The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in Scotland, when banks in Edinburgh are open for business.
Change of Control: when a person (or persons) controlling a corporate entity ceases to do so or if another/other person(s) acquire(s) control of it. For the purposes of the foregoing, “Control” means the power of a person to secure that the affairs of the entity are conducted in accordance with the wishes of that person, by means of the holding of shares, or voting power, or powers conferred by the constitutional or corporate documents, or any other document, regulating that or any other corporate entity.
Collection Location: has the meaning given in clause 4.1.
Commencement Date: has the meaning given in clause 3.
Conditions: these terms and conditions as amended from time to time in accordance with clause 8.
Confidentiality Agreements: means any confidentiality agreement(s) entered into by the parties prior to the date of the Contract. In the absence of prior Confidentiality Agreements, clause 12 applies.
Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.
Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
Customer Acceptance: acceptance by the Customer of the Goods/ and or Services in accordance with these Conditions.
Customer Materials: materials provided by the Customer, including but not limited to semiconductor layers (including epilayer designs and physical substrates) and patterns (including layout designs and physical masks) originating from the Customer, whether created solely by the Customer or created based on design collaboration with the Supplier or incorporating Supplier Materials.
Data Protection Legislation: data protection legislation (as applicable) in the UK, the European Union, the USA, and elsewhere, in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authorities and applicable to a party.
Deliverables: the deliverables set out in the Quote.
Force Majeure Event: has the meaning given to it in clause 16.
Foreground IPR: the Intellectual Property Rights arising directly or indirectly, from or in relation to the Contract, the Deliverables, the Goods and /or the Services created or conceived by the Supplier, Customer or jointly by the Supplier and Customer, while subject to the terms of the Contract or the terms of the Confidentiality Agreements.
Goods: the goods (or any part of them) set out in the Quote.
Goods Specification: any specification for the Goods, including but not limited to any relevant specification of process modules the Goods have to be subject to, in-line metrology result specification, parametric performance specification, reliability performance specification, yield requirements, plans or drawings, that is agreed in writing and included in the Quote.
Intellectual Property Rights: patents, utility models, design rights, 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 and trade dress, goodwill and the right to sue for passing off or unfair competition, 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 Customer’s order which shall be deemed to be an offer to purchase Goods and/or Services in accordance with these Conditions.
Order Confirmation: means the Seller’s acceptance of the Order.
Quote: the quote or proposal issued by the Supplier detailing the Services and Goods, or as superseded by a subsequent requote issued by the Supplier as an acceptance of a change request by the Customer.
Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification.
Service Specification: the description or specification for the Services provided in the Statement of Work.
Statement of Work: the statement of work (if any) contained in the Quote.
Supplier: Sivers Photonics Ltd, with company number SC211759 and having its registered office at 12/13 The Capital Building, St Andrew Square, Edinburgh, EH2 2AF.
Supplier Background IPR: means Intellectual Property Rights belonging to the Supplier at the time of formation of the Contract and used in relation to the Contract, the Deliverables, the Goods and/or the Services.
Supplier Materials: materials provided by the Supplier, including but not limited to semiconductor layers (including epilayer deigns and physical substrates) and patterns (including layout designs and physical masks) originating from the Supplier, created solely by the Supplier without design collaboration with the Customer.
Supplier’s Performance Obligations: the obligations of the Supplier to supply the Customer with Goods and/or Services as set out in these Conditions.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including (as applicable from time to time) the Data Protection Act 2018, the General Data Protection Regulation ((EU) 2016/679); the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(a) A reference to a party includes its successors and permitted assigns.
(b) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(c) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(d) A reference to writing or written includes email.
(a) The Supplier and the Customer acknowledge that some of the Goods referred to in these Conditions are bespoke goods and/ or prototype goods and as such cannot be expected to benefit from all of the warranties (implied or not) that usually come with more standard goods.
(b) Design Services, including Non-recurring Engineering Services, in the Deliverables or defined in a Design Services Specification in the Quote, will not have an outcome that is guaranteed.
2.1 No Order may be placed by the Customer without reference to a Quote.
2.2 An Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when the Supplier issues written Order Confirmation at which point and on which date the Contract shall come into existence (Commencement Date).
2.4 Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s marketing collateral including on-line content, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.6 Any Quote given by the Supplier shall not constitute an offer and is only valid for a period of 30 days from its date of issue.
2.7 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 The Goods are described in the Quote.
3.2 To the extent that the Goods are to be manufactured in accordance with a Goods Specification and/or Customer Materials supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Goods Specification and/or Customer Materials. This clause 2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3.4 The Goods Specifications must be suitably detailed and meet with the Supplier’s approval. The Supplier shall in its absolute discretion be entitled to reject any Goods Specification that in the opinion of the Supplier does not provide sufficient detail or otherwise does not satisfy the Supplier’s requirements.
3.5 In the event that the Goods Specifications contain certain line items that are TBD, the Supplier shall be entitled to proceed with processing on the understanding that the Supplier shall not be liable for the outcome.
3.6 The Supplier and the Customer acknowledge the Customer Materials are often inherently fragile and that accordingly breakages are common in even the most careful of processing conditions. The Customer shall ensure that it provides replacement Customer Materials ready for immediate use by the Supplier in the event that such breakages occur. Where breakages occur, the Customer shall be liable to replace all Customer Materials at Customer cost, and the Supplier shall replace Supplier Materials at Supplier cost, as appropriate.
3.7 For multi-design masks, the Supplier cannot guarantee that the process will be optimal, or that the relevant specifications can be met for all designs in the multi-design masks.
3.8 Supplier’s Performance Obligations in respect of Goods shall be deemed complete in full when the relevant Goods are made available for collection.
4.1 The Customer shall collect all Goods from the Supplier’s premises at 4 Stanley Blvd, Blantyre, Glasgow G72 0BN (Collection Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.2 Delivery of the Goods shall be completed immediately upon the uplift of the Goods at the Collection Location.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If the Supplier fails to deliver the Goods, its liability shall be limited to the value specified in the Quote of the undelivered Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.5 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
(a) the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance); and
(b) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready (and as such risk in the Goods shall pass on said deemed delivery).
4.6 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready Customer has not taken possession of them, the Supplier may dispose of part or all of the Goods and charge the Customer for the Goods and any reasonable storage costs incurred in storing them following the due date for collection.
4.7 The Supplier may deliver the Goods by way of multiple consignments, which shall be invoiced and paid for separately. Each consignment shall constitute a separate contract. Any delay in delivery or defect in a consignment shall not entitle the Customer to cancel any other consignment.
5.1 The Supplier and the Customer acknowledge that some of the Goods referred to in these Conditions are bespoke goods and/ or prototype goods and as such cannot be expected to benefit from all of the warranties (implied or not) that usually come with more standard goods.
5.2 The Supplier’s processes are manual, and as such a degree of physical damage to and physical loss of material is to be expected. The Supplier shall not be liable for physical damage to or physical loss or material unless such materials comprise more than 15% of the Customer Materials in a statistically valid sample, typically thirty offs.
5.3 Physical loss is not to be confused with parametric loss or number of functioning parts per wafer (also known as yield) for which no guarantee or warranty is given, expressed or implied.
5.4 The Supplier warrants that on collection, and for a period of 30 days from the date of collection (warranty period), the Goods shall conform in all material respects with their description in the Goods Specification.
5.5 The Supplier shall not be liable if:
(a) a defect in the Goods, or a failure of the Goods to conform with the description in the Goods Specification, arises as a result of a defect in the Customer Materials, including an incompatibility with the Supplier’s processes described in the Goods Specification, or arises as a result of a defect in instructions from the Customer, or arises as a result of Outsourced processing of the Goods procured by the Customer;
(b) the Customer makes any further use of such Goods after giving the Supplier notice of an alleged defect;
(c) a defect in the Goods arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, handling, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(d) the Customer alters such Goods without the written consent of the Supplier;
(e) a defect in the Goods arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ from their description the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards;
(g) the defect in the Goods is not covered by the Goods Specification;
(h) the use of the Goods is not covered by the Goods Specification; or
(i) a defect arises because the Customer subjects the Goods to tests which are outside of what can reasonably be described as normal or routine tests.
5.6 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.4.
5.7 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.1 The risk in the Goods shall pass to the Customer on collection at the Collection Point. Collection of Goods shall be deemed as Customer Acceptance.
6.2 In the event that the Customer consumes the Goods or subjects them to further processing, it shall be deemed to have taken control of them such that full payment shall be due and title shall pass to Customer upon such payment. Otherwise title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) store the Goods in such a way as to ensure that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 3(b) to clause 14.3(d); and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 3(b) to clause 14.3(d), then, without limiting any other right or remedy the Supplier may have the Supplier may at any time:
(i) require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6.5 The Supplier and the Customer acknowledge that other than as expressly provided for in this Agreement or required by law, the Supplier shall not be obliged (for whatever reason) to accept the return of any Goods previously supplied to the Customer.
7.1 The Supplier shall supply the Services to the Customer in accordance with the Service Specification using reasonable endeavours.
7.2 The Supplier shall use its reasonable endeavours to meet any performance dates for the Services specified in the Quote, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier 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 the Supplier shall notify the Customer in any such event.
7.4 Design Services, including Non-recurring Engineering Services, in the Deliverables or defined in a Design Services Specification in the Quote, will not have an outcome that is guaranteed.
7.5 Suppliers’ Performance Obligations in respect of Services shall be deemed complete in full when the relevant Services detailed in the Quote are complete. Customer Acceptance shall be granted in full upon receipt of the Deliverables or notification of completion of work, at which point full payment shall be due and title and risk shall pass to Customer upon such payment.
8.1 The Customer shall:
(a) ensure that the terms of the Order and any information it provides in the Service Specification and the Goods Specification are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(d) 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;
(e) comply with all applicable laws, including health and safety laws; and
(f) comply with any additional obligations as set out in the Service Specification and the Goods Specification.
8.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
(b) the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 2; and
(c) the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9.1 The price for Goods shall be the price set out in the Quote and shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
9.2 The charges for Services shall be detailed in the Quote.
9.3 The Supplier shall have right to payment in full for all Goods and Services which have been accepted or are deemed to be accepted by Customer in accordance with these Conditions.
9.4 The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(i) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs)
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(iii) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.5 In respect of Goods and Services, the Supplier shall invoice the Customer at the times or invoice triggers detailed in the Quote.
9.6 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
9.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 14 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.10 No failure or omission to collect Goods shall affect the due date for payment for them.
10.1 All Foreground IPR shall be owned by the Supplier, and the Customer hereby assigns to the Supplier all right, title and interest it has or may have in and to any Foreground IPR which has come or comes into existence by sole or joint creation or conception by the Customer and full details of it shall be disclosed to the Supplier promptly as the same comes into being.
10.2 The Supplier Background IPR shall at all times remain the property of the Supplier.
10.3 The Supplier shall grant to the Customer, or shall procure the direct grant to the Customer of, a licence to use the Deliverables on terms to be agreed.
10.4 The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services and/or the Deliverables to the Customer.
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation.
11.2 Without prejudice to the generality of clause 1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract.
12.1 The Supplier and the Customer shall both adhere to the terms of the Confidentiality Agreements at all times. In the event of a conflict between the terms of a Confidentiality Agreement and these Conditions, the former shall prevail.
12.2 For the purposes of this Agreement the following information shall be deemed “Confidential Information”: any confidential information relating to the Supplier, Supplier Materials, Customer or Customer Materials, any Intellectual Property Rights belonging to the Supplier or the Customer, information relating to the Goods and/or the Services.
12.3 The Supplier and the Customer agree (subject to clause 12.4) to keep all Confidential Information strictly confidential and not to disclose the same to any other party whatsoever without the express written consent of the other party.
12.4 The party receiving Confidential Information may disclose the same only to the minimum extent required by (a) an order of a court of competent jurisdiction or any regulatory, judicial, governmental or similar body or any taxation authority of competent jurisdiction or (b) the laws or regulations of any country to which its affairs are subject.
12.5 The Customer shall not (other than in accordance with clause 12.4) make any announcement about the existence of this Agreement without the express written agreement of the Supplier.
13.1 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for death or personal injury caused by negligence.
13.3 Subject to clause 13.3, the Supplier’s total liability to the Customer shall not exceed the price paid by the Customer to the Supplier under Contract in respect of the relevant Goods and/or Services which are the subject of the relevant claim(s).
14.1 The Supplier may terminate the Contract immediately in the event that the Customer requests a change to the scope of the Goods and/or Services and the Supplier is not prepared to vary the Contract to accommodate such change.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract by giving the Customer not less than one month’s written notice.
14.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
(b) the other party 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), 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;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.4 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and continues to fail to do so 7 days after written demand for such payment has been sent by the Supplier; or
(b) there is a Change of Control of the Customer.
14.5 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 3(b) to clause 14.3(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14.6 Unless otherwise stated on the Quote all orders shall be accepted on a non-cancellable and non-refundable basis.
15.1 On termination of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied up until the point of termination but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) in respect of Goods and services which have not been completed, the Supplier shall submit an invoice for fair value of the work done to date and any unrecoverable costs associated therewith, which shall be payable by the Customer immediately on receipt. The Customer shall be entitled to collect any part-processed or incomplete Goods or Services for which they have been invoiced and paid. No Warranty or Liability shall be attached to such Goods or services;
(c) the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for (or otherwise dispose of them as directed by the Supplier). If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned (or otherwise disposed of as directed by the Supplier), the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (a Force Majeure Event).
17.1 Assignment and other dealings
(a) The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.
17.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract 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 (in the case of the Customer) its registered office and (in the case of the Supplier) 4 Stanley Blvd, Blantyre, Glasgow G72 0BN; or
(ii) sent by email to (in the case of the Customer: email address stated on Order) and (in the case of the Supplier: [email protected]).
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(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 at the time recorded by the delivery service; and
(iii) if sent by email, 48 hours after the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 2(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause 17.2 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract 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 17.3 shall not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights to a third party to enforce any of its terms. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of Scotland.
17.10 Jurisdiction. Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
