Terms and conditions.
1. Interpretation
The following definitions and rules of interpretation apply in this agreement.
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.8
Contract: the contract between ISS and the Customer for the supply of Equipment and/or Services in accordance with these Conditions.
Customer: the person or firm who purchases the Equipment and/or Services from ISS.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
Delivery Location: has the meaning given in clause 4.1.
Equipment: the equipment (or any part of it) set out in the Order.
Equipment Specification: any specification for the Equipment, including any relevant plans or drawings, that is agreed in writing by the Customer and ISS.
Force Majeure Event: has the meaning given to it in clause 16.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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.
ISS: Innovative Safety Systems Limited registered in England and Wales with company number 06875015.
ISS Materials: has the meaning given in clause 8.1(i) equipment that facilitates the reporting of faults.
Order: the Customer’s order for the supply of Equipment and/or Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of ISS’s Quotation, or overleaf, as the case may be.
Quotation: a quotation for Equipment and/or Services provided by ISS to the Customer.
Services: the services supplied by ISS to the Customer as set out in the Service Specification (including, where relevant, the Managed Services).
Service Specification: the description or specification for the Services provided in writing (usually in the Quotation) by ISS to the Customer.
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) 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.
(d) A reference to writing or written includes email.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Equipment and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when ISS issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by ISS and any descriptions of the Equipment or illustrations or descriptions of the Services contained in ISS’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Equipment described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by ISS shall not constitute an offer, and is only valid for a period of 30 days from its date of issue.
2.6 All of these Conditions shall apply to the supply of both Equipment and Services except where application to one or the other is specified.
3. Equipment
3.1 The Equipment is described in the Quotation and in literature supplied by ISS to the Customer as modified by any applicable Equipment Specification.
3.2 To the extent that the Equipment is to be manufactured in accordance with an Equipment Specification supplied by the Customer, the Customer shall indemnify ISS 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 ISS arising out of or in connection with any claim made against ISS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with ISS’s use of the Equipment Specification. This clause 3.2 shall survive termination of the Contract.
3.3 ISS reserves the right to amend the Equipment Specification if required by any applicable statutory or regulatory requirement.
4. Delivery of Equipment
4.1 ISS shall deliver the Equipment to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after ISS notifies the Customer that the Equipment is ready. If the Services which ISS supply to the Customer include the fitting of the Equipment then the representative of ISS carrying out such Services may bring the Equipment to the Delivery Location when the Services are being supplied.
4.2 Delivery of the Equipment shall be completed on the completion of unloading of the Equipment at the Delivery Location.
4.3 Any dates quoted for delivery of the Equipment are approximate only, and the time of delivery is not of the essence. ISS shall not be liable for any delay in delivery of the Equipment that is caused by a Force Majeure Event or the Customer’s failure to provide ISS with adequate delivery instructions or any other instructions that are relevant to the supply of the Equipment.
4.4 If ISS fails to deliver the Equipment, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Equipment of similar description and quality in the cheapest market available, less the price of the Equipment. ISS shall have no liability for any failure to deliver the Equipment to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide ISS with adequate delivery instructions for the Equipment or any relevant instruction related to the supply of the Equipment.
4.5 If the Customer fails to take delivery of the Equipment within three Business Days of ISS notifying the Customer that the Equipment is ready, then except where such failure or delay is caused by a Force Majeure Event or by ISS’s failure to comply with its obligations under the Contract in respect of the Equipment:
(a) delivery of the Equipment shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which ISS notified the Customer that the Equipment were ready; and
(b) ISS shall store the Equipment until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.6 If twenty Business Days after ISS notified the Customer that the Equipment was ready for delivery the Customer has not taken delivery of it, ISS may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.
4.7 ISS may deliver the Equipment 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. Quality of Equipment
5.1 ISS warrants that on delivery the Equipment shall:
a) conform in all material respects with its description and any applicable Equipment Specification;
b) be free from material defects in design, material and workmanship;
c) be of satisfactory quality (within the meaning of the Sale of Equipment Act 1979); and
d) be fit for any purpose held out by ISS.
5.2 The Quotation includes details of any further warranty provided by ISS in respect of the Equipment including details of the length of such warranty (warranty period).
5.3 Subject to clause 5.4, ISS shall, at its option, repair or replace the defective Equipment, or refund the price of the defective Equipment in full if:
a) in respect of the warranty set out in clause 5.1, the Customer gives notice in writing within a reasonable time of discovery that some or all of the Equipment does not comply with the warranty set out in clause 5.1;
b) in respect of a warranty set out in the Quotation, the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Equipment does not comply with the warranty set out in the Quotation;
c) ISS is given a reasonable opportunity of examining such Equipment; and
d) the Customer allows ISS access to the Customer’s premises and were relevant, the Customer’s vehicles, to inspect and, if necessary, remove the Equipment.
5.4 ISS shall not be liable for the Equipment’s failure to comply with the warranty in clause 5.1 or any warranty contained in the Quotation if:
a) the Customer makes any further use of such Equipment after giving a notice in accordance with clause 5.3;
b) the defect arises because the Customer failed to follow ISS’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice;
c) the defect arises as a result of ISS following any drawing, design or Equipment Specification supplied by the Customer;
d) the Customer alters or repairs such Equipment without the written consent of ISS;
e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
f) the Equipment differs from its description or the Equipment Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.5 For the avoidance of doubt, any warranty provided by ISS to the Customer (whether pursuant to clause 5.1 or contained within the Quotation) shall begin from completion of delivery of the Equipment (and if delivery is by instalments, from the date of delivery for that particular Equipment).
5.6 Except as provided in this clause 5, ISS shall have no liability to the Customer in respect of the Equipment’s failure to comply with the warranty set out in clause 5.1 or any warranty contained in the Quotation.
5.7 The terms of these Conditions shall apply to any repaired or replacement Equipment supplied by ISS.
5.8 In the event that the Customer resells the Equipment (in part or whole and including where the Equipment forms part of goods being sold by the Customer to a purchaser), the Customer agrees to pass on the benefit of the warranty contained in this clause 5 (including those the terms set out in clauses 5.3 and 5.4) to the purchaser.
6. Title and risk
6.1 The risk in the Equipment shall pass to the Customer on completion of delivery.
6.2 Title to the Equipment shall not pass to the Customer until the earlier of:
a) ISS receives payment in full (in cash or cleared funds) for the Equipment and any other Equipment that ISS has supplied to the Customer , in which case title to the Equipment shall pass at the time of payment of all such sums; and
b) the Customer resells the Equipment, in which case title to the Equipment shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Equipment has passed to the Customer, the Customer shall:
a) store the Equipment separately from all other Equipment held by the Customer so that it remains readily identifiable as ISS’s property;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment;
c) maintain the Equipment in satisfactory condition and keep it insured against all risks for its full price on ISS’s behalf from the date of delivery; and
d) notify ISS immediately if it becomes subject to any of the events listed in clause 14.2b) to clause 14.2c).
6.4 Subject to clause 6.5, the Customer may resell or use the Equipment in the ordinary course of its business (but not otherwise) before ISS receives payment for the Equipment. However, if the Customer resells the Equipment before that time:
a) it does so as principal and not as ISS’s agent; and
b) title to the Equipment shall pass from ISS to the Customer immediately before the time at which resale by the Customer occurs.
6.5 If before title to the Equipment passes to the Customer the Customer becomes subject to any of the events listed in clause 14.2b) to clause 14.2c), then, without limiting any other right or remedy ISS may have:
a) the Customer’s right to resell Equipment or use it in the ordinary course of its business ceases immediately; and
b) ISS may at any time:
i. require the Customer to deliver up all Equipment in its possession which has 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 Equipment is stored in order to recover it.
7. Supply of Services
7.1 ISS shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
7.2 ISS shall use all reasonable endeavours to meet any performance dates for the Services agreed by the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 ISS reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services.
7.4 ISS warrants to the Customer that the Services will be provided using reasonable care and skill.
7.5 In the event of defective performance of the Services, ISS will re-perform the Services in accordance with the relevant Order, following which ISS shall have no further liability to the Customer in respect of such defective performance.
8. Customer’s obligations
8.1 The Customer shall:
a) ensure that the terms of the Order and any information it provides in the Service Specification and the Equipment Specification are complete and accurate;
b) co-operate with ISS in all matters relating to the supply of the Equipment and/or Services;
c) provide ISS, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, relevant vehicles and other facilities as reasonably required by ISS, and on the agreed date(s), to provide the Services;
d) provide ISS with such information and materials as ISS may reasonably require in order to supply the Equipment and/or Services, and ensure that such information is complete and accurate in all material respects;
e) prepare the Customer’s premises for the supply of the Services;
f) ensure that the Customer’s premises are suitable and adequate for the supply of the Services;
g) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
h) comply with all applicable laws, including health and safety laws;
i) keep all materials, equipment, documents and other property of ISS (ISS Materials) at the Customer’s premises in safe custody at its own risk, maintain ISS Materials in good condition until returned to ISS, and not dispose of or use ISS Materials other than in accordance with ISS’s written instructions or authorisation;
j) comply with any additional obligations as set out in the Service Specification and the Equipment Specification; and
k) in respect of the Managed Services, observe and keep within the limits of data usage for sim cards/network.
8.2 If ISS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
a) without limiting or affecting any other right or remedy available to it, ISS shall 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 in each case to the extent the Customer Default prevents or delays ISS’s performance of any of its obligations;
b) ISS shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ISS’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
c) the Customer shall reimburse ISS on written demand for any costs or losses sustained or incurred by ISS arising directly or indirectly from the Customer Default.
9. Charges and payment
9.1 Except where the Equipment comprises spare parts, the price for the Equipment:
a) shall be the price set out in the Order; and
b) shall be inclusive of all costs and charges of packaging, insurance, transport of the Equipment.
9.2 Where the Equipment comprises spare parts, the price for the Equipment:
a) shall be the price set out in the Order; and
b) shall be exclusive of all costs and charges of packaging, insurance, transport of the Equipment, which shall be invoiced to the Customer.
9.3 Where the Services under the Contract are for the fitting of the Equipment, the costs for those fitting Services are included in the price of the Equipment. Except for the fitting and the charges for the Managed Services, the charges for any other Services are as set out in the Quotation.
9.4 The charges for the Managed Services are those set out in the Quotation. Those charges are based on a tariff charge and are subject to fair usage of the sim cards/network data. If the Customer exceeds the fair usage for the sim card/network data ISS reserves the right to charge the Customer on an overage basis, for the amount used in excess of the fair usage for the tariff.
9.5 ISS reserves the right to:
a) increase the charges for the Managed Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be the latest available figure for the percentage increase in the Retail Prices Index;]
b) increase the price of the Equipment or Services, by giving notice to the Customer at any time before delivery of the Equipment, or at any time in the case of Services, to reflect any increase in the cost of the Equipment or Services to ISS that is due to:
i. any factor beyond the control of ISS (including foreign exchange fluctuations, increases in taxes and duties, increases in labour, materials and other manufacturing costs and increases in the costs to the Company of network data);
ii. any request by the Customer to change the delivery date(s), quantities or types of Equipment ordered, the Equipment Specification, the Services or Service Specification; or
iii. any delay caused by any instructions of the Customer in respect of the Equipment or Services or failure of the Customer to give ISS adequate or accurate information or instructions in respect of the Equipment or Services.
9.6 In respect of Equipment, ISS shall invoice the Customer on or at any time after completion of delivery. Where Equipment is to be fitted by ISS, ISS shall invoice the Customer after fitting and may invoice the Customer separately for each item of Equipment once it has been fitted.
9.7 In respect of Services (but excluding the Managed Services), ISS shall invoice the Customer in advance in respect of the relevant period, unless otherwise agreed in writing by ISS..
9.8 In respect of the Managed Services, ISS shall invoice the Customer annually in advance, unless otherwise agreed in writing by ISS. In respect of any overage charges relating to the Managed Services, these will be charged to the Customer as and when they are incurred..
9.9 The Customer shall pay each invoice submitted by ISS:
a) within 30 days of the date of the invoice or in accordance with any credit terms agreed by ISS and confirmed in writing to the Customer; and
b) in full and in cleared funds to a bank account nominated in writing by ISS, and
time for payment shall be of the essence of the Contract.
9.10 All amounts payable by the Customer 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 ISS to the Customer, the Customer shall, on receipt of a valid VAT invoice from ISS, pay to ISS such additional amounts in respect of VAT as are chargeable on the supply of the Services or Equipment at the same time as payment is due for the supply of the Services or Equipment.
9.11 If the Customer fails to make a payment due to ISS under the Contract by the due date, then, without limiting ISS’s remedies under claus (Termination), the Customer 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 9.11 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.12 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Equipment or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by ISS (or its relevant licensors).
10.2 The Customer acknowledges that ISS may collect data via the Managed Services to use for its own promotional purposes.
10.3 The Customer agrees that ISS may publish the fact that the Customer is a customer of ISS on its website and in other promotional materials and to this extent, the Customer grants ISS a fully paid-up, non-exclusive, royalty-free non-transferable licence to use the Customer’s name and logo for these purposes.
11. Data protection
11.1 To the extent that the Services involve the processing of Personal Data by ISS as a data processor on behalf of the Customer as data controller, (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation), the following clauses 11.2 to 11.6 shall apply to such relationship.
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 11, Applicable Laws means (for so long as and to the extent that they apply to ISS) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means any Data Protection Legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
11.3 The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data (as defined in the Data Protection Legislation) to ISS for the duration and purposes of the Contract.
11.4 The subject matter, nature, purpose and duration of processing and the type(s) of Personal Data and the categories of Data Subject (as defined in the Data Protection Legislation) are set out in the Quotation.
11.5 ISS shall, in relation to any Personal Data processed in connection with the performance by ISS of its obligations under the Contract:
c) process that Personal Data only on the written instructions of the Customer (which for the avoidance of doubt includes these Conditions and the terms of the Order) unless ISS is required by Applicable Laws to otherwise process that Personal Data. Where ISS is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, ISS shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ISS from so notifying the Customer;
d) 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 (those measures may include, where appropriate, those listed in Article 32 of GDPR;
e) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
f) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
i. the Customer or ISS has provided appropriate safeguards in relation to the transfer;
ii. the Data Subject has enforceable rights and effective legal remedies;
g) ISS complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
i. ISS complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
a) assist the Customer, at the Customer’s cost, and taking into account the nature of the processing, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
b) notify the Customer without undue delay on becoming aware of a Personal Data breach;
c) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the Personal Data;
d) notify the Customer without undue delay if it is asked to do something which infringes Data Protection Legislation;
e) maintain complete and accurate records and information to demonstrate its compliance with this clause 11; and
f) allow for audits, on at least 20 Business Days written notice, and no more than once per calendar year, by the Customer or the Customer’s designated representative, subject to the Customer and/or their designated representative first entering into acceptable confidentiality undertakings.
11.6 The Customer consents to ISS appointing Six Degrees Technology Group Limited as a third-party processor of Personal Data under the Contract. ISS will obtain the Customer’s prior written consent before appointing any other third-party processors of Personal Data under the Contract. ISS confirms that it has entered or (as the case may be) will enter with any such third-party processor into a written agreement substantially on that third party’s standard terms of business or which include terms required by Article 28(3) of GDPR (but which for the avoidance of doubt, may not be back to back clauses). As between the Customer and ISS, ISS shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.
12. Confidentiality
12.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2.
12.2 Each party may disclose the other party’s confidential information:
a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12; and
b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
13. Limitation of liability
13.1 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
a) death or personal injury caused by negligence;
b) fraud or fraudulent misrepresentation; and
c) breach of the terms implied by section 12 of the Sale of Equipment Act 1979 or section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession).
13.2 Except in respect of the Managed Services, and subject to clause 13.1, ISS’s total liability to the Customer shall not exceed the price of the Equipment and Services (excluding the charges for the Managed Services). ISS’s total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.
13.3 In respect only of the Managed Services, and subject to clause 13.1, ISS’s total liability to the Customer shall be limited to 100% of the average annual charges for the Managed Services (calculated by reference to the charges in successive 12 month periods from the date of the Contract) payable by the Customer under the Contract.
13.4 Subject to clause 13.1 ISS shall not under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any
a) Loss of profits.
b) Loss of sales or business.
c) Loss of agreements or contracts.
d) Loss of anticipated savings.
e) Loss of use or corruption of software, data or information.
f) Loss of or damage to goodwill.
g) Indirect or consequential loss
suffered by the Customer that arises under or in connection with this Contract.
13.5 ISS has given commitments as to compliance of the Equipment and Services with relevant specifications in clause 5 clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Equipment 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 this agreement.
13.6 This clause 13 shall survive termination of the Contract.
14. Termination
14.1 Except in relation to the Managed Services, the Contract may not be cancelled by the Customer, except with the prior agreement of ISS in writing and only on terms that the Customer shall indemnify ISS in full against all losses (including loss of profit), costs (including the cost of all materials used and labour), damages, charges and expenses incurred by ISS as a result of the cancellation.
14.2 In relation to the Managed Services the Contract (in respect of Managed Services only) shall commence on the Commencement Date and shall continue unless terminated earlier in accordance with clauses 14.3 to 14.5, until either party gives to the other party 1 month’s written notice to terminate, expiring on or after the first anniversary of the Commencement Date.
14.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 20 days after receipt of notice in writing to do so;
b) the other party 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;
c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.4 Without affecting any other right or remedy available to it, ISS may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.5 Without affecting any other right or remedy available to it, ISS may suspend the supply of Services and/or all further deliveries of Equipment under the Contract or any other contract between the Customer and ISS if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.2(b) to clause 14.2(c) or ISS reasonably believes that the Customer is about to become subject to any of them.
15. Consequences of termination
15.1 On termination of the Contract:
a) the Customer shall immediately pay to ISS all of ISS’s outstanding unpaid invoices and interest and, in respect of Services and Equipment supplied but for which no invoice has been submitted, ISS shall submit an invoice, which shall be payable by the Customer immediately on receipt;
b) the Customer shall return all of ISS Materials or Equipment which have not been fully paid for. If the Customer fails to do so, then ISS may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. Force majeure
Neither party shall 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.
17. General
17.1 Assignment and other dealings
a) ISS 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.
b) The Customer 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 ISS.
17.2 Notices.
a) Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be 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).
b) Any notice or communication shall be deemed to have been received:
i. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
ii. 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.
c) 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.
17.3 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 clause shall not affect the validity and enforceability of the rest of the Contract.
17.4 Waiver. A 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.
17.5 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.
17.6 Entire agreement.
a) 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.
b) 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.
c) Nothing in this clause shall limit or exclude any liability for fraud.
17.7 Third parties rights. Unless it expressly states otherwise, 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
17.8 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).
17.9 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.
17.10 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.