TERMS AND CONDITIONS

CONTENT

1 Interpretation

In these Conditions, the following definitions apply:

Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;

Conditions these terms and conditions as amended from time to time in accordance with clause 28.2;

Confidential Information means any information which the disclosing party notifies to the receiving party at the time of disclosure to be confidential or information which the receiving party ought reasonably to have known is confidential whether expressly told so or not by the disclosing party provided that any confidential information which is already in the public domain (not otherwise in breach of this clause) or already known to the receiving party shall not constitute confidential information, including, without limitation, any information relating to the systems, operations, plans, intentions, market opportunities, potential and actual customers, surveys, know-how, trade secrets and business affairs in whatever form;

Contract the contract between the Supplier and the Customer for the hire of Equipment or supply of Goods and/or Services, in accordance with these Conditions;

Customer the person or firm who hires the Equipment or purchases the Goods and/or Services from the Supplier;

Documentation means all manuals and instructions relating to the Equipment including manufacturer’s operating instructions;

Equipment means the hire item(s) listed in the Quotation;

Equipment Location means the location where the Equipment is to be delivered and/or installed, as specified in the Quotation;

Goods means the goods sold by the Supplier to the Customer, as set out in the Quotation;

Goods Delivery Location means the location where the Goods are to be delivered to, or collected from, as specified in the Quotation or such other location as the parties may agree in writing;

Hire Fee means the fee for hiring the Equipment as specified in the Quotation;

Hire Period means the period stated in the Quotation or such other period as agreed between the Supplier and the Customer;

Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights and, in each case (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; (e) to which the relevant party is or may be entitled; and (f) in whichever part of the world existing;

Personal Data means identity and contact data of individuals such as names, titles and other identifiers together with business addresses, email addresses and telephone numbers;

Purchase Order means the Customer’s acceptance of the hire of Equipment or Goods and/or Services, issued in writing or given orally by the Customer to the Supplier;

Quotation means the quotation document issued by the Supplier to the Customer, which confirms the hire of the Equipment or the Goods and/or Services to be supplied by the Supplier to the Customer;

Services the services carried out by the Supplier, as more particularly described in the Quotation;

Standard Business Hours means the hours from 08.30 to 17.30 on Business Days;

Supplier means Gem Scientific 2014 Limited registered in England and Wales with company number 09304255 whose registered office is at Unit 301 Batley Enterprise Centre, 513 Bradford Road, Batley, Leeds WF17 8LL.

In these Conditions, unless the context otherwise requires:

  • 1.1.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  • 1.1.2 a reference to a party includes its personal representatives, successors or permitted assigns;
  • 1.1.3 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;
  • 1.1.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
  • 1.1.5 a reference to writing or written includes e-mail.

2 Basis of Contract

2.1 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.

2.2 Each Quotation constitutes an offer by the Supplier to hire the Equipment or supply the Goods and/or Services in accordance with these Conditions. The Contract is formed when the Customer issues its acceptance (Purchase Order) of the Quotation.

2.3 The Quotation, any confirmation issued by the Supplier of a Purchase Order and these Conditions, together with any documents referred to in them, constitute the whole agreement between the Supplier and the Customer for the hire of Equipment or the supply of Goods and/or Services. The Customer acknowledges that it has not relied upon any statement, promise, representation made or given by or on behalf of the Supplier which is not set out in these documents, and which together form the contract.

2.4 The Customer shall be responsible for ensuring that any Quotation is complete and accurate at all times and shall notify the Supplier of any omissions or inaccuracies, or changes in circumstances which may affect the terms of such Quotation.

2.5 Any samples, drawings, descriptive matter, advertising or similar produced by the Supplier are produced for the sole purpose of giving an approximate idea of the Equipment and Goods. They shall not form part of the Contract nor have any contractual force.

2.6 All of these Conditions shall apply to the hire of Equipment, sale of Goods and the supply of Services, except where application to one or the other(s) is specified.

2.7 Any Quotation issued by the Supplier for the hire of Equipment or supply of Goods and/or Services may be withdrawn or amended at any time by the Supplier before acceptance by the Customer. Unless otherwise stated in the Quotation, a Quotation shall only be valid for a period of 30 days after the date of the Quotation, unless otherwise agreed in writing between the parties.

Clauses 3 to 8 shall only apply to the sale of Goods

3 Supply of Goods

3.1 On receipt of a Purchase Order from the Customer, the Supplier may accept or reject the order.

3.2 Once the Supplier has accepted the Purchase Order (whether in writing, by conduct or otherwise), the Supplier has sole discretion as to whether to agree to any request by the Customer to cancel an order, and any acceptance is subject to the Customer indemnifying the Supplier in full against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the Supplier as a result of any such cancellation.

4 Description of the Goods

4.1 The description of the Goods shall be set out in Quotation.

4.2 The Supplier reserves the right to make any changes to the specification for the Goods where such change is required to conform with any applicable statutory or regulatory standards.

5 Delivery of Goods

5.1 The Supplier shall deliver the Goods to, or make the Goods available for collection at, the Goods Delivery If the Customer is to collect the Goods, the Customer shall collect the Goods from the Goods Delivery Location on or before the date and time agreed in writing between the Supplier and the Customer.

5.2 Delivery of the Goods shall be completed on the Goods’ arrival at the Goods Delivery Location (Goods Delivery).

5.3 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.

5.4 The Supplier shall not be liable for any delay in or failure of performance caused by:

    • 5.4.1 the Customer’s failure to: (i) make the Goods Delivery Location available, (ii) prepare the Goods Delivery Location in accordance with the Supplier’s instructions or as required for the Goods or (iii) provide the Supplier with adequate instructions for delivery or otherwise relating to the Goods;
    • 5.4.2 any change in the specification for the Goods since the Purchase Order; and/or
    • 5.4.3 a Force Majeure

5.5 If the Customer fails to accept delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure of delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:

      • 5.5.1 delivery of the Goods shall be deemed to have been completed at 9.00am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
      • 5.5.2 the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).

5.6 If within 10 Business Days following the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of the Goods, the Supplier may resell or otherwise dispose of part or all of the Goods. The Supplier will:

        • 5.6.1 deduct all costs and expenses incurred by the Supplier doing so; and
        • 5.6.2 account to the Customer for any excess of the resale price over the price of the Goods or invoice the Customer for any shortfall of the resale price below the price paid by the Customer for the

5.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.8 Where the Customer returns any Goods to the Supplier, the Supplier shall be entitled to charge a re-stocking fee to the Customer.

6 Installation and Commission of the Goods

6.1 Unless stated otherwise in the Quotation, if the Supplier is to deliver the Goods (whether in instalments or in whole), the Supplier shall install and commission the Goods at the Goods Delivery Location on completion of Goods Delivery.

6.2 The Customer shall provide the Supplier with access to the Customer’s premises and other facilities as reasonably required by the Supplier to install and commission the Goods pursuant to clause 6.1.

6.3 The Customer shall prepare the Goods Delivery Location in accordance with the Supplier’s instructions and shall ensure that the condition of the Goods Delivery Location does not create any delay or difficulty in the Supplier in installing and commissioning the Goods.

7 Quality of Goods

7.1 The Supplier warrants that on Goods Delivery, the Goods shall

  • (i) conform with their description and, (ii) be free from material defects in design, material and workmanship. The Supplier shall endeavour to pass on any manufacturer guarantee in respect of any Goods it may supply, at the Customer’s cost, to the extent that it can reasonably do so

7.2.1 Subject to clause 3, if:

    • 7.2.1 the Customer gives notice in writing within 48 hours of delivery of the Goods that some or all of the Goods do not comply with the warranty in clause 1 where such non-compliance is apparent on visual inspection; or
    • 7.2.2 the Customer gives notice in writing during the warranty period and within 5 days of discovery that some or all of the Goods do not comply with the warranty set out in clause 1 to the extent that any such defect is not apparent on visual inspection on an initial visual inspection,

and in each case,

    • 7.2.3 the Supplier is given a reasonably opportunity of examining such Goods; and
    • 7.2.4 provided that the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

7.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 1 if:

    • 7.3.1 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
    • 7.3.2 the Customer alters or repairs such Goods without the Supplier’s consent;
    • 7.3.3 the defect arises as a result of the wilful damage or negligence, or abnormal storage or working conditions; or
    • 7.3.4 the defect arises as a result of a Force Majeure Event.

7.4 The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 7.2.

7.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

7.6 Except as provided in this clause 7, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1

8 Title and Risk

8.1 All Goods will remain in the Supplier’s ownership until it has received payment in full in respect of them from the Customer. Until ownership of the Goods has passed to the Customer pursuant to this clause, the Customer shall: (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Supplier immediately if it becomes subject to any of the events listed in clauses 1.3 to 25.1.5; and (e) give the Supplier such information relating to the Goods as the Supplier may require from time to time. Notwithstanding anything in this clause 7, the Customer may use the Goods in the ordinary course of business.

8.2 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clauses 1.3 to 25.1.5, then, without limiting any other right or remedy the Supplier may have: (a) the Customer’s right to use the Goods in the ordinary course of its business ceases immediately; and (b) the Supplier may at any time: (i) require the Customer to deliver up all Goods in its possession that have not been 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 Goods are stored in order to recover them.

8.3 The risk in the Goods shall pass to the Customer on completion of Goods Delivery.

Clauses 9 and 10 shall only apply to the supply of Services

9 Supply of Services

9.1 The Supplier shall supply the Services to the Customer in accordance with the Quotation, for the period specified in the Quotation (the Initial Term), at the end of which the Contract will be renewed automatically for successive periods of 12 months, unless terminated earlier in accordance with clause 9.5.

9.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

9.3 Prior to the parties entering into a Contract for the supply of Services, the Supplier shall be entitled to carry out a site survey, where necessary, at the Customer’s premises.

9.4 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

9.5 Without affecting any other right or remedy available to it, the Customer may terminate the Contract for the supply of Services by giving the Supplier not less than 3 months’ written notice, such notice to expire on the last day of the Contract.

10 Customer’s Obligations

10.1 The Customer shall:

    • 10.1.1 co-operate with the Supplier in all matters relating to the Services;
    • 10.1.2 provide the Supplier, its employees, agents, consultants and subcontractors, with free access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services, and provide them with adequate and safe working space;
    • 10.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
    • 10.1.4 prepare the Customer’s premises for the supply of the Services;
    • 10.1.5 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;
    • 10.1.6 comply with all applicable laws, including health and safety laws;
    • 10.1. 7 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and
    • 10.1.8 comply with any additional obligations as set out in the Quotation

Clauses 11 to 21 shall only apply to the hire of the Equipment

11 Hire of Equipment

11.1 The Supplier shall hire the Equipment to the Customer for the Hire Period for use in accordance with the Quotation and these Conditions.

11.2 The Supplier shall not interfere with the Customer’s quiet possession of the Equipment, other than where it is agreed that the Supplier will assist with the set-up of the Equipment or save in the exercise of the Supplier’s rights under these Conditions or applicable law.

11.3 The Equipment shall at all times remain the property of the Supplier, and the Customer shall have no right, title or interest in or to the Equipment (save for the right of possession and use of the Equipment subject to these Conditions).

11.4 During the Hire Period, the Customer shall keep the Equipment at the Equipment Location, and not part with possession of the Equipment without the prior written consent of the Supplier.

11.5 Whether or not the Equipment has been affixed to any land, the Supplier will continue to be the owner of the Equipment, and the Equipment will remain the personal chattel of the Supplier.

12 Delivery of the Equipment

12.1 The Supplier shall deliver the Equipment to the Equipment Location or make the Equipment available for collection at the address set out in the Quotation or such other location as the parties may agree in writing (Delivery Location).

12.2 If the Supplier is to deliver the Equipment (whether in instalments or in whole), the Supplier shall use reasonable endeavours to deliver the Equipment to the Delivery Location by the date agreed between the Supplier and the Customer, and the Customer shall provide the Supplier with access to the Customer’s premises and other facilities as reasonably required by the Supplier to deliver the Equipment in accordance with clause 1 and this clause 12.2.

12.3 If the Customer is to collect the Equipment, the Customer shall collect the Equipment from the Delivery Location on the date and time agreed in writing between the Supplier and the Customer.

12.4 Except to the extent expressly agreed by the Supplier, delivery of the Equipment shall be completed on the Equipment’s arrival at the Delivery Location.

12.5 If the Customer fails to accept delivery of the whole or any instalment of the Equipment, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract, the Supplier shall store either the whole Equipment, or that instalment of the Equipment (as applicable) until the Customer is ready to accept delivery, and charge the Customer for all related costs and expenses (including insurance).

12.6 The Supplier shall not be liable for any delay in the Equipment being available for collection at the Delivery Location or delivered to the Delivery Location, or for any delay in completing installation and/or commissioning of the Equipment, which is caused by:

    • 12.6.1 a Force Majeure Event;
    • 12.6.2 the Customer’s failure to provide the Supplier with adequate instructions;
    • 12.6.3 the Customer requesting a material change to the Contract after the Quotation is issued to the Customer; or
    • 12.6.4 the Customer’s failure to comply with its obligations in clause 12.2.

13 Installation and Commission of the Equipment

13.1 If the Supplier is to deliver the Equipment (whether in instalments or in whole), the Supplier shall install and commission the Equipment at the Equipment Location on completion of delivery, unless stated otherwise in the Quotation.

13.2 The Customer shall provide the Supplier with access to the Customer’s premises and other facilities as reasonably required by the Supplier to install and commission the Equipment pursuant to clause 12.1

13.3 The Customer shall ensure that the condition of the Equipment Location does not create any delay or difficulty for the Supplier in installing and commissioning the Equipment.

14 Quality of Equipment

14.1 The Supplier warrants that on delivery, the Equipment shall:

    • 14.1.1 conform in all material respects with its description;
    • 14.1.2 be of satisfactory quality; and
    • 14.1.3 be fit for any purpose expressly held out by the Customer as the purpose for which it wanted the Equipment.

14.2 The Supplier does not warrant that the Equipment will be free from minor defects, such as minor surface scratches, and the presence of any such minor defects shall not entitle the Customer to any reduction in price or compensation.

14.3 Subject to clause 4, if the Customer notifies the Supplier during the Hire Period within5 Business Days of discovery that the Equipment does not comply with the warranty set out in clause 14.1, the Supplier shall, at its option, repair or replace the defective Equipment as soon as practicable.

14.4 The Supplier shall not be liable for the Equipment’s failure to comply with the warranty in clause 1 if:

    • 14.4.1 the Customer makes any further use of such Equipment after notifying the Supplier under clause 3;
    • 14.4.2 the failure arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment;
    • 14.4.3 the Customer alters or repairs the Equipment without the Supplier’s consent;
    • 14.4.4 the failure arises as a result of the wilful damage or negligence of the Customer; or
    • 14.4.5 the failure arises as a result of a Force Majeure Event.

14.5 The terms of these Conditions shall apply to any repaired or replaced Equipment (whether in whole or in part) supplied by the Supplier under clause 14.3.

15 Customer’s obligations

15.1 The Customer shall:

    • 15.1.1 procure all necessary licences and permissions required for the purpose for which the Equipment is to be used, and indemnify the Supplier 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 the Supplier in connection with any claim for failure to obtain such licences and permissions (including infringement of a third party’s intellectual property rights) arising out of or in connection with the use of the Equipment hired by the Supplier to the Customer. This clause 1.1 shall survive termination of the Contract;
    • 15.1.2 look after the Equipment as a reasonable owner of such Equipment would;
    • 15.1.3 supply to the Supplier such information and assistance as may be necessary to enable the Supplier to install and commission the Equipment without any delay or difficulty;
    • 15.1.4 use the Equipment only for the purpose notified to the Supplier and in accordance with the Supplier’s reasonable instructions and any Documentation supplied;
    • 15.1.5 use the Equipment in a skilful and proper manner and in accordance with any relevant legislation;
    • 15.1.6 ensure that the Equipment is operated and used by properly skilled and trained persons only;
    • 15.1.7 ensure that the Delivery Location (if the site of the Customer) is safe and complies with all health and safety legislation, best practices and other legal requirements from time to time in force;
    • 15.1.8 not alter or repair the Equipment or remove any notices, labels or serial numbers;
    • 15.1.9 not use the Equipment after a fault is detected, without the Supplier’s consent;
    • 15.1.10 not dispose of, offer to dispose of, attempt to dispose of or purport to dispose of the Equipment;
    • 15.1.11 keep the Equipment in good repair, condition, and working order;
    • 15.1.12 not modify the Equipment except as part of any repairing, maintaining and servicing obligations required under the Contract;
    • 15.1.13 comply with all requirements and procedures of which the Supplier has notified the Customer under the Contract; and
    • 15.1.14 not use goods supplied by any other supplier with the Equipment.

15.2 The Customer shall not do anything that leads any person to attempt to seize, distrain, take possession of, or to attempt to execute any civil recovery or judgement on the Equipment.

15.3 The Customer shall ensure that any landlord or mortgagee of any land which constitutes the Equipment Location acknowledges in writing to the Supplier that the Equipment is not installed so as to become a fixture of any kind and grants the Supplier the right to access the Equipment Location at any time to access and/or remove the Equipment.

16 Termination

The Customer may terminate the Contract by giving 3 months’ notice to the Supplier. Where the Customer wishes to terminate the Contract before the end of the Hire Period, the Customer shall be subject to an early termination fee of an amount equal to 50% of the total cost of the Hire Fee for the remaining Hire Period plus VAT, and any expenditure or costs incurred by the Supplier in relation to the Purchase Order or such part of it cancelled.

Return of Equipment

17.1 The Customer shall deliver up the Equipment (together with any Documentation supplied with it) at the end of the Hire Period or on earlier termination of the Contract, in a condition that is in compliance with the full performance of the Customer’s obligations under the Contract, by returning it to such address as the Supplier requires or by allowing the Supplier or its representatives to collect the Equipment from the Equipment location.

17.2 The Customer shall not be liable for any delay in the Equipment being returned to the Supplier which is caused by a Force Majeure Event.

17.3 Subject to clause 2, if the Customer does not deliver up the Equipment to the Supplier within 5 Business Days’ after the earlier of the end of the Hire Period or the termination of the Contract, the Supplier reserves the right to charge the Customer an additional fee up to the aggregate price of hire of the Equipment in respect of the period from the end of the Hire Period or earlier termination of the Contract until the Equipment is returned, any costs for aborted collection and the Supplier’s reasonable administration costs.

18 Loss of or damage to Equipment

18.1 The Customer shall be liable for any loss, theft, damage or destruction to the Equipment which occurs between delivery in accordance with clause 12 and return to the Supplier in accordance with clause 17, unless:

    • 18.1.1 such loss, theft, damage or destruction is caused by an act or omission of an employee, agent, consultant or subcontractor of the Supplier; or
    • 18.1.2 such loss, theft, damage or destruction is caused by a Force Majeure Event, and the Customer has complied with the Supplier’s reasonable instructions and has behaved reasonably as an owner of the Equipment would.

18.2 The Customer’s liability pursuant to clause 1 shall include the obligation to pay to the Supplier an amount equal to the cost to the Supplier of repair or replacement (as the Supplier may in its reasonable discretion decide) of the Equipment, together with such costs and losses as the Supplier may incur as a direct consequence of such loss, theft, damage or destruction, including (for example) in relation to any subsequent scheduled hires of the Equipment.

18.3 The Customer shall give immediate written notice to the Supplier in the event of any loss, theft, damage or destruction to the Equipment occurring during or arising out of or in connection with the Customer’s possession or use of the Equipment.

19 Hire Fee and payment

19.1 In consideration for the hire of the Equipment specified in the Quotation, the Customer shall pay to the Supplier the Hire Fee monthly in advance by the last Business Day of the preceding month during each month of the Hire Period

19.2 The Supplier reserves the right to increase the Hire Fee on 10 Business Days’ notice to the Customer on the occurrence of any event set out in the Quotation as carrying such right.

19.3 If specified in the Quotation or as otherwise specified in writing, the Supplier reserves the right to invoice the Customer for part of the Hire Fee, VAT thereon and other charges, upon the Customer’s acceptance of the Quotation, upon delivery or at any other time specified by the Supplier (Deposit). Unless otherwise agreed in writing by the Supplier, payment of the Deposit is due within 7 days of the date of such The Supplier shall not be obliged to supply the Equipment until payment of the Deposit has been received in full and cleared funds.

19.4 If, after payment of the Deposit, the Contract is terminated for any reason other than termination of the Contract by the Supplier without cause, the Supplier may, at its discretion, retain the whole or any part of the Deposit as liquidated damages. The liquidated damages represent a genuine pre-estimate of the Supplier’s loss and is without prejudice to any other remedy available to the Supplier.

20 Insurance

20.1 The Customer shall, with a reputable insurance company:

    • 20.1.1 insure the Equipment against all loss, theft, damage or destruction of the Equipment;
    • 20.1.2 keep the Supplier and the Customer jointly insured against liability to other persons for death, personal injury, and damage to or loss of property arising directly or indirectly out of the use, possession or operation of the Equipment.

20.2 The Customer must provide to the Supplier upon request a copy of the insurance cover that it has in place pursuant to clause 19.1.1 and 1.2.

20.3 If the Customer does not comply with the obligations in this clause 20, then the Supplier may (but without any obligation) obtain insurance cover, and the Customer will reimburse the Supplier on demand for the cost of doing so.

20.4 If there is loss or damage to the Equipment that does not constitute a total loss to the Equipment, then the Customer will:

    • 20.4.1 notify the Supplier in writing as soon as reasonably practicable;
    • 20.4.2 apply the insurance monies in making good the loss and damage; and
    • 20.4.3 on written request by the Supplier absolutely assign to the Supplier all the benefit of the Customer under the insurance policy.

20.5 The Customer will indemnify the Supplier against all loss or damage to the Equipment that happens before the Supplier has retaken physical possession of the Equipment to the extent that the Supplier is not indemnified by the insurance money.

21 Indemnity

21.1 The Customer will indemnify the Supplier against:

    • 21.1.1 all loss, actions, claims, demands, proceedings (whether criminal or civil), costs, legal expenses (on a full indemnity basis), insurance premiums and calls, liabilities, judgements, damages or other sanctions whenever arising, directly or indirectly from the Customer’s breach of any terms of the Contract;
    • 21.1.2 any loss, injury or damage suffered by any person (including without limitation the Supplier) because of the presence of the Equipment;
    • 21.1.3 the delivery, possession, hiring, transportation, condition, use, operation, removal or return of the Equipment; and
    • 21.1.4 the sale or disposal by the Customer of the Equipment.

The remaining provisions of these Conditions shall apply to the hire of Equipment, the sale of Goods and the supply of Services

22 Charges and Payment

22.1 The fee for the hire of the Equipment and the price for the Goods and/or Services (if the Services are provided on a fixed fee basis) shall be Hire Fee and the price set out in the Quotation.

22.2 If the Services are calculated on a time and materials basis:

      • 22.2.1 the charges shall be calculated in accordance with the Supplier’s daily fee rates for each individual person, or as otherwise agreed between the parties in writing or orally;
      • 22.2.2 the Supplier’s daily fee rates for each individual person shall be calculated on the basis of Standard Business Hours worked on Business Days and Saturdays, or as otherwise agreed between the parties;
      • 22.2.3 any Services performed outside the Supplier’s Standard Business Hours, shall be calculated at a minimum rate of 1.5 times the Supplier’s standard fee rates from time to time for all Services undertaken outside such hours on a Business Day, and subject to a minimum rate of 2 times the Supplier’s standard fee rates from time to time for all Services carried out on a day which is not a Business Day; and
      • 22.2.4 the Supplier will ensure that every individual person whom it engages in relation to the Services completes time sheets recording the time spent on the Services.

22.3 In respect of the Services, the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials. Any expenses of more than £100 must be pre-approved by the Customer in writing.

22.4 Unless specified in the Quotation or otherwise agreed in writing between the parties, in respect of the Services, if the Customer misses an appointment that has been arranged between the parties, if the Supplier has waited excessively for the Customer on site, or if there is any other delay caused by the Customer, the Supplier reserves the right to charge £75 plus VAT per hour per individual person for any time which its engineer has spent at such a site visit.

22.5 Unless specified in the Quotation or otherwise agreed in writing between the parties, the Supplier reserves the right to charge an inspection fee of up to £50 plus VAT, where the Customer instructs the Supplier to inspect any faulty goods and/or equipment and provide the Customer with an estimate to repair the same. If the Supplier is thereafter instructed to carry out any repair work, the £50 inspection fee will be deducted off the total cost of the repair work.

22.6 Unless otherwise agreed in writing, all amounts specified in these Conditions and the Contract are exclusive of VAT, and any other applicable sales tax, which shall be paid by the Customer.

22.7 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.

22.8 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of Goods Delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services, where the Services are provided on a fixed fee basis, and invoice the Customer monthly in arrears, where the Services are provided on a time and materials basis.

22.9 The Customer shall pay each invoice submitted by the Supplier:

    • 22.9.1 in full without deduction or set off, in cleared funds within 30 days of the date of the invoice; and
    • 22.9.2 to a bank account nominated by the Supplier.

22.10 Time for payment shall be of the essence of the Contract. Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% per annum above the Bank of England’s base rate from time to time in force and shall accrue at such a rate after as well as before any judgement.

23 Intellectual Property Rights

23.1 All Intellectual Property Rights in or arising out of or in connection with the Goods and/or Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.

23.2 For the purpose of allowing the Customer to use the Goods and/or Services under these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, royalty free licence to use the Intellectual Property Rights in the Goods.

23.3 The Client shall not make copies of any of the materials in the Goods provided by the Supplier, without the prior written consent of the Supplier,

24 Data Protection

24.1 Both parties will collect Personal Data relating to the other party and/or its employees or staff in the course of providing/ receiving the Equipment, Goods and/or Services. This is used by both parties to manage the relationship between them, and for the Supplier, for the provision of the Services and the hire of Equipment. The use of Personal Data for this purpose is necessary for the performance of the contract that will be in place between the Customer and the Supplier and for both the Supplier’s and the Customer’s legitimate interests in managing that agreement. For further information about how the Supplier handles Personal Data, please refer to its Privacy Policy at www.gemscientific.co.uk.

24.2 The Supplier may disclose the Personal Data to third parties (a) as needed by the Supplier to perform the contract; (b) where required to do so by law; (c) to exercise the Supplier’s legal rights or defend itself against legal claims; (d) to assist with the investigation or prevention of illegal activity; (e) where the Customer has given the Supplier explicit consent to do so; and/or (f) where the Supplier is otherwise permitted to do so by law.

25 Limitation of Liability

25.1 Subject to clause 3, the Supplier shall not be liable for any of the following:

    • 25.1.1 any direct loss of profit;
    • 25.1.2 any loss of anticipated profit including loss of profit on contracts;
    • 25.1.3 any loss of anticipated savings;
    • 25.1.4 any loss of business, contracts or opportunity in each case whether direct or indirect;
    • 25.1.5 any loss of goodwill or reputation in each case whether direct or indirect; or
    • 25.1.6 any indirect, special or consequential loss or damage however caused including:
      • 25.1.6.1 any indirect loss of profit; or
      • 25.1.6.2 any indirect loss of anticipated profit; or
      • 25.1.6.3 any indirect loss of anticipated savings;

or

      • 25.1.6.4 loss of use of money or revenue; or
      • 25.1.6.5 loss of data; or
      • 25.1.6.6 any other special, indirect     or consequential loss,

and the parties agree that the categories of loss as referred to at this clause 24.1 shall be distinct and severable.

25.2 Subject to clauses 24.1 and 3, the Supplier’s total liability in contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall be limited to an amount equal to (i) the total price for the Goods and/or Services, or (ii) the Hire Fee, paid by the Customer to the Supplier in the 12 month period preceding the date on which the breach or other event giving rise to the liability occurred (or if less than 12 months, the pro-rata annual equivalent price or Hire Fee paid by the customer.

25.3 Notwithstanding any other provision of the Contract, the liability of the parties shall not be excluded or limited in any way in respect of the following:

      • 25.3.1 death or personal injury caused by negligence;
      • 25.3.2 fraud or fraudulent misrepresentation;
      • 25.3.3 s2 of the Supply of Goods and Services Act 1982; or
      • 25.3.4 any other losses which cannot be excluded or limited by applicable law

26 Termination

26.1 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

    • 26.1.1 the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so by the Supplier;
    • 26.1.2 the Customer fails to make any payment of the Price or part thereof on the due date for payment and fails to remedy such late payment within fourteen days from the due date;
    • 26.1.3 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
    • 26.1.4 the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
    • 26.1.5 the Customer’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.

26.2 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier 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 1.2 to clause 26.1.5, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

26.3 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 25, it shall immediately notify the Supplier in writing.

26.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.

26.5 If the Customer requests the Supplier to suspend or relay performance of the Contract, the Consultant reserves the right to invoice for work already completed and materials purchased.

27 Force Majeure

27.1 A party shall not be liable if delayed in or prevented from performing its obligations due to a Force Majeure Event, provided that it promptly notifies the other of the Force Majeure Event and its expected duration and uses reasonable endeavours to minimise the effects of that event.

27.2 A Force Majeure Event means an event beyond a party’s reasonable control which by its nature could not have been foreseen or if it could have been foreseen was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosion, collapse of building structures, fire, flood, storm, earthquake, loss at sea, epidemic or similar events, natural disasters or extreme adverse weather conditions or default of suppliers or subcontractors.

27.3 If, due to a Force Majeure Event, a party is or shall be unable to perform a material obligation or is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days or total of more than 30 days in any consecutive period of 60 days, the other party may, within 30 days, terminate the Contract on immediate notice the parties shall, within 30 days, renegotiate the Contract to achieve, as nearly as possible, the original commercial intent.

28 Confidentiality

28.1 Each party undertakes that it shall not at any time disclose to any person any Confidential Information concerning the business, affairs, clients, consultants or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 28.2.

28.2 Each party may disclose the other party’s Confidential Information:

    • 28.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 27; and
    • 28.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

28.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

29 General

29.1 The Supplier 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 these Conditions.

29.2 No amendment or variation of these Conditions will be valid unless agreed in writing by an authorised signatory of each party.

29.3 The Customer may not assign, subcontract or encumber any right or obligation under these Conditions, in whole or in part, without the Supplier’s prior written consent, which it may withhold or delay at its absolute discretion.

29.4 Any notice given by a party under these Conditions shall be in writing, be signed by, or on behalf of the party giving it, and be sent in the case of the Supplier to Unit 301 Batley Enterprise Centre, 513 Bradford Road, Batley, Leeds WF17 8LL, and to the Customer, to the address referred to in the Quotation. Notices shall be sent by email and be sent in the case of the Supplier to sales@gemscientific.co.uk and to the Customer, to the email address referred to in the Quotation, or by Royal Mail special delivery, requiring a signature on delivery. Notices are deemed received if sent by email, at the time of transmission; or on the date and at the time that the Royal Mail delivery receipt is signed. All references to time are to the local time at the place of deemed receipt. The provisions of this clause 4 does not apply to notices given in legal proceedings or arbitration.

29.5 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

29.6 If any provision of these Conditions (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these Conditions shall not be affected.

29.7 A waiver of any right or remedy under these Conditions or at 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 these Conditions 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.

29.8 A person who is not a party to these Conditions shall not have any rights to enforce its terms.

29.9 These Conditions and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, these Conditions, its subject matter or formation (including non-contractual disputes or claims).