Standard Sales T&Cs

1. GENERAL: 

In these Conditions:

1. “Company” means L.A.C. Conveyor Systems Limited (company number 06365584) (trading as ‘MotionTech UK’).
2. “Customer” means the individual, firm, company or other party with whom the Company contracts.
3. “Goods” means goods, plant and materials which are to be supplied by the Company pursuant to the Contract (as defined below). 
4. “Special Goods” means Goods that are made or adapted specifically to the Customer’s designs and specification. 
5. “Services” means design, installation, commissioning or other services to be provided by the Company pursuant to the Contract.
6. “Warranty Commencement Date” means either:
   1. The date of delivery of the Goods (as stated on the delivery note), where the Company is contracted to supply Goods only; or
   2. The date of completion of acceptance testing (as stated in the testing certificate) or earlier beneficial use of the Goods, where the Company is contracted to also provide installation or commissioning Services in addition to the supply of Goods; or
   3. The date of completion of the relevant Services (or part thereof) where the Company is contracted to supply Services only.
7. “Software” means any software, firmware, application logic, source code, object code, algorithms, libraries, modules, scripts, configuration files and associated documentation supplied or developed by the Company under or in connection with the Contract, whether as part of the Goods or the Services, and as more particularly described in Condition 24.
8. “Software Deliverable” means any Software or related documentation which the Company is required to produce, develop or deliver pursuant to the Contract, including (without limitation) bespoke application software, programmable logic controller programs, SCADA configurations, human-machine interface programs and integration scripts.
9. “Data” means any data, information or materials in electronic form provided by the Customer to the Company for the purposes of the Contract, including (without limitation) integration data, test data, master data and customer records.
10. For the purposes of these Conditions, “Services” shall include (without limitation) software development, remote commissioning, remote diagnostics, remote software updates, remote technical support and any other services performed remotely by the Company using electronic means.
11. “Special Goods” shall include bespoke Software Deliverables developed by the Company to the Customer’s functional specification or requirements. For the avoidance of doubt, all provisions of Condition 15 applicable to Special Goods shall apply equally to such bespoke Software Deliverables.

2. QUOTATIONS / ESTIMATES 

1. Any quotation or estimates given by the Company is an invitation to the Customer to make an offer only and no order of the Customer placed with the Company pursuant to a quotation or estimate or otherwise shall be binding on the Company unless and until it is accepted by the Company. Any quotation given by the Company is only valid for a period of 60 days from its date of issue.
2. A contract is made, between the Company and the Customer when the Company confirms it accepts an order placed by the Customer (“Contract”) and it shall incorporate and be subject to any valid quotation issued by the Company and these Conditions. 
3. Without prejudice to the generality of the foregoing all other terms and conditions (except those implied in favour of a seller which are not inconsistent with these Conditions) whether or not the same are endorsed upon, delivered with, or referred to in any purchase order or any other document delivered or sent by the Customer are expressly excluded. Any reference in the Contract to the Customer’s order specification, or like document will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referred to in such order, specification or like document will have effect. 
4. In case of any conflict between these Conditions and any terms specified in any proposal document issued by the Company that is incorporated by the Contract (“Proposal”), the terms set out in the Proposal will prevail.

3. PRICES 

Unless otherwise provided in the Contract:

1. The price of the Goods and Services (“Contract Price”) is exclusive of Value Added Tax which will be charged at the rate applicable at the appropriate tax point. 
2. The price of the Goods does not include the cost of carriage unless specifically stated. 
3. The Contract Price is based on material costs current at the date of quotation. Where material costs deviate from the index values recorded at the date of quotation, by reason of market movements occurring between the date of quotation and the date of actual material procurement, the Company reserves the right to reflect those movements in the Contract Price. For the avoidance of doubt, the placement of a purchase order by the Customer does not fix or freeze the Contract Price in respect of any materials not yet committed to a supplier at a fixed price at the date of that order. Price adjustments shall be calculated by reference to the following published indices: (i) Structural steel — Platts Steel Index; (ii) Plastic sheet materials — ICIS Polymer Price Index; (iii) Euro-denominated materials — Bank of England daily EUR/GBP spot rate. No adjustment shall be applied to materials already committed to a supplier at a fixed price prior to the date of procurement.
4. Where the price has been quoted in the Company’s quotation or estimate based on stated production runs and specific delivery periods, the Company reserves the right to vary the price for the Goods should the Customer require delivery over a different period. 
5. The cost of any variation or modification in the design specification, materials and/or drawings of the Goods and/or Services or any development thereof requested by the Customer after the date of the Company’s acceptance of order shall, if such variations or modification are accepted by the Company, be borne by the Customer. 
6. If commissioning is delayed by more than 5 days then full payment to the Company shall become due.

4. OFFLOADING 

1. The Customer will be responsible for all offloading of Goods from whichever form of transport is employed.

5. DELIVERY AND RISK 

1. Delivery of the Goods shall be made to the Customer at the place specified in the Contract or as subsequently agreed between the parties and the risk in respect of all Goods shall pass to the Customer at the time of delivery. If no place for delivery is specified or agreed, delivery shall take place at the Company’s works immediately prior to loading for dispatch to the Customer. Notwithstanding such delivery the property in and title to the Goods shall not pass to the Customer except as provided in Condition 6. 
2. The Company shall be entitled to make delivery of the Goods by instalments and to invoice the Customer for each instalment despatched. 
3. Where damage to and/or loss of the Goods occurs before delivery to the Customer, the Company undertakes (subject as provided below to replace or (at its discretion) to repair free of charge any Goods so damaged or lost in which event the time for delivery of the damaged or lost Goods shall be extended for such replacement or repair. The foregoing undertaking of the Company is conditional upon: 
4. the Customer giving written notice of such damage or loss with reasonable particulars therefore to the Company and to the carriers (if other than the Company) within 14 days of receipt of the Company’s or the carriers delivery advice or other notification of dispatch; and
5. The Customer, if requested by the Company and at the Customer’s cost returning any damaged Goods to the Company’s works within one month of receipt of such request. 
6. Where the Goods are not manufactured or supplied directly by the Company and are delivered direct to the Customer from the manufacturer or supplier the Company shall not be liable for any damage to or loss of the Goods whatsoever or whensoever occurring. 
7. Save as expressly provided in these Conditions, the Company shall not have any liability whatsoever for or in connection with any damage to or loss of the Goods in transit to the contracted place of delivery.
8. Where the Contract includes Software Deliverables, delivery of such Software Deliverables shall be deemed to occur upon whichever of the following events is the earlier: (i) the Company providing the Customer with access credentials, a download link or physical media by which the Software Deliverable may be accessed or installed; or (ii) the Customer first making productive use of the Software Deliverable. Risk of loss of or damage to Software Deliverables shall pass to the Customer upon such deemed delivery. Where a Software Deliverable is supplied by a third-party vendor directly to the Customer, the Company shall not be liable for any failure of such delivery save where caused by the Company’s negligence.
9. Where the Contract includes Software Deliverables supplied by a third-party vendor and delivered directly to the Customer, sub-clause (e) of this Condition shall apply to such Software Deliverables as if references to Goods were references to Software Deliverables.

6. TITLE 

1. Title of the property in the Goods shall remain vested in the Company (notwithstanding the delivery of possession of the same and the passing of the risk therein to the Customer, which occurs at delivery) until: 
2. the price of the Goods and/or Services comprised in the Contract; and 
3. all other money due from the Customer to the Company on any other account has been paid or satisfied in full. 
4. Until the title to and property in the Goods pass to the Customer as aforesaid the following provisions shall apply: 
5. the Company may at any time without prior notice to the Customer repossess and resell the Goods if any of the events specified in Condition 18 occur or if any sum owed by the Customer to the Company under this or any other contract is not paid on the due date of payment. For the purpose of exercising its right under this Sub-Condition the Company, its employees or agents together with all vehicles and plant considered by the Company to be necessary shall be entitled at any time without prior notice to the Customer to free and unrestricted entry upon the Customer’s premises and/or other locations where any of the Goods are situated;
6. the Customer shall store the Goods in a proper manner without charge to the Company and ensure that they are clearly identified as belonging to the Company without prejudice to Sub-Condition (i) of this Condition; and
7. The Company shall be entitled to examine the Goods in storage at any time during normal business hours and upon giving the Customer reasonable notice of its intention to do so.
8. The rights and remedies conferred upon the Company by this Condition 6 are in addition to and shall not in any way prejudice limit or restrict any other rights or remedies of the Company under the Contract.

7. PERFORMANCE 

1. The Company will use its reasonable endeavours to comply with any date or dates for dispatch or delivery of the Goods and for the supply or completion of the Services (as the case may be) as stated in the Contract, but unless the Contract otherwise expressly provides such date or dates shall constitute only statements or expectations and shall not be binding.
2. If the Company having used its reasonable endeavours fails to dispatch or deliver the Goods or to supply or complete the Services by such date or dates, such failure shall not constitute a breach of the Contract nor shall the Customer be entitled to treat the Contract as thereby repudiated or to rescind it or any related contract in whole or in part or claim compensation for such failure or for any consequential loss or damage resulting therefrom. 
3. If the Company is prevented or hindered from performing the Contract or any part thereof by any circumstances beyond its reasonable control including (but without limiting the generality of the foregoing) strikes, lockouts or other industrial action, inability to obtain materials or labour, power or machinery breakdown or failure, fire flood, civil commotion, epidemic or pandemic, cyber-attacks, ransomware or other malicious interference with IT or operational technology systems, failure or unavailability of third-party software platforms or cloud infrastructure providers, or any cause of whatever kind and whensoever occurring further performance of the Contract shall be suspended for so long as the Company is prevented or hindered provided that if the performance of the Contract is suspended for more than three (3) consecutive calendar months the Customer shall be entitled by notice in writing to the Company to terminate the Contract or to cancel any outstanding part thereof. In such circumstances the Customer shall pay the Contract rate for all Goods and Services supplied and materials used by the Company up to and including the actual date of such termination. The Company shall not have any liability to the Customer for any loss or damage suffered by the Customer as a result of the Company‘s inability to perform its obligations under the Contract by reason of any such circumstance. 
4. Where Goods are delivered or Services are supplied by instalments each such instalment shall be deemed to be sold or supplied under a separate contract to which these Conditions shall apply (mutatis mutandis) and no default in respect of any one instalment shall affect or prejudice due performance of the Contract with regard to any other instalment. 
5. Where Goods are to be supplied or delivered by the Company in accordance with periodic delivery schedules or similar notification of the delivery requirements of the Customer, the Customer shall not be entitled to cancel or vary any such delivery schedule or requirement which is expressed by the Customer to be a firm requirement without the prior reimbursement of any additional costs and expenses incurred as a result of such cancellation or variation. 
6. When expedited delivery or completion is agreed by the Company and necessitates overtime or other additional costs, the Customer shall reimburse the Company for such overtime payment or other costs. Where postponement of delivery or completion is agreed by the Company the Customer shall if required by the Company pay (i) all costs and expenses including a reasonable charge for storage and insurance of the Goods and (iii) interest on the Contract Price occasioned thereby. Further, the Goods shall be held at the Customer’s risk as from the time of postponement. 
7. If performance of the Contract is suspended at the request of or delayed through default of the Customer including (without prejudice to the generality of the foregoing) lack of, incomplete or incorrect instructions or refusal to collect or accept delivery of the Goods or Services for a period of 14, days the Company shall be entitled to payment at the Contract rate for Services already performed, Goods supplied or ordered and any other additional costs thereby incurred including storage insurance and interest provided that if the Customer fails to collect or accept delivery of the Goods or any part thereof within 28 days of written notification from the Company that the Goods are ready for collection or delivery, the Company shall be entitled (without prejudice to its remedies under the Contract for such breach) to sell or at is option destroy the Goods and to apply the proceeds of sale thereof (if sold) and the scrap value if destroyed, towards payment of all sums due to the Company under the Contract. 
8. The Company shall be entitled without prior approval of the Customer to assign sub-contract or sub-let the Contract or any part thereof, but the Customer shall not be so entitled without the prior approval, of the Company.

8. ACCEPTANCE 

1. Without prejudice to the Customer’s rights under Condition 13 the Customer shall be deemed to have accepted the Goods as being in conformity with the Contract and shall be bound to pay for them unless written notice or rejection thereof is delivered by the Customer within 14 days of collection or delivery. 
2. Save in the circumstances referred to in Condition 13 Goods accepted by the Customer cannot subsequently be returned and any claim which the Customer might otherwise have shall be deemed to have been waived. 
3. If after written notice of rejection has been given, the Customer deals with the Goods as owner thereof or if any conduct of the Customer is inconsistent with such rejection or with the ownership of the Goods by the Company, the Customer shall be deemed to have accepted the Goods and be bound to pay for them. 
4. Where the Contract includes Software Deliverables, acceptance of such Software Deliverables shall be governed by any acceptance testing procedure set out in the Specification or Proposal. Where no acceptance procedure is specified, the Software Deliverable shall be deemed accepted upon whichever is the earlier of: (i) 30 days after the date of deemed delivery under Condition 5(g); or (ii) the Customer first making productive use of the Software Deliverable in a live or operational environment. Upon deemed acceptance the Customer shall be bound to pay any outstanding sums due in respect of the Software Deliverable. The Customer’s remedy for any defects in Software Deliverables discovered after acceptance shall be governed exclusively by Condition 13(g).

9. REFERENCES 

1. At the Company’s discretion, the Contract shall be subject to the Company being satisfied as to the Customer’s credit references (which unless otherwise stated shall be one bank reference and two trade references). If the Company is not satisfied with the credit references provided, or if at any time during the Contract the Customer’s financial position materially deteriorates, the Company shall be entitled to require payment in advance or such security as it considers reasonable before proceeding further with the Contract. For Contracts which include recurring Software licence or support fees, the Company reserves the right to carry out periodic credit assessments during the term of such arrangements. 

10. PAYMENT 

1. For Contracts not involving installation or commissioning: Unless the Contract states otherwise, the Contract Price for the Goods and or Services shall comprise of a 40 per cent deposit upon placement of order by the Customer and 60 per cent upon completion of order.
2. For Contracts involving installation or commissioning: Unless the Contract states otherwise, payment by the Customer shall be as follows: 
3. Upon placement of order by the Customer: 40 per cent of the Contract Price of such Goods and Services will be paid;
4. Upon manufacture 50 per cent of the Contract Price of such Goods and Services will be paid; and
5. Upon final completion of the installation and commissioning the remaining 10 per cent of the Contract Price of such Goods and Services will be paid.
6. Where Goods and/or Services are delivered or performed by instalments, the Customer shall be obliged to pay for each instalment upon the terms set out in Sub-Conditions (a) or (b) of this Condition as relevant. 
7. The time stipulated for payment shall be of the essence of the Contract and failure to pay within the period specified shall entitle the Company upon the expiration of 7 days’ notice in writing to the Customer to suspend further performance of the Contract pending payment and in addition the Company shall be entitled without liability wholly or partially to cancel the Contract or any other condition between the Company and the Customer without prejudice to any other remedy available to the Company. 
8. Unless otherwise agreed in writing the Customer shall not be entitled to set off against any monies due to the Company under the Contract any amount claimed by or due to the Customer from the Company whether pursuant to the Contract or on any other account whatsoever. 
9. The Company shall also be entitled to interest after, as before, judgment on any part of the Contract price not paid by its due date from that date until actual payment at the rate of 5 per cent per annum above the base lending rate of Barclays Bank PLC prevailing from time to time during such period.
10. Where the Company specifies that payment will be made by letter of credit, the Customer must establish and maintain in favour of the Company an irrevocable and unconditional letter of credit with or confirmed by a bank in England satisfactory to the Company. All bank charges in connection with the letter of credit and the opening thereof shall be borne by the Customer. If for any reason the bank that is liable to make payment to the Company under the letter of credit established for that purpose fails to do so, the Customer shall nevertheless remain liable to pay for the Goods supplied and/ or Services performed. 

11. PERFORMANCE 

1. Where the Contract includes Software Deliverables, payment milestones for such Software Deliverables shall be as set out in the Proposal or, if not so stated, shall follow the payment structure in sub-condition (b) of this Condition with the milestone of "upon manufacture" being construed as "upon completion of software development and successful factory acceptance testing". Where the Contract includes recurring Software licence fees, annual support charges or software maintenance fees, such charges shall be invoiced annually in advance on each anniversary of the Warranty Commencement Date and shall be payable within 14 days of invoice. Failure to pay any recurring charge by its due date shall entitle the Company to suspend the Software licence in accordance with Condition 24(b) in addition to any other remedies available under this Condition 10.
2. Unless it is expressly stated in the Contract that any figures or statement therein or in the Company’s catalogues, sales literature or in any relevant drawings or any other documents supplied by the Company as to the performance of the Goods are guaranteed to be accurate, such figures and statements shall be approximate and subject to a margin of 10 per cent. The Company gives no guarantees or representations that the Goods will in all cases be identical with the illustrations, weights and dimension specified in such catalogues and literature drawings or other documents due to improvements and modifications to the Goods or their specifications that may be made from time to time. The Company will notify the Customer in writing of any material alterations to any specification relating to the Goods and the Customer shall be deemed to have accepted such alteration unless in writing to the contrary is received by the Company in 7 days of the Company’s notice to the Customer. 
3. If in the Contract the Company expressly guarantees the accuracy of such performance, figures or statement (whether subject to specific margins or otherwise) then in the event of the Goods after delivery, installation or commissioning failing to achieve or comply with the same, the Company shall thereafter be entitled to a reasonable period and to reasonable facilities to enable it to bring the Goods up to the guaranteed standard of performance and the contractual time for delivery of the Goods or the installation or commissioning thereof shall be extended for such reasonable period. 

12. CONTRACTS FOR SERVICES 

1. Where the Contract includes Software Deliverables, the performance parameters of such Software Deliverables (including without limitation uptime, throughput, processing speed, integration response times and error rates) shall be as expressly stated in the Specification or Proposal. In the absence of express software performance guarantees, the Company gives no warranty that any Software Deliverable will achieve any particular level of performance, be free from errors, or operate uninterrupted. Where software performance parameters are expressly guaranteed, the provisions of sub-condition (b) of this Condition shall apply mutatis mutandis, with the Company being entitled to a reasonable period and reasonable access to remedy any failure to meet such guaranteed parameters by means of patching, reconfiguration or update before any other remedy becomes available to the Customer.

(a)    If the Contract is for or includes Services to be performed by the Company whether of installation, commissioning, repair, rectification or improvement, then unless the Contract otherwise expressly provides, the provisions of this Condition shall apply thereto: 

(b)    The Company shall be obliged to carry out such Services only during normal working hours, unless expressly otherwise agreed in writing. If the Customer requests that overtime is worked and the Company agrees thereto such overtime shall be paid for by the Customer in addition to the Contract Price at the Company’s overtime rates and a certificate of the Company’s auditors certifying the amount payable for such overtime shall be conclusive and binding on the Customer and the Company.

1. If the Services are to be performed at the premises of the Customer or at its request at the premises of any other person, the Customer undertakes to provide or to produce the provision free of charge of:
2. proper and safe storage and protection of all Goods, tools, plant and equipment and materials on site;
3. free and safe access to the site and to the point at which the Services are to be performed;
4. all facilities safely and expeditiously; and
5. all building work, fabrications, cutting away and making good required and the ready availability of all plant and equipment so as to permit any applicable Goods to be tested forthwith on completion of such Services. The Customer shall pay to the Company the amount of any expenses incurred by the Company by reason of any breach by the Customer of any of its obligations in this Sub-Condition but without prejudice to the Company’s rights to recover any loss thereby occasioned and a certificate of the Company’s auditors certifying such amounts shall be conclusive and binding upon the Company and the Customer. 
6. Where the Goods and Services are to be supplied on site, they shall at all times be at the sole risk of the Customer and if any part thereof is lost damaged or destroyed through any cause whatsoever, the Company shall be entitled to charge as a variation to the Contract for the restoration of any Goods or Services so lost, damaged or destroyed. The Customer shall for the benefit of itself and the Company and in their joint names insure and keep insured with such reputable insurers as the Company shall approve the full value of the Goods and/or Services and the costs of any relevant professional fees or services against every kind of loss, damage or destruction. The Customer shall produce to the Company on demand the policy or polices under which such insurance is effected together with the latest premium receipts. If the Customer shall default in effecting such insurance, the Company may effect the same on behalf of the Customer and the cost therefore shall be reimbursed by the Customer to the Company on demand. 

13. WARRANTY FOR DEFECTIVE GOODS AND / OR SERVICES

1. Where the Services include or consist of remote services (including without limitation remote commissioning, remote diagnostics, remote software updates, remote system monitoring or remote technical support), the following provisions shall apply: (i) the Company shall provide such remote services during its normal business hours (09:00–17:00, Monday to Friday, excluding UK Bank Holidays and the Christmas shutdown period) unless an MT-LTS agreement expressly provides for extended hours support; (ii) the Customer shall be responsible for providing and maintaining at its own cost a suitable, stable and secure internet or network connection of sufficient bandwidth to enable the Company to perform the remote services, and the Company shall have no liability for any failure or delay in performing remote services caused by the Customer’s IT infrastructure, network connectivity, firewall configuration or security settings; (iii) the Company shall take reasonable steps to ensure that any remote access to the Customer’s systems is carried out securely and in accordance with the Company’s then-current security procedures; (iv) the Customer shall ensure that appropriate access permissions and credentials are made available to the Company for the purposes of performing the remote services, and shall be responsible for revoking such access upon termination of the Contract; and (v) the Company shall not be liable for any loss of or damage to the Customer’s data, systems or operations arising from the performance of remote services save where caused directly by the Company’s negligence.
2. Where the Goods (or any part thereof) are shown to the reasonable satisfaction of the Company to be defective by reason of faulty materials or workmanship or (in the case of Goods but not Special Goods) design (“Defects”), within a period of 12 months from the Warranty Commencement Date. Where the Customer has entered into a chargeable MT-LTS aftercare agreement with the Company, the warranty period may be extended beyond 12 months for the duration of that agreement, as specified therein. The Company shall at its sole option: 
3. promptly upon receiving notice of the Defects, provide replacement Goods (or replacement parts) to the Customer free of charge; and/or 
4. refund to the Customer the Contract Price of such Goods; and/or
5. require the Customer to retain the Goods and grant the Customer a reasonable allowance in respect of such defects;

PROVIDED THAT:

1. the Goods have been installed, operated, and maintained in accordance with the manufacturer’s instructions and recommended maintenance schedules;
2. the Goods have been used within the design parameters and operating conditions specified for the Goods;
3. the Customer notifies the Company in writing within fourteen (14) days of becoming aware of any such defect; 
4. if so required by the Company all defective Goods (or parts) are first returned to the Company’s premises, carriage paid by the Customer; and
5. the Goods have been properly and correctly stored and/or used and/or maintained by the Customer.
6. The Company shall not be liable under Condition 13(a) for:
7. for fair wear and tear;
8. for damage, misuse, or neglect;
9. where Goods or parts have been modified, altered, or repaired without prior written approval from the Company;
10. Where the Goods are maintained under a valid MotionTech LifeTime Services maintenance agreement (“MT-LTS”), in addition to the delivery of replacements for the defective Goods (or parts) the Company shall also install such Goods or parts. In the absence of a valid MT-LTS the foregoing warranty shall be for the replacement of the defective Goods or parts only and the Customer shall pay for any fitting Service required.
11. Where Services are shown to the reasonable satisfaction of the Company to be defective within a period of 12 months from the Warranty Commencement Date (“Defective Services”), the Company shall promptly re-perform the Services, or at its option re-imburse the Customer for such proportion of the Services as was defective.
12. Company’s response to claims for Defects and Defective Services under this Condition 13 shall be delivered during Company’s normal working hours of (09:00 – 17:00, Monday to Friday), excluding UK Bank Holidays and the Christmas shutdown period.
13. The remedies in this Condition 13 shall be the Customer’s sole and exclusive remedies for Defects and / or Defective Services.

LIMITATIONS AND EXCLUSIONS OF LIABILITY

1. Where the Contract includes Software Deliverables, the Company warrants that such Software Deliverables will materially conform to their functional specification as set out in the Specification or Proposal for a period of 12 months from the Warranty Commencement Date ("Software Warranty Period"). The Company’s sole and exclusive obligation in respect of any failure of a Software Deliverable to so conform shall be to use reasonable endeavours to provide a patch, workaround, update or reconfiguration within a reasonable time of receiving written notice from the Customer identifying the non-conformance in reasonable detail, subject to the same conditions precedent as set out in sub-condition (a) of this Condition 13 (adapted as appropriate to software). For the avoidance of doubt: (i) the Company does not warrant that any Software Deliverable will be error-free, uninterrupted or free from minor bugs that do not materially affect functionality; (ii) the Company shall not be obliged to provide any patch or update that would require material redesign of the Software Deliverable; and (iii) the Software Warranty Period shall not be extended by reason of any patch or update provided under this sub-condition. The remedies in this sub-condition 13(g) shall be the Customer’s sole and exclusive remedies for software non-conformance during the Software Warranty Period.
2. Nothing in these Conditions shall limit any liability of the Company which cannot legally be limited, including liability for:
3. death or personal injury resulting from the negligence of the Company, its employees or agents; and/or
4. fraud or fraudulent misrepresentation; and/or
5. breach of the terms implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
6. Except as specified in Sub-Condition 14(a) the Company shall not be liable for any claims for economic loss, loss of production, loss of profit, loss of opportunity, loss of use, loss of bargain, loss of data, corruption of data, loss of software, cost of reconstituting or recovering data, system downtime or unavailability, losses arising from the malfunction or failure of Software or any system in which the Software is integrated, and/or any indirect or consequential injury loss or damage whether in contract or tort (including negligence on the part of the Company, its staff or sub-contractors).
7. Except as specified in Sub-Condition 14(a) in no event whatsoever shall the Company’s liability under the Contract exceed, for all claims in the aggregate, 70% the Contract Price.
8. Subject to Condition 14(a), to the fullest extent permitted by applicable law (including the Unfair Contract Terms Act 1977), all conditions, warranties and other terms implied by statute or common law, including but not limited to those implied by sections 13, 14 and 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982, are hereby excluded from the Contract.

15. SPECIAL GOODS 

1. The Company shall be entitled to reject any materials supplied or specified by the Customer which the Company in its judgement considers unsuitable. Additional costs incurred by the Company if such materials are judged to be unsuitable will be charged to the Customer. Quantities of materials supplied by the Customer shall be adequate to cover normal spoilage. 
2. The Company accepts no responsibility for the accuracy or suitability of patterns, designs, tools or drawings, particulars or specifications relating to Special Goods which are supplied by the Customer and the Company shall be entitled to accept the same as being without defect. The Company shall have no responsibility for the quality or fitness of Special Goods for any particular purpose whether or not such purpose is made known to the Company and the conditions implied by Sections 13 to 15 inclusive of the Sale of Goods Act 1979 and by Sections 3 to 5 inclusive, 7 to 10 and 13 to 15 inclusive of the Supply of Goods and Services Act 1982 shall be excluded. The Customer undertakes to indemnify the Company and to keep the Company fully and effectually indemnified against all actions, proceedings, claims, costs, loss, damage or expense whatsoever, whether arising in contract or in tort which Company may suffer or incur because of any defect in the quality, design, fitness for purpose of the Special Goods unless the same is due directly to the negligence of the Company, its employees or sub-contractors.
3. The Customer represents and warrants to the Company that neither the Special Goods nor the manufacture thereof by the Company will infringe any patent, copyright, registered design or any other proprietary right of any third party and the Customer further undertakes to indemnify the Company and  keep the Company fully and effectually indemnified against all actions, proceedings, claims, costs, loss, damage or expense whatsoever in respect of any infringement by the Company of any patent, copyright, design, trademark or any other proprietary right which the Company may suffer or incur in connection with the execution and performance of the Contract in relation to this Condition 15 and such indemnity shall extend to any amount including costs paid by the Company (upon legal advice) in settlement of any claim out of court. 

16. CUSTOMER PROPERTY 

1. All property supplied to the Company by the or on behalf of the Customer which is held by the Company for the purposes of the Contract or in transit to or from the Customer shall be deemed to be entirely at the Customer’s risk and the Company shall not be liable for any loss of or damage to such property whilst in the possession of the Company or in transit as aforesaid unless such loss or damage is due to the negligence of the Company, it employees or sub-contractors. The Customer shall insure all such property for all risks. 

17. LIEN 

1. Without any prejudice to any rights and remedies which the Company may have under the Contract, the Company shall in respect of all debts of the Customer to the Company have a general lien on all Goods and property belonging to the Customer in its possession (whether worked on or not) and shall be entitled upon the expiration of 14 days’ notice to the Customer, to dispose of such Goods or property as it thinks fits and to apply any proceeds of sale thereof towards the payment of such debts. 

18. SAFETY 

1. The attention of the Customer is drawn to the provision of Section 6 of the Health and Safety at Work Act etc. Act 1974. The Company will make available such information as is appropriate relating to the Goods and materials supplied as in its possession to ensure that as far as it is reasonably practicable they are safe and without risk to health when properly used. 
2. The Customer hereby undertakes pursuant to Section 6(8) of the Health and Safety at Work etc Act 1974 to take such measures as are communicated in writing to the Customer by the Company and to take such other steps as are sufficient to ensure, so far as is reasonably practicable that the Goods will at all times be safe and without risk to health when properly used. The Goods and materials shall not be regarded as properly used when they are used without regard to any relevant information or advice relating to their use which has been communicated to the Customer pursuant to this condition. 
3. The Company shall not be liable to the Customer in any civil proceedings brought about by the Customer against the Company under any Health and Safety Regulations made pursuant to the Health and Safety at Work etc Act 1974 where such exclusion of liability is permitted by law.
4. The Customer shall indemnify the Company in respect of any liability, monetary penalty or fine in respect of or in connection with the Goods or Services incurred directly or indirectly by the Company under the Health and Safety at Work etc. Act 1974 or any regulations, orders or directions made thereunder. 

19. INSOLVENCY AND BREACH OF CONTRACT 

1. Where the Contract includes Software Deliverables that control or directly influence safety-critical functions of the Goods or any system in which the Goods are integrated, the Specification shall identify the applicable functional safety standards (which may include without limitation IEC 61508, ISO 13849 or such other standards as are relevant to the application). The Company’s obligations in respect of functional safety compliance of any Software Deliverable shall be limited to those expressly stated in the Specification. The Customer shall be responsible for ensuring that any Software Deliverable supplied by the Company is validated, integrated and operated in compliance with all applicable functional safety requirements of the installation as a whole. The Customer shall not apply any software update, patch or modification to a Software Deliverable that controls safety-critical functions without first carrying out appropriate validation testing and, where required, obtaining the written approval of the Company. The Company shall not be liable for any safety incident arising from the Customer’s failure to comply with this sub-condition.

If any of the following events occur, are threatened or in the opinion of the 

Company are reasonably likely to occur:- 

1. The Customer shall commit any breach of the Contract and shall fail to remedy such breach (if capable of remedy) within a period of thirty (30) days from receipt of notice in writing from the Company requesting such breach to be remedied or 
2. Any distress or execution is levied upon any of the Goods or property of the Customer; or 
3. The Customer (or where the Customer is in partnership any partner thereof) offers to make any arrangements with or for the benefit of its or his creditors or commits any act of bankruptcy; or 
4. The Customer (being a limited company) has a receiver appointed of the whole or part of its undertaking property or assets or an order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Customer (save for the purpose of reconstruction or amalgamation without insolvency and previously approved in writing by the Company),

The Company shall thereupon be entitled without prejudice to its other rights hereunder, forthwith to suspend further performance of the Contract and of any other contract between the Company and the Customer until the default has been made good or to determine the Contract or any other contract between the Company and the Customer or any unfulfilled part thereof or at the Company’s option to make partial supplies of Goods and/or Services. Notwithstanding any such termination, the Customer shall pay to the Company at the Contract rate for all work done, materials used and Goods delivered up to and including the date of termination and shall in addition indemnify the Company against any resulting loss, damage or expense incurred by the Company in connection with the supply or non-performance of the Contract including the cost of any material, plant or tools used or intended to be used therefore and the cost of labour and other overheads including an allowance in respect of profit. 

20. SEVERANCE 

1. If at any time one or more of these Conditions (or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted here from and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby. 

21. WAIVER 

1. The rights and remedies of the Company under the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies. 

22. CONFIDENTIALITY

1. In this Condition 22, "Confidential Information" means all information of a confidential or proprietary nature (however recorded or preserved) disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with the Contract, including without limitation: technical data, trade secrets, Software, source code, object code, algorithms, system architecture, engineering drawings, schematics, specifications, designs, business plans, financial information, customer data, pricing and any other information which is designated as confidential or which ought reasonably to be considered confidential given its nature or the circumstances of disclosure. Information shall not be Confidential Information if it: (i) is or becomes publicly available other than through breach of this Condition; (ii) was already known to the Receiving Party at the time of disclosure without any obligation of confidence; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is required to be disclosed by law or by any court or regulatory authority of competent jurisdiction, provided that the Receiving Party gives the Disclosing Party prompt prior written notice where permitted by law. Each party undertakes that it shall not at any time during the Contract or for a period of five (5) years following its expiry or termination disclose to any person any Confidential Information of the other party, except as permitted by sub-paragraph (b).
2. Each party may disclose the other party’s confidential information to:

(i)     its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this Condition 22; or

(ii)    as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

1. No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract. Each party shall maintain appropriate technical and organisational measures to protect the other party’s Confidential Information against unauthorised access, use, copying or disclosure, applying at least the same degree of care as it applies to its own confidential information and in any event no less than a reasonable standard of care. Where the Company holds any Data (as defined in Condition 1) belonging to the Customer for the purposes of performing the Contract, each party shall comply with all applicable data protection legislation including (without limitation) the UK General Data Protection Regulation and the Data Protection Act 2018. Upon expiry or termination of the Contract, each party shall, if requested by the other party in writing, promptly return or securely destroy all Confidential Information of the other party in its possession or control and, if requested, provide written confirmation of such destruction. The obligations in this Condition 22 shall survive termination of the Contract for the period specified in sub-condition (a).

23. GOVERNING LAW & JURISDICTION

1. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales.

1. The courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it. 

24. INTELLECTUAL PROPERTY

1. Ownership — All intellectual property rights in any designs, drawings, software, application logic, programmes, methods, processes or other works created by the Company in the performance of the Contract (“Company IP”) shall vest in and remain the property of the Company absolutely. For the avoidance of doubt, Company IP includes all software, source code, object code, firmware, algorithms, libraries, modules, scripts, configuration files, application logic, and any associated documentation or materials (together “Software”), whether developed before, during or after performance of the Contract. Copyright and all other intellectual property rights in the Software shall at all times remain vested in the Company (or its licensors), and no title or ownership in the Software is transferred to the Customer under any circumstances.
2. Licence — restricted, revocable, site-specific — The Company grants to the Customer a non-exclusive, non-transferable and revocable licence to use the Company IP solely for the purpose of operating and maintaining the Goods and/or the results of the Services at the Customer’s site as identified in the Contract, and for no other purpose or location. Such licence shall be conditional upon full payment of the Contract Price. The Company reserves the right to suspend, disable or terminate the licence (including by remote means or by disabling access to any Software) immediately upon written notice to the Customer in the event that: (i) the Customer fails to make any payment when due; (ii) the Customer breaches any term of this Condition 24 or Condition 22 (Confidentiality); or (iii) any of the events in Condition 19 (Insolvency and Breach of Contract) occur. Access to and use of any Software shall be restored upon the Customer remedying the breach and paying all sums outstanding to the Company’s reasonable satisfaction.
3. Prohibited acts — The Customer shall not copy, reverse-engineer, modify, adapt, sub-licence or otherwise deal with any Company IP without the prior written consent of the Company. Without limiting the foregoing, the Customer shall not, and shall procure that its employees, agents, contractors and any third party shall not: (i) access, attempt to access, extract or utilise any source code, object code, libraries, or firmware forming part of the Software; (ii) use any Software on any system, machine, or location other than as expressly permitted under sub-paragraph (b) above; (iii) transfer, share, make available, or disclose any Software or Company IP to any third party; (iv) use any Software or Company IP as a basis for, or as a component in, any competing product, system or service; or (v) remove, alter or obscure any copyright notice, proprietary marking or other notice of the Company’s intellectual property rights. Any use of the Software outside the scope of the licence granted shall be deemed a material breach of the Contract entitling the Company to terminate the Contract with immediate effect and to seek injunctive relief without the requirement to demonstrate actual loss.
4. Customer IP — All intellectual property rights in any designs, specifications, drawings or other materials supplied by the Customer to the Company for the purposes of the Contract shall remain vested in the Customer, and the Customer grants to the Company a licence to use such materials for the purposes of the Contract only.
5. Electrical and mechanical designs — Copyright and ownership of all electrical designs, mechanical designs, schematics, wiring diagrams, panel layouts and associated engineering documentation created by the Company shall remain vested in the Company absolutely, unless expressly transferred to the Customer in writing by the Company’s Managing Director. No such designs or documentation shall be reproduced, shared or used by the Customer or any third party for any purpose other than the operation and maintenance of the specific system to which they relate without the prior written consent of the Company.
6. Third-party software — Any third-party software, libraries or components incorporated in the Goods or Services shall be licensed to the Customer subject to the terms of the applicable third-party licences. The Company shall have no liability in respect of any breach by the Customer of such third-party licence terms.
7. Customer security obligations — The Customer shall maintain appropriate technical and organisational measures to protect the Software and Company IP against unauthorised access, copying or use, applying at least the same degree of care as it applies to its own confidential information and in any event no less than a reasonable standard of care. The Customer shall promptly notify the Company in writing upon becoming aware of any actual or suspected unauthorised access to, or copying of, any Software or Company IP.
8. Post-termination obligations — Upon expiry or termination of the Contract (howsoever arising), the licence granted under sub-paragraph (b) shall automatically terminate. The Customer shall immediately cease all use of the Software and any Company IP, and shall promptly destroy or return to the Company (as directed) all copies of the Software, documentation and any other materials embodying Company IP in its possession or control. The Customer shall, if requested, provide written confirmation of such destruction. Obligations under this Condition 24 shall survive termination of the Contract.