Sales & Hire Terms and Conditions
The Customer’s attention is particularly drawn to the provisions of clause 14.
1.1 Definitions. In these Conditions, the following definitions apply:
“Business Day”: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
“Commencement Date”: has the meaning set out 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 VANATGE IRELAND and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
“Customer”: the person or firm who purchases the Goods and/or Services from VANATGE IRELAND.
“Customer Equipment”: any equipment, goods, vehicles or plant belonging to the Customer.
“Delivery Location”: has the meaning set out in clause 4.2.
“Force Majeure Event”: has the meaning given to it in clause 17.1(a).
“Goods”: the goods (or any part of them) set out in the Order.
“Goods Specification”: any specification for the Goods, including any relevant plans, drawings, data, information (including but not limited to data to be uploaded on to the Goods) provided by the Customer or by a third party on behalf of the Customer to VANATGE IRELAND.
“Intellectual Property Rights”: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“VANATGE IRELAND”: means Precise Construction Instruments Limited trading as VANATGE IRELAND Group of 34 Grafton Street, Dublin 2 registered in Ireland with company number 228469.
“VANATGE IRELAND Equipment”: means the items of equipment supplied on hire during the provision of the Services, as set out in the Order (including all replacements, renewals of such equipment and all related accessories, manuals or instructions provided for it).
“Order”: 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 VANATGE IRELAND’s quotation, or overleaf, as the case may be.
“Services”: the services supplied by VANATGE IRELAND to the Customer as set out in the Order.
“Services Specification”: any specification for the Services and / or the VANATGE IRELAND Equipment, including any relevant instructions, drawings, measurements, data, information (including but not limited to data to be formatted and uploaded on to the VANATGE IRELAND Equipment by VANATGE IRELAND) provided by the Customer or by a third party on behalf of the Customer to VANATGE IRELAND.
“Term” the period of time during which the Services and / or the VANATGE IRELAND Equipment are supplied to the Customer as set out in the Order.
1.2 Construction. In these Conditions, the following rules apply:
(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 successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory 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;
(d) 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; and
(e) a reference to writing or written includes faxes.
- Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when VANATGE IRELAND issues written acceptance of the Order at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of VANATGE IRELAND which is not set out in the Contract.
2.4 Any samples, drawings, descriptive matter or advertising issued by VANATGE IRELAND and any illustrations or descriptions of the Services contained in VANATGE IRELAND’s catalogues, websites or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.5 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.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
3.1 To the extent that the Goods are to be manufactured, adapted or modified in accordance with the Goods Specification provided by the Customer or by a third party on behalf of the Customer, VANATGE IRELAND shall under no circumstances whatever be liable to the Customer, or any other party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Goods Specification.
3.2 The Customer shall indemnify VANATGE IRELAND 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 and other reasonable professional costs and expenses) suffered or incurred by VANATGE IRELAND in connection with any claim made against VANATGE IRELAND arising out of or in connection with VANATGE IRELAND’s use of the Goods Specification. This clause 3.2 shall survive termination of the Contract.
3.3 VANATGE IRELAND reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
- Delivery of Goods
4.1 VANATGE IRELAND shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after VANATGE IRELAND notifies the Customer that the Goods are ready at the Customer’s expense.
4.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. VANATGE IRELAND shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide VANATGE IRELAND with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 VANATGE IRELAND may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
- Quality of Goods
5.1 VANATGE IRELAND warrants that on delivery, and for any period allowed by the Goods’ manufacturer (“Warranty Period”), the Goods shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
(d) be fit for any purpose held out by VANATGE IRELAND.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing during the Warranty Period within 3 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) VANATGE IRELAND is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by VANATGE IRELAND) returns such Goods to VANATGE IRELAND’s place of business at VANATGE IRELAND’s cost,
VANATGE IRELAND shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 VANATGE IRELAND shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow VANATGE IRELAND’s oral or written instructions as to the storage, installation, commissioning, calibration, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of VANATGE IRELAND following any drawing, design or Goods Specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of VANATGE IRELAND;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;
(f) the Goods differ as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
5.4 Except as provided in this clause 5, VANATGE IRELAND shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by VANATGE IRELAND under clause 5.2.
- Supply of Services
6.1 VANATGE IRELAND shall provide the Services (including any VANATGE IRELAND Equipment) to the Customer in accordance with the Contract and the Order in all material respects.
6.2 VANATGE IRELAND shall use all reasonable endeavours to meet any performance or provision dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
6.3 VANATGE IRELAND shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and VANATGE IRELAND shall notify the Customer in any such event.
6.4 VANATGE IRELAND warrants to the Customer that the Services will be provided using reasonable care and skill.
- VANATGE IRELAND Equipment
7.1 VANATGE IRELAND warrants that VANATGE IRELAND Equipment shall substantially conform in all material respects with their description and be fit for any purpose held out by VANATGE IRELAND. VANATGE IRELAND shall use reasonable endeavours to remedy any material defects in VANATGE IRELAND Equipment which manifests itself during the Term, provided that:
(a) the Customer notifies VANATGE IRELAND immediately of any of VANATGE IRELAND Equipment becoming defective or faulty;
(b) VANATGE IRELAND is permitted to make a full examination of the alleged defect or fault;
(c) the defect or fault did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than VANATGE IRELAND’s authorised personnel; and
(e) the defect is not attributable to Services Specification and the defect is directly attributable to defective material, workmanship or design.
7.2 Before each use the Customer shall inspect and test the VANATGE IRELAND equipment.
- Title and risk
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until VANATGE IRELAND has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other Services or goods that VANATGE IRELAND has supplied to the Customer in respect of which payment has become due.
8.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as VANATGE IRELAND’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as VANATGE IRELAND’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on VANATGE IRELAND’s behalf from the date of delivery;
(e) notify VANATGE IRELAND immediately if it becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l); and
(f) give VANATGE IRELAND such information relating to the Goods as VANATGE IRELAND may require from time to time.
8.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l), or VANATGE IRELAND reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy VANATGE IRELAND may have, VANATGE IRELAND may at any time require the Customer to deliver up the Goods and, 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.
8.5 VANATGE IRELAND Equipment shall at all times remain the property of VANATGE IRELAND, and the Customer shall have no right, title or interest in or to VANATGE IRELAND Equipment (save the right to possession and use of VANATGE IRELAND Equipment subject to the terms of this Contract).
8.6 The risk of loss, theft, damage or destruction of VANATGE IRELAND Equipment shall pass to the Customer on Delivery. VANATGE IRELAND Equipment shall remain at the sole risk of the Customer until such time as VANATGE IRELAND Equipment is redelivered to or collected by VANATGE IRELAND. In the event of liability under this clause, the Customer shall replace the relevant VANATGE IRELAND Equipment with a new replacement to VANATGE IRELAND’s satisfaction (being full list price).
- Customer’s obligations
9.1 The Customer shall:
(a) ensure that the terms of the Order, the Goods Specification and Services Specification are complete and accurate;
(b) co-operate with VANATGE IRELAND in all matters relating to the Services;
(c) provide VANATGE IRELAND, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by VANATGE IRELAND to provide the Services;
(d) provide VANATGE IRELAND with such information and materials as VANATGE IRELAND requires (including but not limited to the Services Specification) to supply the Services, and ensure that such information is accurate in all material respects;
(e) 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;
(f) keep and maintain, at its own expense, all VANATGE IRELAND Equipment at the Customer’s premises in safe custody at its own risk, maintain VANATGE IRELAND Equipment in good condition until returned to VANATGE IRELAND, use the VANATGE IRELAND Equipment in accordance with all of VANATGE IRELAND’s instructions and not dispose of or use VANATGE IRELAND Equipment other than in accordance with VANATGE IRELAND’s written instructions or authorisation;
(g) at all times keep VANATGE IRELAND Equipment in its possession or control and keep VANATGE IRELAND informed of its location;
(h) keep and maintain insurance for VANATGE IRELAND Equipment against all usual risks of loss, damage or destruction by fire, theft or accident and against such other or further risks relating to VANATGE IRELAND Equipment which may be required by law. In the event of a claim pursuant to this Contract, the Customer shall replace the relevant VANATGE IRELAND Equipment with a new replacement to VANATGE IRELAND’s satisfaction (being full list price) and in the intervening period, the Customer shall continue to pay all charges in relation to VANATGE IRELAND Equipment which is lost, damaged or destroyed;
(i) give immediate written notice to VANATGE IRELAND in the event of any loss, accident or damage to VANATGE IRELAND Equipment or arising out of or in connection with the Customer’s possession or use of VANATGE IRELAND Equipment;
(j) make no alteration to VANATGE IRELAND Equipment or remove any existing components without the prior written consent of VANATGE IRELAND;
(k) not, without prior written consent of VANATGE IRELAND, part with control of, sell or offer for sale, underlet or lend VANATGE IRELAND Equipment or to allow the creation of a mortgage, charge, lien or other security interest in respect of it;
(l) not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of VANATGE IRELAND in VANATGE IRELAND Equipment, and when VANATGE IRELAND Equipment has become affixed to any land, vehicle or building the Customer must take all necessary steps to ensure that VANATGE IRELAND may enter such land vehicle or building and recover VANATGE IRELAND Equipment both during the term of this Contract and for a reasonable period thereafter;
(m) ensure that all the times VANATGE IRELAND Equipment remains identifiable as being VANATGE IRELAND’s property and wherever possible shall ensure that a visible sign to that effect is attached to VANATGE IRELAND Equipment; and
(n) not suffer or permit VANATGE IRELAND Equipment to be confiscated seized or taken out of its possession or control under any distress, execution or other legal process, but if VANATGE IRELAND Equipment is so confiscated, seized or taken, the Customer shall notify VANATGE IRELAND and the Customer shall at its sole expense use its best endeavours to procure an immediate release of VANATGE IRELAND Equipment and shall indemnity VANATGE IRELAND on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation.
9.2 The Customer acknowledges that VANATGE IRELAND shall not be responsible or liable for any loss or damage caused by VANATGE IRELAND Equipment arising out of or in connection with any negligence, misuse, mishandling of VANATGE IRELAND Equipment or otherwise caused by the Services Specification, the Customer or its officers, employees, agents and contractors and the Customer undertakes to indemnify VANATGE IRELAND on demand against the same and against all liabilities, losses, claims, damages, costs or expenses of whatever nature otherwise arising out of or in connection with the Services Specification and /or any failure by the Customer to comply with the terms of this Contract or any applicable guidelines, regulation or industry best practice.
9.3 If VANATGE IRELAND’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 (“Customer Default”):
(a) VANATGE IRELAND 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 VANATGE IRELAND’s performance of any of its obligations;
(b) VANATGE IRELAND shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from VANATGE IRELAND’s failure or delay to perform any of its obligations as set out in this clause 9.4; and
(c) the Customer shall reimburse VANATGE IRELAND on written demand for any costs or losses sustained or incurred by VANATGE IRELAND arising directly or indirectly from the Customer Default.
- Charges and payment
10.1 The price for Goods and the Services shall be the price set out in the Order or, if no price is quoted, the price set out in VANATGE IRELAND’s published price list as at the date of delivery. The price of the Goods and/or the Services is exclusive of all costs and charges of packaging, insurance, transport which shall be paid by the Customer when it pays for the Goods and/or the Services.
10.2 Hire charges for VANATGE IRELAND Equipment are payable on a weekly basis (comprising non-divisible units of 7 days) from the date the VANATGE IRELAND Equipment leaves VANATGE IRELAND’s premises until the date of their return from the Customer during normal office hours.
10.3 VANATGE IRELAND reserves the right to:
(a) increase its standard fee rates for the charges for the Services, provided that such charges cannot be increased more than once in any 12 month period. VANATGE IRELAND will give the Customer written notice of any such increase 1 month before the proposed date of the increase. If such increase is not acceptable to the Customer, it shall notify VANATGE IRELAND in writing within 1 week of the date of VANATGE IRELAND’s notice and VANATGE IRELAND shall have the right without limiting its other rights or remedies to terminate the Contract by giving 1 weeks written notice to the Customer; and
(b) increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to VANATGE IRELAND that is due to:
(i) any factor beyond the control of VANATGE IRELAND (including foreign exchange fluctuations, increases in taxes and duties, and increases in manufacturers prices or costs, labour, materials and other manufacturing costs);
(ii) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification;
(iii) any request by the Customer to change the delivery date(s), quantities or types of Services ordered, or the Services Specification; or
(iv) any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give VANATGE IRELAND adequate or accurate information or instructions in respect of the Goods or Services.
10.4 Where the Services consist of or relate to repairs to or servicing of any Customer Equipment VANATGE IRELAND shall be entitled to levy a storage fee and an inspection fee at its then standard rates whether or not the Customer Equipment is repaired or Serviced. In the event that the Customer Equipment is received by VANATGE IRELAND without full instructions from the Customer and such instructions are not received within 3 months, VANATGE IRELAND shall be entitled to dispose of the Customer Equipment at its discretion.
10.5 In respect of Goods, VANATGE IRELAND shall invoice the Customer on or at any time after completion of delivery.
10.6 In respect of Services, VANATGE IRELAND shall invoice the Customer as set out in the Order or, in the absence of such detail, in accordance with its standard policies and procedures as varied from time to time.
10.7 The Customer shall pay each invoice submitted by VANATGE IRELAND:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by VANATGE IRELAND, and
time for payment shall be of the essence of the Contract.
10.8 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 VANATGE IRELAND to the Customer, the Customer shall, on receipt of a valid VAT invoice from VANATGE IRELAND, pay to VANATGE IRELAND such additional amounts in respect of VAT as are chargeable on the supply of the Services and/or Goods at the same time as payment is due for the supply of the Services and/or Goods.
10.9 Without limiting any other right or remedy of VANATGE IRELAND, if the Customer fails to make any payment due to VANATGE IRELAND under the Contract by the due date for payment (“Due Date”), VANATGE IRELAND shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current Barclay’s Bank plc’s base rate accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.
10.10 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against VANATGE IRELAND in order to justify withholding payment of any such amount in whole or in part. VANATGE IRELAND may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by VANATGE IRELAND to the Customer.
- Intellectual property rights
11.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services shall be owned by VANATGE IRELAND.
11.2 The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, the Customer’s use of any such Intellectual Property Rights is conditional on VANATGE IRELAND obtaining a written licence from the relevant licensor on such terms as will entitle VANATGE IRELAND to license such rights to the Customer.
11.3 All VANATGE IRELAND Equipment are the exclusive property of VANATGE IRELAND.
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 or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 12 shall survive termination of the Contract.
13.1 The Customer shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 (“Relevant Requirements”);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with VANATGE IRELAND’s Ethics, Anti-bribery and Anti-corruption Policies and the relevant industry codes on anti-bribery, as VANATGE IRELAND or the relevant industry body may update them from time to time (“Relevant Policies”);
(d) promptly report to VANATGE IRELAND any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of the Contract; and
(e) immediately notify VANATGE IRELAND (in writing) if a foreign public official becomes an officer or employee of the Customer or acquires a direct or indirect interest in the Customer (and the Customer warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Contract);
13.2 Breach of this clause 13 shall be deemed a material breach of this Contract and VANATGE IRELAND shall be entitled to terminate the contract immediately.
13.3 For the purpose of this clause 13, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 13 a person associated with the Customer includes but is not limited to any Subcontractor of the Customer.
- Limitation of liability:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 Nothing in these Conditions shall limit or exclude VANATGE IRELAND’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
(d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession).
14.2 Subject to clause 14.1 VANATGE IRELAND shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of goodwill or any indirect or consequential loss arising under or in connection with;
(a) the Contract;
(b) incorrect or incomplete data provided by the Customer or its contractor (including but not limited to the data provided in the Goods Specification and the Service Specification) to VANATGE IRELAND;
(c) the Customer’s use of the Goods and/or VANATGE IRELAND Equipment in/on an unsuitable environment (whether foreseen by the Customer or not) or otherwise against the advice of VANATGE IRELAND, any applicable regulation, guidance or good industry practice; and
(d) VANATGE IRELAND’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid by the Customer to VANATGE IRELAND for the Goods and/or Services which give rise to the claim, plus any costs incurred in respect of delivery and insurance.
14.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
14.4 This clause 14 shall survive termination of the Contract.
15.1 Without limiting its other rights or remedies, each 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 this Contract and (if such breach is remediable) fails to remedy that breach within 7 days after receipt of notice in writing of the breach;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
(e) the other party (being an individual) is the subject of a bankruptcy petition or order;
(f) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.1(b) to clause 15.1(i) (inclusive);
(k) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; or
(l) the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
15.2 Without limiting its other rights or remedies, VANATGE IRELAND may terminate the Contract:
(a) by giving the Customer 1 months’ written notice for the supply of Goods; or
(b) with immediate effect for the supply of Services; or
(c) with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract or any other contract on the due date for payment.
15.3 Without limiting its other rights or remedies, VANATGE IRELAND shall have the right to suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and VANATGE IRELAND if:
(a) the Customer fails to make pay any amount due under this Contract on the due date for payment; or
(b) the Customer becomes subject to any of the events listed in clause 15.1(b) to clause 15.1(l), or VANATGE IRELAND reasonably believes that the Customer is about to become subject to any of them.
- Consequences of termination
On termination of the Contract for any reason:
(a) the Customer shall immediately pay to VANATGE IRELAND all of VANATGE IRELAND’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, VANATGE IRELAND shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(b) the Customer shall return all of VANATGE IRELAND Equipment. If the Customer fails to do so, then VANATGE IRELAND may enter the Customer’s premises or vehicles and take possession of them. Until they have been returned, the Customer shall continue to be liable for all charges payable for the VANATGE IRELAND Equipment under the Contract and be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, 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; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
17.1 Force majeure:
(a) For the purposes of this Contract, “Force Majeure” Event means an event beyond the reasonable control of VANATGE IRELAND including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of VANATGE IRELAND or any third 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 VANATGE IRELANDs or subcontractors.
(b) VANATGE IRELAND 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.
(c) If the Force Majeure Event prevents VANATGE IRELAND from providing any of the Services and/or Goods for more than 4 weeks, VANATGE IRELAND shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.
17.2 Assignment and subcontracting:
(a) VANATGE IRELAND may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) The Customer shall not, without the prior written consent of VANATGE IRELAND, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(a) Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number.
(b) Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at such addressor, if sent by prepaid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission.
(c) This clause 17.3 shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this clause, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
17.4 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and to not exclude rights provided by law.
(a) If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
17.6 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
17.7 Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.
17.8 Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by VANATGE IRELAND.
17.9 Governing law and jurisdiction: This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Irish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Ireland.