The following definitions and rules of interpretation apply in these Conditions.
- 1.1 Definitions:
a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business
the person or firm who purchases the Goods and/or Services from Emuge-Franken.
has the meaning given in clause 2.
these terms and conditions as amended from time to time in accordance with clause 17.9.
the contract between Emuge-Franken and the Buyer for the supply of Goods and/or Services in accordance with these Conditions, including any special terms expressly agreed in writing between the Buyer and Emuge-Franken to form part of the Contract.
"Data Protection Legislation"
all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679), the Data Protection Act 2018 and all other legislation and regulatory requirements in force from time to time relating to the use of personal data.
means Emuge-Franken UK Limited registered in England and Wales with company number 2239015.
"Force Majeure Event"
has the meaning given to it in clause 17.1
the goods (or any part of them) set out in the Order.
any subsidiary or any holding company from time to time of Emuge-Franken, and any subsidiary from time to time of a holding company of Emuge-Franken.
"Intellectual Property Rights"
patents, rights to inventions, copyright and neighbouring and related rights, moral 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, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, 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 will subsist now or in the future in any part of the world.
the Buyer's order for the supply of Goods and/or Services, as set in the Buyer's email order, telephone order, purchase order form or the Buyer's acceptance of Emuge-Franken's quotation, as the case may be.
the services (if any) supplied by Emuge-Franken to the Buyer as set out in the Order.
any specification for the Goods and (if applicable) the Services, including any relevant designs or drawings, in each case agreed between the parties (including as set out in any quotation).
- 1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- 1.3 A reference to a party includes its successors and permitted assigns.
- 1.4 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- 1.5 Any words following the terms including,include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms
- 1.6 A reference to writing or written includes fax and email.
2. Basis of Contract
- 2.1 The Order constitutes an offer by the Buyer to purchase Goods and/or Services in accordance with these Conditions.
- 2.2The Order shall only be deemed to be accepted when Emuge-Franken issues written acceptance of the Order, or (if earlier) when Emuge-Franken delivers the Goods or commences the performance of the Services in accordance with these Conditions, at which point and on which date the Contract shall come into existence (Commencement Date). Any modification made to the Order by Emuge-Franken in its written acceptance of the Order shall prevail in the event of any inconsistency with the Order submitted by the Buyer.
- 2.3 Any samples, drawings, graphs, descriptive matter, advertising, measurements (including weight, dimensions and tolerances) issued by Emuge-Franken and any descriptions or illustrations of the Goods or Services contained on Emuge-Franken's website or in its catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or Services described in them. They shall not form part of the Contract.
- 2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
- 2.5 Any quotation given by Emuge-Franken shall not constitute an offer and is only valid for a period of 30 Business Days from its date of issue, after which it may be altered by Emuge-Franken without giving notice to the Buyer.
- 2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
- 3.1 The Goods are described in Emuge-Franken's catalogue or on Emuge-Franken’s website, or (if applicable) as set out in the Specification.
- 3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify Emuge-Franken and each Group Company 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Emuge-Franken and/or each Group Company arising out of or in connection with any claim made against Emuge-Franken and/or each Group Company for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Emuge-Franken's use of the Specification. This clause 3.2 shall survive termination of the Contract.
- 3.3 Emuge-Franken reserves the right to amend the Goods, Services or Specification:
- 3.3.1 if required by any applicable statutory or regulatory requirement, code of practice or in accordance with best industry practice; or
- 3.3.2 where doing so would not materially affect the nature or quality of the Goods or Services.
- 3.4 Emuge-Franken may provide samples to the Buyer, which the Buyer shall be deemed to purchase as Goods under these Conditions. All sample Goods supplied by Emuge-Franken will be invoiced to the Buyer at the price agreed in writing or in accordance with clause 10.1. The Buyer must return any unpurchased sample Goods to Emuge-Franken in a saleable state and Emuge-Franken retains the right to charge the Buyer for any damage the Buyer causes to the sample Goods.
4. Delivery of Goods
- 4.1 Emuge-Franken shall deliver the Goods to the location agreed by the parties at any time after the Order has been placed, unless Emuge-Franken has notified the Buyer that it must collect the Goods ex-works, in which case the Buyer shall collect the Goods from Emuge-Franken's premises (or such other location as notified by Emuge-Franken).
- 4.2 Delivery of the Goods shall be completed on Emuge-Franken making the Goods available to the Buyer:
- 4.2.1 for loading at Emuge-Franken’ premises, in the case of ex-work deliveries; and
- 4.2.2 for unloading at the location agreed with the Buyer, in the event of any other deliveries.
- 4.3 Any dates quoted or agreed for delivery of the Goods are approximate only, and time for delivery is not of the essence. The Goods may be delivered by Emuge-Franken in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
- 4.4 If Emuge-Franken fails to deliver the Goods, its liability shall be limited to the costs incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price paid for the Goods. Emuge-Franken shall have no liability for any delay in delivery or failure to deliver the Goods to the extent that such delay or failure is caused by a delay by any of Emuge-Franken’s suppliers, a Force Majeure Event or the Buyer's failure to provide Emuge-Franken with adequate delivery instructions for the Goods or any other relevant instruction related to the supply of the Goods.
- 4.5 If the Buyer fails to take delivery of the Goods on the proposed delivery date or within the period for collection stipulated by Emuge-Franken, then except where such failure or delay is caused by a Force Majeure Event or by Emuge-Franken's failure to comply with its obligations under the Contract:
- 4.5.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the date on which delivery would have occurred but for the Buyer’s default; and
- 4.5.2 Emuge-Franken shall store the Goods until delivery takes place and be entitled to charge the Buyer for all related costs and expenses (including insurance).
- 4.6 If 10 Business Days after the date on which delivery would have occurred but for the Buyer’s default the Buyer has not taken delivery of them, Emuge-Franken may resell or otherwise dispose of part or all of the Goods and, charge the Buyer for any shortfall below the price of the Goods or for any costs incurred in connection with the disposal or destruction.
- 4.7 Emuge-Franken shall not be liable for any shortfall in the delivery of Goods if the Buyer does not notify Emuge-Franken in writing of such shortfall within 7 days of delivery.
- 4.8 If Emuge-Franken delivers up to and including 10% more or less than the quantity of Goods ordered the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, Emuge-Franken shall make a pro rata adjustment to the invoice for the Goods.
- 4.9 If in the case of bespoke or special Goods (being goods manufactured by Emuge-Franken specifically for the Buyer) for which the order quantity is less than or equal to 10 units, Emuge-Franken delivers either one unit more or one unit less than the ordered number of units, the Buyer may not reject them, but on receipt of notice from the Buyer that the wrong quantity of Goods was delivered, Emuge-Franken shall make a pro rata adjustment to the invoice for the Goods.
- 4.10 Emuge-Franken may deliver the Goods 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 Buyer to cancel any other instalment.
- 4.11 The Buyer agrees to inspect the Goods for defects or shortfalls promptly upon delivery and in accordance with best industry practice.
5. Qualtiy of Goods
- 5.1 Subject to the remaining provisions of this clause, Emuge-Franken warrants that on delivery the Goods shall:
- 5.1.1 conform in all material respects with their description and any applicable Specification; and
- 5.1.2 be free from material defects in design, material and workmanship.
- 5.2 Emuge-Franken makes no representation or warranty in respect of the Goods being suitable for any intended purpose held out by the Buyer. Emuge-Franken makes no representation or warranty in respect of the Goods being suitable for (a) any intended purpose held out by the Buyer, or (b) use in combination with any other materials, components or products. The Buyer is solely responsible for determining the suitability of the Goods for their intended purpose and any use in combination with other materials, components or products.
- 5.3 The warranty at clause 5.1 does not extend to parts, materials or equipment not manufactured by Emuge-Franken or by a Group Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Emuge-Franken.
- 5.4 Emuge-Franken’s employees or agents are not authorised to make any representations or provide any warranties concerning the Goods unless the same are confirmed by Emuge-Franken in writing.
- 5.5 Subject to clause 5.6, Emuge-Franken shall, at its option, repair or replace any Goods that do not comply with the warranty at clause 5.1, or refund the price of such Goods if:
- 5.5.1 the Buyer gives notice in writing within 7 days of delivery that some or all of the Goods do not comply with the warranty set out in clause 5.1, or for latent defects that are not apparent within such period, within 7 days of the date on which the Buyer became aware or ought reasonably to have become aware of the defect;
- 5.5.2 Emuge-Franken and/or any Group Company is given a reasonable opportunity of examining the Goods at the site at which the Goods are situate; and
- 5.5.3 the Buyer (if asked to do so by Emuge-Franken) returns the Goods to Emuge-Franken's place of business at the Buyer's cost.
- 5.6 Emuge-Franken shall not be liable for the Goods' failure to comply with the warranty at clause 5.1 or for any other claim in relation to a defect or fault in the Goods if:
- 5.6.1 the Buyer makes any further use of the Goods after giving a notice in accordance with clause 5.2;
- 5.6.2 the defect arises because the Buyer failed to follow Emuge-Franken's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods and good trade practice regarding the same;
- 5.6.3 the defect arises as a result of Emuge-Franken following any instruction, drawing, design or Specification supplied by the Buyer;
- 5.6.4 the defect arises as a result of a failure by the Buyer to provide full, accurate and complete information relating to the Goods or proposed use of the Goods to Emuge-Franken at the time of placing the Order;
- 5.6.5 the defect arises as a result of a defect in any goods or materials provided by the Buyer to Emuge-Franken in connection with the Order;
- 5.6.6 the Buyer or any third party modifies, alters or repairs the Goods without the prior written consent of Emuge-Franken;
- 5.6.7 the defect arises as a result of fair wear and tear, wilful damage, negligence, undue stress or abnormal working conditions; or
- 5.6.8 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
- 5.7 Except as provided in this clause 5, Emuge-Franken shall have no liability to the Buyer in respect of the Goods' failure to comply with the warranty set out at clause 5.1.
- 5.8 These Conditions shall apply to any repaired or replacement Goods supplied by Emuge-Franken.
6. Cancellations and Returns
- 6.1 The Buyer may not cancel any Order without the prior written agreement of Emuge-Franken. The Buyer shall indemnify Emuge-Franken and each Group Company in full against all losses (including the cost of all labour and materials used) damages, charges and expenses incurred by Emuge-Franken as a result of cancellation.
- 6.2 Emuge-Franken shall not be obliged to accept any request to return Goods that are not defective, however such requests may be accepted subject to the following conditions:
- 6.2.1 the request must be made prior to returning the Goods using Emuge-Franken’s Tool Return Request Form;
- 6.2.2 once received, Emuge-Franken will assess the Buyer’s eligibility for a return, a returns number will be generated and if eligible the Buyer will be required to return the Goods;
- 6.2.3 the Goods must be returned to the address specified by Emuge-Franken within 30 days of the invoice date or within such other period as Emuge-Franken may specify;
- 6.2.4 Emuge-Franken shall be entitled to charge 25% restocking & handling fee for all returned Goods, though this charge may be waived by Emuge-Franken if replacement Goods are provided;
- 6.2.5 returned Goods must be in new, unused and saleable condition, in their original packaging. Emuge-Franken and/or any Group Company will inspect the Goods upon receipt and in the event that they do not satisfy this condition, Emuge-Franken may reject the return or impose an additional charge for the return;
- 6.2.6 bespoke or special Goods (being goods manufactured by Emuge-Franken specifically for the Buyer) cannot be returned
- 6.2.7 Gauges may be eligible for return, however certifications for Gauges are non-refundable; and
- 6.2.8 if the return is accepted by Emuge-Franken, Goods will be credited at the original invoice value, less any charges imposed by Emuge-Franken in accordance with this clause.
7. Title and Risk
- 7.1 Risk in the Goods shall pass to the Buyer on completion of delivery.
- 7.2 Title to the Goods shall not pass to the Buyer until the earlier of:
- 7.2.1 Emuge-Franken receiving payment in full (in cash or cleared funds) for the Goods and any other goods or Services that Emuge-Franken has supplied to the Buyer, in which case title to the Goods shall pass at the time of payment of all such sums; and
- 7.2.2 the Buyer reselling the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in clause 7.4.
- 7.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
- 7.3.1 store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as Emuge-Franken's property;
- 7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- 7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Emuge-Franken's behalf from the date of delivery;
- 7.3.4 notify Emuge-Franken immediately if it becomes subject to any of the events listed in clause 15.2.1 to clause 15.2.4 (inclusive); and
- 7.3.5 give Emuge-Franken such information relating to the Goods as Emuge-Franken may require from time to time and allow Emuge-Franken to inspect the Goods at any time.
- 7.4 Subject to clause 7.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Emuge-Franken receives payment for the Goods. However, if the Buyer resells or so uses the Goods before that time:
- 7.4.1 it does so as principal and not as Emuge-Franken's agent; and
- 7.4.2 title to the Goods shall pass from Emuge-Franken to the Buyer immediately before the time at which the resale or use by the Buyer occurs.
- 7.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 15.2.1 to clause 15.2.4 (inclusive), then, without limiting any other right or remedy Emuge-Franken may have:
- 7.5.1 the Buyer's right to resell Goods or use them in the ordinary course of its business ceases immediately; and
- 7.5.2 Emuge-Franken may at any time require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
8. Supply of Services
- 8.1 Emuge-Franken shall supply the Services to the Buyer in accordance with the Specification in all material respects.
- 8.2 Emuge-Franken shall use all reasonable endeavours to meet any performance dates for the Services agreed in writing between the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
- 8.3 Emuge-Franken warrants to the Buyer that the Services will be provided using reasonable care and skill.
9. Buyer's Obligations
- 9.1 The Buyer shall:
- 9.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate, and shall if requested by Emuge-Franken sign any drawings, designs or other documents relating to the Specification to verify it approval of the contents;
- 9.1.2 co-operate with Emuge-Franken in all matters relating to the delivery of the Goods and Services;
- 9.1.3 if necessary, provide Emuge-Franken, its employees, agents, consultants and subcontractors, with access to the Buyer's premises and other facilities as may reasonably be required to provide the Services;
- 9.1.4 provide Emuge-Franken in a timely manner with such information and materials as Emuge-Franken may require in order to deliver the Goods and Services, and ensure that such information is complete and accurate in all respects;
- 9.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the performance of the Contract;
- 9.1.6 comply with all applicable laws, including health and safety laws; and
- 9.1.7 comply with any additional obligations set out in the Specification.
- 9.2 If Emuge-Franken's performance of any of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer or failure by the Buyer to perform any relevant obligation (Buyer Default):
- 9.2.1 without limiting or affecting any other right or remedy available to it, Emuge-Franken shall have the right to suspend performance of the Contract until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations;
- 9.2.2 Emuge-Franken shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from Emuge-Franken's failure or delay to perform any of its obligations as set out in this clause 9.2; and
- 9.2.3 the Buyer shall reimburse Emuge-Franken on written demand for any costs or losses sustained or incurred by Emuge-Franken arising directly or indirectly from the Buyer Default.
10. Charges and Payment
- 10.1 The price for Goods:
- 10.1.1 shall be the price set out in Emuge-Franken’s quotation, or in the absence of the same, the price set out in Emuge-Franken's published price list at the time of delivery or deemed delivery; and
- 10.1.2 shall be exclusive of all costs of transport, packaging, loading, unloading and insurance of the Goods, which shall be invoiced to the Buyer.
- 10.2 Unless otherwise agreed in writing, the charges for Services shall be calculated in accordance with the quotation, or in the absence of the same, in accordance with Emuge-Franken's standard fee rates, as determined by Emuge-Franken from time to time. Emuge-Franken shall be entitled to charge the Buyer for any expenses reasonably incurred by the individuals whom Emuge-Franken engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Emuge-Franken for the performance of the Services, and for the cost of any materials.
- 10.3 Emuge-Franken reserves the right to increase the price of the Goods or Services, by giving notice to the Buyer at any time before delivery, to reflect any increase in the cost to Emuge-Franken of performing the Contract that is due to:
- 10.3.1 any factor beyond the control of Emuge-Franken (including foreign exchange fluctuations, currency regulation, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- 10.3.2 any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
- 10.3.3 any delay caused by any instructions of the Buyer in respect of the Goods or Services, or failure of the Buyer to give Emuge-Franken adequate or accurate information or instructions in respect of the Goods or Services.
- 10.4 Emuge-Franken reserves the right to charge the Buyer for the cost of pallets and returnable containers, in addition to the price of the Goods, but will at its discretion credit such costs to the Buyer provided that such pallets or containers are returned undamaged to Emuge-Franken before the date on which payment for the same is due.
- 10.5 Emuge-Franken shall be entitled to invoice the Buyer on or at any time before or after delivery of the Good or Services. Emuge-Franken shall also be entitled to invoice the Buyer at such intervals as it deems appropriate during the course of the performance of the Services.
- 10.6 Unless expressly agreed otherwise by Emuge-Franken, the Buyer shall pay each invoice submitted by Emuge-Franken:
- 10.6.1 immediately upon receipt in the case of Orders for bespoke or special Goods (being goods manufactured by Emuge-Franken specifically for the Buyer) or machining Orders (being Orders for finishing, redressing, redesigning and reconditioning of tools); and
- 10.6.2 within 30 days of the date of the invoice for all other Orders, in each case in full and in cleared funds to a bank account nominated in writing by Emuge-Franken. Time for payment shall be of the essence of the Contract, and payment must be made by the Buyer notwithstanding that delivery may not have taken place and title in the Goods has not passed to the Buyer.
- 10.7 All amounts payable by the Buyer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Emuge-Franken to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from Emuge-Franken, pay to Emuge-Franken such additional amounts in respect of VAT as are chargeable on the supply of the Goods or Services at the same time as payment is due for the supply of the Goods or Services.
- 10.8 If the Buyer fails to make a payment due to Emuge-Franken under the Contract by the due date, then, without limiting Emuge-Franken's remedies, the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.8 will accrue each day at 4% a year above HSBC Bank’s base rate from time to time.
- 10.9 All amounts due from the Buyer shall be paid in full without any set-off, counterclaim, deduction or withholding.
11. Intellectual Property Rights
- 11.1 All Intellectual Property Rights in the Goods, or in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Buyer) shall be owned by Emuge-Franken (or the applicable Group Company).
- 11.2 Emuge-Franken grants to the Buyer a fully paid-up, worldwide, non-exclusive, royalty-free licence to use any deliverables provided by Emuge-Franken in connection with the Services (excluding materials provided by the Buyer) solely for the purpose of receiving and using such deliverables in its business.
- 11.3 The Buyer shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.
- 11.4 The Buyer grants Emuge-Franken a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Buyer to Emuge-Franken for the term of the Contract for the purpose of providing the Services to the Buyer.
12. Data Protection
- 12.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation. In this clause 12, Applicable Laws means (for so long as and to the extent that they apply to Emuge-Franken) the law of the European Union, the law of any member state of the European Union and/or domestic laws applicable in the UK.
- 12.2 In this clause the terms controller, processor, date subject, personal data, personal data breach, processing and appropriate technical measures shall have the meaning given in the Data Protection Legislation. The parties acknowledge that for the purposes of the Data Protection Legislation, the Buyer is the controller and Emuge-Franken is the processor.
- 12.3Without prejudice to the generality of clause 12.1, the Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Emuge-Franken for the duration and purposes of the Contract.
- 12.4 Without prejudice to the generality of clause 12.1, Emuge-Franken shall, in relation to any personal data processed in connection with the performance by Emuge-Franken of its obligations under the Contract:
- 12.4.1 process that personal data only in accordance with the documented written instructions of the Buyer unless Emuge-Franken is required by Applicable Laws to otherwise process that personal data;
- 12.4.2 ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- 12.4.3 ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential;
- 12.4.4 not transfer any personal data outside of the European Economic Area unless done so in accordance with the Data Protection Legislation;
- 12.4.5 provide reasonable assistance to the Buyer, at the Buyer's cost, in responding to any request from a data subject, and in ensuring compliance with its obligations under the Data Protection Legislation solely in relation to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- 12.4.6 notify the Buyer without undue delay on becoming aware of a personal data breach;
- 12.4.7 at the cost and written direction of the Buyer, delete or return personal data and copies thereof to the Buyer on termination of the Contract unless required by Applicable Law to store the personal data; and
- 12.4.8 maintain complete and accurate records to demonstrate its compliance with this clause 12 and upon reasonable notice and within normal business hours, allow the Buyer to audit such records solely for the purpose of verifying compliance with this clause.
- 12.5. The Buyer consents to Emuge-Franken appointing each of its subcontractors (including each Group Company) as a third-party processor of personal data under the Contract. Emuge-Franken confirms that it has entered or (as the case may be) will enter into with the third-party processor a written agreement incorporating terms which are substantially similar to those set out in this clause 12.
- 13.1 The Buyer undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of Emuge-Franken, except as permitted by clause 13.2.
- 13.2 The Buyer may disclose Emuge-Franken’s confidential information:
- 13.2.1 to its employees, officers or advisers who need to know such information for the purposes of exercising the Buyer’s rights or carrying out its obligations in connection with the Contract. The Buyer shall ensure that its employees, officers or advisers to whom it discloses the other party's confidential information comply with this clause 13; and
- 13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- 13.3 The Buyer shall not use any of Emuge-Franken’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
14. Limitation of Liability and Indemnity
- 14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
- 14.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability, death or personal injury caused by negligence or fraud or fraudulent misrepresentation.
- 14.3 Subject to clause14.2, Emuge-Franken's total liability to the Buyer shall not exceed the price of the Goods or Services comprised in the Order.
- 14.4 Emuge-Franken shall not be liable to the Buyer for any of the following:
- 14.4.1 loss of profits;
- 14.4.2 loss of sales or business;
- 14.4.3 loss of agreements;
- 14.4.4 loss of anticipated savings;
- 14.4.5 loss of use or corruption of software, data or information;
- 14.4.6 damage to goodwill;
- 14.4.7 indirect or consequential loss;
- 14.4.8 losses incurred by the Buyer arising out of or in connection with any third party claim against the Buyer, including by any of the Buyer’s clients. For these purposes, third party claims shall include demands, fines, penalties, damages (liquidated or otherwise), actions, investigations or proceedings; and
- 14.4.9 loss of or damage to property (including any machinery, components or materials of the Buyer) including loss or damage which is caused by any of the acts or omissions set out at clause 5.6.
- 14.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
- 14.6 This clause 14 shall survive termination of the Contract.
- 14.7 The Buyer shall keep Emuge-Franken and each Group Company indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Emuge-Franken and/or each Group Company as a result of or in connection with any act or omission of the Buyer, its employees, agents or subcontractors, including any breach of the Contract, negligence or any claim brought against Emuge-Franken by a third party.
- 15.1 Without affecting any other right or remedy available to it, Emuge-Franken may terminate the Contract by giving the Buyer not less than 7 days’ written notice.
- 15.2 Without affecting any other right or remedy available to it, Emuge-Franken may terminate the Contract with immediate effect by giving written notice to the Buyer if:
- 15.2.1 the Buyer fails to pay any amount due under the Contract on the due date for payment, or the Buyer commits a breach of its other obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 5 days after receipt of notice in writing to do so;
- 15.2.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
- 15.2.3 the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- 15.2.4 the Buyer’s financial position deteriorates to such an extent that in Emuge-Franken’s opinion the Buyer’s ability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- 15.3 Without affecting any other right or remedy available to it, Emuge-Franken may suspend the supply of Goods and/or Services (including all further deliveries of Goods and/or Services to the Buyer under any contract) if the Buyer fails to pay any amount due under the Contract on the due date for payment, or breaches any other term of the Contract, or becomes subject to any of the events listed in clause 15.2.2 to clause 15.2.4, or if Emuge-Franken reasonably believes that the Buyer is about to become subject to any of those events.
16. Consequences of Termination
- 16.1 On termination of the Contract:
- 16.1.1 the Buyer shall immediately pay to Emuge-Franken all of Emuge-Franken's outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, Emuge-Franken shall be entitled submit an invoice, which shall be payable by the Buyer immediately on receipt;
- 16.1.2 the Buyer shall return any deliverables or Goods which have not been fully paid for. If the Buyer fails to do so, then Emuge-Franken may enter the Buyer's premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
- 16.2 Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
- 16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
- 17.1 Force Majeure. Emuge-Franken shall not be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control including acts of God, flood, drought, earthquake or other natural disaster; epidemic and pandemic; terrorist attack, war, civil commotion or riots; any law or any action taken by a government or public authority, the imposition of sanctions or breaking off of diplomatic relations; nuclear, chemical or biological contamination; collapse of buildings, fire, explosion or accident; any labour or trade dispute or industrial action; non-performance by suppliers or subcontractors or interruption or failure of utility service (a Force Majeure Event). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 4 weeks, the Buyer may terminate this Agreement by giving 14 days' written notice to Emuge-Franken.
- 17.2 Assignment and other dealings. Emuge-Franken may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract, including by way of assignment or subcontracting to any Group Company. The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Emuge-Franken.
- 17.3 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
- 17.3.1 delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- 17.3.2 sent by email to its main email address with a copy to follow by post within a reasonable period; and
- 17.3.3 deemed to have been received:
- 18.104.22.168 if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
- 22.214.171.124 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
- 126.96.36.199 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 188.8.131.52, business hours means 9.00am to 5.00pm on a day that is not a public holiday in the place of receipt.
- 17.3.4 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- 17.4 Severance. If any 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 shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.4 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
- 17.5 Waiver. waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
- 17.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
- 17.7 Entire agreement.
- 17.7.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- 17.7.2 Each party acknowledges that in entering into the Contract it does not rely on and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
- 17.8 Third party rights. Each Group Company is entitled to take the benefit of and to enforce against the Buyer the indemnities at clauses 3.2, 6.1 and 14.7 and any other provision of these Conditions which refers to a Group Company. Save as aforesaid, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
- 17.9 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
- 17.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- 17.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.