The following definitions and rules of interpretation apply in these conditions.
“Business Day”: means a day other than a Saturday, Sunday or public holiday in Northern Ireland, when banks in Belfast are open for business.
“Charges”: means the charges payable by the Customer for the supply of the Services in accordance with clause 6.
“Commencement Date” has the meaning given in clause 2.2.
“Conditions” means these terms of business.
“Contract” means the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions, as amended from time to time in accordance with clause 12.4.
“Control” means shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
“Customer” means the person or firm who purchases Services from the Supplier. Where there is more than one person constituting the Customer their obligations are joint and several.
“Customer Registration / Initial Contract Form or “(CRIC) Form” means the form supplied by the Supplier requesting information about the Customer’s name, address & contact details. This form also outlines initial details of goods and/or services to be supplied, and is to be completed by the Customer, and signed and returned to the Supplier.
“Customer Default” has the meaning set out in clause 4.9.
“Data Protection Legislation” means up to but excluding 25 May 2018, the Data Protection Act 1998 and thereafter (i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
“Direct Debit Mandate”
means the form issued by the Supplier requesting the Customer’s authorisation to collect future payments when they are due.
“Duty of Care” the duty of care imposed by Part II of the EPA and the regulations made thereunder.
“EPA” means the Environmental Protection Act 1990 (as amended or replaced from time to time.
“Equipment” means any equipment belonging to the Supplier which may be used in connection with or entrusted to the Customer under this Contract.
“Facility” means any location at which the Supplier agrees to receive or dispose of Waste.
“GDPR” means the General Data Protection Regulation ((EU) 2016/679).
“Goods” any recycled or other extracted materials and any other goods or materials which may be generated pursuant to the Services, or which may otherwise be supplied by the Supplier to the Customer.
“Legal Requirements” any requirements imposed on the Supplier or the Customer by (including without limitation) statute, law, regulation, order, decree, judgment, delegated legislation or government guidance or resulting from the contractual obligations of either party and including but without prejudice to the generality requirements imposed by virtue of the EPA.
“Services” means the services supplied by the Supplier to the Customer as agreed between the parties from time to time, which may include the collection of Waste by the Supplier from a Customer, or the supply of Goods from the Supplier to a Customer.
“Supplier” means Clearcircle Environmental (NI) Limited registered in England and Wales with company number 06180804 (and who may trade under the names of “Glassdon” and/or “Techrec”).
“Supplier Materials” has the meaning set out in clause 4.1.8.
“Transfer Note” means documentation issued by the Supplier, either annually or on an ad hoc basis, that travels with the Waste.
“Vehicle” means any vehicle used by the Customer in connection with the Services and including all tools, equipment, parts, accessories, containers, vessels and loaders of any description used with or belonging to it.
“Waste” means controlled waste within the meaning of the EPA as amended by the Environmental Protection Act 1995 (or any applicable EU Directive) which in all respects:
(i) complies with any description contained in any Transfer Note and/or quotation in relation to it respectively accepted or provided by the Supplier; and
(ii) is material of a kind which the Supplier is permitted by law to receive or dispose of at the Facility and which the Supplier is willing to so receive or dispose of.
1.2 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.
1.3 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.
1.4 A reference to writing or written includes email but not fax.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
2. BASIS OF CONTRACT
2.1 Upon enquiry by the Customer regarding the provision of Services, the Supplier will issue to the Customer a CRIC Form and a Direct Debit Mandate (if applicable), along with these Conditions. The CRIC Form constitutes an offer by the Supplier to provide such agreed Services from time to time solely in accordance with these Conditions.
2.2 The Supplier’s offer pursuant to clause 1, shall only be deemed to be accepted when the Customer returns the completed CRIC Form at which point, and on which date the Contract shall come into existence (“Commencement Date“). The Supplier shall have the right to withdraw or amend the proposed Services it is to supply to the Customer at any time before the Commencement Date.
2.3 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 trade, custom, practice or course of dealing. For the avoidance of doubt, any terms and conditions supplied by the Customer, including but not limited to, any purchase order terms shall not be incorporated into the Contract and the Customer hereby acknowledges and agrees that by signing and returning the CRIC Form it irrevocably accepts these Conditions to the exclusion of all other terms.
3. SUPPLY OF SERVICES
3.1 The Supplier shall supply the agreed Services to the Customer in all material respects.
3.2 The Supplier shall use all reasonable endeavours to meet any performance dates agreed with the Customer in advance of the Services being supplied, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.3 The Supplier reserves the right to amend the supply of Services 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.
3.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
4.5 No responsibility is accepted or warranty as to suitability is given by the Supplier in respect of the quality or fitness of Goods or Services supplied by the Supplier and any terms or conditions implied by law are, to the fullest extent possible, hereby excluded. No warranty is given by the Supplier concerning the quality or physical characteristics of Goods whether or not samples have been given previously by the Supplier except as specified by law.
3.6 Unless otherwise agreed by the Supplier, the following clauses shall apply (as applicable to the nature of the transaction) to provision of the Service:
3.6.1 Waste shall be delivered by the Customer to the Facility and Goods will be supplied at the location nominated by the Supplier save that where Goods are to be delivered or Waste is to be collected by the Supplier this shall be at the location as agreed between the parties;
3.6.2 the Supplier shall have the right to refuse admission to any Facility any Vehicle or its driver or other personnel for any reason, or at any time require them to leave the Facility;
3.6.3 the Supplier will endeavour to admit Vehicles promptly to any Facility but shall not be liable for any delays or waiting time which may occur whilst the Customer awaits attention at the Facility;
3.6.4 where the Supplier has agreed to deliver Goods or to collect Waste, the Customer shall ensure that safe proper and immediate access to the specified point of delivery or collection is made available to the Supplier or its haulier. If any costs arise from the Customer’s failure to provide such access or if the Customer cancels the contract or changes the point of delivery and/or collection, then it shall on demand reimburse those costs to the Supplier;
3.6.5 the Customer shall ensure that whilst at a Facility any Vehicle it uses to deliver Waste shall be operated wholly in accordance with the Supplier’s directions and that its driver and other personnel accompanying it shall act on such directions and in compliance with all rules and regulations applicable to the Facility from time to time;
3.6.6 the Customer shall ensure that its Vehicles are suitable for their purpose in connection with the Services and that its Vehicles and their operation are fully compliant with the law and all relevant codes of practice. The Customer shall also ensure that its Vehicles are capable of traversing the Facility to the point of discharge and returning to the public highway without external assistance. The Supplier shall not be obliged to provide any assistance by way of towing or removal or otherwise, but shall be entitled at its discretion to remove any Vehicle which has been unable to traverse the Facility and charge the Customer the cost of such removal. The Supplier shall not be responsible for any loss damage actions claims or expenses whatsoever arising from or in any way relating to the delivery or deposit of Waste or Materials whether or not in relation to the Vehicle used for delivery, and/or any assistance provided thereto) and the Customer shall indemnify, defend and hold the Supplier harmless against any such loss damage actions claims or expenses except insofar as they result in death or personal injury occasioned by the act or default of the Supplier;
3.6.7 title to Waste shall pass to the Supplier at the point at which it is (with the Supplier’s authority) deposited from the vehicle of the Customer or as the case may be collected from the Customer by the Supplier. Title shall not pass and the Customer shall not be absolved from its responsibilities under this Contract in respect of Waste or other material which does not comply with clause 4. Title to Goods shall pass to the Customer only after payment is received by the Supplier in full and cleared funds for their supply in accordance with clause 6;
3.6.8 the Customer shall ensure that Vehicles delivering Waste are weighed to the satisfaction of the Supplier and weight details are recorded both before the Waste or any part of it is unloaded and before the unloaded Vehicles leave the Facility. Weight of all Waste and Goods shall be recorded on the Supplier’s weighbridge ticket or other document in use at the time of any transaction which will be signed by the Customer or his contractor, agent or representative in accordance with the Supplier’s normal practice and requirements unless otherwise agreed in writing by an authorised officer of the Supplier;
3.6.9 the signature of the Customer or his contractor, agent or representative on the weighbridge ticket or other document (signed at the time of any transaction) shall be binding on the Customer;
3.6.10 in no circumstances shall the Supplier be liable for any injury loss or damage suffered by the Customer or any person acting under the Customer’s instructions (or property of the Customer or such person) arising whilst on premises occupied by the Customer other than death or personal injury resulting from the act or default of the Supplier;
3.6.11 where collection of Waste by the Supplier takes place at the Customer’s premises the Supplier shall not be under any obligation to provide any additional plant power or labour other than that equipment used by the Supplier in the normal course of business. The costs associated with any additional equipment, power or labour which may be required to provide the Services shall be borne by the Customer;
3.6.12 any Equipment hired by the Supplier shall be for the Customer’s sole use. Such Equipment shall include any substitute or replacement which the Supplier shall in its discretion provide;
3.6.13 the Customer’s acceptance of the Equipment shall be conclusive that the Equipment is in good order and condition. Title in the Equipment shall not pass to the Customer who shall not interfere or deal with the Equipment in any way but will keep it in his possession at the site to which it is delivered by the Supplier;
3.6.14 the Customer shall keep the Equipment clean and tidy and shall take all reasonable care of it to include only using it for the purpose and categories of Waste for which it has been supplied and shall allow the Contractor access to it at all times;
3.6.15 the Customer warrants that in respect of any Equipment placed other than on private property all permissions including that of the Highway Authority have been obtained and that all conditions subject to which any such permission is granted shall be observed at all times and that the siting of the Equipment does not infringe any statute bye-law or other Legal Requirement;
3.6.16 the Customer shall indemnify, defend and hold the Supplier harmless against all loss, cost, claim, damage, expense or fine incurred by the Supplier arising out of or in connection with any misuse or neglect of the Equipment or any failure to comply with its obligations pursuant to this clause 6; and
3.6.17 upon termination of the Contract for any reason the Supplier shall have the right immediately to repossess any Equipment at the Customer’s expense with the right to enter any premises for such purpose.
3.7 The Services are supplied subject to the availability of licensed disposal and/or storage capacity at the Facility at the time of presentation of Waste, and/or the availability of suitable Goods at any required delivery time. Any date or time agreed by the Supplier for performance of the Services will not be binding on the Supplier and time shall not be of the essence in the provision of Services. Whilst reasonable endeavours will be made to perform the Services on time the Supplier shall not except in the case of death or personal injury occasioned by the act or default of the Supplier be liable to the Customer for any loss, damage, action, claim or expense suffered or incurred as a result of non-performance of the Services at the specified date or time.
3.8 Without prejudice to clause 7, if the Supplier is delayed in performance of the Services or fails to comply with any other obligation through strikes, concerned acts of workmen, government action or restriction, fire, accident, breakdown of machinery, difficulty in obtaining materials, fuel or transport, engineering delays, or through inclement weather or suspension of operations in consequence of anticipated or actual meteorological circumstances, or without limitation any other cause whatsoever beyond its reasonable control, the Supplier shall notify the Customer accordingly and shall be entitled wholly or partially to suspend performance of the Contract or extend the time for performance of the same.
4. CUSTOMER’S OBLIGATIONS
4.1 The Customer shall:
4.1.1 ensure that any information it provides to the Supplier in connection with the Services, including but not limited to, the information supplied in the CRIC Form, is complete and accurate;
4.1.2 co-operate with the Supplier in all matters relating to the Services;
4.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier;
4.1.4 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;
4.1.5 prepare the Customer’s premises for the supply of the Services;
4.1.6 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;
4.1.7 comply with all applicable laws, including health and safety laws and any environmental laws;
4.1.8 keep all materials, Equipment, documents and other property of the Supplier (“Supplier Materials“) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
4.1.9 comply with any additional obligations as may reasonably be requested by the Supplier from time to time.
4.2 The Customer warrants and represents that any material provided to the Supplier in respect of which the Supplier shall provide the Services:
4.1.1 shall be considered Waste and such Waste shall comply with the terms of any applicable environmental legislation and any other Legal Requirement; and
4.1.2 complies with the description in the written Waste particulars to be given by the Customer to the Supplier prior to provision of the Service.
4.3 The Customer warrants that it shall clearly identify in the Waste particulars any actual or potential hazard to health or to the environment presented by the Waste and shall ensure that any hazard is clearly identified on any vessel or container in which the Waste is proffered, carried or contained. The Customer shall supply all information as the Supplier requires so as to enable compliance with the Legal Requirements and in any event shall complete and provide the Supplier with all documentation and notices relating to Waste as may be required by law.
4.4 The Customer hereby agrees to indemnify, defend and hold harmless the Supplier against all loss, costs, fines, claims or expenses howsoever incurred as a result of any failure by the Customer to comply with this clause 4 or any other environmental laws or Legal Requirements which may be applicable.
4.5 The Customer warrants and agrees that it shall not deliver or proffer to the Supplier, and the Supplier shall not be obliged to accept, any material for recycle or disposal or any other Waste that does not complying with this clause 4 or any environmental laws or Legal Requirements. In the event the Customer delivers or proffers to the Supplier any Waste or any other material that does not comply with this clause 4 or any environmental laws or Legal Requirements, the Customer shall immediately give full written particulars of any such non-compliance to the Supplier who shall decide in its absolute discretion whether to accept any such Waste or material.
4.6 If the Supplier is willing and legally able to accept at the Facility and/or load onto its Vehicles any Waste or material that does not comply with its description pursuant to clause 5, then the Supplier shall, in its absolute discretion, be entitled (at any time and notwithstanding that the Waste or material in question has already been delivered to the Supplier or accepted by the Supplier and notwithstanding that Charges may have already been agreed and/or paid) to levy reasonable additional charges (including without limitation a management charge and a charge to cover ensuring compliance with the Duty of Care) and apply reasonable revised terms, and the Customer hereby agrees that it shall pay any such additional charges and agree to any such reasonable revised terms.
4.7 If any Waste or material which does not comply with its description pursuant to clause 5 is delivered or brought to the Facility and the Supplier is not willing or legally able to retain it at the Facility, then the Customer shall remove it as and when required by the Supplier and the Customer will indemnify, defend and hold the Supplier harmless from and against all loss, costs, claims, demands and fines howsoever incurred in connection with or arising from any removal, treatment, making safe or satisfactory disposal or otherwise of the Waste or material in question undertaken by the Supplier.
4.8 If the Customer delivers or proffers Waste or material which does not comply in all respects with clause 5 or if the Supplier believes that the Customer does not have in place systems which will prevent the presentation of non-compliant Waste or material in the future then the Supplier may at its discretion suspend or terminate the Contract with no liability to pay compensation of any nature to the Customer and without prejudice to the Supplier’s other remedies for breach of contract.
4.9 Notwithstanding anything contained in this clause 4, to the extent 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“):
4.9.1 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;
4.9.2 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 these Terms; and
4.9.3 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.
5. DUTY OF CARE – CUSTOMER’S RESPONSIBILITIES
5.1 The Customer warrants and undertakes to the Supplier that it will observe and comply in every respect with and shall procure that all persons handling Waste in connection with its collection and or delivery to the Supplier or a Facility, shall observe and comply in every respect with:
5.1.1 its and their obligations under the Duty of Care; and
5.1.2 any instructions, guidance or directions applicable to the Facility from time to time made, issued or given by the Supplier.
5.2 The Customer warrants and undertakes to the Supplier that it will observe and comply in every respect with the Supplier’s general procedures in force from time to time including (without limitation) any specific requirements identified by the Supplier to the Customer.
5.3 The Customer agrees that it shall indemnify, defend and hold harmless the Supplier from and against all loss, costs, claims, demands, fines and expenses howsoever incurred in connection with or arising from any breach by the Customer of this clause 5, or any persons or third parties it engages to handle such Waste in connection with this clause 5.
6. CHARGES AND PAYMENT
6.1 The Charges for the Services shall be as agreed between the parties in advance of the Services being supplied, and in the event the Charges are not agreed, the Charges for the Services shall be calculated in accordance with the current price list of the Supplier from time to time.
6.2 The Supplier reserves the right to review the Charges on a regular basis and if the Supplier determines that the Charges should be increased, the Supplier will notify the Customer of the new Charges and the date that they will come into effect. If the Customer does not wish to accept the new Charges, it shall have the option of terminating the Contract within 30 days of notification of the changes to the Charges. In the event the Customer does not terminate the Contract within 30 days of such notification, the Supplier shall continue to provide Services in accordance with the new Charges.
6.3 To the extent the invoicing terms are not agreed between the parties in advance of the Services being supplied, the Supplier shall, at its discretion, be entitled to render invoices in respect of all or part only of the Services and/or render invoices in respect of such periods of time as it considers appropriate.
6.4 Unless otherwise agreed between the parties, the Supplier shall invoice the Customer for the supply of Services in arrears and the Customer shall pay each invoice within 30 days of the date of invoice. The Customer shall make payment 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.
6.5 Notwithstanding clause 4, the Supplier reserves the right to request payment from the Customer in advance of the Services being provided, or reserves the right to request payment on delivery, or reserves the right to request that payment is made by the Customer by way of direct debit, for example, in the event the Customer is a new customer, if the Supplier requests that certain Services are paid in advance or by direct debit, or if (in the reasonable opinion of the Supplier) the Customer has incurred payment difficulties previously. In such case, the Supplier shall be entitled to request payment in advance or that payment is made by way of direct debit, and in the event Customer does not make such payment in advance does not set up payment by way of direct debit, the Supplier shall have the right to refuse to provide the Services.
6.6 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 at the same time as payment is due for the supply of the Services.
6.7 In addition to clause 6, the Customer will be responsible for, and will indemnify the Supplier in full against, any and all landfill tax and other taxes or duties and costs, penalties and other charges, applicable to any delivery, collection or disposal of Waste or materials or supply of Goods, ultimately found to be payable by the Supplier as a result of any review carried out by the Supplier, HM Revenue & Customs or any other applicable tax authority, notwithstanding that all previously rendered invoices have been paid in full by the Customer in accordance with the Terms.
6.8 Where the Supplier is contracted to collect Waste or materials from the Customer, the Charges shall be exclusive of any disposal charges levied by the operator of the Facility if different from the Supplier unless otherwise stated in writing and confirmed by the signature of an authorised officer of the Supplier
6.9 >The Customer shall notify the Supplier in writing addressed to the Site Accountant at its offices at 52 Creagh Road, Toomebridge, County Antrim, BT41 3SE, of any query on an invoice as soon as possible and in any event within 14 days of the date of the invoice. If no substantive query is raised within 14 days then the invoice shall be deemed to be payable in full. If a query is raised then it will be dealt with by the Supplier in such a way as the Supplier considers reasonable. No query over any invoice or any charges included in an invoice shall be used by a Customer as a reason for non-payment of any other invoice or charges which are not being queried.
6.10 In the event of a query under clause 9, the Supplier reserves the right to make a charge at its absolute discretion for additional copies of any invoices, supporting billing schedules, weighbridge tickets or any other documents already provided to the Customer prior to notification of the query to the Supplier and/or for any revisions or amendments to previously issued documents required for the Customer’s convenience.
6.11 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 8, 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 11 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
6.12 All amounts due by the Customer under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding. The Supplier will have the right at its discretion to set off monies owed to it by the Customer under the Contract against any monies owed or allegedly owed by the Supplier to the Customer under any other contract or otherwise.
7. DATA PROTECTION AND DATA PROCESSING
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
7.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
7.3 Without prejudice to the generality of clause 7.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to the Supplier for the duration and purposes of the Contract.
7.4 Without prejudice to the generality of clause 7.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
7.4.1 process that Personal Data only on the written instructions of the Customer unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Data Processing Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit the Supplier from so notifying the Customer;
7.4.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
7.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
7.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data.
8. LIMITATION OF LIABILITY
8.1 Nothing in the Contract shall limit or exclude the Supplier’s liability for:
8.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2 fraud or fraudulent misrepresentation; or
8.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
8.2 Subject to clause 1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
8.2.1 loss of profits;
8.2.2 loss of sales or business;
8.2.3 loss of agreements or contracts;
8.2.4 loss of anticipated savings;
8.2.5 loss of use or corruption of software, data or information;
8.2.6 loss of or damage to goodwill; or
8.2.7 any indirect or consequential loss.
8.3 Subject to clause 1, the Supplier’s total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% of the total Charges paid under the Contract.
8.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 (as amended) are, to the fullest extent permitted by law, excluded from the Contract.
8.5 This clause 7 shall survive termination of the Contract.
9.1 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:
9.1.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
9.1.2 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;
9.1.3 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
9.1.4 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.
9.2 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 the Customer fails to pay any amount due under the Contract on the due date for payment, or if there is a change of control of the Customer.
9.3 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services 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 1.2 to clause 8.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
10.CONSEQUENCES OF TERMINATION
10.1 On termination of the Contract:
10.1.1 the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
10.1.2 the Customer shall return all of the Supplier Materials which have not been fully paid for and shall cease using the Equipment. 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, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
10.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or 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, subject at all times to the limitation of liability as set out in clause 7.
10.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
11.1 Each party undertakes that it shall not at any time during the Contract, and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 2.
11.2 Each party may disclose the other party’s confidential information:
11.2.1 to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and
11.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
12.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).Any notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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.
12.2 For the avoidance of doubt, notice is not valid if sent by fax or email.
12.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.1 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.
13.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, 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.
13.3 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. 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 based on any statement in the Contract.
13.4 Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.5 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 breach or default. 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.
13.6 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 shall not affect the validity and enforceability of the rest of the Contract.
13.7 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.8 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 laws of Northern Ireland.
13.9 Each party irrevocably agrees that the courts of Northern Ireland 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.