- The definitions and rules of interpretation in this clause apply in these
Contract: the Customer’s order and the Supplier’s acceptance of it in accordance with condition 3.4.
Customer: the person, firm or company who purchases Equipment from the Supplier, or who becomes a hirer and rents the Equipment supplied by the Supplier from a Finance Company.
Customer Purchase Order Form: the document signed by the Customer and submitted to the Supplier and subject to these Terms and Conditions. Equipment: the equipment agreed in the Contract to be purchased by the Customer from the Supplier (including any part or parts of it), or sold to a Finance Company who then become the Owner of the Equipment and who then hire the Equipment to the Customer.
Extended Warranty & Annual Service Agreement/Maintenance Agreement: this is a separate annual service agreement (ASA) which can be purchased by Customers after the expiration of the 12 months Warranty, or in advance with options to secure discounts on premiums for agreeing to a minimum cover period of 5 years. See Clause 12.
Finance Company : Academy Leasing Limited or any other Finance Company introduced to the Customer by the Supplier.
Finance Document : The document produced to the Customer by the subsequent Owner to the Equipment.
Installation Satisfaction Note : a document submitted to the Customer for signature following the completion of the installation of the Equipment.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Proposal Document: a document submitted by the Supplier containing a quotation for the supply and installation of the Equipment.
Software: any operating system installed on the Equipment.
Supplier: Any of the companies within the Vickers Energy Group Limited, including, but not limited to, Vickers Electronics Limited and Vickers Electronics (Holdings) Limited.
VAT: value added tax chargeable under English law for the time being and any similar additional tax.
- Clause, Schedule and paragraph headings shall not affect the interpretation of this
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or
- Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the
- Unless the context otherwise requires, a reference to one gender shall include a reference to the other
- A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to
- A reference to writing or written includes faxes and e-mail.
- References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant
2. APPLICATION OF CONDITIONS
- These conditions shall:
- apply to and be incorporated in the Contract; and
- prevail over any inconsistent terms or conditions contained in or referred to in the Customer’s purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of
- No addition to, variation of, exclusion or attempted exclusion of any term of the Contract shall be binding on the Supplier unless in writing and signed by a duly authorised representative of the
3. BASIS OF SALE OR SUPPLY OF RENTAL EQUIPMENT
- Any Proposal Document containing a quotation for the supply and installation of the Equipment is valid for a period of 30 days only, and the Supplier may withdraw it at any time by notice to the
- Each Proposal Document submitted by the Supplier to the Customer for the sale of Equipment, or supply of rented Equipment by the Supplier shall be deemed to be a quotation.
- The return of a Customer Purchase Order Form by the Customer shall be deemed to be an offer by the Customer subject to these conditions. The Customer shall ensure that its order is complete and accurate. The Customer shall specify in that document whether they require to purchase the equipment outright or rent the
- A binding contract shall not come into existence between the Supplier and the Customer unless and until the Supplier issues a signed written Acceptance Notice to the Customer. These terms and conditions are deemed to be incorporated in the contract.
- The Supplier may deliver the Equipment by separate instalments. Once the Equipment has been installed and an Installation Satisfaction Note has been signed by the Customer an invoice will be submitted by the Supplier to the Customer for payment. If the Equipment has been rented then upon the Installation Satisfaction Notice being signed by the Customer an invoice together with supporting Finance Document will be submitted to the Finance Company No Customer Order Purchase Form which has been accepted by the Supplier submitting a signed written Acceptance Notice may be cancelled by the Customer, except with the agreement in writing of the Supplier and provided that the Customer indemnifies the Supplier in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Supplier as a result of
4. QUANTITY AND DESCRIPTION
- The quantity and description of the Equipment shall be as set out in the Supplier’s Proposal Document. The Supplier has an absolute discretion whether to accept any alterations made by the Customer to the Supplier’s Proposal
- All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for illustrative purposes only and they do not form part of the
- Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the
- The Supplier reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to the Customer’s specification, which do not materially affect their quality or performance. Where the Supplier is not the manufacturer of the Equipment, the Supplier shall use reasonable endeavours to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer to the Supplier. The Supplier’s employees, contractors and agents are not authorised to make any representations or contractually binding statements concerning the
- All prices shall be as stated in the Supplier’s Proposal Document. All prices are inclusive of delivery, packaging, packing, shipping, carriage, insurance, but exclude VAT and other charges and
- The price for the Equipment is based on the rate prevailing at the date of the Supplier’s Acceptance Notice and the Supplier may increase the price to cover any increases due to market conditions (including, but not limited to, increases in foreign exchange rates relating to the Equipment, or in labour, materials, supply or transportation costs) which affect the Supplier at the date of
- The price of the Equipment shall be the Supplier’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Supplier’s price list current at the date of acceptance of the order. The Supplier’s published export price list shall apply to exports of the Equipment as
- The Supplier reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of such of the Equipment that has not been delivered to reflect any increase in the cost to the Supplier which is due to any factor beyond the control of the Supplier (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate information or
- Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier may invoice the Customer once the Customer has signed the Installation Satisfaction
- The terms of payment shall be within 7 days of the invoice
- In the case of rented Equipment the Supplier shall notify the Finance Company once the Installation Satisfaction Note has been signed by the Customer. The terms of the contract between the Finance House and the Customer shall determine the terms of their
- Time for payment of the price shall be of the essence of the
- If the Customer fails to make payment in full on the due date, the whole of the balance of the price for the supply and installation of the Equipment then outstanding shall become immediately due and payable and, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
- terminate the Contract or suspend any further deliveries of Equipment (whether ordered under the same contract or not) to the Customer;
- appropriate any payment made by the Customer to such of the Equipment (or the Equipment supplied under any other contract between the Customer and the Supplier) as it thinks fit (despite any purported appropriation by the Customer);
- charge interest on the amount outstanding from the due date to the date of receipt by the Supplier (whether or not after judgment), at the annual rate of 8 %, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998;
- suspend all further manufacture, delivery, installation or warranty service until payment has been made in full;
- make a storage charge for any undelivered Equipment at its current rates from time to time;
- stop any Equipment in transit; and
- a general lien on all Equipment and property belonging to the Customer, exercisable in respect of all sums lawfully due from the Customer to the The Supplier shall be entitled, on the expiry of 14 days’ notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
- All sums payable to the Supplier under the Contract shall become due immediately on its termination, despite any other provision of the Contract. This condition 6.6 is without prejudice to any right to claim for interest under the law, or any right under the
- The Supplier may, without prejudice to any other rights it may have, set off any liability of the Customer to the Supplier against any liability of the Supplier to the Customer.
7. DELIVERY OF EQUIPMENT AND ACCEPTANCE
- The Supplier shall use its reasonable endeavours to supply and install the Equipment on the date or dates agreed between the Supplier and the Customer. , but any such date is approximate only. If no dates are so specified, then the supply and installation shall be within a reasonable time of providing a signed Acceptance Notice to the Customer. Time is not of the essence as to the supply and installation of the Equipment and the Supplier is not liable for any delay in delivery, however
- The Equipment may be delivered by the Supplier in advance of the quoted delivery date on giving reasonable notice to the
- Delivery shall be made during normal business hours (excluding bank or public holidays). The Supplier may levy additional charges for any deliveries made outside such hours at the Customer’s
- The Customer shall be responsible (at the Customer’s cost) for preparing the delivery location for the supply and installation of the Equipment and for the provision of all necessary access and facilities reasonably required to supply and install the Equipment. If the Supplier is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, the Supplier may levy additional charges to recover its loss arising from this
- The Customer shall also be responsible to ensure that somebody is available on the agreed date for the supply and installation, and to accept the handover of the Equipment and to be available to be If the Supplier is prevented from handing over the Equipment, or providing training on the specified date the Supplier may levy additional charges to recover its loss arising from this event.
- The Customer shall be deemed to have accepted the supply and installation of the Equipment when an Installation Satisfaction Note has been signed by the
8. RISK AND PROPERTY
- The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Customer’s right to possession has terminated, to remove it. All costs incurred by the Supplier in repossessing the Equipment shall be borne by the
- The Customer’s right to possession of the Equipment before ownership has passed to it shall terminate immediately if any of the circumstances set out in condition 17 arise or if the Customer encumbers or in any way charges the Equipment, or if the Customer fails to make any payment to the Supplier on the due
- Until ownership of the Equipment has passed to the Customer under condition 8.2, the Customer shall:
- hold the Equipment on a fiduciary basis as the Supplier’s bailee;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment; and
- keep the Equipment insured on the Supplier’s behalf for its full price against all risks with a reputable insurer to the reasonable satisfaction of the Supplier, ensure that the Supplier’s interest in the Equipment is noted on the policy, and hold the proceeds of such insurance on trust for the Supplier and not mix them with any other money, nor pay the proceeds into an overdrawn bank
- The Equipment shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Customer’s Purchase Order Form.The Supplier shall off-load the Equipment at the Customer’s
- Ownership of the Equipment shall pass to the Customer when the Supplier has received in full in cleared funds all sums due to it in respect of:
- the Equipment supplied and installed in respect of this specific contract; and
- all other sums which are or which become due to the Supplier from the Customer on any
- On termination of the Contract for any reason, the Supplier’s (but not the Customer’s) rights in this condition 8 shall remain in
- The Supplier may appropriate payments by the Customer to such Equipment as it thinks fit, notwithstanding any purported appropriation by the Customer to the contrary, and may make such appropriation at any
9. INSPECTION AND TESTING OF EQUIPMENT
The Supplier shall:
- Commission, test and inspect the Equipment on supply and installation (which may take a couple of days) to ensure that it complies with the requirements of the Contract; and
- if so requested by the Customer, give the Customer training at the time of handover.
10. SOFTWARE LICENCE
- The price of the Equipment includes the licence fee for the Customer’s right to use the Software.
- If no software licence has been provided to the Customer, the Customer hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions:
- the Customer shall not copy (except to the extent permissible under applicable law or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the software, nor communicate it to any third party, without Supplier’s prior written consent;
- the Customer shall not use the Software on any equipment other than the Equipment, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
- such licence shall be terminable by either party 28 days’ written notice, provided that the Supplier terminates only if the continued use or possession of the Software by the Customer infringes the developer’s or a third party’s rights, or the Supplier is compelled to do so by law, or if the Customer has failed to comply with any term of the Contract; and
- on or before the expiry of this licence, the Customer shall return to the Supplier all copies of the Software in its
11. EXPORT TERMS
- Where the Equipment is supplied for export from the United Kingdom, the provisions of this condition 11 shall (subject to any contrary terms agreed in writing between the Customer and the Supplier) override any other provision of these conditions. The Customer shall be responsible for complying with any legislation governing:
- the importation of the Equipment into the country of destination; and
- the export and re-export of the Equipment, and shall be responsible for the payment of any duties on it.
- Unless otherwise agreed in writing between the Customer and the Supplier, the Equipment shall be delivered free on board the air or sea port of shipment and the Supplier shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act
- The Supplier shall be responsible for arranging for the testing and inspection of the Equipment at the Supplier’s premises before
- Payment of all amounts due to the Supplier shall be made by irrevocable letter of credit opened by the Customer in favour of the Supplier and confirmed by a bank in England acceptable to the Supplier or, if the Supplier has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Supplier of a bill of exchange drawn on the Customer payable 14 days after sight to the order of the Supplier at such branch of Yorkshire Bank in England as may be specified in the bill of exchange.
- The Customer shall pay the price for the Equipment in pounds
- The Supplier warrants to the Customer that the Equipment is free from defects of workmanship and materials. The Supplier undertakes (subject to the remainder of this condition 12), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within 12 months of supply and installation. The Supplier does not accept any liability for any physical damage caused to the Equipment by the Customer or any Third Parties. in condition 1.1 unless:
- the Customer gives written notice of the defect to the Supplier within 7 days of the time when the Customer discovers or ought to have discovered the defect; and
- after receiving the notice, the Supplier is given a reasonable opportunity of examining such Equipment and the Customer (if asked to do so by the Supplier) returns such Equipment to the Supplier’s place of business for the examination to take place
- The Supplier shall not be liable for a breach of the warranty in condition 1.1 if:
- the Customer makes any use of Equipment in respect of which it has given written notice under condition 12.1(a); or
- the Customer alters or repairs the relevant Equipment without the written consent of the
- the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or
- Any repaired or replacement Equipment shall be under warranty for the unexpired portion of the 12 month
- The Supplier shall not be liable for any damage or defect to the Equipment caused by improper use of the Equipment or use outside its normal
- The Supplier shall not be liable for any non supply and installation of Equipment (even if caused by the Supplier’s negligence) unless the Customer notifies the Supplier in writing of the failure to deliver within 7 days after the scheduled delivery date.
- Any liability of the Supplier for non supply and installation of the Equipment shall be limited to supplying and installing the Equipment within a reasonable
- If the Supplier’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (other than by reason of a Force Majeure Event under condition condition 18), the Customer shall be liable to pay to the Supplier all reasonable costs, charges or losses sustained by it as a result, subject to the Supplier notifying the Customer in writing of any such claim it might have against the Customer in this
- In the event of any claim by the Customer under the warranty given in condition 1.1, the Customer shall notify the Supplier in writing of the alleged defect. The Supplier shall have the option of testing or inspecting the Equipment at its current location or moving it to the Supplier’s premises (or those its agent or sub-contractor) at the cost of the Supplier. If the Customer’s claim is subsequently found by the Supplier to be outside the scope or duration of the warranty in condition 12, the costs of transportation of the Equipment, investigation and repair shall be borne by the Customer.
14. LIMITATION OF LIABILITY
- The following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub- contractors) to the Customer in respect of:
- any breach of the Contract; and
- any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising out of or in connection with the
- All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by
- Nothing in these conditions excludes or limits the liability of the Supplier for:
- death or personal injury caused by the Supplier’s negligence; or
- fraud or fraudulent
- Subject to condition 14.2 and condition 3:
- the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent) or otherwise for:
- loss of profits; or
- loss of business; or
- depletion of goodwill or similar losses; or
- loss of anticipated savings; or
- loss of use; or
- Loss or corruption of data or information; or
- any special, indirect, consequential or pure economic loss, costs, damages, charges or
- the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the price payable for the Equipment under condition 5
- the Supplier shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent) or otherwise for:
15. INTELLECTUAL PROPERTY RIGHTS
- The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment are and shall remain the sole property of the Supplier or (as the case may be) third party rights,
- The Supplier shall retain the property and copyright in all documents supplied to the Customer in connection with the Contract and it shall be a condition of such supply that the contents of such documents shall not be communicated either directly or indirectly to any other person, firm or company without the prior written consent of the Supplier.
- The Supplier’s Intellectual Property Rights in and relating to the Equipment shall remain the exclusive property of the Supplier, and the Customer shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its agents or contractors or any other person to do
- In relation to the Software:
- the Customer acknowledges that it is buying only the media on which the software is recorded and the accompanying user manuals;
- nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
16. CONFIDENTIALITY AND SUPPLIER‘S PROPERTY
- The Customer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Customer by the Supplier or its agents, and any other confidential information concerning the Supplier’s business or its products which the Customer may obtain. The Customer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Customer’s obligations to the Supplier, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the
- All materials, equipment and tools, drawings, specifications and data supplied by the Supplier to the Customer shall at all times be and remain the exclusive property of the Supplier, but shall be held by the Customer in safe custody at its own risk and maintained and kept in good condition by the Customer until returned to the Supplier, and shall not be disposed of or used other than in accordance with the Supplier’s written instructions or
- This condition 16 shall survive termination of the Contract, however
- Without prejudice to any other right or remedy available to the Supplier, the Supplier may terminate the Contract or suspend any further deliveries or installation due under
the Contract without liability to the Customer and, if the Equipment has been delivered and/or installed but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary if:
- the ability of the Customer to accept delivery, or installation of the Equipment is delayed, hindered or prevented by circumstances beyond the Customer’s reasonable control; or
- an order is made or a resolution is passed for the winding up of the Customer, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Customer; or
- an order is made for the appointment of an administrator to manage the affairs, business and property of the Customer, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Customer, or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
- a receiver is appointed of any of the Customer’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Customer, or if any other person takes possession of or sells the Customer’s assets; or
- the Customer makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
- the Customer ceases, or threatens to cease, to trade; or
- the Customer takes or suffers any similar or analogous action to any of the foregoing in any jurisdiction in consequence of
- Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly stated to survive or implicitly surviving
18. FORCE MAJEURE
The Supplier reserves the right to defer the date of delivery, or to cancel the Contract or reduce the amount of Equipment ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (Force Majeure Event).
- A waiver of any right under the Contract is only effective if it is in writing and signed by or on behalf of the waiving party, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is
- Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by
If any provision of this agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
21. ENTIRE AGREEMENT
- Each party acknowledges that, in entering into the Contract and the documents referred to in it or annexed to it it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in the Contract or those
- Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in the
- Nothing in this clause shall limit or exclude any liability for
- The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the
- The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the
23. THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
Any notice required to be given pursuant to this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or such other address as may be notified by one party to the other. A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
25. GOVERNING LAW AND JURISDICTION
- The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of
- The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).