OXFORD INSTRUMENTS UK - TERMS AND CONDITIONS OF QUOTATION AND SALE FOR GOODS AND SERVICES

 

1. INTERPRETATION

 

1.1 In these terms (“Terms”): “AO” means the acknowledgement of order form (if any) issued by the Company to the Purchaser; “Applicable Guarantee Period” means in relation to any Goods the guarantee period applicable to those Goods, subject to clauses 7.3 and 7.4 being either (i) 12 months commencing on the sooner of the date of acceptance of the Goods in question by the Purchaser or 90 days from shipment of the Goods in question or (ii) as otherwise notified in the Company’s relevant quotation or AO; “Commencement Date” means the date on which the Service Schedule is signed; “the Company” means the subsidiary of Oxford Instruments PLC contracting to supply the Supplies; “Contract” means the agreement between the Purchaser and the Company for the supply of the Supplies and consisting of the documents referred to in 1.4 below; “End User Undertaking” means the document in the form provided by the Company to the Purchaser in relation to Goods to be shipped by the Company outside the UK; “Engineer” or “Consultant” means an individual engaged or employed by the Company to perform the Services “Goods” means the goods listed in the AO or which the Company otherwise agrees to supply to the Purchaser under the Contract (including any instalments or parts of the goods but excluding any Serviced Goods or parts or components provided to the Purchaser in respect of Serviced Goods); “liability in relation to” means liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxation), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with; “Non-Standard Specification” means any specification relating to the Goods or the formatting or layout of the Goods at the Purchaser’s premises requested by the Purchaser which deviates from the Standard Specification; “Purchaser” means the purchaser of the Goods as stated in any applicable AO; “Price” means subject to these Terms, means the price for the Goods as quoted and confirmed in any AO; “Services” means the services specified in the Service Schedule, AO or which the Company otherwise agrees to provide to the Purchaser under the Contract; “Serviced Goods” means the goods and/or systems (as appropriate) and any configuration thereof listed in the Services Schedule; “Service Schedule” means the schedule issued by the Company to the Purchaser detailing the Serviced Goods or the Services; “Software” means any software used in the operation of the Goods; “Standard Specification” means the standard design of the Goods and/or layout of the Goods (prior to any Non-Standard Specification requested by the Purchaser) which is current at the time of the issue of an AO; “Supplies” means the Goods and/or the Services.

 

1.2 Any Contract provision invalid or unenforceable for any purpose shall be severed for that purpose but otherwise remain valid and enforceable and shall not affect the validity of the remainder of the Contract.

 

1.3 A payment shall be deemed made when credited to the payee's bank account and is cleared funds.

 

1.4 Save as otherwise agreed in writing by the Company the Contract shall comprise solely these Terms, any AO, any relevant quotation and any relevant Service Schedule issued by the Company to the Purchaser. In the event of any inconsistency the following shall prevail in this order (1) the express terms of the AO (2) the Service Schedule, (3) quotation (4) these Terms. Variations of the Contract shall be effective only if agreed in writing and will then prevail over these Terms. 1.5 English is the authentic text of the Contract and all notices or other communications under or relating to it shall be in writing in English. Any translation will be for guidance only.

 

2. QUOTATIONS, SPECIFICATION, VARIATION AND CANCELLATION

 

2.1 A quotation is not an offer and may be withdrawn or modified; save as otherwise agreed in writing by the Company no contract or commitment shall exist until the Company sends its AO and/or Service Schedule to the Purchaser or until the Company commences work on or appropriates Supplies to the Contract.

 

2.2 The Company may alter the specification of any Goods if this does not materially affect their performance or utility.

 

2.3 The Company may vary the design, materials or method of construction of the Goods as it reasonably considers appropriate in order to improve performance, design or construction; to respond to availability of various materials or components; or to comply with any safety or regulatory requirements. No such variation shall materially alter the size or proportions or materially worsen the performance of the Goods. The Company shall promptly notify the Purchaser of any such variations and if reasonably practicable shall consult with it upon any variations which are not immaterial.

 

2.4 If any variation in the Supplies or the Contract is agreed or is required for compliance with any applicable law, regulation or safety recommendation the Purchaser shall pay such additional amount as is fair and reasonable and the Company shall have reasonable additional time to perform the Contract.

 

2.5 The Purchaser may request Non-Standard Specifications in relation to the Goods. The Company shall consider such Non-Standard Specifications and if it considers them feasible and reasonably compatible with the scope of the Contract clause 2.6 shall apply. Any Non-Standard Specification and any consequential change in the Price must be agreed in writing within four (4) weeks from the date of issue of the AO (or longer period agreed by the Company) failing which the Standard Specification shall apply.

 

2.6 If the Purchaser requests a Non-Standard Specification which the Company considers so feasible and compatible the Company shall respond to the Purchaser upon the request including with the implications upon the Price, delivery date and other implications; the parties shall then seek in good faith to agree the Non-Standard Specification and the terms upon which it will be applied. If the same are agreed the Contract shall be modified accordingly but if they are not agreed within the four week (or longer) period referred to in clause 2.5 the request shall be of no effect and the Standard Specification shall apply.

 

 

3. PRICES AND PAYMENT

 

3.1 Subject to any AO, the Price shall exclude value added tax and any other applicable taxes and duties, packaging, carriage, insurance, documentation and installation charges. Unless costed for in any AO or Service Schedule, the Company may make reasonable additional charges for complying with any special requirements of the Purchaser. Payment, subject to any AO or Service Schedule, shall be made in sterling at the Company's office in England, clear of any banking transaction charges and without deduction, set off or counterclaim.

3.1.1 Where the Goods are delivered in the United Kingdom (“UK”) the Price shall be paid as follows unless determined otherwise in the AO: (i) 30% of the Price shall be paid within 30 days of the AO; (ii) the balance shall be paid as follows: (a) where the Goods are being installed or installation is supervised by the Company 60% shall be paid on the earlier of delivery and 30 days from the date of invoice and 10% shall be paid upon the earlier of issue of an installation certificate or 90 days from delivery; (b) in all other circumstances, the balance shall be paid on the earlier of delivery or 30 days from the date of invoice.

3.1.2 Where delivery of the Goods is outside the UK the Price shall be paid in accordance with the provisions of the Contract and/or AO and if the Contract or AO so provides payment shall be made against irrevocable letter of credit opened prior to the date of shipment of Goods from the Company’s premises in terms acceptable to the Company confirmed by a prime London bank and the validity period shall be not less than 30 days from delivery.

3.1.3 The Price for Services shall be paid in accordance with the provisions of the AO and/or the Service Schedule. The Price for Serviced Goods maybe increased by the Company by not less that 90 days notice prior to the anniversary of the Commencement Date. Unless otherwise specified in the AO and/or the Service Schedule, invoices for Services shall be paid within 30 days from the date of invoice.

 

3.2 Time of payment is of the essence of every Contract. Without limiting the Company's remedies if payment is overdue, the Purchaser shall indemnify the Company against any legal fees and other costs of collection and (as well after as before judgment) shall pay to it a sum equal to any loss suffered by the Company arising from exchange rate fluctuations and interest on such sum and on the amount overdue at 4% above the base rate from time to time of Barclays Bank PLC calculated from the date payment fell due until the date of actual payment (or such lesser amount as is the maximum rate permissible OI UK TermsConditions of QuoteSale GoodsServ Dec 2009 by law) and the Company may cancel the Contract and any other contracts and suspend performance of the Services and suspend deliveries to the Purchaser.

 

3.3 Any payment which would fall due later than it would have done but for delay caused by the Purchaser shall be deemed to fall due when, but for the Purchaser's delay, it might reasonably be expected to have fallen due. The Company may delay or withhold performance under the Contract until the Purchaser has made any payment or opened any letter of credit or established any other payment arrangements which are due to be made, opened or established and its time for performance shall be extended accordingly.

 

4. RISK AND PROPERTY

 

4.1 Until payment has been made of the whole of the Price and other monies payable by the Purchaser under the Contract and of all other monies owing by the Purchaser to the Company at the time the payment for the Goods falls due: (a) property in any Goods shall remain the Company's; the Purchaser shall hold such Goods as the Company's fiduciary agent and bailee, stored separately from those belonging to any other person and labelled so as to show clearly that they are the property of the Company and properly protected, treated and insured; (b) the Company may recover and/or resell the Goods, require their return to the Company and enter upon the Purchaser's or any carrier's premises by its servants or agents for that purpose and the Purchaser grants the Company an irrevocable licence to this effect which shall survive termination of the Contract; (c) upon disposal by the Purchaser of the Goods it shall account to the Company for the proceeds and shall keep such proceeds separate from any other monies or property and (if tangible) properly stored and insured; (d) the Company shall have a right of lien over any goods or materials belonging to the Purchaser which are in the Company's possession or control; and (e) the Purchaser shall not pledge or charge by way of security for any indebtedness any of the Goods which remain the Company's property but if it does all monies owing by the Purchaser to the Company shall forthwith become due and payable.

 

4.2 Risk of damage to or loss of the Goods shall pass to the Purchaser at the earlier of the time when the Company notifies the Purchaser that the Goods are available for collection or upon the Company first despatching the Goods from its premises unless any AO specifies otherwise.

 

5. DELIVERY AND RESCHEDULE

 

5.1 Save as otherwise agreed in writing by the Company delivery of the Goods shall be made by the Company making the Goods available for collection from its premises and so informing the Purchaser or, if some other place for delivery is stated in any AO, by the Company or its nominated carrier despatching the Goods from its premises to the stated place. If the Purchaser fails to take delivery or to give adequate delivery instructions, the Company may (without prejudice to its other rights) store or dispose of the Goods, in which case the Purchaser shall pay to the Company upon request the amount of any reasonable storage or disposal charges. Whilst the Company will seek to meet the stated delivery time, it is approximate and the Company shall not incur liability in relation to late delivery. If no time for delivery is agreed the Purchaser shall accept the Goods when ready for delivery.

 

5.2 The Company may deliver Goods in instalments constituting separate contracts and delay in delivery of any instalment will not entitle the Purchaser to terminate the Contract, nor permit the set off of any payments in respect of one delivery against any claim in respect of any other delivery. Where Goods are delivered by instalments the Company may issue separate invoices.

 

5.3 The Purchaser shall clear the Goods for export from the UK and import into the country of delivery unless any AO states otherwise.

 

5.4 Any delivery times quoted by the Company for the Supplies are approximate and shall not be binding upon the Company.

 

5.5 Should the Purchaser wish to vary a delivery schedule, it shall make a request in writing to the Company. Rescheduling restrictions apply and the Company is not obliged to accept a request for a re-schedule delivery of Supplies. Should the Company agree in writing to amend a delivery schedule, charges may apply. Such charges shall be applied at the time the re-schedule is agreed.

 

 

6. INSPECTION AND ACCEPTANCE

 

Unless the Company will issue or has issued an acceptance certificate or an installation certificate is to be or has been issued pursuant to clause 13, the Purchaser shall inspect and test the Goods and within 7 days of their delivery, and in respect of Services, within 7 days of the Company tendering their completion, shall give written notice to the Company of any damage or claim. In the absence of such notice, the Goods shall be deemed to comply with the Contract and the Purchaser shall accept them. The Goods are sold as a batch and without prejudice to the Purchaser's right to reject all the Goods the Purchaser may not reject only some of the Goods.

 

7. GUARANTEE

 

7.1 If within the Applicable Guarantee Period any Goods prove defective by reason of faulty design, workmanship or materials the Company will adjust, repair or replace them as it sees fit free of charge provided that: (a) the Purchaser gives written notice of the defect (with reasonable relevant information) to the Company as soon as reasonably practicable and within the Applicable Guarantee Period; (b) the Goods have been used solely for their proper purpose and in accordance with the operating instructions; (c) the defect has not been caused by fire, accident, misuse, neglect, incorrect installation by the Purchaser or its customers, agents or servants, unauthorised alteration, repair or maintenance or the use of sub-standard consumables and has not arisen from fair wear and tear; (d) the defect has not arisen from any design, specification, component or material supplied by or on behalf of the Purchaser; (e) no part of the Goods has been replaced with a part not supplied or approved by the Company; (f) payment in full of all sums due in respect of the Goods has been made; (g) the Purchaser shall be liable for any costs incurred by the Company in responding to claims caused by operator error or incorrect application or other default of the Purchaser or other third party; (h) the Purchaser shall accord the Company sufficient access to the Goods to enable its staff to inspect and adjust, repair, remove or replace the Goods; (i) the costs of all consumables shall be paid by the Purchaser.

 

7.2 The Company may repair the Goods in situ or have them returned to its premises; if the latter, the risk in the Goods shall at all times remain the Purchaser's and they shall be packaged as the Company instructs and despatched at the Purchaser's expense. Costs of carriage on the Goods' return to the Purchaser shall be borne by the Company where the defect is covered by this guarantee.

 

7.3 If the Goods incorporate goods or services provided by a third party, the obligations of the Company in respect of such goods or services shall not exceed the warranty obligations of such third party to the Company nor exceed any time limit upon those obligations.

 

7.4 The Applicable Guarantee Period for any Goods replaced or repaired or any corrective services pursuant to the initial guarantee shall be the remaining period, if any, of such initial guarantee period.

 

8. PROVISION OF SERVICES

 

8.1 Where the Services comprise the servicing and/or maintenance by the Company of Serviced Equipment the following applies: (a) The Company may prior to accepting any order from the Purchaser to provide the Services, carry out at the expense of the Purchaser an inspection of the Serviced Goods as the Company reasonably requires. Such inspection shall be charged at the Company’s then current list price for such inspection; (b) If the Company reasonably determines that the Serviced Goods are not in good operating condition prior to start of performance of the Services, the Company may require the Purchaser to effect such adjustments as it determines necessary and, if the Company agrees to provide such adjustments the Purchaser will pay for such work on a time and materials basis. The Company reserves the right not to commence performance of the Services until the Services Goods are in good operating condition; (c) The Company may send a replacement part for the Purchaser to replace a defective part with or, if such replacement requires technical skills which the Purchaser does not possess, the Company shall send an Engineer to repair the Serviced Goods in situ or may have them returned to its premises; if the latter, the risk in the Serviced Goods shall at all time remain the Purchaser’s and they shall be packaged as the Company instructs and despatched at the Company’s expense. Costs of carriage on the Serviced Goods’ return to the Purchaser shall be borne by the Company unless otherwise specified in the Service Schedule; (d) Parts of components of Serviced Goods will be replaced at the Company’s discretion, if no appropriate alternative fix is available any replacement parts used by the Company shall be new or of equivalent performance to new parts, at the Company’s discretion; replacement parts shall be the property of the Purchaser and replaced parts shall become the property of the Company which may invoice the Purchaser for their replacement value if such parts are not returned to it within 10 ten days of their replacement; (e) Unless otherwise agreed in writing, the Company shall have no obligation to provide Services in respect of Serviced OI UK TermsConditions of QuoteSale GoodsServ Dec 2009 Goods which are moved to a new location from that specified in the Service Schedule and may charge additional rates for such Services; (f) If any appointment with an Engineer is cancelled with less than 24 hours notice the Company may charge its standard rates for its times and expenses in respect of such appointment.

 

8.2 The Company shall provide the Services detailed in the Service Schedule or the AO at the location and rates contained therein. If there is any conflict between the terms of the AO and any attached Service Schedule the terms of the written AO shall prevail.

 

8.3 The Purchaser shall grant full access to its premises and equipment to enable the Company to perform the Services during all normal working hours and upon reasonable notice from the Company at any other time.

 

8.4 The Purchaser shall ensure that any premises to which the Company’s employees or agents have access for provision of Supplies fully comply with health and safety regulations and best practices and the Purchaser will not expose such persons to unnecessary risk or danger to personal safety. The Purchaser shall ensure that the Company’s personnel are made aware of all relevant safety procedures and regulations.

 

8.5 Without limitation to clause 10, the Purchaser shall ensure that its employees and agents comply with all reasonable instructions made by the Company’s employees and agents in the course of provision of Supplies or to enable the Company to limit any damage to either party, including without limitation complying with safety procedures.

 

8.6 The Purchaser shall take all precautions to protect its data and shall ensure that a regular back-up arrangement is implemented before and during the provision of the Supplies. The Purchaser shall be responsible for restoring any lost or corrupted data unless such loss is caused by the negligence or wilful default of the Company in which case its liability shall be limited to the reinstatement where possible of all data proven to have been lost or irremediably corrupted and which would not have been included in such back-up arrangements required to be maintained by the Purchaser.

 

8.7 Save with the Company’s prior written consent, the Purchaser undertakes that it will not, during or for a period of 12 months after the provision of the Supplies has ceased, directly or indirectly solicit any employee of the Company or seek to cause him to leave the employment of the Company.

 

8.8 Without prejudice to clause 8.7, the Purchaser shall pay to the Company a commission fee of 27% of that employee’s then current salary including accrued benefits in respect of any employee of the Company who is employed or engaged by the Purchaser or any associate of the Purchaser during or within twelve months after the provision of the Supplies ceased.

 

8.9 The Purchaser warrants that it does and undertakes that it will comply with any applicable data protection legislation from time to time in force.

 

8.10 The Purchaser shall at the Company’s request provide adequate security and space at its premises for secure and proper storage of any equipment belonging to or used by the Company or its employees or agents.

 

8.11 The Purchaser shall indemnify the Company against any liability in relation to claims or awards made against the Company or its agents or sub-contractors by any person employed or previously employed by the Purchaser or any contractor to the Purchaser regarding their employment rights and without limitation any applicable legislation concerning transfers of undertakings from time to time in force.

 

8.12 The Purchaser shall reimburse the reasonable expenses of any employees or representatives of the Company who are required to travel from the Purchaser’s premises at its request during the provision of the Supplies.

 

8.13 The Purchaser shall have no right in or lien over any equipment provided to it by the Company on loan and shall return any such equipment to the Company immediately upon request. The Company reserves the right to enter the premises of the Purchaser to identify and remove any such equipment.

 

8.14The Purchaser shall indemnify the Company against any liability in relation to: (a) the Purchaser’s failure to comply with any of its obligations under this clause 8 (b) any action of the Company required to be taken or not to be taken at the request or direction of the Purchaser (c) any information or materials provided to the Company by the Purchaser or any of its employees, associates or representatives other than for their intended use as communicated to the Purchaser by the Company (d) the negligence or wilful misconduct of the Purchaser

 

8.15 The Company warrants that the Services will be performed with reasonable skill and diligence and the Company shall use reasonable endeavours to attain any service levels or project specifications contained in the Service Schedule or referred to in any AO; such service levels or specifications shall not form part of the Contract and failure to attain any service level or specifications shall not constitute a breach of contract by the Company save as specified in such Service Schedule.

 

 

9. EXCLUSIONS FROM SERVICES

 

9.1 Where the Services include service or maintenance of the Purchaser’s equipment there shall be excluded from such Services or an additional fee will be payable to the Company for any items specifically set out in the AO or in an agreed schedule, and unless otherwise expressly stated therein there shall be excluded from such Services or an additional fee shall be payable for: (a) the provision of consumables and accessories (such as storage devices, modems, additional screens, keyboards) (b) the supply and installation of patches, fixes, BIOS upgrades or other software related upgrades or modifications, or of loaners, add ons or other upgrades to Serviced Goods (c) repairs necessitated as a result of any cause other than fair wear and tear resulting from proper use of the Serviced Goods or other equipment in accordance with the Company’s or the manufacturer’s instructions (including, without limitation, fire, accident, misuse, neglect, incorrect installation by the Purchaser or its customers, agents or servants, unauthorised alteration, repair or maintenance or the use of sub standard consumables, failure or fluctuation of electrical power, failure of air conditioning or humidity control, or abnormal physical or electrical stress) or repairs necessitated by equipment not supplied by the Company or by the Serviced Goods not being in good working order when the Services are commenced (d) any modification or alteration to the Serviced Equipment except as required to rectify a fault diagnosed by the Company or the manufacturer (e) repair necessitate by any design, specification, component or material supplied by or on behalf of the Purchaser or by the replacement of any part of the Service Goods with a part not supplied or approved by the Company (f) repair or replacement of any equipment the subject of such services if such equipment is obsolete or beyond economic repair (“BER”), meaning that the cost of repair is not less than 60% of the then current market value of such equipment (g) Electrical work external to the Serviced Goods

 

9.1 The Purchaser shall reimburse the Company against any costs incurred by the Company responding to claims caused by operator error or incorrect application or other default of the Purchaser or other third party

 

9.2 In the provision of Services, the Company cannot guarantee the attendance of any particular individual as an Engineer or Consultant and reserves the right to replace any Engineer or Consultant with an appropriate alternative individual at any time

9.3 Unless otherwise agreed in writing, the Engineer or the Consultant shall not be required to perform any services other than the Services, in particular the Engineer does not carry stock unless specifically ordered in advance.

 

10. EXCLUSION AND LIMITATION OF LIABILITY

 

10.1In an effort to keep the Contract price as low as possible and as the Purchaser is better able than the Company to quantify loss which it may suffer from a breach of contract and to insure accordingly, the Purchaser agrees to the Company limiting its liability and therefore agrees that save as expressly agreed in writing or as mandatorily implied by law: (a) the Company shall have no obligation in respect of the Goods except for its undertaking in clause 7 above (“the Guarantee”) and as expressly stated in the Contract; (b) if the Company has repaired or replaced the Goods pursuant to the Guarantee, or properly re-performed the Services it shall have no further liability in respect of such defect or fault in the Goods or default in the Services unless a repair or replacement or proper performance is not possible in which case the Company’s liability shall be limited to refunding any monies paid in respect of such defective Goods or Services; (c) the Purchaser acknowledges that the Company’s obligations and liabilities in respect of the Supplies are exhaustively defined in these Terms and that such express obligations are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to the Supplies including, without limitation, as to the condition, quality, performance or fitness for the purpose of the Supplies or any part of them; (d) the Company shall not be liable for any loss which represents or which is loss of profit, revenue, benefit, anticipated savings or goodwill, loss of use of any asset, loss of data, business interruption, management costs or third party liability. OI UK TermsConditions of QuoteSale GoodsServ Dec 2009

 

10.2 The aggregate liability of the Company (whether in contract, tort, breach of statutory duty or otherwise) for all breaches under or non-performance of its obligations or contemplated by any Contract shall not exceed a sum equal to one and a half times the amount paid for any Supplies the subject of such Contract save that this sub-clause shall not limit or exclude any liability of the Company which cannot be effectively excluded in law.

 

10.3 The Purchaser shall not rely upon any representation concerning the Supplies unless made by the Company in writing in the Contract save that nothing in the Contract or these Terms shall exclude liability for fraudulent misrepresentation.

 

10.4 Save to the extent of any warranty stated or expressly confirmed in the AO (and so far as permitted by law), the Company shall have no liability in respect of any failure by the Goods to recognise date changes and the Purchaser shall satisfy itself in all such respects.

 

10.5 Without prejudice to the foregoing, the provision of the Services is not a guarantee that any Serviced Goods will operate uninterrupted or without error, nor is it a guarantee against obsolescence

 

10.6. Any liability of the Company under any warranty, indemnity or other obligation stated or confirmed in the AO is subject to all exclusions and limitations in these Conditions.

 

11. REGULATORY COMPLIANCE, LICENCES AND PRE-DELIVERY TESTS

 

11.1 The Supplies will comply with mandatory United Kingdom (“UK”) regulations applicable to the manufacture and non-consumer sale of the Supplies at the date of delivery but no other warranty or undertaking as to regulatory compliance in the UK or elsewhere is given or to be implied unless specifically given in writing signed by a director of the Company or stated in any AO. The Purchaser shall comply with applicable laws relating to the Supplies, their use and disposal. Without limiting the foregoing, where ionising radiation is used in the Goods the Company will upon request provide reasonable advice and assistance to the Purchaser in respect of radiological protection and applicable legal requirements concerning registration and access

 

11.2 The Purchaser's representatives at the Purchaser's cost may attend inspections and tests of the Supplies at the Company's premises required by the Company prior to delivery but if such representatives fail to so attend such tests may be carried out in their absence. If the Company issues an acceptance certificate the Purchaser shall accept the same which shall be conclusive evidence of the Supplies' conformity with the Contract and their acceptance by the Purchaser.

 

11.3 The Purchaser shall obtain in good time any applicable licences, permits and approvals relating to import and export and to the installation and/or operation of the Supplies and will indemnify the Company against all liability in relation to Supplies supplied without them. The Company shall not be responsible for any liability in relation to delay in obtaining or failure to obtain such licences, permits or approvals.

 

11.4 If any Goods are to be shipped by the Company outside the UK the Purchaser shall provide the Company with an End User Undertaking by the Company as soon as practically possible and in any event no later than seven (7) days of issue of the Purchasers purchase order. The Purchaser acknowledges that export of the Goods from the UK is contingent upon the export controls of the United Kingdom and other applicable jurisdictions. In the event that the requisite governmental authorizations cannot be obtained, or they are revoked or cancelled for whatever reason, the Company shall not be liable to the Purchaser in respect of any bond or guarantee or for any loss or damage or other financial penalty of any kind.

 

 

12. TERMINATION OF CONTRACT

 

12.1 For Services, the Contract shall begin on the Commencement Date and thereafter, unless terminated earlier in accordance with this clause, shall continue for the term specified in the Service Schedule. Either party may terminate any annual based Contract for Serviced Goods by giving 60 days’ notice in writing to the other party, such notice expiring on any anniversary of the Commencement Date

 

12.2The Company may terminate separately all or any of the Contract and every other contract with the Purchaser if: (a) the Purchaser fails to make payments to the Company under any contract as they fall due or the Purchaser otherwise breaches any such contract and the breach or non-payment is not remedied within seven days of notice from the Company; or (b) the Purchaser is, or is deemed to be, insolvent or suspends payment or performance of its obligations or threatens to do so, or the Company has reasonable grounds for believing it will fail to discharge its obligations under any contract or steps are taken to propose any composition, scheme or arrangement involving the Purchaser and its creditors or obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Purchaser or any of its property or enforce any security over the Purchaser's property, or repossess any goods in its possession or wind up or dissolve the Purchaser, or sequestrate its estate or dissolve it or file a petition in bankruptcy or other relief from creditors; or (c) control of the Purchaser passes from the present shareholders, owners or controllers to other persons whom the Company in its absolute discretion regards as prejudicial to its reasonable interests; or (d) in the reasonable opinion of the Company the Purchaser has ceased or threatened to cease to trade; or (e) where the Purchaser is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner; or (f) anything corresponding to any of the above occurs outside England and Wales. 12.3 If the Contract is terminated, the Company (without prejudice to its other rights but subject to any relevant mandatory laws) may do any of the following: (a) declare immediately payable (and so interest-bearing under clause 3.2) any sums owed by the Purchaser, proceed against the Purchaser for the same and/or damages, and appropriate any payment by the Purchaser as the Company thinks fit (notwithstanding any purported appropriation by the Purchaser); (b) suspend further performance of any Contract and/or any credit granted to the Purchaser on any account (and the time for delivery by the Company shall be extended by the period of such suspension); (c) take possession of and deal with (including the sale of) any materials and other assets of the Purchaser held by or on behalf of the Company and apply any proceeds of sale in payment of any sums owing under or damages arising in connection with any Contract including any interest and costs arising thereon.

 

13. INSTALLATION/PERFORMANCE

 

13.1 Where the Company has agreed to install the Goods or perform Services, the Purchaser warrants that the site where the Goods are to be used or where performance of the Service is to take place is in all respects suitable for the safe and lawful installation and operation of the Goods or performance of the Services. If the Company is to effect or supervise the installation the Purchaser shall prepare the site in good time and provide all services (including without limitation labour, power, compressed air, water, drainage, liquid cryogens, vacuum pumps, extraction, process gas, bottled gasses and environment as appropriate) for efficient installation, failing which the Company may charge for lost time of its personnel.

 

13.2 The Purchaser shall obtain any certificates or other approvals required in good time before installation and shall inform the Company of all relevant safety, building and electrical codes and other requirements relevant to installation and shall indemnify the Company against any liability or expense resulting from failure so to do.

 

13.3 If for any reason (save the Company’s default) commencement of installation of the Goods is delayed beyond the date scheduled in the Contract or initially agreed by the Company (or if none is so scheduled or agreed, then beyond the date which is ninety (90) days after the Goods were ready for shipment by the Company), the Purchaser shall pay to the Company at its request the costs which it incurs by reason of the delay plus charges at the Company’s standard service charge rate for the time which it spends on the additional work required by reason of the delay. If the delay extends by more than 30 days from the scheduled date of installation (or if none so scheduled by more 120 days after the Goods were ready for shipment) the Purchaser shall be deemed to automatically accept the Goods.

 

13.4 Subject to automatic acceptance in clause 13.3, upon completion of installation the Company shall issue and the Purchaser shall accept an installation certificate which shall be conclusive evidence of the Goods' conformity with the Contract and of their acceptance by the Purchaser.

 

13.5 The Company hereby grants to the Purchaser a non-exclusive, non-transferable licence to use the Software solely for the purposes of operating the Goods for their proper designed purpose, but the Purchaser shall have no right to access or use the source code of the Software and shall not copy all or part of the Software unless otherwise expressly agreed in writing by the Company

 

13.6 All intellectual property and other rights of whatever nature in the Software and the documentation for it are and shall remain the property of the Company or the software vendor.

 

14. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

 

14.1 All inventions, designs, copyrights and processes and all and any other intellectual / industrial property rights whether or not registered or registerable and all goodwill associated thereto relevant to the Supplies and all specifications, designs, programs or other material issued by or on behalf of the Company shall, as between the OI UK TermsConditions of QuoteSale GoodsServ Dec 2009 Company and the Purchaser remain the absolute property of the Company. The Purchaser shall not acquire any right or interest in the same except, if the AO or the Service Schedule so requires, the Company shall grant or procure the grant of a licence to (i) use relevant software with the Goods or the Serviced Goods to or at the direction of the Purchaser or (ii) use materials created specifically for the Purchaser in the cause of the Services.

 

14.2 The Purchaser acknowledges that all specifications, design, programs or other material including know-how, plans, drawings and price lists issued by or on behalf of the Company are confidential and agrees not to use them or any other confidential information of the Company for any purpose (other than the purpose for which the information was disclosed) nor reproduce them in any form nor disclose them to third parties. The Purchaser shall not seek to abstract from the Goods any confidential information regarding their design, construction or otherwise (and without limiting the foregoing shall not decompile any software comprised in the Goods or Serviced Goods) and all rights subsisting in such material are reserved

 

14.3 The Purchaser shall obtain similar undertakings as those set out in sub-clauses 14.1 and 14.2 from its customers and indemnify the Company against any liability in relation to any failure to do so. The Purchaser shall upon request sign and/or require its customers to sign the software vendors form of non-exclusive licence to use programs necessary to operate the Goods; all obligations of the Company under any contract are conditional upon execution of such agreement and compliance with its terms.

 

 

15. FORCE MAJEURE

 

The Company shall not be liable for any failure to perform its obligations hereunder by reason of any cause whatsoever beyond its reasonable control (including without limitation trade dispute; fire, flood or act of god; armed conflict; equipment or supply difficulties; any rule or action of any public authority; transportation delays; refusal or delay in granting any necessary licence or permit; or any repudiatory event by the Purchaser). In such circumstances it may terminate the Contract whereupon the Purchaser shall pay a sum equal to the costs to the Company of performing the Contract and the Company's liability shall be limited to repayment of any sums paid in respect of undelivered Goods or unperformed Services less such costs.

 

16. USE OF GOODS AND SAFETY

 

16.1The Purchaser shall: (a) procure that the Goods (including any goods the subject of services) are used only for the purposes and in the manner for which they were designed and supplied; that all persons likely to use or come into contact with the Goods receive appropriate training and copies of applicable literature supplied by the Company; that all third parties who use or may be affected by or rely upon the Goods are given full and clear warning of any hazards (both patent and latent) associated with them or limitations of their effectiveness and that safe working practices are adopted and complied with. Any warning notices displayed on the Goods must not be removed or obscured; the Purchaser shall procure that any third party to whom the Goods are supplied agrees not to remove or obscure such warning notices and shall take such steps as are reasonable to enforce such agreement; (b) promptly comply with any safety recommendation made to it in respect of the Goods (including recall of them) and shall procure compliance by all relevant persons and shall pay the Company's reasonable charges for additional or replacement parts (including installation costs) supplied by the Company for this purpose; (c) maintain and make available to the Company all records necessary to enable Goods to be traced to their ultimate buyer or user; (d) indemnify the Company against any liability in relation to any breach of the Purchaser's obligations under this clause 16.1.

 

17. PURCHASERS EQUIPMENT AND OTHER ITEMS

 

17.1 The Company shall not be liable for any defect, wastage or other loss whatsoever in, of or arising from equipment, hardware or software or other items (in this clause, “equipment”) supplied or made available to the Company by the Purchaser, which equipment shall be held, worked on and used at the Purchaser’s risk. Quantities of equipment supplied by the Purchaser shall allow for normal spoilage and fair wear and tear.

 

17.2 The Company shall not be responsible for any loss, damage, cost or expense arising from, or from any defect, mistake or inaccuracy in any equipment specified or supplied by the Purchaser. Any loss, damage, cost or expense arising therefrom shall be for the sole account of the Purchaser who shall indemnify the Company accordingly.

 

17.3 The Company’s liability for equipment specified or provided to the Company by the Purchaser or otherwise held or worked on by the Company on behalf of the Purchaser shall be limited to the lesser of the basic raw material cost of the equipment or an independent external valuation of such equipment.

 

17.4 Prior to its delivery to the Company or to the Company being granted access to it the Purchaser shall notify the Company of the nature of any equipment to be held or worked on by the Company under the Contract, shall provide adequate warnings and instructions where such equipment is or may be hazardous to safety and shall ensure that it complies with any requirements or descriptions of or in the Contract.

 

17.5 The Purchaser shall indemnify the Company for any liability in relation to such equipment which could not have been prevented by the Company acting in accordance with the Purchaser’s reasonable written instructions and was not caused by the negligence or wilful default of the Company or its employees.

 

17.6 The Purchaser shall indemnify the Company against any liability in relation to the contamination, damage or loss (due to contact with any radioactive, chemical or other hazardous materials or by the negligence of the Purchaser or its representatives) of any instruments, components, parts or materials brought by the Company to the Purchaser’s premises for the purposes of performance of the Contract.

 

18. GENERAL

 

18.1 The Purchaser shall indemnify the Company against all liability in relation to any specification, design, information or component which the Purchaser has supplied or arranged for the supply to the Company and warrants that the use of such specifications, designs, information or components will not infringe the rights of any third party.

 

18.2 No indulgence, forbearance, partial exercise of any right or remedy or previous waiver shall prejudice any rights or remedies. Remedies shall be cumulative and no choice of remedy shall preclude any other remedy.

 

18.3 The Purchaser shall not assign, mortgage, charge, sub-let or otherwise dispose of the Contract or any rights thereunder in whole or in part.

 

18.4 After termination (howsoever caused) or cancellation, clauses 3.2, 4, 10, 14, 16 and 18 shall continue in full effect.

18.5 A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract but this does not affect any right or remedy of a third party which is available apart from that Act.

 

18.6 All Contracts shall be governed and construed in accordance with English law and the Purchaser irrevocably submits to exclusive jurisdiction of the Courts of England without prejudice to which the Company may apply for any provisional or conservatory measures or interim relief in any court having jurisdiction in the Purchaser's country or the country where the Supplies are then located.