1.1 In these terms and conditions, unless the context otherwise requires:
"Company" means NiTech Solutions Limited (registered number SC255145) whose registered office is at 10 Cammo Place, Edinburgh, EH4 8EN;
“Confidential Information” means, in respect of the each party and/ or that party’s products, business and operations, all confidential information (however recorded, communicated or preserved) disclosed or made available, directly or indirectly, by that party, or its employees, representatives or advisers, to the other party including:
(a) the fact that discussions and negotiations are taking place concerning the Contract and the status of those discussions and negotiations;
(b) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, clients, suppliers, plans, intentions, financial projections, market research, or market opportunities of the first party; and
(ii) the inventions, operations, processes, product information, production methods, know-how, designs, product aesthetics, trade secrets of the first party; and
(iii) any information or analysis derived from any of the foregoing.
"Contract" means the contract formed between the Company and the Customer for the sale and purchase of the Goods and Services (if any)in accordance with these terms and conditions;
"Customer" means the party placing the Order with the Company;
"Fee" means the fee set out in the Proposal;
"Goods" means the goods, or any part of them, as set out in the Order (if any);
"Intellectual Property Rights" means all intellectual property rights including, without limitation, patents, registered designs, copyrights, database rights, design rights, trademarks, trade names, domain names and know-how, applications for any of the foregoing, and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist in any part of the world from time to time;
"Order" means the Customer’s order for the Goods and Services (if any) from the Company as set out in the Customer’s purchase order or as otherwise communicated in writing, as the case may be;
"Proposal" means the proposal issued by the Company which is subject to these terms and conditions;
"Site" means the address to which the Goods will be delivered and/or the Services will be carried out as set out in the Proposal; and
"Services" means the services as described in the Order (if any).
2.1 These terms and 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.
2.2 The Order constitutes an offer by the Customer to purchase the Goods and/ or, if applicable, the Services in accordance with these terms and conditions. The Customer shall ensure that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Company issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Proposal and any quotation for the Goods and/ or Services given by the Company shall not constitute an offer. Any Proposal shall only be valid for a period of thirty (30) days following the date of its issue by the Company.
2.5 The Company will provide, at the Site, the Goods and the Services specified in the Order.
2.6 The Customer will promptly provide to the Company such information, materials and facilities reasonably requested by the Company and/ or as set out as a requirement in the Proposal as required by the Company in order for the Company to provide the Goods and the Services in accordance with the Contract and the Customer shall ensure that any such information it provides is full, accurate and correct.
2.7 No terms or conditions contained in or delivered with the Order or any other document will form part of the Contract unless expressly agreed by the Company in writing.
2.8 These terms and 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.
3. Fee and Payment
3.1 The Company will be entitled to invoice the Customer for the Fee and any applicable value added tax or other sales tax as set out in the Proposal.
3.2 Any invoice must be paid by the Customer within thirty days of its date.
3.3 In the event that the Customer fails to pay any amount payable by it under the Contract, the Company shall be entitled, but not obliged, to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of 4% above the base lending rate for the Royal Bank of Scotland plc. Such interest shall accrue on a daily basis and be compounded quarterly, Notwithstanding the foregoing, the Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4. Delivery of Goods
4.1 The quantity and description of the Goods shall be as set out in the Proposal, which shall be definitive (in the absence of manifest error).
4.2 Delivery of the Goods will take place at the Site. If for whatever reason, the Site has not been specified in the Proposal, delivery of the Goods shall take place at any place of business of the Customer deemed reasonable by the Company in all the circumstances.
4.3 The Customer shall take delivery of the Goods within five (5) days of the Company giving it notice that the Goods are ready for delivery.
4.4 Any dates specified by the Company for delivery of the Goods, including any dates set out in the Proposal and/ or Order, are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.5 If for any reason, other than a breach of the Contract by the Company, the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations as the case may be:
4.5.1 risk in the Goods shall pass to the Customer;
4.5.2 the Goods shall be deemed to have been delivered;
4.5.3 the Company will store the Goods, for up to 4 weeks, until delivery, and the Company shall be entitled to charge the Customer all reasonable costs and expenses incurred by the Company in relation thereto (including, without limitation, storage and insurance) and the Customer will promptly reimburse the Company for all such costs and expenses; and
4.5.4 if, on the expiry of the 4-week period referred to in clause 4.5.3 above, the Goods remain undelivered to the Customer, the Company may resell or otherwise dispose of part or all of the Goods and after deduction of reasonable storage and selling costs, account to the Customer for any excess over the Fee for the Goods or charge the Customer for any shortfall below the Fee for the Goods.
4.6 The Customer shall provide at the Site and at its expense adequate and appropriate equipment and manual labour for loading/unloading the Goods.
4.7 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time.
5. Transfer of Risk/Title of Goods
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Ownership of the Goods shall not, in any circumstances or to any extent, pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
5.2.1 the Goods; and
5.2.2 all other sums which are or which become due to the Company from the Customer on any account.
5.3 Until ownership of the Goods has passed to the Customer, the Customer shall:
5.3.1 hold the Goods on trust on the Company's behalf;
5.3.2 not destroy, deface or obscure any identifying mark or nomenclature on or relating to the Goods; and
5.3.3 maintain the Goods in satisfactory condition and keep them insured by a reputable insurance company for their full price against all risks, to the reasonable satisfaction of the Company (and produce the relevant policy of insurance to the Company upon request).
5.4 The Customer's right to possession of the Goods shall terminate immediately if:
5.4.1 the circumstances described in clause 10.2 apply in relation to the Customer; or
5.4.2 the Customer encumbers or in any way charges any of the Goods.
5.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
5.6 The Customer hereby grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.
5.7 On termination of the Contract, howsoever caused, the Company's (but not the Customer's) rights contained in this clause 5 shall remain in effect.
6. Intellectual Property Rights
All Intellectual Property Rights in the Goods and the Services (and any deliverables arising out of the Services) shall remain with the Company and/or its third party licensors.
7.1 The Company warrants to the Customer that the Services shall be performed and the Goods delivered with reasonable skill and care.
7.2 Subject to Clause 7.3, 7.4 and 7.5, the Company warrants that (subject to the other provisions of these terms and conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall:
7.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended); and
7.2.2 be reasonably fit for their purpose as set out in the Proposal.
7.3 The Company shall not be liable for a breach of any of the warranties in clause 7.2 unless:
7.3.1 the Customer gives written notice of the defect to the Company, and if the defect is as a result of damage in transit to the carrier, within five (5) days of the time when the Customer discovers or ought reasonably to have discovered the defect; and
7.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Company's cost for the examination to take place there.
7.4 The Company shall not be liable for a breach of any of the warranties in clause 7.2 if:
7.4.1 the Customer makes any further use of such Goods after giving such notice required under clause 7.3.1; or
7.4.2 the defect arises because the Customer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
7.4.3 the Customer uses any replacement parts for the Goods, or any part thereof, that are not authorised or approved in writing by the Company;
7.4.4 the Customer alters or repairs such Goods (or instructs any third party to do so) without the written consent of the Company.
7.5 The Customer hereby acknowledges and agrees that the nature and intended purpose of the Goods and the use, efficacy and application of the Goods in any laboratory, plant and/ or manufacturing process requires specialist technical expertise and relevant operational experience and the Company does not, and has not, made any representations or warranties as to the suitability, competency or capability of any individuals that will operate the Goods for and on behalf of the Customer, and it is the sole responsibility of the Customer to satisfy itself that it, and any individuals that will operate and/ or instruct, supervise or manage the operation of the, Goods on its behalf, have sufficient understanding of the operational requirements of, the materials being used in, and the processes undertaken by, the Goods and the chemistry involved in the introduction of such materials to such processes and the conditions applied during such operation.
7.6 Subject to clauses 7.3, 7.4 and 7.5, if any of the Goods do not conform with any of the warranties in clause 7.2, the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Customer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
7.7 Subject to Clause 8.2, if the Company complies with clause 7.6 it shall have no further liability for a breach of any of the warranties in clause 7.2 in respect of such Goods.
7.8 Subject to clauses 7.1 to 7.7 above, all other conditions, warranties, terms and undertakings which might have effect between the parties or be implied or incorporated into the Contract, whether by statute, common law or otherwise are hereby expressly excluded, including the implied conditions, warranties or other terms as to the satisfactory quality, fitness for purpose or the use of reasonable skill and care.
7.9 The Customer shall indemnify the Company against all claims, expense and losses arising from any infringement of any third party's Intellectual Property Rights by the use of any materials supplied to the Company by the Customer.
8. Limitation of liability
8.1 Subject to clause 8.2 below, the provisions of clauses 4 and 7 above and the following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees agents and sub‑contractors) to the Customer in respect of:
8.1.1 any breach of its contractual obligations or any negligent act or omission;
8.1.2 any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods, any product or any part of any product manufactured using the Goods; and
8.1.3 any representation, statement or delictual/tortious act or omission including negligence arising under or in connection with the Contract.
8.2 Nothing in these terms and conditions, or the Contract, is intended to nor shall be deemed to limit either party’s liability to the other party for death or personal injury resulting from that party’s or that of its employee's agent's or subcontractor's, negligence, or from fraud, including fraudulent misrepresentations.
8.3 Subject to clause 8.2 above, and to the extent permitted by law, the Company’s entire liability to the Customer in respect of contract, delict/tort (including negligent acts and omissions or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract and/ or relating to the Contract shall be limited to the Fee.
8.4 In the event that the terms of clause 8.3 above are, for whatever reason unenforceable, incompetent or ineffective, subject to clause 8.2 above, the Company’s entire liability to the Customer in respect of contract, delict/tort (including negligent acts and omissions or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract and/ or relating to the Contract shall be limited to £5,000,000.
8.5 Subject to clause 8.2 above, and to the extent permitted by law, the Company shall not be liable to the Customer for loss of profits, goodwill, anticipated savings or any type of special, indirect or consequential loss which arises out of or in connection with the Contract, even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
8.6 If a number of breaches or negligent acts or omissions give rise substantially to the same loss then they shall be regarded as giving rise to only one claim under the Contract.
9.1 Each of the Company and the Customer undertakes to the other both during and after the termination of the Contract to:
9.1.1 keep secret, secure and confidential all Confidential Information (written or oral) of the other that it shall have obtained or received as a result of the discussions leading up to or the entering into or performance of the Contract;
9.1.2 not without the other’s written consent disclose the Confidential Information of the other in whole or in part to any other person save those of its employees or contractors involved in the implementation of the works carried out and/ or performance of the obligations under the Contract from time to time and who have a need to know the same and are bound in writing to maintain the confidentiality of the Confidential Information of the other; and
9.1.3 to use the Confidential Information of the other solely in connection with the implementation and/ or performance of the Contract and not for its own benefit or the benefit of any third party.
9.2 The provisions of clause 9.1 above shall not apply to the whole or any part of the Confidential Information of the other party to the extent that it is:
9.2.1 in the other party's possession and at its free lawful disposal prior to disclosure to it by the other party;
9.2.3 or has become publically known other than as a result of a breach of this clause 9;is independently developed by the employees of the receiving party without reference to or knowledge of the other party’s Confidential Information; or
9.2.4 was received by the receiving Party from an independent third party who had full right of disclosure and such information was not subject to any obligation of confidentiality or prohibition of use.
9.3 The obligations of confidentiality under this clause 9 shall not prevent the either party disclosing information, including Confidential Information of the other party, to the extent that it is required by law or for regulatory purposes, or to comply with the requirements of any Stock Exchange, provided that, where practicable, prior notice of such disclosure is given to the other party.
9.4 The Customer agrees that the Company will be entitled to publicise the entering into of the Contract, whether by issue of a press release or otherwise.
The Company may terminate the Contract forthwith by notice in writing to the Customer if the Customer:
10.1 is in material breach of any of its obligations under the Contract;
10.2 is unable to pay its debts or enters into liquidation (other than for the purpose of effecting a reconstruction or amalgamation) whether compulsorily or voluntarily or compounds with or convenes a meeting of its creditors or has a receiver appointed of all or any part of its assets or takes or suffers any similar action in consequence of a debt, or ceases for any reason to carry on business; or
10.3 fails to pay any invoice by the due date, without prejudice to the Company's right to receive interest for non-payment.
Save as expressly permitted by the Contract, the Customer shall not, without obtaining the prior written consent of the Company, assign or transfer or sub-contract or charge or deal in any other manner with either the benefit or the burden of the Contract or any of its rights or obligations hereunder or purport to do any of the same. Any such purported assignation, assignment, transfer, sub-contracting, charging or dealing shall be null and void and without any force or effect.
Nothing in the Contract is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and no party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
No amendment to or variation of the Contract shall be effective unless it is in writing and signed by or on behalf of the parties.
Should any provision of the Contract be held to be illegal, invalid or unenforceable in any respect by any judicial or other competent authority under the law of any jurisdiction:
14.1 if by substituting a shorter time period or more restricted application of the provision, it would be valid and enforceable, such shorter time period or more restricted application shall be substituted;
14.2 If clause 14.1 is not applicable:
14.2.1 such provision shall, so far as it is illegal, invalid or unenforceable in any jurisdiction, be given no effect by the parties and shall be deemed not to be included in the Contract in that jurisdiction;
14.2.2 the other provisions of the Contract shall be binding on the parties in that jurisdiction as if such illegal, invalid or unenforceable provision were not included herein;
14.2.3 the legality, validity and enforceability of the illegal, invalid or unenforceable provision in any other jurisdiction shall not be affect or impaired; and
14.2.4 the parties shall negotiate in good faith to agree an alternative provision in terms which as closely as possible achieve the intention of the parties in the original provision, do not substantially impair the parties’ original interests and do not render such provision invalid or unenforceable.
15. Entire Agreement
The Contract, including the Proposal, the Order and these terms and conditions (including any information, details and/ or data provided by the Customer to the Company in pursuance and/ or performance of the Contract), constitutes the entire agreement and understanding of the parties and supersedes any previous agreements or negotiations between the parties relating to the subject matter hereof.
Each of the parties acknowledges and agrees that in entering into the Contract it does not rely upon and shall have no remedy in respect of any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to the Contract or not) other than as expressly set out in the Contract. Nothing excludes any liability for fraudulent misrepresentations made by either party.
17. Rights of Third Parties
A person who is not party to the Contract shall have no right to enforce any term of the Contract.
18. Force Majeure
18.1 In these terms and conditions, “Force Majeure Event” shall mean any action, omission, act or event, including, without limitation, strikes, lock-outs or other industrial disputes (whether or not the foregoing involves the workforce of the party so prevented), act of God, war, riot, civil commotion, armed conflict, terrorist attack, nuclear, chemical or biological contamination, pandemic, malicious damage, accident, fire, flood, storm: which action, act, omission or event prevents either party from performing any or all of their obligations hereunder, is beyond the reasonable control of the party so prevented and is not reasonably foreseeable when the Contract was entered into.
18.2 If either party is prevented or delayed in the performance of any of their obligations under the Contract by a Force Majeure Event, that party shall forthwith serve notice in writing to that effect to the other party specifying the nature and extent of the circumstances giving rise to the Force Majeure Event, and shall, subject to service of such notice and to clause 18.4, have no liability in respect of the performance of such obligations as are prevented by the Force Majeure Event during the continuation of such event, and for such time after it ceases as is necessary for that party, using all reasonable endeavours, to recommence their affected operations in order for them to perform their obligations.
18.3 The party claiming to be prevented or delayed in the performance of any of their obligations under the Contract by reason of a Force Majeure Event shall use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which their obligations under the Contract may be performed despite the continuance of the Force Majeure Event.
18..4 This clause 18 shall not apply to any obligations to pay money or any obligations of confidentiality.
19.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (hereinafter in this clause 19 referred to as a “Dispute”) then, except as expressly provided in this Agreement, the parties shall follow the dispute resolution procedure set out in this clause 19:
19.1.1 either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (hereinafter in this clause 19 referred to as a “Dispute Notice”), together with relevant supporting documentation. On service of the Dispute Notice the principal contact of each party in respect of the Contract shall attempt in good faith to resolve the Dispute; and
19.1.2 if the said principal contacts of each party are, for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the executive management, or equivalent, of each party, who shall attempt in good faith to resolve it.
19.2 Without prejudice to any right of either party to apply for an interim order for any injunction and/ or interdict, no party may commence any court proceedings in relation to any dispute arising out of the Contract until thirty (30) days after the referral of the dispute to the executive management of each party in accordance with clause 19.1.2, provided that the right to issue proceedings is not prejudiced by a delay.
No amount due and payable by one party to the other pursuant to the Contract shall be set-off against any other amount due and payable or alleged to be due and payable by that other party to the first party whether pursuant to the Contract or otherwise.
21. Governing Law and Jurisdiction
21.1 The Contract together with any non-contractual dispute arising out of or in connection with it shall be governed by and construed in accordance with the Law of Scotland.
21.2 The parties irrevocably agree, for the sole benefit of the Company that, subject as provided below, the courts of Scotland shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual claims). Nothing in this clause 20 shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings by the Company in any one or more jurisdictions preclude the taking of proceedings by the Company in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.