These Terms and Conditions may only be varied with the written agreement of IDWe Limited.
These Terms and Conditions shall apply to all contracts for the supply of Goods and Services by IDWe Limited to the Customer to the exclusion of all other terms and conditions including any terms and conditions which the Customer may purport to apply under any purchase order confirmation of order or similar document.
1. Definition and Interpretation
1.1 In these Terms and Conditions the following words shall have the following meanings:
“Agreement” means any quotation supplied by IDWe Limited to the Customer incorporating either:-
- the Agreement for the Supply of Goods and/or Services and these Terms and Conditions (including any relevant Purchase Order); or
- the Framework Agreement for the Supply of Goods and/or Services, these Terms and Conditions (including any relevant Purchase Order), and the order acknowledgement form; or
- these Terms and Conditions (including any relevant Purchase Order) and a Material Transfer Agreement.
“Background IPR” means rights in any Intellectual Property, excluding Foreground IPR, owned or controlled by any party arising before commencement of the Services and/or provision of the Goods, or in parallel independently of the Services and/or Goods, which is necessary for carrying out the Services and/or provision of the Goods.
“Confidential Information” means any information given to or obtained by IDWe Limited from the Customer, or by the Customer from IDWe Limited, under the Agreement, the disclosure of which would constitute an actionable breach of confidence, which has either been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) including commercially sensitive information, information which relates to the business, affairs, properties, assets, trading practices, goods/services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either Party and all personal data and sensitive personal data within the meaning of the Data Protection Act 1998.
“Customer” means the person or persons to whom the Agreement is issued. Where the Customer consists of more than one person, the obligations of those persons in respect of the Agreement shall be joint and several.”EIR” means the Environmental Information Regulations 2004.
“FOIA” means the Freedom of Information Act 2000.”Foreground IPR” means rights in any Intellectual Property obtained, found, produced, devised, developed, or made during or generated in the course of the carrying out of the Services and/or providing the Goods.
“Goods” means the goods to be supplied by IDWe Limited as detailed in the quotation issued by IDWe Limited or in any other form, including but not limited to email, telephone, letter and fax.
“Information” has the meaning given under section 84 of FOIA.
“Intellectual Property” means any copyright, design right, trademark, trade name, know-how, patentable invention for the purposes of the Patents Act 1977, database right for the purposes of the Copyright and Rights in Databases Regulations 1997, and all intellectual property, including Technical Information, the rights to which are protectable by law; and “Intellectual Property Rights” and “PR” shall mean any rights in Intellectual Property.
“Parties” means IDWe Limited and the Customer.
“Price” means the charges, taxes and disbursements specified by IDWe Limited in either the Agreement for the Supply of Goods and/or Services or IDWe Limited’s quotation.
“Purchase Order” means the purchase order containing details relating to the supply of Goods and/or Services under the Agreement.
“Services” means the services to be supplied by IDWe Limited to the Customer as specified in the Agreement.
“Technical Information” means and includes inventions, discoveries (and applications thereof), biological substances, organisms and materials (whether patentable or not), designs, drawings, techniques, processes, formulae, reports, specifications, practices, procedures, instructions, software and other technical information and data of any kind in whatever form.
“Terms and Conditions” means the IDWe Limited Standard Terms and Conditions for the Supply of Goods and Services.
“VAT” means the appropriate rate of UK value added tax.
1.2 Clause headings shall not affect the interpretation of these Terms and Conditions.
1.3 Unless the context otherwise requires, references in these Terms and Conditions:
- 1.3.1 to “person” or “third party” include any individual, company, corporation, firm, partnership, joint venture, association, organisation, institution, trust or agency, whether or not having a separate legal personality;
- 1.3.2 to one gender include all genders, and reference to singular include the plural and vice versa;
- 1.3.3 to any statute, statutory provision or regulation, are references to that statute, statutory provision or regulation, as from time to time amended, extended or re-enacted.
2. The Goods and Services
2.1 IDWe Limited agrees to provide the Goods and/or Services to the Customer in accordance with the Agreement.
2.2 In carrying out the Services IDWe Limited undertakes to the Customer that it shall use its reasonable endeavours to undertake the Services in accordance with good practice and within the time period agreed between the Parties and at all times exercising reasonable skill and care.
2.3 Nothing in the Agreement implies that IDWe Limited will provide the Goods and/or Services or services of this type for the Customer exclusively.
2.4 All materials and items of equipment which are to be supplied by the Customer to IDWe Limited for the purpose of the Services, shall be delivered, assembled, maintained, dismantled and collected upon termination or expiry of the Agreement or at IDWe Limited’s request, at the Customer’s cost and in accordance with the requirements of the IDWe Limited staff responsible for the Services.
2.5 Risk in any materials or items of equipment supplied by the Customer to IDWe Limited shall remain with the Customer at all times. All equipment and other accessories (except those owned and provided by the Customer) and all materials obtained by IDWe Limited and/or used for the purposes of the Services shall remain the property of IDWe Limited until paid for in full.
2.6 If the Services involve the Customer’s employees attending IDWe Limited’s premises, the Customer shall remain responsible for their salaries and other associated costs. The Customer will procure that such employees comply with all security, health and safety, and other relevant procedures whilst on IDWe Limited’s premises. IDWe Limited may at any time at its absolute discretion, refuse to accept or continue to accept any particular employee of the Customer on its premises. IDWe Limited is under no obligation to allow the Customer’s employees to witness the Services being carried out.
2.7 No order for the supply of Goods and/or Services is binding on IDWe Limited unless and until it has been accepted by IDWe Ltd in writing.
3. Delivery and Packaging
3.1 Delivery of the Goods shall be at the time and date and in the manner specified by IDWe Limited or as otherwise agreed with the Customer.
3.2 Time of delivery shall not be of the essence. Stated delivery times are an estimate only and, subject to the other provisions of the Agreement, IDWe Limited will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods nor will any delay entitle the Customer to terminate or rescind the Agreement.
3.3 If the Customer refuses or fails to take delivery of the Goods within the Customer’s normal working hours on the date of delivery, or if IDWe Limited is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, IDWe Limited may store the Goods and the Customer shall in addition to the price payable pay all related costs and expenses (including without limitation, the costs for storage and insurance) and additional delivery costs incurred by IDWe Limited and if the Customer fails to take delivery of or to collect the Goods (as appropriate) after fourteen (14) days following the date of delivery, IDWe Limited may rescind the Agreement and sell the Goods to a third party if possible or recover damages.
3.4 IDWe Limited shall use its reasonable endeavours to comply with the reasonable requests made by the Customer to postpone delivery of the Goods but shall be under no obligation to do so.
3.5 If Goods are delivered in instalments, each delivery shall constitute a separate Agreement. Any failure by IDWe Limited to deliver or any claim by the Customer in respect of any one or more of the instalments in accordance with this Agreement shall not entitle the Customer to treat the Agreement as a whole as repudiated.
3.6 IDWe Limited reserve the right to change the batch of the Goods at any time and Goods may be delivered which originate from one or more different batches.
3.7 IDWe Limited reserves the right, at its sole option, to cancel or withhold the delivery of any Goods and/or Services, (whether in whole or in part):
- 3.7.1 until receipt of satisfactory credit reference in respect of any Customer; and/or
- 3.7.2 where the supply of such Goods and/or Services would exceed any credit limit which IDWe Limited may, in its absolute discretion, have granted to the Customer; or
- 3.7.3 the Customer is in breach of any of the terms of the Agreement.
3.8 Due to the nature of the Goods to be supplied, the Customer shall be responsible for ensuring the Goods are kept in adequate storage conditions once delivered in accordance with this clause, including but not limited to protecting the Goods against the effects of humidity and temperature.
4. Risk and Title
4.1 Unless stated otherwise, risk in the Goods shall pass to the Customer (the Customer is then responsible for all loss or deterioration of the Goods or for any damage occurring) upon delivery in accordance with clause 3.
4.2 Title to the Goods shall remain with IDWe Limited until any and all sums due or payable by the Customer to IDWe Limited, under this Agreement or under any other contract between the Customer and IDWe Limited is made in full and cleared funds.
5. Defects Apparent on Inspection
5.1 The Customer shall only be entitled to claim in relation to defects in the Goods as supplied which are apparent on visual inspection if the Customer inspects the Goods and a written complaint specifying the defect is made to IDWe Limited within seven (7) days of delivery, and IDWe Limited is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or interference with the Goods.
5.2 If a complaint is not made to IDWe Limited in accordance with this clause 5, the Goods shall be deemed to be in all respects in accordance with the Agreement (subject only to clause 6) and the Customer shall be bound to pay the Price for such Goods.
6. Defects not Apparent on Inspection
6.1 The Customer shall only be entitled to claim in respect of defects in the Goods supplied which are not apparent on visual inspection at the time of delivery if:
- 6.1.1 a written complaint is sent to IDWe Limited as soon as reasonably practicable after the defect is discovered and subsequently no use is made of the Goods or alteration or interference made to or with the Goods before IDWe Limited is given the opportunity to inspect the Goods in accordance with clause 6.4 below; and
- 6.1.2 the complaint is sent within 30 days of the date of delivery of the Goods.
6.2 The Customer shall not be entitled to claim in respect of any defect arising by reason of fair wear and tear or damage due to accident, neglect or misuse, nor in respect of any Goods to which alterations have been made without IDWe Limited’s consent.
6.3 IDWe limited shall not be liable for (and the Customer shall indemnify and keep indemnified IDWe Limited against) any and all claims whatsoever arising from loss or damage suffered by reason of use of the Goods after the Customer becomes aware of any defect or after circumstances have occurred which should reasonably have indicated to the Customer the existence of a defect.
6.4 IDWe Limited may within fifteen (15) days of receiving a written complaint in accordance with clauses 5.1 or 6.1 inspect the Goods and the Customer if so required by IDWe Limited shall take all reasonable steps necessary to enable it to do so.
7. Invoicing and Payment Terms
7.1 Payments of the Price shall be made within 30 days of receipt of a valid VAT invoice. Payment shall be made in £ sterling. All cheques, drafts or other payment instructions should be drawn on a bank trading in the UK.
7.2 All bank charges associated with payments made by the Customer for the Goods and/or Services (such as, by way of example only, charges levied on payments from overseas) shall be payable by the Customer.
7.3 All sums due from the Customer to IDWe Limited which are not paid on the due date (without prejudice to the rights of IDWe Limited under the Agreement) shall bear compounded interest at the rate of 8% over the daily base rate of the Bank of England.
7.4 Time shall be of the essence in relation to payments by the Customer to IDWe Limited under the Agreement.
8. Force Majeure
IDWe Limited shall be under no liability for any failure to perform any of its obligations under the Agreement if and to the extent that the failure is caused by act of God, war, riots, civil commotions, strikes, lock-outs, trade disputes, fires, breakdowns, interruptions of transport, governmental action or restriction, shortages of labour or materials or breakdown of machinery, delay in delivery by IDWe Limited’s suppliers or any other cause whatsoever (whether or not similar to the foregoing) outside the control of IDWe limited.
9.1 The Agreement may be terminated by IDWe limited on giving written notice.
9.2 Either party may terminate the Agreement immediately by written notice given to the other where:
- 9.2.1 that other party commits a breach of the Agreement which the party serving the notice reasonably considers is not capable of remedy; or
- 9.2.2 that other party has continued in any breach of the Agreement for more than 30 days after being warned in writing of such breach.
9.3 IDWe Limited may terminate the Agreement immediately by written notice to the Customer if:-
- 9.3.1 the Customer is a company, and the company passes a resolution or the court makes an order that it should be wound up or that an administrator be appointed, or if the Customer makes a composition or an arrangement with its creditors, or if a receiver or manager or administrator on behalf of a creditor is appointed, or if circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the court to make a winding up order; or
- 9.3.2 the Customer being an individual at any time becomes bankrupt, or has a receiving order made against him or her or makes any composition or arrangement with or for the benefit of his or her creditors, or purports to do so; or
- 9.3.3 the Customer is a partnership and any partner thereof at any time becomes bankrupt, or has a receiving order made against him or her, or any partner or the partnership makes any composition or arrangement with or for the benefit of their creditors, or purports to do so.
9.4 If the Customer does not make payments in accordance with clause 7 above IDWe Limited reserves the right to cease the supply of Goods and/or Services and/or withhold the results of the Services and, if it thinks fit, to terminate the Agreement immediately by written notice given to the Customer.
10. Effect of termination
Termination of the Agreement shall not affect any obligation or liability of any Party which has accrued at the date of termination.
Any notices to be given under the Agreement shall be in writing and sent to the relevant address or addresses set out in the Agreement by hand, electronic mail transmission, facsimile or prepaid post. Such notices shall be deemed to be received at once if sent by facsimile or electronic mail transmission and if sent by prepaid first class post within the United Kingdom shall be deemed to be served on the second business day after posting. If a notice is sent to or from abroad by prepaid mail it shall be deemed to be served on the fifth business day after posting.
12. Dispute resolution
12.1 IDWe Limited and the Customer shall in good faith attempt to negotiate a settlement to any dispute between them arising out of or in connection with the Agreement.
12.2 If any such dispute cannot be resolved in accordance with condition 26.1, the dispute may, by agreement between IDWe Limited and the Customer, be referred to mediation.
12.3 The procedure for any such mediation shall be as follows:
- 12.3.1 A neutral person (“the Mediator”) shall be chosen by agreement between IDWe Limited and the Customer, alternatively, either party may within 14 days from the date of the proposal to appoint a mediator, or within 14 days of notice to either party that the chosen mediator is unable or unwilling to act, apply to the Centre for Dispute Resolution (“CEDR”) to appoint a mediator.
- 12.3.2 IDWe Limited and the Customer shall within 14 days of the appointment of the Mediator meet with him or her to agree a timetable for the exchange of all relevant and necessary information and the procedure to be adopted for the mediation. If appropriate, IDWe Limited and the Customer may at any stage seek from CEDR guidance on a suitable procedure.
- 12.3.3 Unless otherwise agreed, all negotiations and proceedings in the mediation connected with the dispute shall be conducted in strict confidence and shall be without prejudice to the rights of the Parties in any future proceedings.
- 12.3.4 If IDWe Limited and the Customer reach agreement on the resolution of the dispute, that agreement shall be set out in writing and shall be binding upon IDWe Limited and the Customer.
- 12.3.5 Failing agreement, either IDWe Limited or the Customer may invite the Mediator to provide binding decision based on their findings
13. Jurisdiction and governing law
The Agreement is subject to English law and to the exclusive jurisdiction of the courts of England and Wales.