ALWAY LOUGHBOROUGH LIMITED – STANDARD TERMS AND CONDITIONS
1. VALIDITY AND ACCEPTANCE OF THESE TERMS AND CONDITIONS
1.1 Alway Loughborough Limited is a private limited company incorporated and registered in England and Wales with company number 01912799 whose registered office is at Hockey Close, Off Pavilion Way, Loughborough, Leicestershire, LE11 5GW (“Alway”).
1.2 These terms and conditions (the “Terms”), together with the Quotation and your Order (both as defined below) constitute a binding agreement (“the Agreement”) between Alway and you or the legal entity that you represent (“the Client”) for the provision of the Products and / or the Services (both as defined below).
2. DEFINITIONS AND INTERPRETATION
2.1 In these Terms, the following definitions and rules of interpretation apply:
Applicable Laws: all applicable laws, statutes, regulations and codes from time to time in force.
Business Day: a day other than a Saturday, Sunday or public holiday in England.
Confidential information: means:
(a) all information relating to the business, assets, affairs, pricing, customers, clients, suppliers, or plans, intentions, marketing strategies and campaigns or market opportunities of the Disclosing Party;
(b) all technical or commercial know-how, specifications, inventions, operations, processes, product information, initiatives, designs, trade secrets, software (including source code), information relating to research and/or development work, proposals for services or products and engineering designs and/or development;
(c) any other information of a confidential or proprietary nature not generally known to the public, whether of a technical, business, or other type, that is disclosed by the Disclosing Party arising out of or in connection with this Agreement and which could reasonably have been understood by the Receiving Party to be proprietary or confidential to the Disclosing Party (including information marked as “Confidential” by the Disclosing Party).
Deposit: any deposit amount payable to Alway by the Client, as specified in the Quotation.
Disclosing Party: a party to this Agreement or its Personnel when disclosing Confidential Information to the Receiving Party.
Fees: the fees payable by the Client to Alway for the supply of the Products and/or Services under the Agreement, as set out in an Order and/or the Order Confirmation and as further described in clause 11.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Client’s order for the supply of Products and/or Services, as set out in the Client’s purchase order form or the Client’s written acceptance of the Quotation, as the case may be.
Order Confirmation: the written document issued by Alway to the Client in response to an Order, confirming the Products and/or Services to be provided by Alway, the Fees and any other relevant information.
Products: the goods (or any part of them) set out in the Order.
Product Specification: any specification for the Products that is agreed in writing between the parties, including any related plans or drawings.
Quotation: the letter issued to the Client by Alway setting out Alway’s quotation for provision of the Products and/or Services to the Client.
Receiving Party: a party to this Agreement or its Personnel when receiving Confidential Information from the Disclosing Party.
Services: the design, manufacture, installation, commissioning and any other services, including the Deliverables, to be supplied by Alway under the Agreement as set out in the Quotation. For the avoidance of doubt, Alway will not provide any of the services that are expressly excluded in the Quotation.
Service Specification: the description or specification for the Services provided by Alway to the Client in the Quotation and/or otherwise in writing.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
2.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
(c) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
(d) A reference to writing or written includes email.
(e) Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
3. THE AGREEMENT
3.1 In response to an enquiry from the Client, Alway may issue a Quotation which shall be effective from its date of issue for the period of time set out in the Quotation. If not accepted by the Client within the specified period of time, such Quotation shall automatically lapse and be of no effect.
3.2 Quotations issued by Alway and Orders issued by the Client in response to such Quotations are not legally binding upon either party. An Agreement shall take effect and become legally binding on the parties and Alway only when:
(a) Alway issues written acceptance of the Order or acts in any manner which is consistent with fulfilling the Order; and
(b) (if applicable) the Client pays to Alway any Deposit that is due,
at which point and on which date the Agreement shall come into existence.
3.3 If the Client wishes to modify any of the Products and/or Services following commencement of the Agreement, such modification can only take place if the parties are able to agree in writing any adjustment to the Fees as a result of such modification. Any such modification shall also be subject to clause 18.7.
3.4 Any samples, drawings, descriptive matter or advertising issued by Alway and any descriptions or illustrations of the Products or Services contained in Alway’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products and Services described in them. They shall not form part of the Agreement nor have any contractual force.
3.5 These Terms apply to the Agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3.6 All of these Terms shall apply to the supply of both Products and Services except where the application to one or the other is specified.
3.7 The Client waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document of Alway that is inconsistent with these Terms.
4. DESIGN PHASE
4.1 Where a design phase is required in relation to the supply of a Product, the procedure to be followed by the parties for that design phase shall be set out in the Quotation or otherwise agreed in writing between the parties, and shall specify:
(a) whether Alway is to design a Product, a Product Specification or a manufacturing process for a Product (or a combination of some or all of these); and
(b) the process(es) to be followed by the parties to obtain Client approval of the design(s).
5. MANUFACTURE OF THE PRODUCTS
5.1 Alway shall commence manufacture of the Products:
(a) where a design phase is required, following completion of the design phase and Alway obtaining Client approval of the design(s) (such approval not to be unreasonably withheld or delayed); or
(b) where no design phase is required, in accordance with the Quotation.
5.2 Upon completion of manufacture of the Products by Alway, the Client shall either carry out a pre-delivery inspection or undertake factory acceptance testing of the Products, following such process(es) as set out in the Quotation or otherwise agreed in writing between the parties.
5.3 If the pre-delivery inspection or factory acceptance tests (as applicable) identify that the Products will not comply with the warranty given by Alway at clause 7.1 of these Terms, the Client shall inform Alway of this and the reasons for non-compliance and Alway shall take any necessary action to ensure that the Products will comply with that warranty.
6. DELIVERY OF PRODUCTS
6.1 The parties may agree in the Quotation or otherwise in writing that the Products are to be:
(a) delivered to the Client by Alway; or
(b) collected from Alway by the Client or the Client’s nominated carrier.
6.2 Alway shall ensure that:
(a) the Products to be delivered or collected are properly packed and secured in such manner as to enable them to reach their destination in good condition; and
(b) each delivery or collection of the Products is accompanied by a delivery note correctly addressed to the Client.
6.3 Where the Products are to be delivered to the Client by Alway:
(a) Alway shall deliver the Products to the location set out in the Quotation or Order (as applicable), or such other location as the parties may agree (the Delivery Location);
(b) delivery of the Products shall be completed on the completion of unloading of the Products at the Delivery Location;
(c) any dates quoted for delivery in the Quotation or Order (as applicable) are approximate only, and the time for delivery is not of the essence. Alway shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Client’s failure to provide or delay in providing Alway with adequate delivery instructions or any other information that is relevant to the manufacture or supply of the Products, in which case the time for delivery of the Products shall be extended for a reasonable period of time;
(d) if Alway fails to deliver the Products in circumstances where clause 6.3(c) does not apply, Alway’s liability shall be limited to the costs and expenses incurred by the Client in obtaining replacement products of similar description and quality in the cheapest market available, less the price of the Products;
(e) if the Client fails to accept or take delivery of the Products within two Business Days of Alway notifying the Client that the Products are ready, then except where such failure or delay is caused by a Force Majeure Event or by Alway’s failure to comply with its obligations under the Agreement in respect of the Products:
(i) delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which Alway notified the Client that the Products were ready; and
(ii) Alway shall store the Products until actual delivery takes place and charge the Client for all related costs and expenses (including insurance and the costs of attempted delivery);
(f) if, five Business Days after Alway notified the Client that the Products were ready for delivery the Client has not accepted delivery of them, Alway may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Products or charge the Client for any shortfall below the price of the Products;
6.4 Where the Products are to be collected from Alway by the Client or the Client’s nominated carrier:
(a) the Client shall collect the Products from Alway’s premises within three Business Days of Alway notifying the Client that the Products are ready for collection;
(b) collection of the Products shall be completed on the completion of loading of the Products at Alway’s premises;
(c) if the Products are not collected by the Client within two Business Days of being notified that the Products are ready for collection then, except where such failure is caused by a Force Majeure Event or Alway’s failure to comply with its obligations under the Agreement in respect of the Products:
(i) collection of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Alway notified the Client that the Products were ready; and
(ii) Alway shall store the Products until actual collection takes place, and charge the Client for all related costs and expenses (including insurance); and
(d) if, ten Business Days after the day on which Alway notified the Client that the Products were ready for collection the Client has not actually collected them, Alway may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Client for any excess over the price of the Products or charge the Client for any shortfall below the price of the Products.
6.5 The Products may be delivered or collected by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Agreement. Any delay in delivery or defect in an instalment shall not entitle the Client to cancel any other instalment.
6.6 Following delivery and, where applicable, installation and/or commissioning of the Products by Alway, the Client shall inspect the Products and their installation with the representatives of Alway and shall sign the completion document provided by Alway to confirm the Client’s acceptance of such delivery, installation and/or commissioning.
7. QUALITY OF PRODUCTS
7.1 Alway warrants that on delivery, and for a period of 6 months from the date of delivery (Warranty Period), the Products shall:
(a) conform in all material respects with any applicable Product Specification;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Products Act 1979); and
(d) be fit for any purpose held out by Alway.
7.2 Subject to clause 7.3, if:
(a) the Client gives notice in writing to Alway during the Warranty Period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 7.1;
(b) Alway is given a reasonable opportunity of examining such Products; and
(c) the Client (if asked to do so by Alway) returns such Products to Alway’s premises at the Client’s cost,
Alway shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
7.3 Alway shall not be liable for the Products’ failure to comply with the warranty set out in clause 7.1 if:
(a) the Client makes any further use of such Products after giving notice in accordance with clause 7.2;
(b) the defect arises because the Client failed to follow Alway’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (if there are none) good trade practice regarding the same;
(c) the defect arises as a result of Alway following any drawing, design or specification supplied by the Client;
(d) the Client alters or repairs such Products without Alway’s written consent;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
(f) the Products differ from the Product Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7, Alway shall have no liability to the Client in respect of the Products’ failure to comply with the warranty set out in clause 7.1.
7.5 These Terms shall apply to any repaired or replacement Products supplied by Alway.
8. TITLE AND RISK
8.1 The risk in the Products shall pass to the Client on completion of delivery or collection of the Products.
8.2 Title to the Products shall not pass to the Client until Alway receives payment in full (in cash or cleared funds) for the Products.
8.3 Until title to the Products has passed to the Client, legal and beneficial ownership of those Products shall remain with Alway and the Client shall:
(a) store the Products separately from all other goods or products held by the Client and ensure that they remain clearly identifiable as being Alway’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(c) maintain the Products in satisfactory condition and keep them insured against all risks for their full price on Alway’s behalf from the date of delivery or collection;
(d) notify Alway immediately if the Client becomes subject to any of the insolvency related events listed in clause 16.2(c); and
(e) give Alway such information as Alway may reasonably require from time to time relating to the Products and the ongoing financial position of the Client.
8.4 Subject to clause 8.5, the Client may resell or use the Products in the ordinary course of its business (but not otherwise) before Alway receives payment for the Products. However, if the Client resells the Products before that time:
(a) it does so as principal and not as Alway’s agent; and
(b) title to the Products shall pass from Alway to the Client immediately before the time at which resale by the Client occurs.
8.5 At any time before title to the Products passes to the Client, Alway may:
(a) by notice in writing, terminate the Client’s right under clause 8.4 to resell the Products or use them in the ordinary course of its business; and
(b) require the Client to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another product and if the Client fails to do so promptly, enter any premises of the Client or of any third party where the Products are stored in order to recover them.
9. SUPPLY OF SERVICES
9.1 Alway shall provide the Services to the Client in accordance with any applicable Service Specification in all material respects.
9.2 Alway shall use reasonable endeavours to meet any performance dates for the Services specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
9.3 Alway reserves the right to amend the Service Specification if necessary to comply with any Applicable Law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Alway shall notify the Client in any such event.
9.4 Alway warrants to the Client that the Services will be provided using reasonable care and skill.
10. CLIENT OBLIGATIONS
10.1 The Client shall at its own expense:
(a) ensure that the terms of the Order and any information it provides in relation to the Service Specification or the Product Specification are complete and accurate;
(b) co-operate with Alway in all matters relating to the Services;
(c) provide Alway and its Personnel with such access to the Client’s premises, Personnel and facilities as is reasonably required by Alway to provide the Services;
(d) provide Alway with such information, documents, data and materials as Alway may reasonably require in order to supply the Products and/or the Services, and ensure that such information, documents, data and materials are complete and accurate in all material respects;
(e) ensure that all information relevant to and affecting the intended purpose for which the Products are to be used is brought to Alway’s attention;
(f) ensure that all works required in relation to installation or commissioning of the Products at the Delivery Location are carried out by or on behalf of the Client in a timely manner to enable Alway to complete the installation or commissioning of the Products on the date agreed between the Parties. The Client acknowledges and accepts that, if such works are not completed in time and prevent Alway from completing installation or commissioning of the Products on the agreed date, the Client shall be liable to pay any additional charges issued by Alway for any further visit that may be required in order to complete such installation or commissioning;
(g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
(h) comply with all Applicable Laws, including health and safety laws, relating to the Products and/or Services;
(i) keep any materials, equipment, documents and other property of Alway (Alway Materials) at the Client’s premises in safe custody at its own risk, maintain Alway Materials in good condition until returned to Alway, and not dispose of or use Alway Materials other than in accordance with Alway’s written instructions or authorisation; and
(j) comply with any additional obligations as set out in the Service Specification or the Product Specification or both.
10.2 If Alway’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):
(a) without limiting or affecting any other right or remedy available to it, Alway shall have the right to suspend performance of the Services until the Client remedies the Client Default, and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Alway’s performance of any of its obligations;
(b) Alway shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Alway’s failure or delay to perform any of its obligations as set out in this clause 10.2; and
(c) the Client shall reimburse Alway on written demand for any costs or losses sustained or incurred by Alway arising directly or indirectly from the Client Default and/or be liable for any additional charges issued by Alway in relation to additional work that Alway is required to undertake as a result of the Client’s default.
11. FEES AND PAYMENT
11.1 The Fees payable for the Goods shall be as set out in the Quotation and confirmed in the Order and shall be exclusive of all costs and charges of packaging, insurance and delivery (as applicable) of the Products.
11.2 Unless specified in the Quotation and confirmed in the Order or otherwise agreed in writing between the parties, the Fees payable for the Services shall be calculated on a time and materials basis:
(a) such Fees shall be calculated in accordance with Alway’s standard daily fee rates (a copy of which is available on request) or as set out in the Services Specification;
(b) Alway’s standard daily fee rates for each individual person are calculated on the basis of an 8.5 hour day from 8.00 am to 5.00 pm worked on Business Days;
(c) Alway shall be entitled to charge an overtime rate of 50% of the standard daily fee rate on Business Days, 50% of the standard daily fee rate on Saturdays and Sundays and 100% of the standard daily fee rate on public/bank holidays in England, in each case on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 11.2(b); and
(d) Alway shall be entitled to charge the Client for any expenses reasonably incurred by the Personnel engaged by Alway in connection with the Services including, but not limited to, travelling expenses, hotel costs, subsistence, and any associated expenses and for the cost of services provided by third parties and required by Alway for the performance of the Services and for the cost of any materials
11.3 Alway reserves the right to:
(a) increase its standard daily fee rates for the Services, provided that such fee rates cannot be increased more than once in any 12-month period. Alway shall give the Client written notice of any proposed increase not less than 4 weeks before the date on which the proposed increase is to take effect. If the proposed increase is not acceptable to the Client, it shall notify Alway in writing within 2 weeks of the date of Alway’s notice and Alway shall have the right, without limiting its other rights or remedies, to terminate the Agreement by giving 2 weeks’ written notice to the Client; and
(b) by giving written notice to the Client at any time up to 3 Business Days before delivery of the Products, increase the price of the Products to reflect any increase in the cost of the Products to Alway that is due to:
(i) any factor beyond Alway’s control (including without limitation foreign exchange fluctuations, increases in taxes and duties or increases labour, materials or other manufacturing costs);
(ii) any request by the Client to change the delivery date(s), quantities or types of Products ordered, or the Product Specification; or
(iii) any delay caused by any instructions of the Client or failure of the Client to give Alway adequate or accurate information or instructions.
11.4 Alway shall invoice the Client for provision of the Products and/or Services at the stages and/or time intervals specified in the Quotation. If no stages or intervals are set out in the Quotation, Alway shall invoice the Client for the Products upon completion of delivery or collection of the Products and for Services monthly in arrears.
11.5 In consideration of the supply of Products and/or Services by Alway, the Client shall pay:
(a) the Deposit immediately upon issuing the Order; and
(b) any other Fees within 30 days of the date of an invoice correctly issued by Alway,
each payment to be made to the bank account nominated in writing by Alway and time for payment shall be of the essence of the Agreement.
11.6 All amounts payable by the Client under the Agreement are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by Alway to the Client, the Client shall, on receipt of a valid VAT invoice from Alway, pay to Alway such additional amounts in respect of VAT as are chargeable on the supply of the Products and/or Services at the same time as payment is due for the supply of the Products and/or Services.
11.7 Without prejudice to any other right or remedy that Alway may have, if the Client fails to pay any undisputed sum which is due to Alway under the Agreement by the due date for payment, then:
(a) the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Such interest shall accrue each day at the rate of 8% per annum above the Bank of England base rate from time to time; and
(b) Alway may suspend provision of all or part of the Products and/or Services until payment of the overdue sum has been made in full if the Client remains in default not less than 14 days after being notified in writing to make such payment.
11.8 The Client shall pay all amounts due under the Agreement in full without any set-off, counterclaim, deduction or withholding except as required by law. Alway may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Alway to the Client.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in or arising out of or in connection with the design, manufacture and supply of the Products and/or the provision of the Services (other than Intellectual Property Rights in any materials provided by the Client) shall be owned by Alway or its licensor.
12.2 Alway grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to use Alway’s Intellectual Property Rights solely to the extent required to enable the Client to receive and use the Products and Services in its business. Such licence does not permit the Client to publish, market or exploit Alway’s Intellectual Property Rights or to disclose, sub-license, assign or otherwise transfer them to any third party.
12.3 The Client grants Alway a fully paid-up, non-exclusive, royalty-free non-transferable licence to use any materials provided by the Client to Alway during the term of the Agreement for the purpose of providing the Products and/or the Services to the Client.
13. CONFIDENTIALITY
13.1 The Receiving Party undertakes that it shall at all times:
(a) keep the Confidential Information secret and confidential;
(b) not use or exploit any Confidential Information for its own benefit or in any way other than the proper performance of its duties under this Agreement, unless it has obtained prior written consent from the Disclosing Party to do so;
(c) not directly or indirectly disclose or make available any Confidential Information in whole or in part to any third party, except as expressly permitted by, and in accordance with, this Agreement or with the prior written consent of the Disclosing Party;
(d) only make such copies of the Confidential Information as are strictly necessary for the proper performance of its duties under this Agreement and clearly mark all copies as confidential; and
(e) apply at least the same security measures and degree of care to the Confidential Information as the Receiving Party applies to its own confidential information, which the Receiving Party warrants as providing adequate protection from unauthorised disclosure, copying or use. In the event a party becomes aware of, or suspects, any loss or unauthorised disclosure or use of the Disclosing Party’s Confidential Information, it shall promptly notify the Disclosing Party.
13.2 The Receiving Party may disclose Confidential Information:
(a) to its Personnel or advisers only where those people need to know such information for the purposes of exercising the Receiving Party’s rights or carrying out its obligations under or in connection with this Agreement on the basis that it:
(i) informs such Personnel or advisers of the confidential nature of the Confidential Information;
(ii) ensure such Personnel or advisers comply with this clause 13; and
(iii) procures that such Personnel or advisers are subject to obligations of confidentiality at least as extensive and binding upon them as the terms of this Agreement are upon the Receiving Party;
(b) to the minimum extent required by Applicable Law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.2(b), it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.
13.3 The Receiving Party shall be liable for the actions or omissions of its Personnel and advisers in relation to the Confidential Information as if they were the actions or omissions of the Receiving Party.
13.4 Upon written request by the Disclosing Party, the Receiving Party shall:
(a) destroy or permanently erase or return to the Disclosing Party all documents and materials (including any copies) containing, reflecting, incorporating or based on the Disclosing Party’s Confidential Information; and
(b) where requested, certify in writing to the Disclosing Party that it has complied with the requirements of this clause, provided that the Receiving Party may retain documents and materials containing, reflecting, incorporating, or based on the Disclosing Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority, and to the extent reasonable to permit the Receiving Party to keep evidence that it has performed its obligations under this Agreement. The provisions of this Agreement shall continue to apply to any documents and materials retained by the Receiving Party under this clause 13.4(b).
13.5 This clause 13 shall survive termination of the Agreement.
14. DATA PROTECTION
14.1 The following definitions apply in this clause 14:
(a) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(b) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
(c) UK GDPR: the General Data Protection Regulation (EU) 2016/679 as it forms part of domestic law in the UK by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the UK or a part of the UK from time to time).
14.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 14 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
14.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Controller and Alway is the Processor.
14.4 Without prejudice to the generality of clause 14.2, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Alway for the duration and purposes of the Agreement.
14.5 Without prejudice to the generality of clause 14.2, Alway shall, in relation to any Personal Data processed in connection with the performance by Alway of its obligations under the Agreement:
(a) process that Personal Data only on the documented written instructions of the Client provided to Alway from time to time;
(b) ensure that it has in place appropriate technical or organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all Personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside the UK or the EU unless the prior written consent of the Client has been obtained and the following conditions are fulfilled:
(i) there are appropriate safeguards in place in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies; and
(iii) Alway complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred.
(e) assist the Client, at the Client’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, privacy impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Client without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Client, delete or return to the Client all Client Personal Data and copies thereof to the Client on termination of the Agreement unless required by Domestic Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 14.
14.6 The Client acknowledges and consents generally to the appointment by Alway of third parties as sub-processors of Personal Data under the Agreement provided that, as between the Client and Alway, Alway shall remain fully liable for all acts or omissions of its sub-processors.
15. LIMITATION OF LIABILITY
15.1 The Client agrees that the express obligations of and warranties given by Alway in these Terms 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 anything supplied or services provided under or in connection with this Agreement including (without limitation) as to the condition, quality performance, satisfactory quality or fitness for purpose of the Products, the Services, or any part of them.
15.2 The Client acknowledges that Alway’s obligations and liabilities in respect of the Products and the Services are exhaustively defined in this Agreement.
15.3 The Client is responsible for the consequences of its operation and use of the Products and acknowledges that Alway will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused, whether arising under contract, tort (including negligence) or otherwise, including (without limitation) physical damage to property, business interruption, loss of production, loss of or corruption to data, loss of profits or of contracts, loss of operation time and loss of goodwill or anticipated savings, even if Alway has been advised of their possibility.
15.4 Neither party may benefit from the limitations and exclusions set out in this clause 15 in respect of any liability arising from its deliberate default.
15.5 Nothing in this clause 15 shall limit the Client’s payment obligations under the Agreement.
15.6 Nothing in the Agreement limits or excludes any liability which cannot legally be limited or excluded, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Products and Services Act 1982 (title and quiet possession); or
(d) breach of section 2 of the Consumer Protection Act 1987.
15.7 Subject to clauses 15.4 and 15.6, Alway’s total liability to the Client (whether in contract, tort, including negligence or otherwise) arising under or in connection with the Agreement shall be limited to 100% of all amounts paid by the Client under the Agreement in the period of 12 months prior to the date on which the relevant claim first arose.
16. TERMINATION
16.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement at any time by giving 1 month’s written notice to the other party.
16.2 Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
(a) commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 14 days after being notified in writing to do so;
(b) repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
(c) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(d) suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business.
16.3 Without affecting any other right or remedy available to it, Alway may terminate the Agreement with immediate effect by giving written notice to the Client if the Client fails to pay any amount due under the Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
16.4 Upon termination or expiry of the Agreement:
(a) Alway shall immediately cease provision of the Products and Services; and
(b) the Client shall immediately pay to Alway all of Alway’s outstanding unpaid invoices and out of pocket expenses under the Agreement and interest and, in respect of Products and Services supplied but for which no invoice has been submitted, Alway shall submit an invoice, which shall be payable by the Client immediately on receipt.
16.5 Where the Client terminates the Agreement under clause 16.1, or where Alway terminates the Agreement under clause 16.2 or clause 16.3, the Client shall pay to Alway on demand any irrecoverable costs or expenses that Alway incurs as a result of such termination.
16.6 Termination of the Agreement, however arising, shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.
16.7 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
17. FORCE MAJEURE
17.1 Neither party shall be in breach of the Agreement nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly.
18. GENERAL
18.1 Assignment and other dealings. Alway may at any time assign, transfer, subcontract or deal in any other manner with all or any of its rights or obligations under the Agreement. The Client may not assign, transfer, subcontract or otherwise deal in any other manner with all or any of its rights or obligations under the Agreement without Alway’s prior written consent.
18.2 Notices.
(a) Any notice given to a party under or in connection with the Agreement shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the email address notified by the other party.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(iii) if sent by email, at the time of transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18.3 Severance. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
18.4 Waiver. A waiver of any right or remedy under the Agreement or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
18.5 No partnership or agency. Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
18.6 Third parties. A person who is not a party to the Agreement shall not have any rights to enforce its terms.
18.7 Variation. Except as set out in these Terms, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Client.
18.8 Governing law. The Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
18.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
