UK - HES WI Ltd - Sales & Services T & Cs
STANDARD TERMS AND CONDITIONS FOR SALE OF GOODS AND PROVISION OF SERVICES
These standard terms and conditions apply to every contract for the sale of goods and/or supply of services by Hunting Energy Services (Well Intervention) Limited to the exclusion of any other terms and conditions unless specifically agreed otherwise in writing by Hunting Energy Services (Well Intervention) Limited.
1.1 In these Conditions:
"Affiliate" means any subsidiary or parent or holding company and/or associated branch of any company or associated branch or any other subsidiary of such parent or holding company. For the purpose of this definition, "subsidiary" and "holding company" shall have the meanings assigned to them under Section 1159 and Schedule 6 of the Companies Act 2006, and a company shall be treated, for the purposes only of the membership requirement contained in Subsections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of: (a) another person (or its nominee), whether by way of security or in connection with the taking of security; or (b) its nominee;
"Applicable Anti-Bribery Laws" means any laws, regulations and other legally binding measures relating to bribery, corruption or similar activities of (i) the United Kingdom, including without limitation the Bribery Act 2010; (ii) the United States of America including, to the extent applicable, the Foreign Corrupt Practices Act 1977; and (iii) any country or countries in which any of the obligations of the Contract are to be or are performed;
"Claims" means any claim of every kind and nature, demand, cause of action, proceedings, judgement, award, loss, costs (including reasonable legal fees and sums paid by way of settlement or compromise), expense, liability, penalty, fine, and damages;
"Client" means any company to which the Customer has undertaken to provide services and in conjunction with which the Goods and/or Services are being provided (if any);
"Client Group" means the Client, its Co-Venturers (if any), its other contractors of any tier, its and their respective Affiliates and its and their respective directors, officers and employees (including agency personnel), but shall not include any member of the Company Group or the Customer Group;
"Company" means Hunting Energy Services (Well Intervention) Limited, registered under the laws of Scotland; CRN SC095310 having its registered office and principal place of business at Badentoy Avenue, Badentoy Industrial Estate, Portlethen, Aberdeen, AB12 4YB, Scotland;
"Company Group" means the Company, its sub-contractors of any tier, its and their respective Affiliates and its and their respective directors, officers and employees (including agency personnel), but shall not include any member of the Customer Group or the Client Group;
"Conditions" means these standard terms and conditions;
"Consequential Loss" means:
(i) direct or indirect loss under English law; and
(ii) loss and/or deferral of production, loss of product, loss of use (including loss of use or the cost of use of and increased expenditure related to property, equipment, materials and services including those provided by the Company Group or Customer Group, as applicable, or third parties), loss of revenue (which for the avoidance of doubt shall not include any payment due under the Contract or damages to the Company for the loss of the Contract, any profit, revenue expectation or opportunity thereunder), loss of bargain, loss of profit or anticipated profit (if any), in each case whether direct or indirect to the extent that these are not included in (i) and whether or not foreseeable at the start of the Contract;
"Contract" means an agreement, comprising the Quotation, Order, acceptance of the Order and these Conditions, between the Company and the Customer for the sale of the Goods and/or supply of the Services as applicable;
"Contract Price" means the price calculated in accordance with Clause 4 of the Conditions;
"Co-Venturer" means any other entity with whom the Customer or the Client, as the case may be, is or may be from time to time a party to a joint operating agreement or unitisation agreement or similar agreement relating to the operations for which the Work is being performed and the successors in interest of such Co-Venturer or the assignees of any interest of such Co-Venturer;
"Customer" means the person, company or legal entity whose Order for the sale of the Goods and/or supply of the Services is accepted by the Company;
"Customer Group" means the Customer, its Co-Venturers (if any), its other contractors of any tier, its and their respective Affiliates and its and their respective directors, officers and employees (including agency personnel) but shall not include any member of the Company Group or the Client Group;
"Effective Date" shall have the meaning given to it in Clause 2.2 of the Conditions;
"Export Controls" shall have the meaning given to it in Clause 7.4 of the Conditions;
"Force Majeure" shall have the meaning given to it in Clause 13 of the Conditions;
"Goods" means the goods (if any) to be sold by the Company under the Contract as specified on the Order;
"Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
"Intellectual Property" means any intellectual property rights hereunder, all patents, utility models, trade marks, service marks or rights in business and trade names, rights in domain names, whether or not registered or capable of registration, registered designs, design rights, copyrights, database rights, the right to apply for and all applications for the protection of any of the preceding rights, together with the rights in inventions, processes, software, rights in know‑how, trade or business secrets, confidential information or any process or any other similar or corresponding rights or assets.
"Order" means the order issued by the Customer to the Company;
"Parties" shall mean the Customer and the Company and "Party" shall be construed to mean either one of them;
"Quotation" means anyquotation,sales literature, proposal, price list, acceptance, or other document or information provided by the Company to the Customer regarding the sale of the Goods and/or supply of the Services;
"Services" means the services (if any) to be supplied by the Company under the Contract as specified on the Order;
"Variation" means a change to the Contract agreed by the Parties in Writing;
"Work" means all work the Company is required to carry out in accordance with the provisions of the Contract, including where applicable, the sale of the Goods and supply of the Services; and
"Writing" includes facsimile transmission, letter and comparable means of communication but excludes e-mail unless expressly specified otherwise herein.
1.2 In these Conditions, the following rules apply:
1.2.1 a reference in these Conditions to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted, extended or replaced at the relevant time;
1.2.2 words in the singular shall include the plural and vice versa;
1.2.3 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 the headings in these Conditions are for convenience only and shall not affect their interpretation.
2.2 Orders shall not be binding on the Company unless and until the Company accepts the Order in writing or begins performance of the Order and the effective date of the Contract shall be the date of such acceptance or the date that performance of the Order begins, unless otherwise agreed by the Parties (the "Effective Date").
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No conditions or stipulations in or attached to the Customer's Order or other document, which are inconsistent with the Conditions or which purport to add to or modify them in any way, shall have any effect unless expressly and specifically accepted in Writing and duly signed or otherwise executed by the Company.
2.4 The Company's employees or agents are not authorised to make any representations concerning the Work unless confirmed by an authorised representative of the Company in Writing or by e-mail. In entering into the Contract the Customer acknowledges that it does not rely on and waives any Claims for breach of any such representations which are not so confirmed.
2.5 The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Customer, and for giving the Company any and all necessary information relating to the Work within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
2.6 The Company reserves the right to make any changes in the specifications specified in the Order to conform with any applicable laws, regulations or legally binding requirements or which, in the opinion of the Company, do not materially affect the quality or performance of the Work.
2.7 Any typographical or clerical error or omission in any Quotation, invoice or other document or information issued by the Company shall be subject to correction by notice in Writing to the Customer without any liability on the part of the Company.
3.1 Except as provided in the Contract, the Contract shall not be added to, amended or varied except by way of a Variation. Each Party has the right to propose changes to the Contract by notice in Writing to the other Party. The Parties shall discuss the impact of such changes on the Contract, including any changes to the Contract Price and estimated delivery date, and once the Parties have mutually agreed the changes to the Contract and their impact, the Parties shall sign a Variation to that effect. For the avoidance of doubt, the Company is under no obligation to proceed with any changes to the Work until such time as the changes have been authorised and agreed by way of a signed Variation.
4 Contract Price
4.1 In consideration of the performance of the Work the Customer will pay the Company the prices contained in the Quotation or otherwise notified by the Company to the Customer prior to the Effective Date of the Contract ("Contract Price").
4.2 Company reserves the right to increase or decrease the Contract Price due to:
4.2.1 any factors occurring which are beyond the reasonable control of the Company (including change in laws or the interpretation of laws); or
4.2.2 any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the Customer or failure of the Customer to give the Company adequate or timely information or instructions;
4.2.3 any changes to the Order due to Company's acceptance of a Variation;
which, in either case, occurs between the Effective Date and the delivery of the Goods and/or the provision of the Services.
4.3 The Contract Price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company.
4.4 The cost of pallets, containers and slings are excluded from the Contract Price and where applicable will be charged to the Customer in addition to the Contract Price.
4.5 For the avoidance of doubt, all costs of offshore and non-routine transportation and accommodation required by Company's personnel and all other reasonable expenses incurred during performance of the Services shall be charged to the Customer at such Company rates as applicable from time to time.
5 Payment Terms
5.1 The Company shall be entitled to invoice the Customer for the Contract Price on or at any time after the Company has tendered delivery of the Goods and/or completed the Services; and
5.2 Terms of payment are net thirty (30) days from invoice date unless otherwise agreed in writing by the Parties.
5.3 If the Customer disputes any items on any invoice in whole or in part the Customer shall notify the Company of such dispute within fifteen (15) days of the date of such invoice and must give reasons for and details of such disputed item and request the Company to issue a credit note for the disputed part or the whole of the invoice as applicable. Upon receipt of such credit note the Customer shall be obliged to pay the undisputed part of a disputed invoice within fifteen (15) days of the date of such credit note. On settlement of any dispute the Company shall submit an invoice for sums due and the Customer shall make the appropriate payment in accordance with the provisions of this Clause 5.
5.4 Time for payment shall be the essence of the Contract. Without limiting any other right or remedy of the Company, if the Customer's account is overdue for payment, the Company may exercise its rights under Clauses 14.2 and/or 14.4 to terminate or suspend (at the Company's option) the undelivered part of any Order and/or to charge interest at 2% above the base lending rate charged by the Company's bankers from time to time on the amount overdue until payment in full is made, whether before or after judgement.
5.5 The Customer shall not be entitled under any circumstances whatsoever to set-off or counter-claim against or deduct, discount or withhold from any sum from time to time due by it to the Company any sums due by the Company to the Customer and any sums due by the Customer shall be paid by the Customer to the Company without deduction, compensation, set-off or similar whatsoever.
6 Delivery, Risk and Insurance
6.1 Unless otherwise agreed by the Company in Writing or by e-mail:
6.1.1 delivery of the Goods will be EXW the Company's premises in accordance with Incoterms or as otherwise agreed in writing by the Parties;
6.1.2 where the Company agrees to deliver the Goods other than at the Company's premises, all insurance, packaging and transportation charges, import duties and all other charges, duties or costs payable in connection with the Goods shall be payable by the Customer and the Customer shall bear all risk of loss or damage during transportation.
6.2 Any dates quoted for delivery of the Goods and/or completion of the Services are estimates only and save as set out in Clause 6.4, the Company shall not be liable for any delay in delivery of the Goods and/or completion of the Services beyond the estimated delivery dates however caused. Time for delivery shall not be of the essence of the Contract. The Goods may be delivered and/or the Services completed by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer.
6.3 Where any Goods or Services under an Order are to be delivered or completed in instalments or stages, each delivery or Service to be completed shall constitute a separate instalment or stage and failure by the Company to deliver or complete any one or more of the instalments or stages in accordance with the Contract or any claim by the Customer in respect of any one or more instalments or stages shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.4 If, for any reason other than any cause (i) beyond the Company's reasonable control or (ii) due to the Customer's fault, the Company fails to deliver any Goods and/or complete any Services (or any instalment thereof) the Company's liability shall be limited to payment of the Contract Price for those applicable Goods and/or the Services (or any instalment thereof) not delivered or completed subject always to the limit of liability in Clause 13.
6.5 Upon delivery of Goods and/or Equipment and or performance of Services, Customer shall inspect these and any documentation pertaining thereto and search for defects or other irregularities. Written notice of any such defect or irregularity in the Goods or any incorrect quantities, which are or should reasonably have been apparent on inspection, or any defect in the Services, must be given to the Company within ten (10) days from the date of delivery of the Goods or completion of the Services. If the Customer does not refuse delivery of Goods or does not notify the Company accordingly, the Customer shall be deemed to have accepted the relevant Goods and/or the Services and (i) shall be bound to pay the Contract Price as if the relevant Goods and/or Services had been delivered in accordance with the Contact and (ii) may not be entitled to later reject the relevant Goods and/or Services.
6.6 If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery by the Company (other than by reason of Force Majeure or the Company's fault) then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to consider the Goods delivered in accordance with Clause 6.1, invoice the Customer for the Goods in accordance with Clause 5 and store the Goods until actual delivery and charge the Customer for all reasonable costs (including insurance) of such storage.
6.7 The risk of loss or damage of any kind in the Goods, including the risk of damage to or deterioration of the Goods during transportation or storage shall pass to the Customer when the Goods are delivered in accordance with Clause 6.1 or deemed delivered under Clause 6.6.
7 Inspection, Testing and Export
7.1 Goods manufactured by the Company are inspected and tested in accordance with the Company's standard tests. The Customer may witness such tests subject to giving the Company reasonable notice of its intention to attend the tests. It is not a condition of the Contract that the Goods will meet the requirements of any test other than the Company's standard tests, unless otherwise agreed in Writing by the Parties. If the Company agrees to carry out any additional tests requested by the Customer, such additional tests shall be performed at Customer's cost and expense and where applicable the delivery dates for the relevant Goods shall be extended to accommodate such additional tests.
7.2 Where Goods are supplied for export, the Customer shall be responsible for arranging for 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.
7.3 It is the Customer's responsibility to comply with applicable export control regulations and comply with any restrictions in the Company's export licence for Goods and/or Equipment shipped from and to the United Kingdom. United States. The Customer shall be responsible for and shall save, indemnify and hold harmless the Company from and against all Claims in connections with any failure by the Customer to comply with applicable export control regulations or any of the Company's export licences arising from, relating to or in connection with the Contract.
7.4 The Customer represents that it is knowledgeable and has expertise regarding all export control laws, regulations, procedures, international sanctions, embargoes and restrictions, prohibited party lists and international shipping practices applicable to the Company or the Contract, including but not limited to the laws of the United Kingdom and the laws of the United States of America ("Export Controls"), and confirms its obligations to the Company to monitor and screen all customers, suppliers, subcontractors and other parties and entities, including banks and vessels, which the Customer interfaces with, selects, or uses in connection with the Contract for compliance with the requirements of all Export Controls. The Customer shall promptly alert the Company to any violations or suspected violations of Export Controls and shall obtain all necessary licenses, permits, forms and applications required pursuant to Export Controls. The Customer further represents that it is not currently aware of and shall continually monitor any transactions it or its customers, suppliers or subcontractors are involved in for possible violations of Export Controls and shall report any questionable transactions or suspicious circumstances immediately to the Company insofar as they relate to the Contract. The Customer agrees to keep records of its export control related activities for a period of five (5) years and records pertaining to export licenses, re-export licenses, and project licenses for a period of five (5) years from the expiration date of such license. The Customer shall make such records available to the Company upon request for inspection and copying.
8 Warranty and Liability for Goods and Services
8.1 Subject to Clauses 8.4 and 12, the Company warrants that:
8.1.1 the Goods will be free from defects in materials and workmanship and will comply with the specification in the Contract for a period of twelve (12) months from the date of delivery; and
8.1.2 the Services will be carried out with reasonable skill and care for the duration of the Services being provided.
8.2 The Company does not warrant that (i) the Goods are fit for any particular purpose or that they will accomplish any particular results, other than those outlined in the specification in the Contract, (ii) any items or designs supplied by the Customer, either as free issue or third party supplier material, component parts, products or goods or any similar items, are sufficient for the Services to be provided by the Company. All other warranties, conditions and terms, including implied warranties by statute or common law are to the fullest extent permitted by law, excluded from the Contract.
8.3 The Company's only liability and the Customer's only remedy where the Work does not comply with the warranty outlined in Clause 8.1 is as follows:
8.3.1 in respect of Clause 8.1.1, at the Company's option, either to:
126.96.36.199 repair or replace the defective Goods within a reasonable time free of charge, or
188.8.131.52 refund the part of the Contract Price in respect of the defective Goods;
8.3.2 in respect of Clause 8.1.2 at the Company's option either to:
184.108.40.206 to reperform the defective Services within a reasonable time free of charge but in any event no later than the date of removal of the relevant Company personnel from the location for performance of the Services; or
220.127.116.11 refund the part of the Contract Price in respect of the defective Services.
8.4 The Company's obligations under this Clause 8 are subject to the following conditions:
8.4.1 the Company shall be under no liability for abnormal damage (meaning damage which could not reasonably be expected) which has resulted from use of Goods outwith good oilfield practice or for corrosion, erosion or abrasion caused by the nature of the well effluent;
8.4.2 the Company shall be under no liability in respect of any defect in the Work arising from any drawing, design or specification supplied by the Customer;
8.4.3 written notice of a breach of the warranty in Clause 8.1 must be given to the Company:
18.104.22.168 prior to the expiry of the warranty period specified in Clause 8.1.1 in the case of a breach of Clause 8.1.1;
22.214.171.124 prior to completion of the Services in the case of a breach of Clause 8.1.2.
8.4.4 in relation to defective Goods and/or Services:
126.96.36.199 where reasonably practicable, the defective Goods must be returned by the Company carriage paid to the Customer so as to enable the Company to inspect and carry out tests on the defective Goods;
188.8.131.52 where the Goods and/or Services have to be repaired at any place other than at the Company's premises the Customer shall bear the Company's reasonable cost incurred;
184.108.40.206 the Company shall not be liable for the costs of removal of the defective Goods or the cost of refitting any replacement or repaired Goods;
220.127.116.11 the Goods and/or Services must not have been repaired or interfered with in any way by any person not authorised by the Company;
18.104.22.168 where Goods or parts thereof are not of the Company's manufacture, the Company will only be liable to the Customer for defects to the extent of the Company's warranty entitlement against the particular manufacturer or supplier and therefore the undertaking set out in Clause 8.1 shall not extend to defective Goods or parts thereof which are manufactured by a third party;
8.4.5 the Company shall not be liable under this Clause 8 if the Contract Price for the relevant Goods and/or Services has not been paid by the due date for payment;
8.4.6 where advice is given at the site of the Customer's operations the Customer will remain in full control and supervision of the conduct of the operations and no guarantee or representation is made as to the results of implementing such advice and the Company shall not be liable for any loss arising from the advice.
8.4.7 Goods repaired in accordance with this Clause 8 shall be warranted for a further twelve (12) months but in no event shall the Company's warranty extent beyond eighteen (18) months from the date of acceptance of the original Goods.
8.4.8 The rights and remedies set out in this Clause 8 represent the sole remedies available to the Customer for any defect to Goods/Equipment and or irregularities in respect of Services under an Order.
9 Title to Goods
9.1 Notwithstanding delivery and the passing of risk in any and all Goods supplied by the Company, or any other provision of the Contract, the property in the Goods shall not pass to the Customer until the Company has received full payment of the Contract Price of the Goods.
9.2 Until such time as the title in the Goods passes to the Customer, the Customer shall hold the Goods as the Company's fiduciary agent and bailee and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company's property. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business. The Company shall be entitled during business hours on reasonable prior written notice to enter upon any premises of the Customer or any third party where the Goods are stored to ensure that the provisions of the Clause are being complied with.
9.3 Until such time as the title in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Customer to deliver the Goods to the Company and if the Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
9.4 The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain property of the Company but if the Customer does so all sums due by the Customer to the Company shall (without prejudice to any other right or remedy of the Company) immediately become due and payable. The Company shall be entitled to claim a lien or attachment on the Goods or any property of the Customer in the possession of the Company until the Company has received full payment of the Contract Price of the Goods and all other Goods agreed to be sold by the Company to the Customer for which payment is then due.
9.5 Where materials are supplied by the Customer for the Company to use in manufacturing Goods, the property in any unused off cuts of such materials shall vest in the Company.
10.1 The Company shall defend, indemnify and hold harmless the Customer Group from and against all Claims arising from, relating to or in connection with the Contract in respect of:
10.1.1 loss or recovery of or damage to property of the Company Group whether owned, hired, leased or otherwise provided by the Company Group, excluding the Goods (where applicable) after delivery; and
10.1.2 personal injury including death or disease to any person employed by the Company Group;
in each case irrespective of cause and notwithstanding the negligence and/or breach of duty (statutory or otherwise) of any member of the Customer Group.
10.2 The Customer shall defend, indemnify and hold harmless the Company Group from and against all Claims arising from, relating to or in connection with the Contract in respect of:
10.2.1 loss or recovery of or damage to property of the Customer Group and/or Client Group, whether owned, hired, leased or otherwise provided by the Customer Group, including the Goods (where applicable) after delivery;
10.2.2 personal injury including death or disease to any person employed by the Customer Group and/or the Client Group; and
10.2.3 personal injury including death or disease or loss of or damage to the property of any third party,
in each case irrespective of cause and notwithstanding of the negligence and/or breach of duty (statutory or otherwise) of any member of the Company Group.
10.3 The Customer shall defend, indemnify and hold harmless the Company Group from all Claims arising from, relating to or in connection with the Contract in respect of:
10.3.1 loss of or damage to any well or hole (including, without limitation, the cost of re-drill);
10.3.2 blowout, fire, explosion, cratering or any uncontrolled well condition (including, without limitation, the costs to control a wild well and the removal of debris);
10.3.3 damage to any reservoir, geological formation or underground strata or the loss of oil or gas therefrom;
10.3.4 pollution or contamination of any kind including, without limitation, the cost of control, removal and clean-up;
10.3.5 damage to, or escape of any substance from, any pipeline, vessel, or storage or production facility; or
10.3.6 loss of, or damage to, permanent third party oil and gas production facilities and pipelines and Consequential Losses arising therefrom;
in each case regardless of cause and irrespective of any form of liability (whether strict or by negligence in whatever form) and/or breach of duty (statutory or otherwise) of any member of the Company Group.
10.4 Notwithstanding the provisions of Clause 8, the Customer shall be responsible for the recovery or removal and when appropriate the marking or lighting of any wreck or debris arising from or relating to the Goods and shall, except as provided for in Clause 10.1, save, defend, indemnify and hold harmless the Company Group in respect of all claims, liabilities, costs (including legal costs), damages or expenses arising out of such wreck or debris.
10.5 Notwithstanding anything within the Contract to the contrary and except to the extent of any agreed liquidated damages (including without limitation any predetermined termination fees) provided for in the Contract, the Company shall defend, indemnify and hold harmless the Customer Group from the Company Group's own Consequential Loss arising out of or in connection with the Contract irrespective of cause and notwithstanding the negligence or breach of duty (statutory or otherwise) of any member of the Customer Group.
10.6 Notwithstanding anything within the Contract to the contrary and except to the extent of any agreed liquidated damages (including without limitation any predetermined termination fees) provided for in the Contract, the Customer shall defend, indemnify and hold harmless the Company Group from the Customer Group's own Consequential Loss and/or the Client Group's own Consequential Loss arising out of or in connection with the Contract irrespective of cause and notwithstanding the negligence or breach of duty (statutory or otherwise) of any member of the Company Group.
10.7 If either Party becomes aware of any incident likely to give rise to a Claim under the above indemnities, it shall notify the other and the Parties shall co-operate fully in investigating the incident.
10.8 The indemnities given pursuant to the Contract shall be full and primary and shall apply in respect of the full liability of the indemnity for Claims notwithstanding that the indemnified party may be entitled to contribution thereto from insurance or any other person.
10.9 For the purposes of this Clause 10 "third party" shall mean any party which is not a member of the Customer Group or the Company Group.
10.10 This Clause 10 shall survive termination of the Contract for any reason.
11 Intellectual Property
11.1 The Customer shall not have any right of use, other than for the purposes of the Contract, whether directly or indirectly, of any Intellectual Property provided by the Company Group in relation to the Contract. Any Intellectual Property owned by the Company Group prior to the Effective Date of the Contract shall remain the Intellectual Property of the Company Group.
11.2 All Intellectual Property created or generated by the Company arising from, relating to or in connection with the performance of the Contract shall vest in the Company.
11.3 If any Claim is made against the Customer that the Goods infringe or that their use or resale infringes the Intellectual Property rights of any other person, then unless the Claim arises from the use of any Intellectual Property supplied by the Customer, the Company shall, subject to Clauses 11.2 and 12, defend, indemnify and hold harmless the Customer against such Claim, provided that:
11.3.1 the Company is promptly given full control of any proceedings or negotiations in connection with any such Claim;
11.3.2 the Customer shall without undue delay give the Company all reasonable assistance for the purposes of any such proceedings or negotiations;
11.3.3 except pursuant to a final award, the Customer shall not pay or accept any such Claim, or compromise any such proceedings without the consent of the Company (which shall not be unreasonably withheld);
11.3.4 the Customer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Customer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer shall use its best endeavours to do);
11.3.5 the Company shall be entitled to the benefit of, and the Customer shall accordingly account to the Company for, all damages and costs (if any) awarded in favour of the Customer which are payable by, or agreed with the consent of the Customer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such Claim; and
11.3.6 without prejudice to any duty of the Customer at common law, the Company shall be entitled to require the Customer to take such steps as the Company may reasonably require to mitigate or reduce any Claim for which the Company is liable to indemnify the Customer under this Clause.
11.4 Where Goods are manufactured or supplied and/or the Services provided by the Company to a specification provided by the Customer, the Customer shall defend, indemnify and hold harmless the Company Group against any Claim of whatsoever nature suffered or incurred by the Company Group as a result of infringement of any Intellectual Property of any other person arising from manufacture or supply of such Goods and/or Services in accordance with such specification.
12 Limitation of Liability
12.1 Notwithstanding anything to the contrary within the Contract, in any event the cumulative and maximum aggregate liability of the Company to Customer Group and/or Client Group for any reason and upon any Claims whatsoever arising from, related to or in connection with the Contract (whether arising from Company's termination, breach of duty (statutory or otherwise), negligence of any degree or character, breach of contract or otherwise at law) shall be limited to one million GBP (£1 million).
12.2 The Customer agrees to defend, indemnify and hold harmless the Company Group from all claims (including third party claims) above such limit irrespective of cause and notwithstanding the negligence of breach of duty (statutory or otherwise) of any member of the Company Group.
12.3 This Clause 12 shall survive termination of the Contract for any reason.
13 Force Majeure
13.1 Neither Party shall be liable to the other Party or be deemed to be in breach of the Contract where any delay in performing or failure to perform (except for the obligation to pay sums due under the Contract) is due to any cause beyond the affected Party's reasonable control ("Force Majeure"). For the purposes of this Clause 13, Force Majeure shall include acts or threats of war, sabotage, acts of terrorism, riots; civil commotions, strikes, lock-outs or other industrial action, acts of any governmental authority, including import or export regulations or embargoes, quarantine, earthquake, fires, storms and / or other natural physical disaster and/or maritime or aviation disasters.
13.2 In the event of a Force Majeure occurrence, the affected Party will promptly notify the other in Writing of the Force Majeure occurrence.
13.3 In the event of a Force Majeure occurrence prevailing for a continuous period of fifteen (15) days or more, either Party may terminate the Contract in whole or in part, upon notice thereof to the other Party in Writing.
14 Termination and Suspension
14.1 The Contract shall continue in full force and effect until such time as either Party may elect to terminate the Contract by giving the other Party at least one hundred and eighty (180) days prior written notice of its requirement to terminate the Contract.
14.2 Either Party may terminate the Contract by giving ten (10) days prior written notice in the event of the other Party's default or failure to comply with the Contract which, following notice of such default or failure from the first Party, the other Party fails within a reasonable period of time thereafter to rectify. Additionally either Party may terminate the Contract with immediate effect by written notice to the other Party if the other Party becomes bankrupt or insolvent, or if its business is placed in the hands of an administrator, a receiver, assignee, or trustee, whether by voluntary act of the other Party or otherwise, or undergoes any proceeding analogous to the foregoing.
14.3 In the event of termination of the Contract, the Company shall cease the performance of the Work as soon as practicable. The Company shall be entitled to payment of the Contract Price for all Goods delivered and/or Services completed prior to termination.
14.4 In the event that the Customer is in breach of its obligations to pay the Contract Price under Clause 5, then in addition to Company's other rights elsewhere in the Contract and at law, the Company shall have the right to:
14.4.1 suspend the Work (including delivery of the Goods and/or completion of the Services) until such time as the Contract Price has been paid in full by the Customer; or
14.4.2 terminate the Contract with immediate effect by written notice to the Customer.
15.1 The Customer shall not (and shall procure that its Affiliates and its officers, employees and contractors and those of its Affiliates shall not) disclosure any information of a confidential or commercially sensitive nature relating to the Company or its Affiliates or their respective businesses, technology or other affairs to any third party (or any officer or employee or contractor of the Customer except to the extent that such officer or employee or contractor requires knowledge of the same for the proper performance of the Contract) or use any such information for any purpose other than the proper performance of the Contract. The Customer shall, if so required by the Company at any time, promptly return to the Company all copies of any such information which may be in the Customer's or its officers' or employees' or contractors' possession or under their control. This Clause shall not apply to information which is, or becomes through no fault of the Customer, its officers' or employees' or contractors' part of the public domain or to any disclosure which the Customer is required by law to make save that in the event of such a legal requirement arising, Customer shall give prior notice of such disclosure obligation to Company and will endeavour to disclose only that confidential information which is required to meet its legal obligations.
16 Governing Law and Jurisdiction
16.1 The Contract shall in all respects be construed and governed in accordance with the laws of England and Wales.
16.2 Any dispute or difference which may arise between the Company and the Customer on any matter relating to the Contract which cannot be settled by negotiation within thirty (30) days of the dispute arising (or such other period as may be mutually agreed between the Parties) shall be referred to arbitration under the rules of the London Court of International Arbitration. Such dispute or difference will be determined by a single arbitrator acceptable to the Parties.
16.3 If the Parties are unable to agree on a single arbitrator within fourteen (14) days of each suggesting the name of a suitable arbitrator, either Party may apply to the President for the time being of The Confederation of British Industry for the name of an alternative arbitrator.
16.4 The place of arbitration shall be London and all proceedings shall be held in English.
16.5 The decision of the arbitrator shall be final and binding and be treated as confidential between the Parties. Any award made shall be promptly performed and/or paid without deduction or set off. Unless determined otherwise by the arbitrator, the costs and expenses of arbitration shall be borne equally between the Parties.
17.1 The Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its Company Group, provided that any act or omission of any such other member of the Company Group shall be deemed to be the act or omission of the Company.
17.2 The Company shall act as an independent contractor with respect to the Contract. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the Parties, make any Party the agent or employee of any other Party, or authorise any Party to make or enter into commitments for and on behalf of any other Party.
17.3 Any notice required or permitted to be given by either Party to the other under the Contract shall be in Writing addressed to that other Party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the Party giving the notice. Any notice or other communication shall be deemed to have been duly received if delivered personally. When left at the address referred to above or if sent by post at 8.00am on the second business day after posting or if delivered by commercial courier, on the date and at the time that the couriers delivery receipt is signed.
17.4 Any failure by either Party to enforce all or any portion of the Contract or waiver by the Company of any breach of the Contract by the Customer shall not be considered a waiver of any subsequent breach or future right to require strict performance of the Contract.
17.5 If any provision of the Contract is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected. If any invalid or unenforceable provision of the Contract would be valid and enforceable if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it valid and enforceable.
17.6 The Contracts (Rights of Third Parties) Act 1999 shall apply to this Contract, but only to the extent that a member of Company Group or Customer Group (other than Company or Customer) shall be entitled in its own right to enforce the benefit of the indemnities under Clause 11 or to the extent that a member of the Company Group may act in accordance with Clause 18.1 but not in any other respect. Notwithstanding the foregoing the Contract may be rescinded, amended or varied by the Parties without notice to or the consent or any third party even if, as a result that third party's right to enforce a term of this Contract may be varied or extinguished.
18.1 The Company has the right to assign the Contract or any part of it or any benefit or interest in or under it to any Affiliate without the consent of the Customer. Additionally, either Party may assign the Contract or any part of it or any benefit or interest in or under it to any third party, but only with the prior Written consent of the other Party which shall not be unreasonably withheld or delayed.
19 Business Ethics
19.1 Both Parties shall uphold the highest standards of business ethics in the performance of the Contract. Integrity, honesty and ethical business practices shall be paramount principles in the dealings between the Parties.
19.2 Neither Party shall knowingly involve itself in any business in connection with, or use information arising from, the Contract, in any manner which conflicts with the interest of the other Party.
19.3 The Customer warrants and represents that in the performance of its obligations under the Contract it has complied and shall comply with the Applicable Anti-Bribery Laws and any other applicable laws, rules, regulations, labour agreements, working conditions and technical codes and requirements of any governmental or regulatory body having jurisdiction over the Contract.