This duty of confidentiality shall not apply if and to the extent that the Party subject to the duty of confidentiality proves that (i) the relevant information was in the public domain, i.e. published or generally accessible, at the time it was obtained, or (ii) became in the public domain after it was obtained through no fault of the Parties, or (iii) was already known to the Party at the time it was obtained, or (iv) was made in the public domain by third parties after it was obtained in a lawful manner, i.e. without breaching any duty of confidentiality.
17.3 Furthermore, the duty of confidentiality does not apply to information that must be disclosed as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. However, the Parties shall immediately agree on such measures among themselves.
17.4 The Customer is prohibited from reverse engineering, disassembling or decompiling Products or other items provided by the Company unless the respective item has been made available to the public by the Company or the Company gave its prior consent.
18.1 The terms of this Condition 18 will only apply in respect of Products which the parties have agreed shall be subject to the undertaking of commissioning tests with respect to the Products after installation as specified in the order Confirmation or otherwise agreed between the parties in writing (“Commissioning”).
18.2 The Customer shall fully and properly install the Products prior to the due date for Commissioning agreed by the Company. The Company shall give the Customer not less than two (2) days’ notice of the date after which the Company shall be ready to perform the commissioning tests. Unless otherwise agreed in writing, the Company shall endeavour to carry out the commissioning tests within seven (7) days after the said date on such day or days as the Company shall notify the Customer.
18.3 The Company shall be under no liability whatsoever for any loss or damage whatsoever direct or consequential and howsoever caused to the Customer or to any third party during or as a result of or in connection with the installation of the Products where such installation is the sole responsibility of the Customer. The Company shall have no liability for any delay in the Commissioning due to the failure of the Customer to fully and properly install the Products prior to the due date for the Commissioning.
18.4 To the extent that the Customer has not fully and properly installed the Products prior to the due date for the Commissioning, the Company shall be entitled to charge the Customer an abortive fee for cancellation of the original Commissioning date and a fee for any work or time incurred by the Company and at its option either: (i) require the Customer to rectify any faults in the installation and/or complete the installation as appropriate before the Company can carry out the commissioning tests; or (ii) rectify any such faults or complete the installation as appropriate itself and charge the Customer accordingly.
18.5 The Customer shall procure that the Company has such access to its or the ultimate client’s premises, systems, data, and such office accommodation and other facilities (on site and/or remotely), as may reasonably be required by the Company to carry out the Commissioning.
18.6 The Customer shall ensure that it (or, where appropriate, shall procure that the ultimate client) has appropriate back-up, security and virus-checking procedures in place for any computer facilities the Company requires access to (on site or remotely) in order to carry out the Commissioning. The Company shall have no liability for any viruses, ‘trojan horses’ or similar destructive, disruptive or nuisance programmes contained or introduced into the Customer’s or the ultimate client’s equipment or systems due to the Software or whilst carrying out the Commissioning or otherwise.
18.7 The Company’s engineers will comply with the Company’s health and safety policy from time to time whilst on the Customer’s or the ultimate client’s site to carry out the Commissioning (a copy of which is available from the Company upon request) and will use reasonable endeavours to comply with such other reasonable health and safety policies relating to the site as are notified to the Company and the relevant engineers at least seven (7) days in advance of the due date for Commissioning.
18.8 The Customer shall indemnify the Company against all and any Loss suffered by the Company (including any liability incurred to any other person) as a direct result of the Company carrying out the Commissioning in accordance with the Contract.
18.9 If the Products fail the commissioning tests, the Company may require such commissioning test to be repeated on the same terms, as set out in this Clause 18. Where the failure is due to: (i) a defect in the Products, the cost for repeating the tests shall be borne by the Company; (ii) a defect in the installation conducted by the Customer, the cost for repeating the tests shall be borne by the Customer; or (iii) the Products being incompatible with the system in which they are intended to be used, the cost for repeating the tests shall be borne equally between the parties.
18.10 If the Products fail to pass the commissioning tests on the repetition thereof under Clause 18.9, the Customer, after due consultation with the Supplier, shall be entitled to: (i) order one further repetition of the commissioning tests under the terms of Clause 18.9; (ii) reject the Products in which event the Customer shall have the same remedies against the Company as are provided under Clause 12; or (iii) accept the Products, if the Customer so wishes, notwithstanding that the Products are not complete in accordance with the Contract.
18.11 As soon as practicable following the Products passing the commissioning tests under this Clause 18, the Company shall issue a certificate to that effect.]
19.1 The Company may, without limiting any other termination right under these GTC or any other remedy, at any time terminate the Contract by giving written notice to the Customer, if: (i) the Customer commits any breach of the Contract and (if capable of remedy) fails to remedy the breach within seven (7) days after being required by written notice from the Company to do so; or (ii) an Insolvency Event occurs in relation to the Customer.
19.2 Without prejudice to the other terms of the Contract, the Customer may not, without the prior written agreement of the Company, terminate the Contract (in whole or in part) or make any variations to the Contract (including without limitation as to the quantity or type of SERVICES) once the Company has issued its order Confirmation. If any termination or variation to the Contract is agreed by the Company, the Company may vary its prices, timescales and any other terms accordingly and may charge a handling or other fee as it deems appropriate in its sole discretion.
19.3 Upon termination of the Contract for whatever reason, all charges for Products or Services shall become immediately due and payable by the Customer to the Company.
19.4 Termination of the Contract for any reason does not affect: (i) the rights or liabilities of the parties which have accrued on or before termination; and (ii) the continuance in force of [Conditions 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.10, 12, 14, 16, 17 and 19 , 7, 9, 11, 12, 13, 15, 16 and 19] which shall survive termination of the Contract.
20 GENERAL PROVISIONS
20.1 The failure of the Company to exercise any right under these terms and conditions or under any Contract shall not constitute a waiver of any future right to exercise such a right. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
20.2 The Customer shall not be entitled to set off any claims against the Company, irrespective of their legal basis, against the Company’s claims under this Contract, unless such claims are undisputed or have been finally determined by a court of law.
20.3 Amendments and supplements to this Contract must be made in writing (including e-mail, fax) and shall be made in accordance with the procedures provided for in this Contract. This also applies to the waiver of this written form requirement.
20.4 If any provision of these GTC or any Contract is or becomes invalid or unenforceable, this shall not affect the validity or enforceability of the remaining provisions of these terms and conditions or the Contract. In such a case, the Contracting Parties shall endeavour to replace the invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the purpose of the provision to be replaced. This shall also apply mutatis mutandis to the filling of any gaps in these terms and conditions or the Contract.
20.5 The entire Contract between the Company and the Customer consists of: (i) any offer or any appendix to an offer, (ii) any offer Confirmation (iii) these GTC (iv) any ancillary agreement to these GTC (including any SAAS Agreement). To the extent that any provision of these GTC conflicts with any provision of the offer, any appendix to the offer, or any Confirmation of an offer, the conflicting provision of any offer or appendix to the offer or Confirmation shall prevail over these GTC. To the extent that any provision of the offer conflicts with any provision of an appendix to the offer, the conflicting provision of the appendix to the offer shall prevail over the provision of the offer. To the extent that any provision of the appendix to an offer conflicts with any provision of an offer Confirmation, the conflicting provision of the offer Confirmation shall prevail. To the extent that any provision of the SAAS Agreement (if applicable) conflicts with any offer or any appendix to the offer or these GTC, the SAAS Agreement shall prevail.
20.6 The Company shall be entitled to use subcontractors and other third parties or to be represented by third parties for the purpose of performing its obligations under these terms and conditions or under the Contract without the consent of the Customer.
20.7 A Customer who resells Products or includes Products and/or Services in offers to its own customers shall ensure that all of its customers and/or end users of Products or Services comply with all relevant obligations of the Customer under the Contract and these GTC, and that the terms and conditions agreed by the Customer with its customers or end users are consistent with the Contract and these GTC. In the event of a breach of this provision, the Customer shall indemnify and hold harmless the Company, the affiliates and their authorised officers, agents, employees and successors in title for all losses, liabilities, costs (including legal costs) and expenses.
20.8 The possible invalidity of individual provisions shall not affect the validity of the remaining General Terms and Conditions. The invalid or missing provisions shall be deemed deleted, but the validity of the other provisions of these terms and the remainder of the provision in question shall not be affected. If any provision or part provision of the Contract is deemed deleted under this Clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
20.9 Except as provided by these GTC, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 (as may be amended updated or replaced from time to time) to enforce any term of the Contract. But this does not affect any right or remedy of a third party which exists or is available apart from the Act.
20.10 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
20.11 Any member of the Company’s group may perform any of the Company’s obligations or exercise any of its rights under a Contract by itself or through any other member of its Group.
20.12 Any turnkey, installation, maintenance and support provided by the Company to the Customer or the Customer’s ultimate client (excluding, for the avoidance of doubt, any of the Services) shall, in addition to these GTC, be subject to supplementary terms as indicated in an order confirmation.
20.13 The Company may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
20.14 The Contract is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights or obligations under the Contract without the prior written consent of the Company. The Company may assign, transfer or sub-contract all or any of its rights and obligations under the Contract to any other person without the consent of the Customer.
20.15 Any notice required to be given by either party hereunder shall be made in writing (which shall include, for the avoidance of doubt, by e-mail). Where written notice is to be sent by post, it shall be dispatched to the other party by first class registered or recorded delivery post at the registered office of the party or by fax numbers for the parties as stated in these documents and promptly confirmed by written notice. Any notice sent by post shall be deemed (in the absence of evidence of earlier receipt) to have been received on the third (3rd) working day after the day of posting. Any notice sent by fax shall be deemed to have been delivered upon receipt of the hard copy.
20.16 These GTC, the Contract and all offers and contracts between the Company and the Customer and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
20.17 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. Nothing in this Clause shall limit the right of the Company to, at its discretion, take proceedings against the Customer in any other Court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.