Terms and Conditions

Standard Service TERMS AND CONDITIONS

Our works are made subject to the F.E.S. (EX) Limited’s Terms and Conditions enclosed below.

14 days’ notice required of any cancellation, moving of start date or termination of the project or 50% charges shall be incurred along with the below;

If the use of hired equipment (such as access/plant equipment) has been included for and the client cancels the proposed start date or terminates the project with less than 72 hours’ notice, they will be liable for up to 100% of the hire charges including aborted delivery or collection fees.

If any specialist materials/equipment has been ordered for the project and the client terminates the project, they will be liable to pay for the materials as Suppliers do not accept cancellations.

BACKGROUND:

F.E.S. (EX) Limited (the “Supplier”) provides (i) electrical, instrumentation and mechanical services and related goods within hazardous and non-hazardous sites to business clients in accordance with the requirements of ATEX Directives within the member states of the European Union and DSEAR 2002 in the UK; and (ii) hazardous area compliance, inspections, installation, Process Safety,  risk assessment and project management services to business clients. These Terms (as defined below) shall solely apply to the provision of Services and supply of Goods (both as defined below) by the Supplier to its Clients.

Definitions

In these Terms, unless the context otherwise requires, the following expressions have the following meanings:

“Agreement” means the agreement entered into by the Supplier and the Client incorporating the Proposal, the Order and these Terms (or variation thereof agreed upon by both Parties in writing and for the avoidance of doubt, which will include the Software Licence Terms where the Supplier is providing Software as part of the Services to the Client), which together shall govern the provision of the Services and/or supply of the Goods by the Supplier to the Client;

“Agreement Term”  means the term of the Agreement as defined therein;

“Business Day” means, any day (other than Saturday or Sunday) on which ordinary banks are open for their full range of normal business in United Kingdom;

“Client” means the party procuring the Services and/or purchasing Goods from the Supplier who shall be identified in the Proposal;

“Commencement Date” means the date on which provision of the Services will commence, as defined in the Agreement;

“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with the Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such), including but not limited to information concerning the business, affairs, customers, clients or suppliers of the other Party;

“Default” has the meaning set out in clause 6.6;

“Delivery” has the meaning set out in clause 10.1;“Delivery Point” has the meaning set out in clause 10.1;

“Fees” means any and all sums due under the Agreement from the Client to the Supplier for provision of the Services and/or Goods (as applicable) and as specified in the Agreement;

“Goods” means any materials or products supplied by the Supplier whether in connection with the Services or by separate order, as fully detailed in the Proposal and which are provided subject to these Terms;

“IPRs”: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade-marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, 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” means the Client’s written acceptance of the Proposal in accordance with clause 4.4;

“Party or Parties” means singularly, Supplier or Client, and collectively, Supplier and Client;

Proposal means the Supplier’s quotation for the provision of the Services and/or the supply of the Goods;

“Services” means the works and services (including the provision of Software (where relevant) to be provided by the Supplier to the Client, as fully detailed in the Proposal and which are provided subject to these Terms;

“Site” refers to the agreed place at which the Services are to be carried out or the Goods are to be supplied as specified on the Proposal;

“Software” shall mean any and all software provided by the Supplier under the Agreement, including all source code, software programs and the patches, scripts, modifications, enhancements, designs, concepts or other materials that constitute the software programs necessary for the proper function and operation of the System as delivered by the Supplier to the Client as part of the Services, as fully detailed in the Proposal and which is provided subject to these Terms.

“Software Licence Terms” means the terms and conditions set out in Appendix 1 and which shall form part of this Agreement where the Supplier is providing Software to the Client as part of the Services it is providing to the Client, as fully detailed in the Proposal and which are provided subject to these Terms.

System shall mean the deliverable product as defined in the Agreement which includes the Software.

“Terms” means these terms and conditions under which the Services are to be provided or the Goods are to be supplied;

Entire Agreement

The Agreement contains the entire agreement between the Parties who confirm that they have not entered into the Agreement in reliance upon any representations that are not expressly incorporated in the same The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Agreement.

Formation of Contract

3.1               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 trade, custom, practice or course of dealing (including, but not limited to, any standard purchase terms and conditions which are included with or referenced on an Order sent by the Client and the Client acknowledges any such terms are sent for reference purposes only meaning they will not be included as part of the Agreement).

3.2               Subject to clause 4.4, an Order shall be deemed to constitute an offer by the Client to purchase the relevant Goods and/or Services from the Supplier in accordance with these Terms.

3.3               An Order shall only be deemed to be accepted by the Supplier when the Supplier issues written acceptance of the Order.

Proposals

The prices, quantities and lead-time stated in any Proposal by the Supplier are given as a best commercial estimate based on the information available at the time of Proposal, unless otherwise agreed between the Parties.

All Proposals given by the Supplier shall not constitute an offer and are only valid from the date of the Proposal and for a period of 30 days from the date of Proposal, unless otherwise stated in the same.

For the avoidance of doubt, in the event that the Client does not place an Order in accordance with clause 4.4 below within the validity period of the relevant Proposal, the Proposal shall lapse and the Supplier shall be entitled to amend the Proposal as necessary to take into account any change in the price of the provision of the Goods and/or Services which will be reflected in a new Proposal being issued by the Supplier to the Client.

An offer in the form of an Order shall be deemed to have been made by the Client when one or more of the below have been received by the Supplier from the Client:

  • a signed and returned Client acceptance of Proposal form;
  • a Client purchase order; and
  • a written confirmation by way of e-mail or post of acceptance of the Proposal from the Client.

Client’s Obligations

The Client shall use all reasonable endeavours to provide all pertinent information to the Supplier that is necessary in order for the Supplier to provide the Goods and/or perform the Services in a timely manner and in line with any agreed programme for the provision of the Goods and/or performance the Services always ensuring that such information is complete and accurate at all times.

The Client may, from time to time, issue reasonable instructions to the Supplier in relation to the relevant Goods and/or Services.  Any such instructions should be compatible with the specification of the relevant Goods and/or Services provided in the Agreement and subject to the compliance with the same by the Supplier will to the extent applicable be dealt with in accordance with clause 5.6 above.

In the event that the Supplier requires a decision, approval, consent or any other communication from the Client in order to provide the Goods and/or perform the Services or any part thereof at any time, the Client shall provide this in a reasonable and timely manner. 

If any approvals, consents, licences or other permissions are required from any third parties such as landlords, planning authorities, local authorities or similar, it is the Client’s sole responsibility to obtain these in advance of the provision of the Goods and/or performance of the Services (or the relevant part thereof).

If the nature of the Services and/or delivery of the Goods requires that the Supplier requires access to the Client’s property, access to which is lawfully controlled by the Client, the Client shall ensure that the Supplier has free and open access to perform the Services and/or make delivery of the Goods.

If the performance by the Supplier 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 (“Default”) then:

  • without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services or supply of the Goods until the Client remedies the Default;
  • the Supplier shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations under the Agreement;
  • the Client shall reimburse the Supplier on receipt of a written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Default; and
  • the Supplier shall be entitled to an extension of time in respect of the provision of the Services and/or Goods (as applicable).

Fees, Payment and Records

The Client shall pay the Fees to the Supplier in accordance with the provisions of the Agreement.

The Supplier shall invoice the Client for Fees due in accordance with the provisions of the Agreement.

All payments required to be made pursuant to the Agreement by either Party shall be made within 30 Business Days of receipt by that Party of the relevant invoice.

All payments required to be made pursuant to the Agreement by either Party shall be made in GBP £ in full and in cleared funds to such bank in United Kingdom as the receiving Party may from time to time nominate, without any set-off, withholding or deduction except such amount (if any) of tax as that Party is required to deduct or withhold by law.

All amounts payable by the Client to the Supplier under the Agreement are exclusive of VAT. Where any taxable supply for VAT purposes is made under the Agreement by the Supplier to the Client, the Client shall, on receipt of a valid VAT invoice, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the relevant Goods and/or Services  at the same time as payment is due for the supply of the Services.

Where any payment pursuant to the Agreement is required to be made on a day that is not a Business Day, it may be made on the next following Business Day.

If any amount of an invoice is disputed, the Client shall inform the Supplier of the grounds for dispute in writing within seven (7) working days from the date of invoice. During the period of resolution the Client shall pay to the Supplier the value of the invoice, less the disputed amount, in accordance with these payment terms. Upon settlement of the dispute and unless agreed otherwise, any outstanding sum shall be payable within fourteen days of the date of settlement of the dispute.

Without prejudice to sub-clause 13.3.1 of the Agreement, any sums which remain unpaid after the due date for payment, shall incur interest on a daily basis at 3% above the base rate of Bank of England from time to time until payment is made in full of any such outstanding sums.

Each Party shall:

  • keep, or procure that there are kept, such records and books of account as are necessary to enable the amount of any sums payable pursuant to the Agreement to be accurately calculated; and
  • at the reasonable request of the other Party, allow that Party or its agent to inspect those records and books of account and, to the extent that they relate to the calculation of those sums, to take copies of them.

Liability and Insurance

This clause 8 sets out the entire financial liability of the Supplier to the Client (including any liability for the acts or omissions of its employees, agents, consultants and subcontractors) in respect of:

8.1.1               any breach of this Agreement;

8.1.2               any use made by the Client of the Services or the Goods or any part  of them; and

8.1.3               any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this Agreement.

Nothing in this Agreement limits or excludes the liability of the Supplier:

8.2.1               for death or personal injury resulting from negligence;

8.2.2               for any damage or liability incurred as a result of fraud or fraudulent misrepresentation by the Supplier; or

8.2.3               any other matter which it is unlawful for the Supplier to limit or exclude its liability in respect of.

Subject to clause 8.2, the Supplier shall not be liable to the Client whatsoever for any of the following heads of loss:

8.3.1               loss of profits;

8.3.2               loss of business;

8.3.3               depletion of goodwill and/or similar losses;

8.3.4               loss of anticipated savings;

8.3.5               loss of goods;

8.3.6               loss of contract;

8.3.7               loss of use;

8.3.8               loss of, or corruption of, data or information; or

8.3.9               any special, indirect, consequential or pure economic losses, costs, damages, charges or expenses.

Subject to clause 8.2, the total liability of the Supplier under this Agreement, whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the amount of the Fees actually received by the Supplier under the Agreement at the time the Client accrued a right of action against the Supplier. The Supplier and the Client shall each ensure that they have in place all insurance cover that each of them is legally required to maintain and in addition, each shall maintain public liability insurance to a reasonable commercial level.

Warranty

The Supplier warrants that;

9.1.1               the output of any inspection services carried out by the Supplier shall be free from defects for a period of 30 days from the provision of the same, save that the Client acknowledges that any output shall be based upon the state of the equipment inspected by the Supplier on the date of inspection only; and

9.1.2               any other output of the Services provided by the Supplier will be free from defects for a period of 12 months from completion of the provision of the relevant Services that shall be defined in the Agreement.

If any defects in the product of the Services appear during the warranty period set out in clause 9.1 above, the Supplier shall rectify any and all such defects at no cost to the Client within a reasonable timescale taking into account the nature and extent of the defect and such rectification shall be the Supplier’s sole and exclusive liability in respect of any such defects.

The Supplier warrants that it has the right to provide Goods but otherwise Goods are provided on an “as-is” basis without warranty of any kind from it, express or implied, oral or written including without limitation, the implied conditions of merchantable quality, fitness for purpose and description, all of which are specifically and unreservedly excluded.

In addition and without prejudice to clause 9.3, the Supplier shall not be liable for a defect in the Goods and/or the output of any Services arising as a result of (i) the misuse or negligence of the Client and/or any third party in the use of the Goods and/or the output of any Services; (ii) fair wear and tear; and/or (iii) any failure on the part of the Client to maintain the Goods and/or output of the Services.

Without prejudice to these clauses 9.3 and 9.4 and to the extent it legally can, the Supplier assigns any manufacturer warranty it receives to the Client upon receipt of full payment of the Fees from the Client in cleared funds.

In the event that without prejudice to clauses 9.3 and 9.4, the Supplier is liable for a defect in the Goods, the Client shall re-assign the manufacturer warranty it has received under clause 9.5 above back to the Supplier and the Supplier shall at its sole discretion and cost repair or replace the relevant Goods, with such repair or replacement being the Supplier’s sole and exclusive liability in respect of any such defect.

All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.

Delivery, Risk of Loss, Damage and Retention of Title

Where the Agreement is for the supply of Goods only or the where the Services to be supplied also include the provision of Goods, delivery of the Goods (“Delivery”) shall take place at the Site specified in the Agreement (“Delivery Point”). Acceptance of any change to the Delivery Point requested by the Client shall be at the Supplier’s sole discretion and the Client shall be liable for any additional expenses incurred by the Supplier as a result of such change.

The Supplier shall arrange for suitable transport of the Goods to the Delivery Point, shall pay the cost of such transport and insurance of the Goods and subject to clause 10.3, shall bear the risk of loss or damage to the Goods until such time as Delivery is effected.  

The Supplier’s liability in respect of any claim accepted under loss or damage to the Goods in transit is limited to making up the shortage or replacing any Goods proved to have been damaged or lost in transit to the point of delivery, and the Supplier does not accept any liability for any further loss or damage suffered by the Customer, whether direct or consequential and howsoever arising.

Delivery or performance dates in relation to the supply by the Supplier of the Goods are approximate only and, unless otherwise stated in the Agreement, time is not of the essence for Delivery of the Goods and the Supplier shall not be liable to make good any loss or damages suffered by the Customer (howsoever arising) directly or indirectly from any delay in delivery.

The risk of loss and damage to the Goods shall pass to the Client immediately upon Delivery to the Site.

The Client is responsible for the payment of all import duties and taxes and for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Client shall make those licences and consents available to the Supplier prior to the relevant shipment and shall bear the costs of any delay in providing such licence which will also entitle the Supplier to an extension of time for Delivery.

Whilst the Supplier carries out the Services, it may be necessary to leave tools or equipment on Site. In such instances the Client will be informed and should therefore ensure all equipment is covered under the relevant insurance held by the Client.

All Goods shall remain the property of the Supplier until full payment has been received by the Supplier in cleared funds, whereupon full title will pass to the Client.

Confidentiality

Each Party undertakes that, except as provided by sub-clause 11.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Agreement and after its termination:

  • keep confidential all Confidential Information;
  • not disclose any Confidential Information to any other party;
  • not use any Confidential Information for any purpose other than as contemplated by and subject to the terms of the Agreement;
  • not make any copies of, record in any way or part with possession of any Confidential Information; and
  • ensure that none of its directors, officers, employees, agents, sub-contractors or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 11.1.1 to 11.1.4.

Either Party may:

  • disclose any Confidential Information to:
  • any sub-contractor or supplier of that Party;
  • any governmental or other authority or regulatory body; or
  • any employee or officer of that Party or of any of the aforementioned persons, parties or bodies;
  • to such extent only as is necessary for the purposes contemplated by the Agreement (including, but not limited to, the provision of the Services), or as required by law.  In each case that Party shall first inform the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body under sub-clause 11.2.1.2 or any employee or officer of any such body) obtaining and submitting to the other Party a written confidentiality undertaking from the party in question. Such undertaking should be as nearly as practicable in the terms of clause 11, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
  • use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Agreement, or at any time after that date becomes, public knowledge through no fault of that Party. In making such use or disclosure, that Party must not disclose any part of the Confidential Information that is not public knowledge.

The provisions of this clause 11 shall continue in force in accordance with their terms, notwithstanding the termination of the Agreement for any reason.

Force Majeure

No Party to the Agreement shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party.  Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, failure of a sub-contractor in its supply to the Supplier (including, but not limited to, any haulier engaged by the Supplier) acts of war, governmental action or any other event that is beyond the control of the Party in question (“Force Majeure Event”).

12.2               In the event that a Party to the Agreement cannot perform their obligations hereunder as a result of a Force Majeure Event for a continuous period of 60 days, the other Party may at its discretion terminate the Agreement by written notice at the end of that period.  In the event of such termination, the Supplier shall be entitled to invoice the Client for all Goods and/or Services provided prior to such Force Majeure Event and the Client shall be liable to pay such invoice in accordance with clause 7.

Agreement Term and Termination

The Agreement shall come into force on the Commencement Date and shall continue until the expiry of the Agreement Term, subject to the provisions of this clause 13.

Either Party shall have the right, subject to the agreement and written consent of the other Party and exercisable by giving not less than 30 days written notice to the other Party, at any time prior to the expiry of the Agreement Term (or any further period for which the Agreement is extended) to extend the Agreement Term for such period as is agreed between the Parties.

Either Party may immediately terminate the Agreement at any time by giving written notice to the other Party if:

  • any sum owing to that Party by the other Party under any of the provisions of the Agreement is not paid within 30 Business Days of the due date for payment;
  • the other Party commits any other breach of any of the provisions of the Agreement and, if the breach is capable of remedy, fails to remedy it within 30 Business Days after being given written notice and has provided  full particulars of the breach and requiring it to be remedied;
  • an encumbrancer takes possession, or where the other Party is a company, a receiver is appointed, of any of the property or assets of that other Party;
  • the other Party makes any voluntary arrangement with its creditors or, being a company, becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
  • the other Party, being an individual or firm, has a bankruptcy order made against it or, being a company, goes into liquidation (except for the purposes of bona fide amalgamation or re-construction and in such a manner that the company resulting therefrom effectively agrees to be bound by or assume the obligations imposed on that other Party under the Agreement);
  • anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the other Party;
  • the other Party ceases, or threatens to cease, to carry on business; or
  • control of the other Party is acquired by any person or connected persons not having control of that other Party on the date of the Agreement.  For the purposes of clause 13, “control” and “connected persons” shall have the meanings ascribed thereto by Sections 1124 and 1122 respectively of the Corporation Tax Act 2010.

For the purposes of sub-clause 13.3.2, a breach shall be considered capable of remedy if the Party in breach can comply with the provision in question in all respects.

The rights to terminate the Agreement shall not prejudice any other right or remedy of either Party in respect of the breach concerned (if any) or any other breach.

Effects of Termination

Upon the termination of the Agreement for any reason:

  • any sum owing by either Party to the other under any of the provisions of the Agreement shall become immediately due and payable;
  • the Supplier shall be entitled to be invoice and be paid for any and all Services and/or Goods provided up to the date of termination alongside any irrecoverable costs it incurs in respect of the provision of the Services and/or Goods;
  • if applicable to the Agreement, the Software Licence Terms shall automatically terminate;
  • all clauses which, either expressly or by their nature, relate to the period after the expiry or termination of the Agreement shall remain in full force and effect;
  • termination shall not affect or prejudice any right to damages or other remedy which the terminating Party may have in respect of the event giving rise to the termination or any other right to damages or other remedy which any Party may have in respect of any breach of the Agreement which existed at or before the date of termination;
  • subject as provided in clause 11 and except in respect of any accrued rights, neither Party shall be under any further obligation to the other; and
  • each Party shall (except to the extent referred to in clause 11 of the Agreement) immediately cease to use, either directly or indirectly, any Confidential Information, and shall immediately return to the other Party any documents in its possession or control which contain or record any Confidential Information.

Intellectual Property Rights

15.1               Subject to the payment of any Fees, the Supplier hereby grants to Client a worldwide, non-exclusive, non-transferable license to use any IPRs in the output of any Services solely for the Client’s use and operation of the System implemented by the Supplier as part of the Services.

15.2               The Supplier warrants to Client that:

15.2.1            it has all necessary rights and authority to execute and deliver the IPRs in any output of the Services and perform its obligations hereunder and to grant the rights granted under this Agreement to Client;

15.2.2            the IPRs in any output of the Services as delivered will not infringe or otherwise violate the rights of any third party, or violate any applicable law, rule or regulation.

15.3               Except as expressly stated in clauses 15.2.1 and 15.2.3 and as set out in the Agreement, there are no warranties, express or implied in respect of the IPRs in any output of the Services, including, but not limited to, the implied warranties of fitness for a particular purpose, of merchantability.

Data Protection

Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time in the UK relating to the use of personal data and the privacy of electronic communications, including (i) the Data Protection Act 2018 and any successor UK legislation, (ii) the retained EU law version of General Data Protection Regulation ((EU) 2016/679) (UK GDPR), and (iii) the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party (the Data Protection Legislation).

No Waiver

No failure or delay by either Party in exercising any of its rights under the Agreement shall be deemed to be a waiver of that right, and no waiver by either Party of a breach of any provision of the Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.

Further Assurance

Each Party shall execute and do all such further deeds, documents and things as may be necessary to carry the provisions of the Agreement into full force and effect.

Costs

Subject to any provisions to the contrary each Party shall pay its own costs of and incidental to the negotiation, preparation, execution and carrying into effect of the Agreement.

Set-Off

Neither Party shall be entitled to set-off any sums in any manner from payments due nor sums received in respect of any claim under the Agreement or any other agreement at any time.

Assignment and Sub-Contracting

Subject to sub-clause 21.2 the Agreement shall be personal to the Parties.  Neither Party may assign, mortgage, charge (otherwise than by floating charge) or sub-licence or otherwise delegate any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder without the prior written consent of the other Party, such consent not to be unreasonably withheld.

The Supplier shall be entitled to perform any of the obligations undertaken by it through any other member of its group or through suitably qualified and skilled sub-contractors.  Any act or omission of such other member or sub-contractor shall, for the purposes of the Agreement, be deemed to be an act or omission of the Supplier.

Time

The times and dates referred to in the Agreement shall be for guidance only and shall not be of the essence of the Agreement, save that time shall be of the essence in respect of the payment of any invoices raised by the Supplier to the Client.

Relationship of the Parties

Nothing in the Agreement shall constitute or be deemed to constitute a partnership, joint venture, agency or other fiduciary relationship between the Parties other than the contractual relationship expressly provided for in the Agreement.

Non-Solicitation

Neither Party shall, during the Agreement Term and for a period of one year following the expiry of the Agreement Term , employ or contract the services of, or solicit or entice away or attempt to solicit or entice away (whether on its own account or together with any other person and whether directly or indirectly), any person who is or was employed or otherwise engaged by the other Party at any time during the Agreement Term without the express written consent of the other Party.

If a Party breaches the provisions of clauses 24.1, then the Party in breach shall, on receipt of a written demand, pay to the other Party a sum equal to one year’s basic salary or the annual fee that was payable by the other Party to such employee or person otherwise engaged plus the recruitment costs incurred by the other Party in replacing such person.

Neither Party shall, during the Agreement Term and for a period of one year following the expiry of the Agreement Term, solicit or entice away, or attempt to solicit or entice away (whether on its own account or together with any other person and whether directly or indirectly) from the other Party any customer or client where any such solicitation or enticement would cause damage to the business of that Party without the express written consent of that Party.

Third Party Rights

No part of the Agreement shall confer rights on any third parties and accordingly the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Agreement.

Subject to clause 21 of the Agreement, the Agreement shall continue and be binding on the transferee, successors and assigns of either Party as required.

Notices

All notices under the Agreement shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.

Notices shall be deemed to have been duly given:

  • when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
  • when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
  • on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
  • on the tenth business day following mailing, if mailed by airmail, postage prepaid.

In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.

Entire Agreement

The Agreement contains the entire agreement between the Parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorised representatives of the Parties.

Each Party shall acknowledge that, in entering into the Agreement, it does not rely on any representation, warranty or other provision except as expressly provided in the Agreement, and all conditions, warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

Counterparts

The Agreement may be entered into in any number of counterparts and by the Parties to it on separate counterparts each of which when so executed and delivered shall be an original, but all the counterparts together shall constitute one and the same instrument.

Severance

In the event that one or more of the provisions of the Agreement and/or of these Terms is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) shall be deemed severed from the remainder of the Agreement and/or these Terms.  The remainder of the Agreement and/or these Terms shall be valid and enforceable.

Dispute Resolution

The Parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between their appointed representatives who have the authority to settle such disputes.

If negotiations under sub-clause 30.1 of the Agreement do not resolve the matter within 30 days of receipt of a written invitation to negotiate, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution (“ADR”) procedure.

If the ADR procedure under sub-clause 30.2 of the Agreement does not resolve the matter within 30 days of the initiation of that procedure, or if either Party will not participate in the ADR procedure, the dispute may be referred to arbitration by either Party.

The seat of the arbitration under sub-clause 30.3 of the Agreement shall be England and Wales.  The arbitration shall be governed by the Arbitration Act 1996 and Rules for Arbitration as agreed between the Parties.  In the event that the Parties are unable to agree on the arbitrator(s) or the Rules for Arbitration, either Party may, upon giving written notice to the other Party, apply to the President or Deputy President for the time being of the Chartered Institute of Arbitrators for the appointment of an arbitrator or arbitrators and for any decision on rules that may be required.

Nothing in clause 30 of the Agreement shall prohibit either Party or its affiliates from applying to a court for interim injunctive relief.

The decision and outcome of the final method of dispute resolution under clause 30 of the Agreement shall not be final and binding on both Parties.

Law and Jurisdiction

The Agreement and these Terms (including any non-contractual matters and obligations arising there from or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.

Subject to the provisions of clause 30, any dispute, controversy, proceedings or claim between the Parties relating to the Agreement or these Terms (including any non-contractual matters and obligations arising there from or associated therewith) shall be subject to the exclusive jurisdiction of the courts of England and Wales.

Appendix 1

Software License Terms

This Software License Terms is made between the Supplier and the Client and to the extent the Supplier is providing any Software to the Client, is as an essential element of the Services to be rendered by the Supplier as defined in the Agreement.

The Client and the Supplier agree that, if applicable and stated in the Agreement, these Software License Terms are deemed to be part of, and subject to, the terms of the over-arching Agreement for the supply of Services applicable to both parties.

SECTION 1   LICENSE GRANT AND OWNERSHIP

1.1               Subject to the payment of any Fees in respect of the supply of the Software, the Supplier hereby grants to Client a worldwide, annual, non-exclusive, non-transferable license to use the Software in object code form for solely for the Client’s use and operation of the System implemented by the Supplier as part of the Services.

1.2               The Supplier shall at all times own all IPRs in the Software and no proprietary rights in or to the Software shall pass to the Client at any time, whether before, during or after the Term of the Agreement. Any and all licenses, product warranties or service contracts provided by third parties in connection with the Software, hardware or other software or services provided in the System shall be delivered to Client for the sole benefit of Client.

1.3               Client may supply to the Supplier or allow the Supplier to use certain of its own proprietary information, including service marks, logos, graphics, software, documents and business information and plans that have been authored or pre-owned by Client. All IPRs to such proprietary information, service marks, logos, graphics, software, documents or business information shall remain the exclusive property of Client and shall not be used by the Supplier for any purposes other than those associated with delivery of the System.

SECTION 2   COPIES, MODIFICATION, AND USE

2.1               Client may make back-up copies of the Software as may be necessary for its lawful use of the Software provided that the Client shall record and notify the Supplier of the number and storage location of all copies of the Software and take such steps as are necessary to prevent unauthorised copying.

2.2               Client may not adapt, reverse engineer, decompile, disassemble or make modifications to the source code version of the Software in whole or in part without obtaining the prior written consent of the Supplier. In no way does this Software License Terms confer any right on the Client to license, sub-license, sell or dispose of the Software (in whole or in part), or otherwise authorize the use of the Software, whether in executable form, source code or otherwise, by any third parties.

2.3               All express or implied warranties relating to the Software shall be deemed null and void in case of any modification to the Software made by any party other than the Supplier.

2.4               Both the PC software and tablet software are governed under annual license per device by the Supplier. This allows the Client to use the supplied Software on their own Site and to make backup copies for disaster recovery as detailed in clause 2.1 of this Software Licence Terms. For the avoidance of doubt, this does not give the Client the right to give or sell the Software (or any part of the Software) to any third party or contracted company working for the Client without obtaining the prior written consent from the Supplier. Any failure to comply with this clause 2 will entitle the Supplier to immediately terminate the Agreement and this Software Licence Terms.

SECTION 3   WARRANTIES AND REPRESENTATIONS

3.1               The Supplier warrants to Client that:

3.1.1            it has all necessary rights and authority to execute and deliver this Software License Agreement and perform its obligations hereunder and to grant the rights granted under this Software License Agreement to Client;

3.1.2            the Software provided by the Supplier under this Software License, including all intellectual property provided hereunder, are original to the Supplier; and

3.1.3            the Software, as delivered as part of the System, will not infringe or otherwise violate the rights of any third party, or violate any applicable law, rule or regulation.

3.2               The Supplier further warrants that, throughout the System Warranty Period, the executable object code of Software and the System will perform substantially in accordance with the Specification as defined in the Agreement. If the Software fails to perform as specified and accepted the remedies available to the Client are as set out in clause 8 of the Agreement.

3.3               Except as expressly stated in clauses 3.1 to 3.4 and as set out in the Agreement, there are no warranties, express or implied, including, but not limited to, the implied warranties of fitness for a particular purpose, of merchantability.

SECTION 4   INDEMNIFICATION

4.1               Subject always to clause 8 of the Terms, the Supplier hereby indemnifies and shall defend and hold harmless Client from and against all liabilities, damages, losses, costs or expenses, including but not limited to reasonable professional fees and expenses, arising out of or in connection with any claims by any third party that the Software or system here provided by the Supplier infringes or otherwise violates any intellectual property rights of any such third party.

4.2               Client hereby indemnifies and shall defend and hold harmless the Supplier from and against all liabilities, damages, losses, costs or expenses, including but not limited to reasonable professional fees and expenses, arising out of or in connection with any claims by any third party that the Client’s use of the software or its own intellectual property rights infringes or otherwise violates any intellectual property rights of any such third party.

4.3               If either party receives notification of a potential claim by any third party that may give rise to liability under clauses 4.1 or 4.2, the indemnified party shall promptly notify the indemnifying party of the existence of such a claim and shall give the indemnifying party reasonable opportunity to defend and to settle the claim at its own expense and with counsel of its own selection. The indemnified party shall cooperate with the indemnifying party with regards to all reasonable requests of the indemnifying party, but for the avoidance of doubt, the indemnified party shall at all times have the right to fully participate in such a defence at its own expense and shall not be obligated, against its consent, to participate in any settlement which it reasonably believes would have an adverse effect on its business.

SECTION 5   TRANSFER AND TERMINATION

5.1               This license will automatically terminate unless renewed by mutual agreement on the anniversary of the license agreement or at the end of the Term as defined in the Agreement.

5.2               The Client may not transfer this license or grant any sub-licence of any rights granted in this licence to another third party without obtaining prior written consent from the Supplier.

5.3               The Supplier may terminate this license immediately upon notice for failure by the Client to comply with any of terms set forth in this Software License Agreement or the Agreement. Upon termination, Client is obligated to immediately destroy the software, including all copies and modifications thereof.

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