Terms and Conditions
DEFINITIONS AND INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Automotive Industry Action Group Production Part Approval Process Manual: the handbook published by the Automotive Industry Action Group, as amended or updated or replaced from time to time, for approval of parts used in the automotive industry.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: the terms and conditions of sale set out in this document as amended from time to time in accordance with Condition 14.8 and the current version of which is available on Teconnex’s website www.teconnex.com, together with any additional terms or conditions set out in the Quotation.
Confidential Information: has the meaning given in Condition 11.1.
Contract: the contract between Teconnex and the Customer for sale and purchase of Products in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010 and the expression Change of Control shall be construed accordingly.
Customer: the person named as the customer in the Order.
Customer Background IPR: all Intellectual Property Rights of the Customer which exist at the date of the Contract or which are created after such date independently of the Contract.
Force Majeure Event: has the meaning given in Condition 13.
Group: any parent company or subsidiary of Teconnex or other subsidiary company of a parent company of Teconnex.
Intellectual Property Rights: patents, utility models, rights to inventions, discovery or process, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual and industrial property rights of any kind, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.
Incoterms: the rules for the use of domestic and international trade terms issued by the International Chamber of Commerce entitled Incoterms® 2020 which came into force on 1 January 2020 as amended or updated or replaced from time to time.
Initial Sample Inspection Report (“ISIR”): has the meaning ascribed to it in the Automotive Industry Action Group Production Part Approval Process Manual 4th edition as amended or updated or replaced from time to time.
Order: the Customer's order of the Products as set out in the Quotation which is accepted by Teconnex in accordance with Condition 2.3.
Production Part Approval Process (“PPAP”): has the meaning ascribed to it in the Automotive Industry Action Group Production Part Approval Process Manual 4th edition as amended or updated or replaced from time to time.
Products: the goods (or any part of them) set out in the Order.
Part Sample Warrant (“PSW”): has the meaning ascribed to it in the Automotive Industry Action Group Production Part Approval Process Manual 4th edition as amended or updated or replaced from time to time.
Quotation: Teconnex’s price indication in writing responding to the Customer’s request and particularising volume and type of Products with anticipated date of availability.
Recall Event: any recall, recovery of possession or control, withdrawal or disposal of, or any preventative or required replacing of parts or replacement of any Products because they: (i) have caused or would cause bodily injury or property damage; or (ii) are part, or may be part, of a batch of Products which fail to meet the Specification or otherwise fail to perform the function for which they were manufactured, designed or supplied.
Recall Notice: any request, court order or other directive of a governmental or regulatory authority or other competent authority to withdraw any Products from the market.
Representatives: the Customer’s employees, officers, directors and professional advisers.
Specification: the description of the Products contained exclusively in the Teconnex drawing used for the PPAP, PSW or ISIR approval process as the case may be or, where none of the said three approval processes is used, the description of the Products contained exclusively in the Teconnex drawing used to manufacture the Products which drawing is available to the Customer on request
Teconnex: Teconnex Limited (registered in England with company number 1447529) whose registered office is at The Old Court House, 24 Market Street, Gainsborough DN21 2BE.
Teconnex Background IPR: all Intellectual Property Rights of Teconnex which exist at the date of the Contract or which are created after such date independently of the Contract and all Intellectual Property Rights relating to Teconnex’s processes and procedures.
Tooling: all proto-type and production tools, dies, fixtures, jigs, gauges, moulds, patterns and related software which is required or procured for and/or used in the manufacture or supply of the Products and includes all accessions, appurtenances, modifications, repairs, refurbishments and replacements to the Tooling and any related drawings, reports and documentation.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
Warranty Period: the period of 12 (twelve) months from the date of delivery.
1.2 Interpretation. In these Conditions, the following rules apply:
(a) A reference to a party includes its permitted assigns.
(b) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(c) Any phrase introduced by the terms including, include, in particular or any similar expression is illustrative and does not limit the sense of the words preceding those terms.
(d) Unless otherwise expressly stated, a reference to writing or written does include e-mail but does not includes faxes.
(e) If there is a conflict between (i) the terms and conditions expressly set out in this document and (ii) any additional terms or conditions set out in the Quotation then, absent any manifest error, the additional terms or conditions set out in the Quotation shall prevail.
- BASIS OF CONTRACT
2.1 A Quotation is not an offer. A Quotation shall only be valid for a period of 30 calendar days from its date of issue.
2.2 The Order constitutes an offer by the Customer to purchase Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are each complete and accurate.
2.3 The Order shall only be accepted when Teconnex issues written acceptance of the Order, at which point the Contract shall come into existence. For the avoidance of doubt, Teconnex is under no obligation to accept the Order.
2.4 These Conditions are the only terms and conditions on which Teconnex shall supply the Products to the Customer and shall apply to the exclusion of all other terms and conditions including any terms and conditions which the Customer purports to apply under any purchase order, confirmation, scheduling agreement or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Teconnex and any descriptions or illustrations contained in Teconnex's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Products described in them. They neither form part of the Contract nor have any contractual force.
- PRODUCTS AND INTELLECTUAL PROPERTY RIGHTS
3.1 The Products are described in the Quotation.
3.2 If the Products are manufactured in accordance with any drawing, design, plan or other written instruction of any nature supplied by the Customer, the Customer shall indemnify Teconnex against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Teconnex in connection with any claim made against it
for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with Teconnex's use of the said drawing, design, plan and/or written instruction.
3.3 If a payment due from the Customer under Condition 3.2 is subject to tax (whether by way of direct assessment or withholding at its source), Teconnex shall be entitled to receive from the Customer such amounts as shall ensure that the net receipt, after tax, to Teconnex in respect of the payment is the same as it would have been were the payment not subject to tax.
3.4 The Customer shall retain ownership of all rights, title and interest in all Customer Background IPR. To the extent that any Customer Background IPR is or is required to be utilised by Teconnex for the purposes of performing the Contract, the Customer grants to Teconnex a non-exclusive, royalty free, irrevocable, perpetual, worldwide licence to use and to sub- licence to any subcontractors, the Customer Background IPR.
3.5 Teconnex and its licensors shall retain ownership of all rights, title and interest in all Teconnex Background IPR.
3.6 All Intellectual Property Rights produced, created or acquired under the Contract including in the Specification, shall vest exclusively in Teconnex.
3.7 Teconnex reserves the right to amend the Specification if required by any statutory or regulatory requirements.
4.1 Teconnex shall ensure that:
(a) each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant Customer reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered; and
(b) if Teconnex requires the Customer to return any packaging materials, that fact is clearly stated on the delivery note. The Customer shall make such packaging materials available for collection at such times as Teconnex shall reasonably request. Returns of packaging materials shall be at Teconnex's expense.
4.2 Incoterms FCA shall govern delivery and the Customer shall collect the Products from Teconnex's premises at Chesham Street, Keighley or such other Group company location as may be advised by Teconnex (Delivery Location) within three (3) Business Days of Teconnex notifying the Customer that the Products are ready. In default of collection Teconnex may deliver the Products to the location in the Order or such other location as the parties may agree at any time after Teconnex notifies the Customer that the Products are ready (Revised Delivery Location), but in that eventuality the Customer shall pay in advance 110% of the actual cost of delivery to Teconnex.
4.3 Delivery of the Products shall be completed when loading of the Products at the Delivery Location or the Revised Delivery Location is finished.
4.4 Any dates quoted for delivery are approximate only; time of delivery is not of the essence. Teconnex shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer's failure to provide Teconnex with reasonably adequate delivery instructions (determined in the absolute discretion of Teconnex) or any other instructions relevant to supply of the Products.
4.5 If Teconnex fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. In no circumstances shall Teconnex’s liability exceed the cost of the relevant Products in the Quotation.
4.6 If the Customer fails to take or accept delivery of the Products within three (3) Business Days of Teconnex notifying the Customer that the Products are ready, then, unless failure or delay is caused by a Force Majeure Event or Teconnex's failure to comply with its obligations under the Contract:
(a) delivery of the Products shall be deemed to have been completed at 9.00 am on the fourth (4th) Business Day after the day on which Teconnex notified the Customer that the Products were ready; and
(b) Teconnex may in its absolute discretion store the Products until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten (10) Business Days after the day on which Teconnex notified the Customer that Products were ready for delivery the Customer has neither taken nor accepted delivery of them, Teconnex may resell or otherwise dispose of part or all of the
Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.8 The Customer shall not be entitled to reject the Products if Teconnex delivers up to and including 10% more or less than the quantity of Products ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer and subsequent verification to the absolute satisfaction of Teconnex that the wrong quantity of Products was delivered.
4.9 Teconnex may deliver Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 Subject to Condition 5.2, Teconnex warrants that on delivery and for the Warranty Period, the Products shall:
(a) conform in all material respects with the Specification; and
(b) be free from material defects in materials and workmanship.
5.2 Teconnex does not warrant that the Products are suitable for their intended use, including where such intended use is included in the Specification or is otherwise notified to Teconnex by the Customer in writing or verbally.
5.3 Subject to Condition 5.44, if:
(a) during the Warranty Period the Customer gives notice in writing to Teconnex within a reasonable time of discovery that some or all of the Products do not comply with the warranty in Condition 5.1;
(b) Teconnex is given a reasonable opportunity of examining such Products;
(c) the Customer (if asked to do so by Teconnex) returns such Products to Teconnex's place of business at Teconnex's cost; and
(d) the Customer provides to Teconnex all information and assistance which Teconnex may require to investigate the alleged breach
then Teconnex shall, at its option, repair or replace the defective Products, or refund the price of the defective Products paid by the Customer, in full to the Customer.
5.4 Teconnex shall not be liable for Products' failure to comply with the warranty in Condition 5.1 in any of the following events; the:
(a) Customer makes any further use of such Products after giving notice in accordance with Condition 5.23;
(b) defect arises because the Customer failed to follow Teconnex's oral or written instructions about storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
(c) defect arises as a result of Teconnex following any drawing, design, plan or other written instruction of any other nature supplied by the Customer;
(d) Customer alters or repairs such Products without the written consent of Teconnex;
(e) defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;
(f) Products differ from the Specification because of changes made to ensure they comply with statutory or regulatory requirements.
5.5 The Customer shall:
(a) provide Teconnex with all such information and assistance as Teconnex may require from time to time to perform its obligations or to exercise any of its rights under the Contract;
(b) not alter or modify the Products in any way; and
(c) not remove or alter any trademarks, patent numbers, serial numbers or other identifying marks on the Products or add any patent numbers to the Products or their packaging.
5.6 Except as provided in this Condition 5, Teconnex shall have no liability to the Customer for the Products' failure to comply with the warranty set out in Condition 5.1.All other warranties or conditions, (whether express or implied) as to quality, condition, description, compliance with sample, fitness for purpose, statutory or otherwise, are excluded to the fullest extent permitted by law
5.7 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.8 If a component or material is referred to in the Specification as a component or material produced or sold by a specific manufacturer or vendor, Teconnex reserves the right to substitute in place of that component or material a component or material produced or sold by a different manufacturer or vendor, provided that any such substitution does not materially alter the functionality and appearance of the Products.
5.9 If a component or material is referred to in the Specification Teconnex reserves the right to substitute in place of that component or material a different component or material, provided that any such substitution does not materially alter the functionality and appearance of the Products.
5.10 These Conditions shall apply to any repaired or replacement Products supplied by Teconnex for the remainder of the original Warranty Period.
- TITLE AND RISK
6.1 Risk in the Products passes to the Customer on completion of delivery in accordance with Condition 4.3.
6.2 Title to the Products shall not pass to the Customer until:
(a) Teconnex receives payment in full (in cleared funds) for the Products and any other Products that Teconnex has supplied to the Customer in respect of which payment has become due, in which case title to the Products shall pass at the time of payment of all such sums; or
(b) the Customer resells the Products, in which case title to the Products shall pass to the Customer at the time specified in Condition 6.4.
6.3 Until title to the Products has passed to it, the Customer shall:
(a) store them separately from all other Products held by the Customer so that they are readily identifiable as Teconnex's property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to them;
(c) maintain them in satisfactory Condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Teconnex immediately if it becomes subject to any of the events listed in Condition 10.2; and
(e) give Teconnex such information about the Products as Teconnex may require from time to time.
6.4 Subject to Condition 6.5, the Customer may resell or use the Products in the ordinary course of its business (but not otherwise) before Teconnex receives payment for the Products. However, if the Customer resells the Products before that time:
(a) it does so as principal and not as Teconnex’s agent; and
(b) title to the Products shall pass from Teconnex to the Customer immediately before the time at which resale occurs.
6.5 If before title to the Products passes to the Customer the Customer becomes subject to any of the events in Condition 10.2, then, without limiting any other right or remedy Teconnex may have:
(a) the Customer's right to resell the Products or use them in the ordinary course of its business ceases immediately; and
(b) Teconnex may at any time:
(i) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
(ii) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
7.1 All right, title and interest in any Tooling, including any Tooling which has been financed (in whole or in part) by the Customer shall remain and/or vest in Teconnex.
7.2 If the Customer makes any Tooling available to Teconnex in respect of which, for any reason whatsoever, all right, title and interest has not already vested in Teconnex in accordance with Condition 7.1, then in making such Tooling available it also grants an irrevocable option to Teconnex to purchase the Tooling upon termination or fulfilment of the Contract for £1.00 (one GBP sterling).
- PRICE AND PAYMENT
8.1 The price of the Products is the price set out in the Order.
8.2 Teconnex may, by giving notice to the Customer at any time up to 25 (twenty-five) Business Days before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to any:
(a) factor beyond Teconnex's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification;
(c) delay caused by any instructions of the Customer or failure of the Customer (in Teconnex’s absolute opinion) to give Teconnex adequate or accurate information or instructions; or
(d) change in the published alloy surcharge which steel manufacturers add to the price for stainless steel products
8.3 Unless stated otherwise in the Quotation the price of Products is exclusive of the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer in addition to the price of the Products.
8.4 The price of the Products is exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from Teconnex, pay such additional amounts in respect of VAT as are chargeable on the supply of the Products.
8.5 Teconnex may invoice the Customer for the Products immediately on acceptance of the Order in pro forma arrangements or in other cases at any time after completion of delivery.
8.6 The Customer shall pay the invoice in full in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Teconnex. Time of payment is of the essence. Unless expressly stated otherwise in the Quotation, payment shall be made in GBP sterling.
8.7 If the Customer fails to make any payment due to Teconnex under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Lloyds Banking Group’s base rate from time to time or such other rate as may be prescribed from time to time by the Late Payment of Commercial Debts (interest) Act 1998 whichever is the higher. Interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Teconnex may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Teconnex to the Customer.
- PRODUCT RECALL
9.1 The Customer shall cooperate fully and comply with Teconnex’s instructions regarding a Recall Event or Recall Notice and shall use its best endeavours to minimise the impact, cost and expense of any Recall Event or Recall Notice.
9.2 The Customer shall promptly inform and keep Teconnex advised:
(a) as to any claims asserted or legal proceedings issued in respect of the Products; and
(b) if it obtains information reasonably supporting the conclusion that any Products may fail to comply with any applicable laws or may contain a defect.
- TERMINATION AND SUSPENSION
10.1 If the Customer becomes subject to any of the events in Condition 10.2, without affecting any other right or remedy available
to it Teconnex may terminate the Contract with immediate effect on written notice to the Customer.
10.2 For the purposes of Condition 10.1, the events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (if a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (if a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of the Customer;
(d) (if a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(e) (if a company) the holder of a qualifying floating charge over the Customer's assets has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the Customer's assets or a receiver is appointed over the Customer's assets;
(g) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 (fourteen) days;
(h) any event occurs, or proceeding taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this Condition 10.2;
(i) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
(j) the Customer's financial position deteriorates to such an extent that in Teconnex's opinion the Customer's ability to fulfil its obligations under the Contract is in jeopardy; or
(k) there is a Change of Control of the Customer.
10.3 Without affecting any other right or remedy available to it Teconnex may terminate the Contract immediately by giving written notice to that effect to the Customer if the Customer:
(a) fails to make any payment due to Teconnex under the Contract within 14 (fourteen) days after the due date; or
(b) commits a material breach of any of these Conditions which is irremediable or, if such a breach is remediable, fails to remedy that breach within 14 (fourteen) days of being notified in writing to do so.
10.4 Without limiting its other rights or remedies, Teconnex may suspend provision of Products under the Contract or any other contract between the Customer and Teconnex if the Customer becomes subject to any of the events in Condition 10.2, or Teconnex reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.5 Teconnex may terminate the Contract at any time for convenience on the giving of 60 (sixty) Business Days’ written notice to the Customer, without any liability to the Customer.
10.6 On termination of the Contract for any reason the Customer shall immediately:
(a) pay to Teconnex all of Teconnex's outstanding unpaid invoices and interest; and
(b) return all Confidential Information.
10.7 Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
10.8 Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect including, Conditions 3.2, 3.3, 7.2, 9, 10.6, 10.7 and 11.
11.1 In these Conditions ‘Confidential Information’ shall mean any information (whether written, oral, in electronic form or in any other media) that is disclosed in connection with the Contract by Teconnex, any Group company or one of its or their employees, agents, officers or professional advisers to the Customer or any of the Customer’s Representatives whether before, on or after the date of the Contract and that relates (in whole or in part) to Teconnex or any Group company or its or their businesses, as well as the terms and subject matter of the Contract or any discussions or documents in relation to it, but in each case excluding any Confidential Information which:
(a) Teconnex agrees in writing is not Confidential Information;
(b) at the time of disclosure was in the public domain or subsequently enters into the public domain other than as the direct or indirect result of a breach of this Condition 11 by the Customer or any of its Representatives; or
(c) the Customer can prove to the satisfaction of Teconnex from written records or other substantive evidence
(i) has been received by the Customer at any time from a third party who did not acquire it in confidence and who is free to make it available to the Customer; or
(ii) was independently developed by the Customer.
11.2 The Customer shall at all times, but subject to Condition 11.3:
(a) keep the Confidential Information secret and shall only disclose it in the manner and to the extent expressly permitted by this Condition 11;
(b) use the Confidential Information only for the purpose of performing its obligations and exercising its rights under the Contract; and
(c) keep the Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Customer operates in relation to its own confidential information and shall never exercise less than reasonable care.
11.3 The Customer may disclose Confidential Information:
(a) to those of its Representatives who need access to that Confidential Information in order for the Customer’s obligations under the Contract to be performed and its rights under the Contract to be exercised. Prior to any such disclosure the Customer must make all Representatives aware of the fact that the Confidential Information is confidential and the obligations of confidentiality in this Condition 11. The Customer shall procure that each Representative will not do or omit to do anything which if done or omitted to be done by the Customer would constitute a breach of this Condition 11. The Customer shall be liable for the acts and omissions of its Representatives in respect of the Confidential Information as if they were acts or omissions of the Customer; and
(b) to the minimum extent required by an order of any court of competent jurisdiction or by an order of any regulatory, judicial or governmental body provided that
(i) before the Customer discloses any Confidential Information pursuant to this Condition 11.3(b) it shall, to the extent permitted by law, use all reasonable endeavours to give Teconnex as much notice of the disclosure as possible;
(ii) where notice of such disclosure is not prohibited and is given in accordance with this Condition 11.3(b), the Customer shall take into account the reasonable requests of Teconnex in relation to the content of the disclosure; and
(iii) if the Customer is unable to inform Teconnex before Confidential Information is disclosed pursuant to this Condition 11.3(b) it shall, to the extent permitted by law, inform Teconnex of the full circumstances of the disclosure and the information that has been disclosed as soon as reasonably practicable after such disclosure has been made.
11.4 Teconnex or its licensors own all right, title and interest in the Confidential Information and save as is expressly provided in these Conditions, no right to use any Confidential Information or trade secrets is granted by Teconnex.
11.5 The Customer acknowledges and agrees that damages alone would not be an adequate remedy for breach of this Condition 11. Accordingly, Teconnex shall be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of this Condition 11 by the Customer.
- LIMITATION OF LIABILITY
12.1 Nothing in these Conditions shall limit or exclude Teconnex's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) any matter for which it is unlawful for Teconnex in any jurisdiction to exclude or restrict liability.
12.2 Subject to Condition 12.1:
(a) Teconnex shall under no circumstances whatever be liable to the Customer, whether in contract (including under any indemnity), tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) Teconnex's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract (including under any indemnity), tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £10,000 or the price of the Products, whichever is lower.
- FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, inability or delays to procure raw materials, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics, pandemics (including but not limited to COVID-19, SARS, Ebola and Swine Flu) or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
14.1 Further Assurance At its own expense, the Customer shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to the Contract.
14.2 Entire Agreement. The Contract is the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Teconnex which is not in the Contract.
14.3 Assignment and other dealings.
(a) Teconnex may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Teconnex.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or, unless otherwise expressly stated, by e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 14.4(a); if sent by pre-paid first class post or other next working day delivery service, at 11.00 am on the third Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
(c) The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action.
14.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of the Contract.
14.6 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.7 Third party rights. The parties do not intend a third party to have any rights to enforce the terms of the Contract.
14.8 Variation. Except as set out in these Conditions, no variation of the Contract, including introduction of additional terms and conditions, shall be effective unless in writing and signed by Teconnex or posted on its website.
14.9 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
14.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have non-exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non- contractual disputes or claims). However before resorting to litigation each party undertakes to collaborate with the other in referring any dispute which cannot be settled by amicable means to the Centre for Effective Dispute Resolution of 70 Fleet Street London EC4Y 1EU (“CEDR”) for mediation and such mediation shall follow the then current CEDR rules. Only if mediation has not been fixed or successfully concluded within 40 days of a reference to CEDR may either party commence litigation, in which case the arbitral language shall be English and if Teconnex merely seeks judgment for a money debt it may commence proceedings in any jurisdiction in which the Customer has its seat.
14.11 Translation. If the Contract or any document referred to in it is translated into any language other than English, the English language version shall prevail if there is an inconsistency.