Sales & Purchase - Terms & Conditions

STANDARD CONDITIONS OF SALE: These Conditions will apply to all contracts between ATS and the Customer in relation to the supply by ATS of any and all Goods and/or Services. The definitions used in these Conditions are set out in Schedule 1.

1. Basis of Contract

1.1         The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.

1.2         The Order will only be deemed to be accepted when ATS issues written acceptance of the Order at which point and on which date the Contract will come into existence (“Commencement Date”).

1.3         Any samples, drawings, descriptive matter or advertising issued by ATS and any descriptions of the Goods or illustrations or descriptions of the Services contained in ATS’ catalogues 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 will not form part of the Contract or have any contractual force.

1.4         These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.5         Any quotation given by ATS will not constitute an offer, and is only valid for a period of 30 days from its date of issue (unless a validity period is stated on the quotation itself in which case that validity period will apply rather than the 30 day period stated in this clause 1.5).

1.6         All of these Conditions will apply to the supply of both Goods and Services except where application to one or the other is specified.

1. Goods

2.1         The Goods are described in the Goods Specification.

2.2         To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer will indemnify ATS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ATS arising out of or in connection with any claim made against ATS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with ATS’ use of the Goods Specification. This clause 2.2 will survive termination of the Contract.

2.3         ATS reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and ATS will notify the Customer in any such event.

1. Delivery of Goods

3.1         ATS will deliver the Goods to the Delivery Location or such other location as the parties may agree in writing.

3.2         Delivery of the Goods will be completed on the completion of unloading of the Goods at the Delivery Location.

3.3         Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. ATS will 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 ATS with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.4         If ATS fails to deliver the Goods, its liability will be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. ATS will have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide ATS with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

3.5         If the Customer fails to accept delivery of the Goods when ATS delivers them, then except where such failure or delay is caused by a Force Majeure Event or by ATS’ failure to comply with its obligations under the Contract in respect of the Goods:

3.5.1            delivery of the Goods will be deemed to have been completed at 9.00 am on the third Business Day following the day on which ATS notified the Customer that the Goods were ready or the date ATS first attempted delivery (whichever is earliest); and

3.5.2            ATS will, subject to clause 3.6, store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

3.6         If 10 or more Business Days after ATS notified the Customer that the Goods were ready for delivery, the Customer has not accepted delivery of them:

3.6.1            ATS may dispose of part or all of the Goods;

3.6.2            the Customer will be liable to ATS for storage, handling, transport and administration costs, which ATS incurs in relation to the Goods after they became ready for delivery and any disposal thereof;

3.6.3            the Customer will be liable to ATS for any amount by which the sale proceeds less costs ATS incurs pursuant to clause 3.6.2 fall short of the price of the Goods; and

3.6.4            ATS will account to the Customer for any amount by which the sale proceeds less costs ATS incurs pursuant to clause 3.6.2 exceed of the price of the Goods.

3.7         ATS may deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment will constitute a separate contract. Any delay in delivery or defect in an instalment will not entitle the Customer to cancel any other instalment.

1. Quality of Goods

4.1         ATS warrants that on delivery, and for a period of 12 months from the date of delivery or commissioning (if Commissioning Services are to be carried out on the Goods) (whichever is later) (“warranty period“), the Goods will:

4.1.1            conform in all material respects with any applicable Goods Specification;

4.1.2            be free from material defects in design, material and workmanship;

4.1.3            be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

4.1.4            be fit for any purpose held out by ATS.

4.2         Subject to clause 4.3, ATS will, at its option, repair or replace any defective Goods, or refund the price of such defective Goods in full if:

4.2.1            the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1 (such notice must be given within 2 Business Days for defects apparent on visual inspection);

4.2.2            ATS is given a reasonable opportunity of examining such Goods; and

4.2.3            the Customer (if asked to do so by ATS) returns such Goods to ATS’ place of business at the Customer’s cost.

4.3         ATS will not be liable for the Goods’ failure to comply with the warranty in clause 4.1 if:

4.3.1            the Customer makes any further use of such Goods after giving a notice in accordance with clause 4.2;

4.3.2            the defect arises because the Customer failed to follow ATS’ oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;

4.3.3            the defect arises as a result of ATS following any drawing, design or Goods Specification supplied by the Customer;

4.3.4            the Customer alters or repairs such Goods without the written consent of ATS;

4.3.5            the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or

4.3.6            the Goods differ from any applicable Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.

4.4         Except as provided in this clause 4, ATS will have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.

4.5         The terms of these Conditions will apply to any repaired or replacement Goods supplied by ATS.

1. Title and Risk

5.1         The risk in the Goods will pass to the Customer on completion of delivery.

5.2         Title to the Goods will not pass to the Customer until ATS receives payment in full (in cash or cleared funds) for the Goods and any other goods that ATS has supplied to the Customer in respect of which payment has become due, in which case title to the Goods will pass at the time of payment of all such sums.

5.3         Until title to the Goods has passed to the Customer, the Customer will:

5.3.1            store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as ATS’ property;

5.3.2            not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

5.3.3            maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on ATS’ behalf from the date of delivery;

5.3.4            notify ATS immediately if it becomes subject to any of the events listed in clause 17.1.2to clause 17.1.4;and

5.3.5            give ATS such information relating to the Goods as ATS may require from time to time.

5.4         If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 17.1.2 to clause 17.1.4, then, without limiting any other right or remedy ATS may have, ATS may at any time:

5.4.1            require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and

5.4.2            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.

1. Supply of Commissioning Services

6.1         If specified in the Order, ATS will:

6.1.1            supply the Commissioning Services to the Customer substantially in accordance with the Service Specification;

6.1.2            carry out the Commissioning Services on the Commissionable Goods at the Customer’s Premises following installation.

6.2         Commissioning Services must be carried out within 3 months of the date of delivery of the relevant Commissionable Goods and the Customer must use its best endeavours to facilitate this.

6.3         If the Commissionable Goods are successfully commissioned:

6.3.1            ATS will issue the Customer with a Completion Certificate in respect of these Goods; and

6.3.2            the Customer will sign such paperwork as ATS requires confirming the same;

6.3.3            if the Customer fails to counter-sign the Completion Certificate, the Customer will be deemed to have accepted the Commissioning Services and to have counter-signed the Completion Certificate 14 days after the Customer was issued with the Completion Certificate pursuant to clause 6.3.1.

6.4         If the Commissionable Goods are not successfully commissioned, ATS will carry out any necessary work on the Commissionable Goods and repeat the commissioning process within a reasonable time at ATS’s cost, in the event that  the Commissionable Goods are not successfully commissioned for any reason within ATS’s control and at the Customer’s cost if the Commissionable Goods are not successfully commissioned due to any failure, error or omission on the part of the Customer.

1. Supply of Maintenance Services

7.1         If specified in the Order, ATS will supply the Maintenance Services to the Customer substantially in accordance with the Service Specification.

7.2         ATS will only provide the Maintenance Services specified in the Service Specification and will not provide such services in respect of:

7.2.1            equipment or machinery other than the Maintained Goods;

7.2.2            Maintained Goods which has been wilfully damaged by the Customer or an employee, officer, agent or contractor of the Customer;

7.2.3            maintenance (or other work) to the Maintained Goods necessitated as a result of fire, flood, storm, earthquake, accidental damage or other similar causes;

7.2.4            normal operator functions as recommended by the manufacturer and/or ATS; and

7.2.5            electrical work external to the Maintained Goods, making modifications or specification changes to the Maintained Goods, reconditioning or refurbishing the Maintained Goods or adding or removing accessories, attachments or other devices.

7.3         If, as part of its provision of the Maintenance Services, ATS agrees to remove old or used machinery, parts and/or Maintained Goods from the Customer’s Premises, ATS will be free to dispose of such machinery, parts and/or Maintained Goods as it sees fit and if such machinery, parts and/or Maintained Goods are sold by ATS, ATS will be entitled to retain all proceeds resulting from any such sale.

7.4         If ATS considers that the Maintained Goods cannot be repaired at the Customer’s Premises, ATS will be entitled to remove the Maintained Goods (or part(s) thereof) for repair. If the Customer objects to the removal of the Maintained Goods, ATS will have no further obligation to provide Maintenance Services with respect to those Maintained Goods and will cease to do so, but will continue to use reasonable endeavours to provide Maintenance Services for the remaining Maintained Goods. The Customer will not be entitled to a refund for any part of any charges for Maintenance Services.

7.5         In respect of any Maintained Goods for which ATS is providing Maintenance Services, ATS reserves the right to supply new, second-hand or reconditioned replacement parts. Any equipment or components thereof replaced by ATS will become ATS’ property as soon as they have been replaced and the Customer warrants that either the Customer will have a free and unencumbered title to such replaced parts or (where any such equipment has been leased or charged) that it will have obtained all necessary consents and authorities to part with possession of and give good title in the replaced parts to ATS.

1. Supply of Installation Services

8.1         If specified in the Order, ATS will supply the Installation Services to the Customer substantially in accordance with the Service Specification.

8.2         ATS may inspect the installation location prior to installation. If ATS considers that the installation location is not suitable, it will notify the Customer of the issues that need to be rectified before installation can take place and ATS will be under no obligation to carry out the installation until such time as the rectification works have been carried out by the Customer (at the Customer’s expense).

8.3         If the Service Specification states that a Design is required, ATS will prepare such Design. ATS will submit the Design to the Customer for approval. The parties will use all reasonable endeavours to agree the Design. If the Customer does not approve the Design, it may instruct ATS to amend the Design (at the Customer’s expense).

8.4         If the Customer does not approve the amended Design, either party may refer the matter to be dealt with in accordance with the dispute resolution mechanisms detailed at clause 19.

8.5         If ATS submits a Design to the Customer for approval but the Customer does not respond to ATS in relation to that Design, ATS will take no further action until the design is approved by the Customer within the agreed timescale or in the absence of an agreed timescale, 5 Business Days and ATS will accept no liability for any resulting delays associated with the relevant project.

1. Supply of Services

9.1         ATS will use all reasonable endeavours to meet any performance dates for the Services specified in the Service Specification or otherwise agreed in writing between the parties, but any such dates will be estimates only and time will not be of the essence for the performance of the Services.

9.2         ATS reserves the right to amend any Service Specification if necessary to comply with any applicable law or regulatory requirement, and otherwise if the amendment will not materially affect the nature or quality of the Services, and ATS will notify the Customer of any such amendment.

9.3         ATS will, whilst working at the Customer’s Premises, comply with all reasonable instructions given to it by the Customer relating to health and safety matters and procedures.

9.4         ATS may temporarily suspend all or part of the Services:

9.4.1            for operational reasons including (but without limitation) if machinery and/or equipment required for the Services is out of service or cannot be utilised for other reasons; or

9.4.2            to comply with any applicable law or regulatory requirement.

9.5         If the Services will be (or are likely to be) suspended, ATS will give the Customer as much advance notice of any such suspension as is practicable.

9.6         If, as part of its provision of the Services, ATS agrees to remove old or used machinery and/or equipment from the Customer’s Premises, ATS will be free to dispose of such machinery and/or equipment as it sees fit and if such machinery and/or equipment is sold by ATS, ATS will be entitled to retain all proceeds resulting from any such sale.

1. Customer’s Obligations

10.1      The Customer will:

10.1.1         ensure that the terms of the Order and any information it provides in the Service Specification and/or the Goods Specification are complete and accurate;

10.1.2         co-operate with ATS in all matters relating to the Services;

10.1.3         provide ATS, its employees, agents, consultants and subcontractors, with access to the Customer’s premises/site, office accommodation and other facilities including (but without limitation) parking and electricity, as reasonably required by ATS to provide the Services;

10.1.4         provide ATS with such information and materials as ATS may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

10.1.5         prepare the Customer’s premises for the supply of the Services;

10.1.6         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;

10.1.7         comply with all applicable laws, including (without limitation) health and safety laws and the Construction (Design and Management) Regulations 2015;

10.1.8         keep all materials, equipment, documents and other property of ATS (“ATS Materials“) at the Customer’s premises in safe custody at its own risk, maintain ATS Materials in good condition until returned to ATS, and not dispose of or use ATS Materials other than in accordance with ATS’ written instructions or authorisation; and

10.1.9         comply with any additional obligations as set out in the Service Specification and/or the Goods Specification.

10.2      If ATS’ performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (“Customer Default“):

10.2.1         without limiting or affecting any other right or remedy available to it, ATS will have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays ATS’ performance of any of its obligations;

10.2.2         ATS will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from ATS’ failure or delay to perform any of its obligations as set out in this clause 10.2; and

10.2.3         the Customer will reimburse ATS on written demand for any costs or losses sustained or incurred by ATS arising directly or indirectly from the Customer Default.

1. Retention

11.1      Unless otherwise specified in ATS’ order confirmation given pursuant to clause 1.2, retention is not applicable and, for the avoidance of doubt, the Customer is not entitled to keep a percentage of the value of the work carried out by ATS until completion or making good of defects.

11.2      If ATS’ order confirmation given pursuant to clause 1.2 confirms that retention does apply:

11.2.1         the Customer may hold the Retention until the Defects Period has expired;

11.2.2         subject to clause 11.2.3, the Customer may use the Retention to rectify any defects in the Services which arise or become apparent during the Defects Period;

11.2.3         the Customer will notify ATS in advance and in writing if it becomes aware of or considers there to be a defect in the Services and if it proposes to make any associated deduction from the Retention in accordance with clause 11.2.2;

11.2.4         upon expiry of the Defects Period, ATS will raise its invoice for the Retention (less any part that has been utilised to rectify any defects in the Services pursuant to this clause 11.2); and

11.2.5         the Customer will pay the Retention to ATS (less any part that has been utilised to rectify any defects in the Services pursuant to this clause 11.2) within 14 days of receipt of ATS’s invoice.

1. Charges and Payment

12.1      The price for Goods:

12.1.1         will be the price set out in ATS’ order confirmation given pursuant to clause 1.2; and

12.1.2         will be inclusive of all costs and charges of packaging, insurance, transport of the Goods.

12.2      The charges for Services will be the price set out in ATS’ order confirmation given pursuant to clause 1.2.

12.3      ATS reserves the right to:

12.3.1         increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12 month period and the first such increase will take effect on the first anniversary of the Commencement Date and will be based on the latest available figure for the percentage increase in the Retail Prices Index;

12.3.2         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 ATS that is due to:

(a)         any factor beyond the control of ATS (including (but without limitation) foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

(b)         any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or

(c)         any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give ATS adequate or accurate information or instructions in respect of the Goods.

12.4      In the event that ATS to is requested and agrees in writing to provide additional Services and/or Goods, the charges for the Services and/or Goods will be adjusted accordingly. ATS and the Customer will seek to agree the adjustment to the charges for the increased/additional Services and/or Goods. In the event that ATS and the Customer are unable to agree the adjustment to the charges, ATS will be paid a fair and reasonable sum for the additional/increased Services and/or Goods.

12.5      In respect of Goods, ATS will invoice the Customer on completion of delivery and if Commissioning Services are to be carried out on such Goods, ATS will raise its invoice to the Customer in respect of the Commissioning Services separately on completion of the Commissioning Services.

12.6      In respect of Services, ATS will invoice the Customer on completion of the Services unless otherwise agreed in writing between the parties.

12.7      Each invoice will state the sum ATS considers to be or to have been due at the payment due date and the basis upon which that sum is calculated (the notified sum). The payment will become due on the date of the relevant invoice (the payment due date).

12.8      The Customer will pay the notified sum:

12.8.1         within 30 days of the date of the invoice or in accordance with any credit terms agreed by ATS and confirmed in writing to the Customer (being the final date for payment); and

12.8.2         in full and in cleared funds to a bank account nominated in writing by ATS, and

time for payment will be of the essence of the Contract.

12.9      All amounts payable by the Customer under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by ATS to the Customer, the Customer will, on receipt of a valid VAT invoice from ATS, pay to ATS such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

12.10   If the Customer fails to make a payment due to ATS under the Contract by the final date for payment, then, without limiting any other remedies available to ATS whether hereunder or otherwise the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this paragraph 12.10 will accrue each day at the greater of 4% a year above the Bank of England’s base rate from time to time, and the rate from time to time applicable to High Court judgment debts.

12.11   All amounts due under the Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

12.12   If the Customer disputes any invoice raised by ATS it must notify ATS promptly and no later than 14 days after the date of receipt of the disputed invoice.

12.13   Notwithstanding clause 12.10, and subject to having given the Customer at least 7 days’ notice if its intention to suspend performance, stating the grounds or grounds on which it intends to suspend performance, if the Customer fails to make a payment due to ATS under this Contract by the final date for payment, ATS may (at its discretion) suspend any or all of its obligations under the Contract. The right to suspend performance ceases when the Customer makes payment in full. Where ATS exercises the right to suspend, the Customer will be liable to pay to ATS a reasonable amount in respect of costs and expenses reasonably incurred as a result of the exercise of that right.

1. Data Protection

13.1      Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 13, “Applicable Laws” means (for so long as and to the extent that they apply to ATS) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and “Domestic UK Law” means the UK Data Protection Legislation and any other law that applies in the UK.

13.2      The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and ATS is the processor.

13.3      Without prejudice to the generality of clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to ATS for the duration and purposes of the Contract.

13.4      This clause 13.4 sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject:

13.4.1         Scope, nature and purpose of processing: The scope, nature and purpose of processing of personal data is limited to the processing required for the fulfilment of each party’s respective obligations under this agreement.

13.4.2         Duration of processing: The processing of personal data will be limited to the duration of the Contract.

13.4.3         Types of Personal Data: The types of personal data processed will be limited to the names and contact details for each party’s employees.

13.5      Without prejudice to the generality of clause 13.1, ATS will, in relation to any personal data processed in connection with the performance by ATS of its obligations under the Contract:

13.5.1         process that personal data only on the documented written instructions of the Customer unless ATS is required by Applicable Laws to otherwise process that personal data. Where ATS is relying on Applicable Laws as the basis for processing personal data, ATS will promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit ATS from so notifying the Customer;

13.5.2         ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

13.5.3         ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

13.5.4         not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(a)         the Customer or ATS has provided appropriate safeguards in relation to the transfer;

(b)         the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;

(c)         ATS complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(d)         ATS complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

13.5.5         assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

13.5.6         notify the Customer without undue delay on becoming aware of a personal data breach;

13.5.7         at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Applicable Law to store the personal data; and

13.5.8         maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and immediately inform the Customer if, in the opinion of ATS, an instruction infringes the Data Protection Legislation.

1. Intellectual Property Rights

14.1      All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) will be owned by ATS.

14.2      ATS grants to the Customer, or will procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.

14.3      The Customer will not sub-license, assign or otherwise transfer the rights granted by clause 14.2.

14.4      The Customer grants ATS a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to ATS for the term of the Contract for the purpose of providing the Services to the Customer.

1. Confidentiality

15.1      Each party undertakes that it will not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.

15.2      Each party may disclose the other party’s confidential information:

15.2.1         to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party will ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 15UPDATE FC; and

15.2.2         as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3      Neither party will use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

1. Limitation of Liability

16.1      Nothing in the Contract limits any liability which cannot legally be limited, including (but not limited to) liability for:

16.1.1         death or personal injury caused by negligence;

16.1.2         fraud or fraudulent misrepresentation; and

16.1.3         breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

16.2      Subject to clause 16.1, ATS’ total liability to the Customer in respect of all breaches of duty occurring within any contract year will not exceed 50% of the total charges in the contract year in which the breaches occurred.

16.3      In clause 16.2:

16.3.1         contract year. A contract year means a 12-month period commencing with the date of the Contract or any anniversary of it;

16.3.2         total charges. The total charges means all sums paid by the Customer under the Contract in respect of goods and services actually supplied by ATS, whether or not invoiced to the Customer; and

16.3.3         total liability. ATS’ total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.

16.4      This clause 16.4 sets out specific heads of excluded loss and exceptions from them:

16.4.1         Subject to clause 16.1, the types of loss listed in clause 16.4.3 UPDATE FCare wholly excluded by the parties, but the types of loss and specific losses listed in clause 16.4.4 are not excluded.

16.4.2         If any loss falls into one or more of the categories in clause 16.4.3 and also falls into a category, or is specified, in clause 16.4.4, then it is not excluded.

16.4.3         All indirect and consequential loss and the following types of loss (whether direct or indirect) are wholly excluded:

(a)         loss of profits;

(b)         loss of sales or business;

(c)         loss of agreements or contracts;

(d)         loss of anticipated savings;

(e)         loss of use or corruption of software, data or information;

(f)          loss of or damage to goodwill.

16.4.4         The following types of loss and specific loss are not excluded:

(a)         sums paid by the Customer to ATS pursuant to the Contract, in respect of any Services not provided in accordance with the Contract;

(b)         wasted expenditure;

(c)         additional costs of procuring and implementing replacements for, or alternatives to, Services not provided in accordance with the Contract. These include (but are not limited to) consultancy costs, additional costs of management time and other personnel costs, and costs of equipment and materials;

(d)         losses incurred by the Customer arising out of or in connection with any third party claim against the Customer which has been caused by the act or omission of ATS. For these purposes, third party claims will include (but not be limited to) demands, fines, penalties, actions, investigations or proceedings, including (but not limited to) those made or commenced by subcontractors, ATS’ personnel, regulators and customers of the Customer.

16.5      ATS has given commitments as to compliance of the Goods and Services with relevant specifications in clause 4 and clause 6. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.

16.6      Unless the Customer notifies ATS that it intends to make a claim in respect of an event within the notice period, ATS will have no liability for that event. The notice period for an event will start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and will expire 3 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

16.7      This clause 16 will survive termination of the Contract.

1. Termination

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

17.1.1         the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing to do so;

17.1.2         the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

17.1.3         the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

17.1.4         the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

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

17.2.1         any amount due hereunder is due and remains unpaid for 14 days or more after notice requiring payment has been served on the party owing such amount; or

17.2.2         there is a change of control of the Customer.

17.3      Without affecting any other right or remedy available to it, ATS may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and ATS 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 17.1.2 to clause 17.1.4, or ATS reasonably believes that the Customer is about to become subject to any of them.

1. Consequences of Termination

18.1      On termination of the Contract:

18.1.1         the Customer will immediately pay to ATS all of ATS’ outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, ATS will submit an invoice, which will be payable by the Customer immediately on receipt;

18.1.2         the Customer will return all of ATS Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then ATS may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer will be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

18.2      Termination of the Contract will not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

18.3      Any provision of the Contract that expressly or by implication is intended to have effect after termination will continue in full force and effect.

1. Dispute Resolution

19.1      An Expert is a person appointed in accordance with this clause 19 to resolve any disagreement between the parties relating to a Design or any other technical matter.

19.2      Where under this agreement a party wishes to refer a matter to an Expert, the parties will first agree on the appointment of an independent Expert and agree with the Expert the terms of his appointment.

19.3      If the parties are unable to agree on an Expert or the terms of the Expert’s appointment within seven days of either party serving details of a suggested expert on the other, either party will then be entitled to request the Centre for Effective Dispute Resolution (“CEDR”) to appoint a suitable and appropriate Expert with the required expertise.

19.4      The Expert is required to prepare a written decision including reasons and give notice (including a copy) of the decision to the parties within a maximum of three months of the matter being referred to the Expert.

19.5      If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this clause 19, then:

19.5.1         either party may apply to CEDR to discharge the Expert and to appoint a replacement Expert with the required expertise; and

19.5.2         this clause 19 will apply to the new Expert as if they were the first Expert appointed.

19.6      The parties are entitled to make submissions to the Expert and will provide (or procure that others provide) the Expert with any assistance and documents as the Expert reasonably requires to reach a decision.

19.7      Each party will with reasonable promptness supply each other with all information and give each other access to all documents, personnel and things as the other party may reasonably require to make a submission under this clause 19.

19.8      The Expert will act as an expert and not as an arbitrator. The Expert will determine the matters referred to the Expert under the agreement. The Expert’s written decision on the matters referred to the Expert will be final and binding on the parties in the absence of manifest error or fraud.

19.9      All matters concerning the process and result of the determination by the Expert will be kept confidential among the parties and the Expert.

19.10   Each party will act reasonably and co-operate to give effect to the provisions of this clause 19 and otherwise do nothing to hinder or prevent the Expert from reaching their determination.

19.11   The Expert and CEDR will have no liability to the parties for any act or omission in relation to this appointment, save in the case of bad faith.

19.12   If any other dispute arises in connection with the Contract which does not relate to a Design or any other technical matter, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of notice of the dispute, the mediator will be nominated by CDER. To initiate the mediation a party must give notice in writing (“ADR Notice”) to the other party to the dispute, referring the dispute to mediation. Unless otherwise agreed the mediation will start not later than 28 days after the date of the ADR Notice.

19.13   For the avoidance of doubt, clause 19.12 will not prevent ATS from immediately initiating court proceedings to seek any interim relief (including injunctive relief) or take advantage of any applicable time limitation.

1. Force Majeure

Neither party will be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

1. General

21.1      Conflict. In case of any conflict between the provisions of these Conditions and any document referred to or incorporated within them, these Conditions will prevail.

21.2      Assignment and other dealings. ATS may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Customer will not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of ATS.

21.3      Notices. Any notice or other communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 21.3, and will be delivered personally, or sent by pre-paid first class post or other next working day delivery service or commercial courier. A notice or other communication will be deemed to have been received: if delivered personally, when left at the address referred to in clause 21.3; if sent by pre-paid first class post or other next working day delivery service, at 1.00 pm on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. The provisions of this clause 21.3 will not apply to the service of any proceedings or other documents in any legal action.

21.4      Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will 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 will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 21.4 will not affect the validity and enforceability of the rest of the Contract.

21.5      Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law will prevent or restrict the further exercise of that or any other right or remedy.

21.6      No partnership or agency. Nothing in the Contract is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

21.7      Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract. Nothing in this clause 21.7 will limit or exclude any liability for fraud.

21.8      Third parties rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

21.9      Variation. Except as set out in these Conditions, no variation of the Contract will be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

21.10   Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales.

21.11   Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Schedule 1

Definitions and Interpretation

Part 1

In these Conditions, the following definitions apply:

ATS: Air Technology Systems Limited registered in England and Wales with company number 02753492.

ATS Materials: has the meaning given in clause 10.1.8.

Business Day: a day other than a Saturday, Sunday or public holiday in England.

Commissionable Goods: means the goods to be commissioned by ATS as described in the Order and/or Service Specification.

Commissioning Services: means the testing to be carried out by ATS on the Commissionable Goods to check that the components of the Commissionable Goods have been correctly installed and that the system is working correctly and issuing a Completion Certificate if the system is operating correctly.

Commencement Date: has the meaning given in clause 1.2.

Completion Certificate: the document issued by ATS to the Customer which confirms the successful commissioning of the Commissionable Goods.

Conditions: these terms and conditions as amended from time to time in accordance with clause 21.9.

Contract: any contract between ATS and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical measures: as defined in the Data Protection Legislation.

Customer: the person or firm who purchases the Goods and/or Services from ATS.

Customer’s Premises: the Customer’s premises as identified in the Order.

Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

Defects Period: the period of time stated in ATS’ order confirmation given pursuant to clause 1.2.

Deliverables: the deliverables set out in the Order produced by ATS for the Customer.

Delivery Location: the location set out in the Order or such other location as the parties may agree from time to time.

Design: any applicable plans or drawings relevant to the Services stated to be required in the Service Specification.

Expert: has the meaning given in clause 19.

Goods: the goods (or any part of them) set out in the Order, including any Commissionable Goods and Maintained Goods.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed by the Customer and ATS.

Installation Services: the installation services supplied by ATS to the Customer as set out in the Service Specification.

Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Maintenance Services: the maintenance services supplied by ATS to the Customer as set out in the Service Specification.

Maintained Goods: means the goods to which the Maintenance Services apply as specified in the Order and/or the Service Specification.

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 ATS’ quotation, or overleaf, as the case may be.

Retail Prices Index: the retail prices index published by the United Kingdom’s Office for National Statistics provided that if at any time that index is no longer produced or published any index most nearly replacing the same will be used with such adjustments as ATS reasonably considers appropriate.

Retention: the proportion of the price of the applicable Services as stated in ATS’ order confirmation given pursuant to clause 1.2.

Services: the services (including the Maintenance Services, Commissioning Services and Installation Services), including the Deliverables, supplied by ATS to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services provided by ATS to the Customer which may include a Design.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

VAT: value added tax chargeable from time to time.

Part 2

In these Conditions, the following rules apply:

1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. A reference to a party includes its successors and permitted assigns.
3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that statute or statutory provision.
4. Any words following the terms including or include or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
5. A reference to writing or written does not include fax or email.

STANDARD CONDITIONS OF PURCHASE

These Conditions will apply to all contracts between ATS and the Supplier in relation to the purchase by ATS of any and all Goods and/or Services. The definitions used in these Conditions are set out in Schedule 1.

1. Basis of Contract

1.1         The Order constitutes an offer by ATS to purchase Goods and/or Services from the Supplier in accordance with these Conditions.

1.2         An Order will be contractually binding when submitted by ATS to the Supplier at which point and on which date the Contract will come into existence (“Commencement Date“).

1.3         These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

1.4         All of these Conditions will apply to the supply of both Goods and Services except where the application to one or the other is specified.

1.5         ATS may cancel any Order for Goods or Services within 3 Business Days of the Commencement Date for any reason and without liability.

1. Supply of Goods

2.1         The Supplier will supply all Goods and/or Services ordered by ATS for the Price in accordance with these Conditions.

2.2         The Supplier will ensure that the Goods will:

2.2.1            correspond with their description, any applicable Goods Specification and any other document referred to in the Order;

2.2.2            be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by ATS, expressly or by implication, and in this respect ATS relies on the Supplier’s skill and judgement;

2.2.3            where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months or any alternative warranty period given by the Supplier (whichever is longer) after delivery or commissioning (whichever is later); and

2.2.4            comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

2.3         The Supplier will ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

2.4         ATS may inspect and test the Goods at any time before delivery or collection. The Supplier will remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing will not reduce or otherwise affect the Supplier’s obligations under the Contract.

2.5         If following such inspection or testing ATS considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at clause 2.1, ATS will inform the Supplier and the Supplier will immediately take such remedial action as is necessary to ensure compliance.

2.6         ATS may conduct further inspections and tests after the Supplier has carried out its remedial actions.

2.7         If the Order states that ATS requires an operation and maintenance manual, the Supplier will provide ATS with a project-specific operation and maintenance manual by email (to an email address notified to the Supplier by ATS) within 5 days of delivery of the relevant Goods.

1. Delivery or Collection of Goods

3.1         If ATS states in the Order that the Goods are to be delivered, the Supplier will ensure that:

3.1.1            the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

3.1.2            each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

3.1.3            it states clearly on the delivery note any requirement for ATS to return any packaging material for the Goods to the Supplier. Any such packaging material will only be returned to the Supplier at the cost of the Supplier.

3.2         If ATS states in the Order that the Goods are to be delivered, the Supplier will deliver the Goods:

3.2.1            on the date specified in the Order or, if no such date is specified, then within 7 days of the date of the Order;

3.2.2            to the Delivery Location; and

3.2.3            during ATS’ normal hours of business on a Business Day, or as instructed by ATS.

3.3         If Goods are delivered by the Supplier:

3.3.1            delivery of the Goods will be completed on the completion of unloading of the Goods at the Delivery Location; and

3.3.2            title and risk in the Goods will pass to ATS on completion of delivery.

3.4         If ATS states in the Order that the Goods are to be collected, the Supplier will ensure that:

3.4.1            the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

3.4.2            a delivery note is made available to ATS which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being made available for collection by instalments, the outstanding balance of Goods remaining to be collected; and

3.4.3            it states clearly on the delivery note any requirement for ATS to return any packaging material for the Goods to the Supplier. Any such packaging material will only be returned to the Supplier at the cost of the Supplier.

3.5         If ATS states in the Order that the Goods are to be collected, the Supplier will made the Goods available for collection:

3.5.1            on the date specified in the Order or, if no such date is specified, then within 7 days of the date of the Order;

3.5.2            at the Collection Location.

3.6         If Goods are made available for collection by the Supplier:

3.6.1            collection will be completed on the loading of the Goods at the Collection Location; and

3.6.2            title and risk in the Goods will pass to ATS on collection.

3.7         The Supplier will not deliver the Goods or make the Goods available for collection in instalments without ATS’ prior written consent. Where it is agreed that the Goods are delivered or made available for collection by or in instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver or make available for collection any one instalment on time or at all or any defect in an instalment will entitle ATS to the remedies set out in clause 5.1.

1. Supply of Services

4.1         The Supplier will from the Commencement Date and for the duration of the Contract supply the Services to ATS in accordance with the terms of the Contract.

4.2         The Supplier will meet any performance dates for the Services specified in the Order or that ATS notifies to the Supplier and time is of the essence in relation to any of those performance dates.

4.3         In providing the Services, the Supplier will:

4.3.1            co-operate with ATS in all matters relating to the Services, and comply with all instructions of ATS;

4.3.2            perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;

4.3.3            use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;

4.3.4            ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables will be fit for any purpose that ATS expressly or impliedly makes known to the Supplier;

4.3.5            provide all equipment, tools and vehicles and such other items as are required to provide the Services;

4.3.6            use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to ATS, will be free from defects in workmanship, installation and design;

4.3.7            obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

4.3.8            comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services;

4.3.9            observe all health and safety rules and regulations and any other security requirements that apply at any of ATS’ premises;

4.3.10         hold all materials, equipment and tools, drawings, specifications and data supplied by ATS to the Supplier (“ATS Materials“) in safe custody at its own risk, maintain ATS Materials in good condition until returned to ATS, and not dispose or use ATS Materials other than in accordance with ATS’ written instructions or authorisation;

4.3.11         not do or omit to do anything which may cause ATS to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that ATS may rely or act on the Services; and

4.3.12         comply with any additional obligations as set out in the Service Specification.

1. Remedies

5.1         If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, ATS will, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:

5.1.1            to terminate the Contract with immediate effect by giving written notice to the Supplier;

5.1.2            to refuse to accept any subsequent performance of the Services and/or delivery/collection of the Goods which the Supplier attempts to make;

5.1.3            to recover from the Supplier any costs incurred by ATS in obtaining substitute goods and/or services from a third party;

5.1.4            to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered or made available for collection; and

5.1.5            to claim damages for any additional costs, loss or expenses incurred by ATS which are in any way attributable to the Supplier’s failure to meet such dates.

5.2         If the Goods are not delivered or made available for collection by the applicable date, ATS may, at its option, claim or deduct 10% of the Price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 50% of the total Price of the Goods. If ATS exercises its rights under this clause 5.2 it will not be entitled to any of the remedies set out in clause 5.1 in respect of the Goods’ late delivery.

5.3         If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 2.1, then, without limiting or affecting other rights or remedies available to it, ATS will have one or more of the following rights, whether or not it has accepted the Goods:

5.3.1            to terminate the Contract with immediate effect by giving written notice to the Supplier;

5.3.2            to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;

5.3.3            to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the Price of the rejected Goods (if paid);

5.3.4            to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

5.3.5            to recover from the Supplier any expenditure incurred by ATS in obtaining substitute goods from a third party; and

5.3.6            to claim damages for any additional costs, loss or expenses incurred by ATS arising from the Supplier’s failure to supply Goods in accordance with clause 2.1.

5.4         These Conditions will extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.

5.5         ATS’ rights under the Contract are in addition to its rights and remedies implied by statute and common law.

1. Obligations of ATS

ATS will:

6.1.1            provide the Supplier with reasonable access at reasonable times to ATS’ premises for the purpose of providing the Services; and

6.1.2            provide such necessary information for the provision of the Services as the Supplier may reasonably request.

1. Charges and Payment

7.1         The Price for the Goods will be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges will be effective unless agreed in writing and signed by ATS.

7.2         The charges for the Services will be set out in the Order, and will be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by ATS, the charges will include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.

7.3         In respect of the Goods, the Supplier will invoice ATS on or at any time after completion of delivery or collection (as the case may be). In respect of Services, the Supplier will invoice ATS on completion of the Services. Each invoice will include such supporting information required by ATS to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.

7.4         In consideration of the supply of Goods and/or Services by the Supplier, ATS will pay the invoiced amounts to a bank account nominated in writing by the Supplier within 60 days from the end of the month in which ATS received a correctly rendered invoice.

7.5         All amounts payable by ATS under the Contract are exclusive of amounts in respect of VAT. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to ATS, ATS will, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.

7.6         The Supplier will maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier will allow ATS to inspect such records at all reasonable times on request.

7.7         ATS may at any time, without notice to the Supplier, set off any liability of the Supplier to ATS against any liability of ATS to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, ATS may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by ATS of its rights under this clause 7.7 will not limit or affect any other rights or remedies available to it under the Contract or otherwise.

1. Intellectual Property Rights

8.1         All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any ATS Materials) will be owned by the Supplier.

8.2         The Supplier grants to ATS, or will procure the direct grant to ATS of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding ATS Materials) for the purpose of receiving and using the Services and the Deliverables.

8.3         ATS grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by ATS to the Supplier for the term of the Contract for the purpose of providing the Services to ATS.

8.4         All ATS Materials are the exclusive property of ATS.

1. Indemnity

9.1         The Supplier will indemnify ATS against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by ATS arising out of or in connection with:

9.1.1            any claim made against ATS for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding ATS Materials);

9.1.2            any claim made against ATS by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and

9.1.3            any claim made against ATS by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.

9.2         This clause 9 will survive termination of the Contract.

1. Insurance

During the term of the Contract and for a period of 12 years thereafter, the Supplier will maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and will, on ATS’ request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

1. Confidentiality

11.1      Each party undertakes that it will not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.

11.2      Each party may disclose the other party’s confidential information:

11.2.1         to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party will ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information must comply with this clause 11; and

11.2.2         as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

11.3      Neither party will use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.

1. Termination

12.1      Without affecting any other right or remedy available to it, ATS may terminate the Contract:

12.1.1         with immediate effect by giving written notice to the Supplier if:

(a)         there is a change of control of the Supplier; or

(b)         the Supplier’s financial position deteriorates to such an extent that in ATS’ opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(c)         the Supplier commits a breach of clause 4.3.8,

12.1.2         for convenience by giving the Supplier 14 days’ written notice.

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

12.2.1         the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;

12.2.2         the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

12.2.3         the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

1. Consequences of Termination

13.1      On termination of the Contract, the Supplier will immediately deliver to ATS all Deliverables whether or not then complete, and return all ATS Materials. If the Supplier fails to do so, then ATS may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier will be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

13.2      Termination of the Contract will not affect the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

13.3      Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract will remain in full force and effect.

1. Force Majeure

Neither party will be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this agreement by giving 7 days’ written notice to the affected party.

1. General

15.1      Assignment and other dealings. ATS may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract. The Supplier will not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of ATS.

15.2      Notices. Any notice or other communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause 15.2, and will be delivered personally, or sent by pre-paid first class post or other next working day delivery service or commercial courier. A notice or other communication will be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.2; if sent by pre-paid first class post or other next working day delivery service, at 1.00 pm on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed. The provisions of this clause 15.2 will not apply to the service of any proceedings or other documents in any legal action.

15.3      Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will 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 will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 15.3 will not affect the validity and enforceability of the rest of the Contract.

15.4      Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and will not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law will not constitute a waiver of that or any other right or remedy, nor will it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law will prevent or restrict the further exercise of that or any other right or remedy.

15.5      No partnership or agency. Nothing in the Contract is intended to, or will be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

15.6      Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

15.7      Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

15.8      Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, will be effective unless it is agreed in writing and signed by the parties or their authorised representatives.

15.9      Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation will be governed by and construed in accordance with the law of England and Wales.

15.10   Jurisdiction. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Schedule 1

Definitions and Interpretation

Part 1

In these Conditions, the following definitions apply:

ATS: Air Technology Systems Limited registered in England and Wales with company number 02753492.

ATS Materials: has the meaning set out in clause 4.3.10.

Business Day: a day other than a Saturday, Sunday or public holiday in England.

Collection Location: such location as is set out in the Order or as instructed by ATS before collection.

Commencement Date: has the meaning given in clause 1.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 15.8.

Contract: the contract between ATS and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control will be construed accordingly.

Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

Delivery Location: such location as is set out in the Order or as instructed by ATS before delivery.

Goods: the goods (or any part of them) set out in the Order including any commissioning set out in the Goods Specification or the Order.

Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by ATS and the Supplier.

Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: ATS’ order for the supply of Goods and/or Services, as set out ATS’ purchase order form, or in ATS’ written acceptance of the Supplier’s quotation, or overleaf, as the case may be.

Price: the price for the Goods and/or Services as specified in the Order or such price as may be agreed between the parties from time to time. If the Price is not set out in the Order and not otherwise agreed between the parties, the Price will be the same as that in ATS’ most recent Order for identical Goods and/or Services.

Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification including any commissioning set out in the Services Specification or the Order.

Service Specification: the description or specification for Services agreed in writing by ATS and the Supplier.

Supplier: the person or firm from whom ATS purchases the Goods and/or Services.

VAT: valued added tax chargeable from time to time.

Part 2

In these Conditions, the following rules apply:

1. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
2. A reference to a party includes its successors and permitted assigns.
3. A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that statute or statutory provision.
4. Any words following the terms including or include or any similar expression will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
5. A reference to writing or written does not include fax or email.