TERMS & CONDITIONS
1. These Terms apply to and govern the provision and sale of all services and goods made by MACH2TECHNOLOGY LIMITED (a limited liability company registered in England, registered address 71-75 Shelton Street, Covent Garden, London WC2H 9JQ) (“MACH2”). These Terms and the Proposal/ Order Confirmation issued by MACH2 to the Customer constitute the entire agreement between MACH2 and the Customer relating to its subject matter and expressly excludes all other terms that the Customer seeks to impose or incorporate (under any purchase order, confirmation of order or otherwise), or which are implied by trade, custom, practice or course of dealing
2. SERVICES
2.1 MACH2 shall perform the Services as set out in the Proposal/ Order Confirmaion. The Services shall be performed using all reasonable skill and care, be free from material defects in design, material and workmanship, be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and be fit for the purpose held out by MACH2. Any Goods supplied are subject to their manufacturers’ warranties and are not warranted by MACH2. Where appropriate manufacturers’ warranties will be transferred to the Customer on full payment of the Price to MACH2.
2.2 Dates are estimates only and although MACH2 will use all reasonable efforts to meet performance dates detailed in the Proposal it cannot guarantee to do so. Time shall not be of the essence.
2.3 MACH2 will observe all reasonable health and safety policies and processes at the Site which the Customer has given MACH2 prior written notice of.
2.4 Unless otherwise stated in the Proposal, MACH2 is not responsible for making good any aesthetic and/or decorative finishes (by way of example only, filling holes, repainting, redecoration etc.) which shall be the responsibility of the Customer.
2.5 The Customer is responsible for providing details of its’ requirements to MACH2 and shall ensure that all information and documentation which it has provided to MACH2 for the purpose of the Services is complete and accurate.
2.6 The Customer shall provide and/or undertake the actions and responsibilities set out in the Proposal, together with all preparatory actions reasonably necessary for the Services (including, but not limited to, obtaining all required planning permissions, building consents, permissions, licenses, electrical connections, removal of waste and hazardous materials, etc), together with such facilities, resources and other assistance as are reasonably required and/or which have been reasonably requested by MACH2 for the proper performance of the Services.
2.7 The Customer shall provide to MACH2 full and accurate details relating to the Site, access requirements and/or constraints and Site details and shall provide (and shall ensure that all staff, contractors, occupiers and other third parties at or with rights to the Site provide) such clear access to the Site as is reasonably required for the proper and timely performance of the Services and shall ensure that the Site and facilities at the Site (such as electrical circuits and other utilities) are sufficient for the Services and conform with all required standards.
2.8 If MACH2 is delayed or prevented from providing the Services due to a failure or delay by the Customer MACH2 may suspend performance of the Services until the Customer has rectified the same. The Customer shall be responsible for any costs and/or liabilities which rise as a consequence of its failure or delay and shall reimburse to MACH2 all costs and expenses incurred by MACH2 in respect of the Services (including the costs of all Goods paid for and/or committed to by MACH2).
3. PRICE
3.1 The Price shall be the Price set out in the Proposal and the Customer shall make payment to MACH2 in the amounts and on the dates set out in the Proposal. The Price and all other costs or expenses are exclusive of any applicable sales tax (VAT), which shall be paid by the Customer.
3.2 Unless stated otherwise in the Proposal, invoices are payable within 14 days of the invoice date. Payment shall be made in Pounds Sterling to the bank account nominated in writing by the MACH2.
3.3 If the Customer fails to make any payment on time MACH2 may (without prejudice to its other rights and remedies): i) require the Customer to pay the costs of storage of Goods and materials; ii) suspend any further deliveries and/or performance of Services to the Customer until payment is made in full; iii) resell any Goods not yet delivered to the Customer; and/or v) retain any sums paid by the Customer in respect of the Services and/or Goods.
3.4 The Customer may request additional services which shall be subject to express acceptance by MACH2 (Additional Services). Additional Services shall be subject to MACH2’s standard fees and shall be payable within 15 days of the date of invoice.
3.5 MACH2 shall be entitled to be reimbursed by the Customer for all out-of-pocket expenses (including travelling and entertainment expenses) incurred by MACH2 and its personnel in the proper provision of the Services.
3.6 Interest shall accrue on any overdue amount at the rate of 4.0% per annum above the Bank of England’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.
4. TITLE AND RISK
4.1 The risk in Goods shall pass to the Customer upon delivery to Site and the Customer should arrange appropriate insurance from that point.
4.2 Title to Goods shall pass to the Customer upon payment in full of all sums due under these Terms.
4.3 Until title to the Goods has passed to the Customer, the Customer shall maintain, protect and keep safe the Goods and keep them insured against all risks from the date on which Goods are delivered to the Site and shall not use, deal with, transfer, sell, licence, pledge, and or allow any lien, charge or other interest to arise over the Goods;
4.4 At any time prior to title in Goods passing to the Customer MACH2 may require the Customer to deliver up all Goods and if the Customer fails to do so promptly MACH2 shall have the right to enter any premises of the Customer in order to recover them.
5. INTELLECTUAL PROPERTY
5.1 Each party retains ownership of their own Intellectual Property and these Terms do not operate to transfer or grant rights to any Intellectual Property to either Party except to the extent expressly stated within the Proposal.
6. TERMINATION AND SUSPENSION
6.1 Without limiting its other rights or remedies, either Party (the “Innocent Party”) may terminate the Contract with immediate effect by giving the other Party (“Defaulting Party”) written notice if the Defaulting Party:
(i) commits a material breach of its obligations arising under these Terms and fails to remedy such breach within fourteen (14) days of receiving notice from the Innocent Party requiring that the breach be remedied; or
(ii) takes any step or action, or is subject to or threatened with any step or action, in connection with entering administration, provisional liquidation or any composition or arrangement with any or all of its’ creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of court) having a receiver appointed to any of its’ assets or ceasing to carry on business or, if the step of action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(iii) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its’ business or suspends or threatens to suspend payment of its’ debts or is unable to pay its’ debts as they fall due or admits to inability to pay its debts; or
(iv) the holder of a floating charge becomes entitled to appoint or has appointed an administrative receiver or a creditor or encumbrancer of the Defaulting Party attaches or takes possession of, or a distress, execution, sequestration or such other process is levied or enforced on or sued against, the whole or any part of the Defaulting Party’s assets.
6.2 On termination of the Contract for any reason other than a material breach of its obligations by MACH2, the Customer shall immediately pay to MACH2 all of MACH2’s outstanding unpaid invoices, together with payment in respect of all Services carried out and Goods supplied as at the date of termination but which have not yet been invoiced, together with the costs and expenses arising due to such termination (including, by way of example only, the costs of all Goods paid for and/or committed to by MACH2).
6.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination, Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
7. LIABILITY & LIMITATION
7.1 Nothing in these Terms shall limit or exclude either Party’s liability for: i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); ii) fraud or fraudulent misrepresentation; iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; iv) defective products under the Consumer Protection Act 1987; or v) any matter in respect of which it would be unlawful for the Party’s to exclude or restrict liability.
7.2 Subject to clause 7.1 neither Party shall be liable (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any loss of profit, loss of expected future business, damage to reputation or goodwill or any indirect or consequential loss or compensation arising under or in connection with the Contract and each Party’s total aggregate liability arising under or in connection with the Contract whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed 100% of the Price.
7.3 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are to the fullest extent permitted by law excluded.
7.4 MACH2 shall not be liable for the Services and/or Goods (“Deliverables”) where: i) the Deliverables are relocated, sold, altered, or any other changes are made to the Deliverables without MACH2”s prior written approval; ii) the Customer has failed to follow MACH2's instructions, including as to storage, commissioning, installation, use and/or maintenance of the Deliverables and associated equipment or (if there are none) good trade practice regarding the same and/or had used the Deliverables other than for the intended purpose; iii) the Customer is in breach of these Terms or any defect arises as a result of MACH2 following the Customer’s instruction, drawings or design; iv) caused (in whole or part) by the act or omission of any third party; or v) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage or working.
7.5 This clause 7 sets out MACH2’s entire liability in respect of the Services, Goods and all other warranties, terms and conditions (including those implied by the operation of law) are excluded to the fullest extent permissible at law.
8. CONFIDENTIALITY
8.1 Each Party (“the Receiving Party”) hereby agrees that it shall not at any time use, divulge or communicate to any person any Confidential Information belonging to the other Party (“the Disclosing Party”) and shall keep all Confidential Information of the Disclosing Party secret and confidential. The Receiving Party shall only use the Confidential Information in the proper performance of its obligations or in the enforcement of its rights arising under or as a consequence of the Contract. The Receiving Party may permit its employees, agents, sub-contractors, professional advisors and those employees, agents and sub-contractors of its Group who have a need to know such information for the performance of the Contract (each a “Recipient”) to have access to the Confidential Information of the Disclosing Party provided that the Receiving Party shall ensure that each Recipient keeps the Confidential Information secret and confidential in the manner provided for in this clause 8.
8.2 No information shall be subject to the restrictions of clause 8.1 which is or becomes:
(a) public knowledge otherwise than through a breach of this clause 8;
(b) available from a third party who has legitimate possession of it and who is not subject to confidentiality obligations in respect of such information;
(c) has been developed independently without any reference to the Confidential Information; or
(d) is required to be disclosed by law, order of a competent court, regulation or the request of any governmental or other regulatory authority (including (but not limited to) any recognised stock exchange upon which the Receiving Party is listed for the dealing of shares), provided that the Receiving Party shall, where legally permissible, as promptly as practical (and if possible prior to making any disclosure) notify the Disclosing Party of such request and shall use its reasonable endeavours to seek confidential treatment of such information.
8.3 Either party may provide a copy of the Contract to any third party engaged in bona fide negotiations for the purchase of and/or subscription for shares in such party or any company in its Group or for the provision of financing to a that party or any company in its Group, provided that such third party enters into an undertaking to keep the terms of the Contract confidential and not to use any information it obtains from or in respect of the Contract for any purpose other than the said purchase or subscription of shares or financing.
8.4 The provisions of this clause 8 shall survive the expiry or termination of the Contract.
9. DISPUTE RESOLUTION & MEDIATION
9.1 In the event that the parties fail to agree or a dispute arises between the parties relating to the Contract, (a “Dispute”), either party may refer the Dispute for resolution in the first instance to the directors of each party. Nothing in this clause 9 shall prevent either party from seeking relief before the courts.
10. FORCE MAJEURE
10.1 Neither party shall be in breach or liable for any failure or delay in performing its obligations (save for an obligation to make payment) under the Contract to the extent that such failure or delay is caused by an event of Force Majeure. If the period of delay or non-performance continues for a period of 45 days either party may terminate the Contract upon ten (10) Business Days written notice to the other party.
11. NOTICES
11.1 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 address set out in the Proposal or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other signed for delivery or email.
11.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.1; if sent by pre-paid first class post at 9:00 am on the 2nd Business Day after posting; if delivered by signed for delivery 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.
11.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12. ASSIGNMENT
12.1 Neither party may assign any or all of its rights or obligations under the Contract without the prior written consent of the other Party, save that MACH2 may assign the contract to a purchaser of the assets of MACH2.
13. MISCELLANEOUS
13.1 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.
13.2 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.3 In the event of any conflict between the terms of these Terms, the Proposal and/or any other documents incorporated by reference into the Contract, the provisions of these Terms shall prevail.
13.4 It is not the intention of either party that any personal data will be collected, stored or processed as a consequence of this Contract.
13.5 Except as expressly provided elsewhere in the Contract, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract or these Terms.
13.6 No variation of the Contract shall be effective unless it is in writing and signed by the MACH2.
13.7 The Contract, Proposal/ Order Confirmation and these Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract and these Terms or its subject matter or formation (including non-contractual disputes or claims).
14. DEFINITIONS
14.1 In these Terms, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Commencement Date; the date specified in the Proposal for the commencement of the Services or the supply of Goods or if none is specified the day on which MACH2 notifies the Customer that the Services will commence and/or the Goods will be supplied.
Contract: the contract between the MACH2 and the Customer incorporating the Proposal and these Terms.
Proposal/ Order Confirmation: the document which sets out the details of the Services and/or Goods and which has been signed by both MACH2 and the Customer or issued by MACH2.
Customer: the person or firm identified as the Customer in the Proposal.
Force Majeure Event: an event or circumstance beyond a party’s reasonable control.
Goods: the goods (or any part of them) to be supplied to the Customer as described in the Proposal.
Intellectual Property means all intellectual property rights and/or industrial rights, including (but not limited to) patents, trademarks, registered designs, copyright, database rights, design rights (including (but not limited to) those existing in semiconductor topographies, computer hardware and/or software, case designs and spread sheets), moral rights, know-how, confidential information, and any similar rights anywhere in the world or any applications for any of the above, whether existing at the date of the Proposal or created thereafter.
Price: the total price to be paid by the Customer for the Services and Goods as detailed in the Proposal.
Services: the services to be performed by MACH2 as described in the Proposal.
Site: the location where the Services are to be performed and/or the Goods delivered.