Terms and Conditions of Supply (Business to Business)
Hydro Building Systems UK Limited
The Customer’s attention is particularly drawn to the provisions of Condition 12.
- 1.1 - In these Conditions, the following definitions apply:
"Conditions" the terms and conditions set out in this document;
"Contract" the contract between Hydro and the Customer for the sale and purchase of the Goods and/or Services in accordance with these Conditions;
"Customer" the person or firm who purchases the Goods and/or Services from Hydro;
“Force Majeure Event” has the meaning given to it in Condition 19;
"Goods" means all or any of the goods, works and materials to be supplied by Hydro;
"Goods Specification" any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and Hydro;
“Good Practice” means the degree of skill, care, prudence and operating practice which would ordinarily be expected from time to time of a skilled and experienced operator (engaged in the same type of undertaking as the Customer);
“Incoterms” means the Incoterms 2010 as published by the International Chamber of Commerce and amended from time to time;
“Industry Standards” means all industry standards in force from time to time and applicable to the assemble, installation, use and maintenance of the Goods including, without limitation, all relevant legislation, regulatory requirements and safety standards;
“Intellectual Property Rights” photographs, patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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;
"Order" means the Customer’s order for the supply of Goods and/or Services as set out in the Customer’s purchase order form, or the Customer’s written acceptance of Hydro’s quotation (as the case may be);
“Price” has the meaning given to it in Condition 8.1.
“Hydro” means Hydro Building Systems UK Limited, a company incorporated in England and Wales with company number 01029071 whose registered office is at Severn Drive Tewkesbury 5300 Tewkesbury Business Park, Severn Drive, Tewkesbury, Gloucestershire, GL20 8SF; and
"Services" means any services to be performed by Hydro in connection with the supply of Goods to the Customer.
- 1.2 - The Condition headings in these Conditions are for convenience only and shall not in any way affect the interpretation of the Contract.
- 1.3 - 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.
- 1.4 - Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
- 1.5 - Any term of expression defined in the Incoterms will import the obligations set out there in upon the parties but, in the event of conflict, these Conditions shall prevail.
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2. Basis of contract
- 2.1 - Any quotation supplied by Hydro in respect of the Goods and/or Services shall remain open for a maximum period of 30 days from its date. Quotations are not binding, do not constitute an offer and shall not be open for acceptance by the Customer. Where Goods are quoted for supply from stock they are quoted subject to those Goods being unsold at the time of acceptance by Hydro of the Customer’s Order.
- 2.2 - These Conditions shall form the terms and Conditions of the Contract and shall apply to the exclusion of any terms or conditions that the Customer seeks to impose or incorporate, whether put forward by or on behalf of the Customer in or on an Order or otherwise or whether implied by trade, custom, practice, course of dealing or law (insofar as the exclusion of the same is lawful).
- 2.3 - The placing by the Customer of any Order shall constitute an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions. No contract shall come into existence unless Hydro accepts the Customer’s Order in writing. Any Order placed by the Customer with any of Hydro’s employees or agents shall be subject to written acceptance by Hydro.
- 2.4 - No alteration to these Conditions shall be effective unless expressly agreed to in writing by a duly authorised person of Hydro.
- 2.5 - Hydro’s employees or agents are not authorised to make any representation, statement, promise, representation, assurance or warranty concerning the Goods and/or Services unless confirmed by Hydro in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations, statement, promise, representation, assurance or warranty which are not so confirmed or set out in the Contract.
- 2.6 - Any advice or recommendation given by Hydro or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by Hydro is followed or acted upon entirely at the Customer’s own risk, and accordingly Hydro shall not be liable for any such advice or recommendation which is not so confirmed.
- 2.7 - All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other only is specified.
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3. Information, samples and materials supplied
- 3.1 - The Customer shall be responsible to Hydro for ensuring the accuracy and sufficiency of its Order (including but not limited to any applicable specification and/or sample) and for giving Hydro any necessary information relating to the Goods and/or Services within a sufficient time to enable Hydro to perform the Contract in accordance with its terms.
- 3.2 Hydro shall be entitled to charge the Customer for all costs (and a reasonable element of profit) incurred by it and if necessary adjust the delivery schedule, where variations to Goods and/or Services are requested by the Customer and accepted by Hydro.
- 3.3 Where samples are to be supplied by Hydro, the Customer shall as soon as reasonably practicable and in any event within 14 days after receipt of the same notify Hydro that the samples are in all respects satisfactory or of any respect in which the samples are not satisfactory. In default of such notification, all samples will be deemed acceptable by the Customer.
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4. Delivery of Goods
- 4.1 - Where the Goods are to be delivered by Hydro, Hydro will use reasonable endeavours to deliver the Goods on the date requested by the Customer.
- 4.2 - Any dates quoted for delivery of the Goods and/or performance of the Services are approximate only, and the time of delivery is not of the essence. Hydro shall not be liable for any delay in delivery of the Goods and/or performance of the Services.
- 4.3 - Hydro reserves the right to deliver all or any of the Goods and/or perform the Services in advance of the estimated date.
- 4.4 - In the absence of agreement to the contrary, delivery of the Goods shall be made by Hydro delivering the Goods to an agreed destination or by the Customer collecting the Goods at Hydro’s premises at any time after Hydro has notified the Customer that the Goods are ready for delivery.
- 4.5 - Hydro reserves the right to deliver by instalments and each delivery shall constitute a separate Contract to which these Conditions shall apply. Failure by Hydro to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
- 4.6 - The Customer shall not be entitled to reject the Goods if Hydro delivers up to and including 10 per cent more or less than the quantity of Goods ordered but a pro-rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
- 4.7 - If the Customer fails to accept or take delivery of the Goods or fails to give Hydro adequate delivery instructions within 14 days of Hydro notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by Hydro’s failure to comply with its obligations under the Contract in respect of the Goods, Hydro may (without prejudice to its other rights and remedies):
- 4.7.1 - store the Goods (at its own or on any third party’s premises) until delivery takes place, and charge the Customer for all reasonable related costs and expenses (including but not limited to VAT, costs of storage, carriage and insurance) and/or;
- 4.7.2 - resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs and expenses, account to the Customer for any excess over the price already paid by the Customer for the Goods or charge the Customer for any shortfall below the price already paid by the Customer for the Goods.
- 4.8 - Notification of short delivery (measured by weight or number) or damage in transit must be made in writing to Hydro within 5 days of the receipt of the Goods.
- 4.9 - Notification of non-delivery must be made in writing to Hydro within 14 days of the date of Hydro’s invoice.
- 4.10 - In the event of non-delivery, short delivery, damage or loss in transit of the Goods, Hydro will at its option either:
- 4.10.1 make good by reimbursement the whole or part of the price (and where relevant, as a deduction from any part of the price remaining unpaid); or
- 4.10.2 repair or replacement any such non-delivery, short delivery or damage notified in accordance with Condition 4.8 or 4.9.
- 4.11 - Save as provided in Condition 4.10, Hydro shall not be liable for any such non-delivery, short delivery or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. Where the Customer collects the Order from Hydro’s premises, Hydro will not be liable to the Customer in connection with any non-delivery, short delivery damage or loss in transit.
- 4.12 - All returnable containers and packing materials will be charged for, but credit will be given if these are returned in satisfactory condition to Hydro’s works, carriage paid within 30 days of delivery of the relevant Goods.
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5. Contracts for Services
- 5.1 - Where Services are provided by Hydro as part of the Contract, the following provisions shall apply:
- 5.1.1 - Hydro shall only be obliged to carry out Services during normal working hours and shall be entitled to charge for any overtime worked upon request by the Customer;
- 5.1.2 - where Services are performed at the premises of the Customer, the Customer shall provide free of charge:
- (a) - such information and materials as Hydro may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
- (b) - proper and safe storage and protection of all Goods, tools, plant, equipment and materials on site;
- (c) - free and safe access to the site and place where the Services are to be performed;
- (d) - all facilities and services necessary to enable such Services to be performed safely and expeditiously;
- (e) - if such Services include the installation of Goods, all builders work, foundations and cutting away and making good where necessary; and
- (f) - the availability of all plant and equipment to permit the Goods to be tested upon completion of Services.
- 5.2 - If Hydro's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation in Condition 5.1 (“Customer Default”):
- 5.2.1 Hydro shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Hydro's performance of any of its obligations;
- 5.2.2 Hydro shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Hydro's failure or delay to perform any of its obligations as set out in this Condition 5.2; and
- 5.2.3 the Customer shall reimburse Hydro on written demand for any costs or losses sustained or incurred by Hydro arising directly or indirectly from the Customer Default.
- 5.3 - Goods and/or Services supplied on the site of the Customer are at all times at the sole risk of the Customer and if any part is lost or destroyed for any reason whatsoever, Hydro shall not be liable for any costs or losses sustained and Hydro shall be entitled to charge the Customer as a variation of the Contract any costs incurred in connection with the restoration of such Goods and/or Services.
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- 6.1 - All descriptive and technical specifications, drawings, catalogues, illustrations and particulars of weight and dimensions supplied by Hydro are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them and do not form part of the Contract or have any contractual force. Hydro reserves the right without notice to the Customer to make alterations thereto and to supply the Goods and/or Services so altered in performance of the Contract provided that such alterations do not materially affect the characteristics of the Goods and/or Services.
- 6.2 - 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 Hydro shall be subject to correction without any liability on the part of Hydro.
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Following Hydro’s acceptance of the Order, the Customer will not cancel and/or suspend such Order, either in whole or in part, other than with Hydro’s prior written consent (to be given by a duly authorised person of Hydro) and upon terms that the Customer shall indemnify Hydro in full against all loss (including, without limitation, loss of profit) damages, costs, expenses and all other liabilities awarded against or incurred by Hydro as a result of or in connection with the cancellation.
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- 8.1 - The price of the Goods shall be Hydro’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in Hydro’s published current price list at the date of the acceptance of the Order, less any discounts agreed in writing with Hydro (the “Price”). Where the Goods are supplied for export from the United Kingdom, Hydro’s export price (as quoted or, where no price has been quoted, as set out in the price list published by Hydro) shall apply.
- 8.2 - Hydro reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to Hydro that is due to:
- 8.2.1 - any factor beyond the control of Hydro (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
- 8.2.2 - any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
- 8.2.3 - any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Hydro adequate or accurate information or instructions in respect of the Goods.
- 8.3 - Unless otherwise expressly stated in writing, all amounts payable by the Customer under the Contract exclusive of VAT which shall be charged where appropriate at the rate prevailing at the relevant tax point.
- 8.4 - Unless otherwise agreed, Hydro may invoice the Customer for the Price on or at any time after Hydro has either:
- 8.4.1 - tendered delivery of the Goods; or
- 8.4.2 notified the Customer that the Goods are ready for collection.
- 8.5 - Unless otherwise agreed in writing, the Customer shall pay each invoice submitted by Hydro in full and in cleared funds by the 26th day of the month following the month during which an invoice was raised pursuant to Condition 8.4 notwithstanding that delivery may not have taken place and/or title in the Goods may not have passed to the Customer. Time for payment shall be of the essence of the Contract.
- 8.6 - If the Customer fails to make any payment due to Hydro 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 Barclays Bank Plc’s base rate from time to time. Such 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.
- 8.7 - The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Hydro may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Hydro to the Customer.
- 8.8 - The Customer may pay by instalments with Hydro’s prior written consent. If the Customer delays or defaults on any one instalment, all remaining instalments will become immediately due and payable and interest will be charged on all unpaid instalments in accordance with Condition 8.6.
- 8.9 - Hydro may apply any payment made by the Customer to such of the Goods (or any goods supplied under any other contract between the parties) or Services as Hydro may think fit.
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9. Risk and title
- 9.1 - Risk in the Goods shall pass to the Customer immediately on:
- 9.1.1 - delivery to the Customer;
- 9.1.2 - collection by the customer or
- 9.1.3 - when the Goods come into the possession of a third party on the Customer’s behalf, whichever is sooner.
- 9.2 - Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in Hydro until Hydro has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by Hydro to the Customer under any other contract whatsoever.
- 9.3 - Until property in and title to the Goods passes to the Customer shall:
- 9.3.1 - hold the Goods on a fiduciary basis as Hydro’s bailee;
- 9.3.2 - keep the Goods properly stored, protected and insured and separate from all or any other goods whether belonging to Hydro the Customer or any third party;
- 9.3.3 - not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods;
- 9.3.4 - maintain the Goods in satisfactory Condition and keep them insured against all risks for the full price on Hydro’s behalf from the date of delivery;
- 9.3.5 - notify Hydro immediately if it becomes subject to any of the events listed in Condition 10.1.3. to Condition 10.1.5; and
- 9.4 - Subject to Condition 9.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Hydro receives payment for the Goods. However, if the Customer resells the Goods before that time:
- 9.4.1 - it does so as principal and not as Hydro agent; and
- 9.4.2 - title to the Goods shall pass from Hydro to the Customer immediately before the time at which resale by the Customer occurs.
- 9.5 - If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 10.1.3 to 10.1.5 then, without limiting any other right or remedy Hydro may have:
- 9.5.1 - the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
- 9.5.2 Hydro may at any time:
- (a) - require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
- (b) - if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
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10. Termination and suspension
- 10.1 - Without prejudice to any rights and remedies available to it, Hydro shall be entitled, forthwith either to terminate the Contract wholly or in part and/or any other contract with the Customer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Customer if:
- 10.1.1 - any sum owing to Hydro from the Customer on any account whatsoever shall be unpaid after the due date for payment (in which event Hydro shall have a general lien for any such sum on all and any property of the Customer in its possession);
- 10.1.2 - the customer commits any breach of any contract (including without limitation a Contract) with Hydro;
- 10.1.3 - the Customer 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;
- 10.1.4 - the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
- 10.1.5 - the Customer’s financial position deteriorates to such an extent that in Hydro’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- 10.2 - On termination of the Contract for any reason the Customer shall immediately pay to Hydro all of Hydro's outstanding unpaid invoices and interest.
- 10.3 - Without limiting its other rights or remedies, Hydro may suspend provision of the Goods under the Contract or any other contract between the Customer and Hydro if the Customer becomes subject to any of the events listed in Condition 10.1.3 to Condition 10.1.5, or Hydro 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.
- 10.4 - If Hydro suspends performance in accordance with Condition 10.3, Hydro may, as a Condition of resulting performance require pre-payment or such other security as it considers appropriate.
- 10.5 - Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
- 10.6 - Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
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- 11.1 - Hydro warrants that on delivery, the Goods shall:
- 11.1.1 - conform in all material respects with their description and any applicable Goods Specification;
- 11.1.2 - be free from material defects in design, material and workmanship; and
- 11.1.3 - be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
- 11.2 - Subject to Condition 11.3, if:
- 11.2.1 - the Customer gives notice in writing to Hydro within 14 days of delivery or (where the failure was not apparent on reasonable inspection) within 3 days of discovery (and in any event within 6 months of the date of delivery) that some or all of the Goods do not comply with the warranty set out in Condition 11.1;
- 11.2.2 - the Customer (if asked to do so by Hydro) returns such Goods to Hydro’s place of business at the Customer’s cost, Hydro shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- 11.3 - Hydro shall not be liable for the Goods’ failure to comply with the warranty set out in Condition 11.1 in any of the following events:
- 11.3.1 - the Customer makes any further use of such Goods after giving notice in accordance with Condition 11.2;
- 11.3.2 - the defect arises because the Customer failed to follow Hydro’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
- 11.3.3 the defect arises as a result of Hydro following any drawing, design or specification supplied by the Customer;
- 11.3.4 the Customer alters or repairs such Goods without the written consent of Hydro;
- 11.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, lack of proper maintenance or servicing or abnormal storage or working Conditions; or
- 11.3.6 the Goods differ from heir description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
- 11.4 - Except as provided in this Condition 11, Hydro shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in Condition 11.1.
- 11.5 - Hydro shall have no liability under this Condition 11 until all monies due from the Customer under the Contract have been paid in full.
- 11.6 - The warranty set out in this Condition 11 does not extend to parts, materials or equipment not manufactured by Hydro in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Hydro and can be transferred.
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12. Liability – The Customer’s attention is particularly drawn to this clause
- 12.1 - Subject to Condition 12.3, Hydro shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
- 12.1.1 - any loss of profit, business opportunity, goodwill, reputation, business interruption or other economic loss; or
- 12.1.2 - any indirect, special or consequential loss arising under or in connection with the Contract.
- 12.2 - Subject to Condition 12.1 and 12.3, Hydro's total liability to the Customer in respect of all losses arising under or in connection with the Contract or the use or re-sale of the Goods by the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price.
- 12.3 - Nothing in these Conditions shall operate so as to limit or exclude Hydro’s liability for:
- 12.3.1 - death or personal injury caused by the negligence of Hydro its servants or agents;
- 12.3.2 - breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession);
- 12.3.3 - breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession);
- 12.3.4 - defective products under the Consumer Protection Act 1987;
- 12.3.5 - fraud, fraudulent misrepresentation or wilful dishonesty; or
- 12.3.6 - any matter in respect of which it would be unlawful for Hydro to exclude or restrict liability.
- 12.4 - This Condition 12 shall survive termination of the Contract.
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13. Health and safety
The Customer will comply with all instructions of Hydro relating to the Goods and take such other steps as are required to ensure, so far as is reasonably practicable, that the Goods will at all time be safe and without risk to health when being properly used, cleaned or maintained.
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14. Instructions to Customer
- 14.1 - The Customer shall ensure that all materials and components are correctly assembled, installed, used and maintained in strict accordance with Hydro’s instructions and/or Industry Standards and Good Practice.
- 14.2 - The Customer shall indemnify Hydro 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 costs and expenses) suffered or incurred by the Customer as a result of or in connection with the installation of the Goods by the Customer, its employees, agents or sub-contractors.
- 14.3 - The Customer will maintain a written record of the name, telephone number and address of the employee, agent or sub-contracts who installed all the Goods and the end user. The Customer shall permit a duly appointed representative of Hydro at all reasonable times to inspect all such records and to take copies of them. For the avoidance of doubt, all rights in such records (including database right and copyright) shall belong to the Customer.
- 14.4 - Where the Customer supplies alternative materials, the Customer shall ensure that the alternative material supplied is subjected to adequate safety testing and quality controls in accordance with Industry Standards and Good Practice.
- 14.5 - The Customer shall use the Goods only for the purpose for which they are marketed by Hydro.
- 14.6 - The Customer must ensure that all assembly booklets, information leaflets and other literature supplied by Hydro with the Goods are given to the employee, agent or sub-contractor engaged to install the Goods and end user, as appropriate.
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15. Intellectual property rights
- 15.1 - All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services shall be owned by Hydro.
- 15.2 - If any claim (a “Claim”) is made against the Customer that the Goods infringe or that their use or resale infringes the patent, copyright, design right, registered design, trade mark or other industrial or intellectual property rights of any other person or any claim is made in respect of passing off or unauthorised use of confidential information in relation to the Goods and/or their use or resale the Customer shall:
- 15.2.1 - as soon as reasonably practicable and in any event within 5 days, give written notice of the Claim to Hydro, specifying the nature of the Claim in reasonable detail;
- 15.2.2 - not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Hydro;
- 15.2.3 - not do anything which would or might vitiate any policy of insurance or insurance cover which Hydro may have in relation to such infringement;
- 15.2.4 - give Hydro and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, to enable Hydro and its professional advisers to examine them and to take copies (at Hydro's expense to assess the Claim); and
- 15.2.5 - be deemed to have given Hydro sole authority to avoid, dispute, compromise or defend the Claim.
- 15.3 - If the Goods are to be manufactured or any process is to be applied to the Goods by Hydro in accordance with a specification submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of Hydro) indemnify Hydro in full against all loss, costs, damages, charges, expenses and other liabilities awarded against or incurred by Hydro as a result of or in connection with:
- 15.3.1 - any claim for infringement of any Intellectual Property Rights of any other person and/or for passing off and/or unauthorised use of confidential information which results from Hydro’s use of the Customer’s specifications; and
- 15.3.2 - any other liability of any kind to any third party including without limitation for defective Goods, personal injury or death to the extent that it arises from the specification.
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16. Export terms
- 16.1 - Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 16 shall (subject to any special terms agreed in writing between Hydro and the Customer) apply not withstanding any other provision of these Conditions.
- 16.2 - The Customer shall be responsible for complying with any legislation governing:
- 16.2.1 - the importation of the Goods into the country of destination; and
- 16.2.2 - the export and re-export of the Goods (if applicable), and shall be responsible for the payment of any duties on it.
- 16.3 - Unless otherwise agreed in writing between Hydro and the Customer, the Goods shall be delivered to the air or sea port of shipment and Hydro shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
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The Customer shall maintain in force, with a reputable insurance company, comprehensive insurance to cover the liabilities that may arise in connection with its statutory liabilities, liabilities under these Conditions and any liability to Hydro and/or third parties in respect of the installation of the Goods (including contractual and tortious liability), and shall, on request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance to Hydro.
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- 18.1 - 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 email.
- 18.2 - A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 18.1 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; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission.
- 18.3 - The provisions of this Condition 18 shall not apply to the service of any proceedings or other documents in any legal action.
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19. Force Majeure
- 19.1 - For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of Hydro including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Hydro or any other party), failure of a utility service or transport 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 subcontractors.
- 19.2 - Hydro shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
- 19.3 - If the Force Majeure Event prevents Hydro from providing any of the Services and/or Goods for more than 60 days, Hydro shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer
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A party (“receiving party”) 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 receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of performing the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this Condition as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This Condition 20 shall survive termination of the Contract.
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- 21.1 - It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a Condition precedent to the performance by Hydro of its obligations under the Contract that all necessary licenses, permits and consents shall have been obtained by the Customer.
- 21.2 - Without prejudice to the general No failure or delay on the part of Hydro to exercise any of its rights under the Contract shall operate as a waiver of nor shall any waiver by Hydro of any breach by the Customer of any of its obligations under the Contract affect the rights of Hydro in the event of any further or continuing breach.
- 21.3 - The Contract is personal to the Customer. The Customer may not assign, licence, sub-contract, transfer or novate Conditions or any part thereof without Hydro’s prior written consent.
- 21.4 - 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.
- 21.5 - The Conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between Hydro on the one hand and the Customer or any third party on the other.
- 21.6 - A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
- 21.6.1 - waive that or any other right or remedy; nor
- 21.6.2 - prevent or restrict the further exercise of that or any other right or remedy.
- 21.7 - No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
- 21.8 - 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.
- 21.9 - Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
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22. Governing Law and Jurisdiction
- 22.1 - The Contract shall be governed by English Law.
- 22.2 - The parties irrevocably submit to the exclusive jurisdiction of the English Courts, save in the case of a Customer who has no assets within the jurisdiction of the English Courts and who is established in a country which will not enforce the judgment of the English Courts. In those circumstances Hydro may if it chooses refer any disputes arising out of the Contract to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, such arbitration to take place in London.
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