In these Conditions “the Supplier” means Materials Processing Institute, its successors and assigns and includes any subsidiary (as defined in S736 of the Companies Act 1985) company of Materials Processing Institute by which the provision of research and/or consultancy or advice and/or laboratory services including the construction and/or operation and/or supply or sale of apparatus and/or equipment and the supply of materials and goods in connection therewith (hereinafter collectively referred to as “the Services”) is undertaken and “the Client” means the person, company or body for which the Supplier provides the Services and “the Contract” means the agreement between the Supplier and the Client for the provision of the Services.
- All Contracts for the provision of the Services by the Supplier incorporate these Conditions. Any terms or conditions in the Client’s order which are inconsistent with these Conditions shall be of no effect. No variation of the Contract will be binding upon the parties unless confirmed in writing by the parties.
- Dates or periods for the provision of the Services are approximate and are given for information only and shall under no circumstances be essential terms. A delay in provision of the Services, including completion of the Services later than the date or dates provided for in the Contract documents, shall not constitute a breach of contract and shall not entitle the Client to avoid the Contract nor to any other remedy unless the Supplier has guaranteed a date for completion of the Services in a written warranty which expressly modifies the provisions of this Condition.
- Should the provision of the Services be prevented or hindered directly or indirectly by fire, the elements, war, civil commotion, strikes or lock-outs, industrial dispute, shortage of raw materials or fuel notwithstanding that the Supplier has taken all reasonable steps to procure the same, shortage of labour, breakdown or partial failure of plant, machinery or apparatus, late receipt of the Client’s specification or other necessary information, acts, orders or regulations of Governments, decisions or directives of the Commission of the European Communities, delay on the part of any independent subcontractor or Supplier or any cause whatsoever beyond the reasonable control of the Supplier or any of its subsidiary or associated companies concerned with the provision of the Services then, notwithstanding any warranty modifying the provision of Condition 2 herein, the time for the carrying out of the Services shall be extended for a reasonable period having regard to the effect of the delaying cause thereon. If the provision of the Services is likely to be delayed by reason of the causes or events referred to in this condition and the Client shows to the reasonable satisfaction of the Supplier that as a result of such delay the conduct of its operations is likely to be seriously affected or the Client is in peril of being in breach of a contractual obligation to a third party then the Supplier shall at the request of the Client agree to the cancellation of the Services provided that the Client shall pay the Supplier for any part of the Services already rendered at the date of such cancellation.
- The Client undertakes:
- that the purpose for which he wishes the Services to be carried out and the use he intends to make of the results of the Services are specifically and exclusively as described in the contract and that the Supplier shall incur no liability to the Client arising out of any other use or application thereof by the Client and that in particular the Services and the results thereof will not be used for advertising or promotional purposes nor in connection with litigation or arbitration or other legal action unless the Supplier (at its absolute discretion) gives its prior written consent thereto;
- that all information and data supplied or to be supplied to the Supplier by or on behalf of the Client in connection with the Services is accurate and complete and that any materials supplied by or on behalf of the Client will be suitable for the purposes of the Services;
- that the Client will be responsible for and will take all necessary precautions to secure the safety of all personnel of the Supplier, its agents, representatives or subcontractors who have occasion in connection with the provision of the Services to visit any premises owned or made available by the Client.
- The Supplier shall be entitled without prejudice to its other rights and remedies to terminate either wholly or in part any or every contract between itself and the Client or to suspend any further performance under any or every such contract in any of the following events:
The Supplier shall be entitled to exercise its aforesaid rights of termination or suspension at any time during which the event or default giving rise thereto has not ceased or been remedied and, in the event of any such suspension, the Supplier shall be entitled as a condition of resuming performance under any Contract between it and the Client to require prepayment or such security as it may require for the payment of any sums payable under the Contract.
- if any debt is due and payable by the Client to the Supplier but is unpaid.
- if the Client has failed to provide any letter of credit, bill of exchange or other security required by the contract, provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular contract in respect of which the Client shall have so failed;
- if the Client becomes insolvent or enters into any composition or arrangement (including a voluntary agreement) with its creditors or, being a body corporate, has passed a resolution for voluntary winding up except where solely for the purpose of reconstruction or if a petition has been presented for an order for its winding up or for a Receiver (including an Administrative Receiver) or Administrator to be appointed or if any such order or appointment is made or if, being an individual or partnership, the Client suspends payment of his or their debts in whole or in part or if an application has been made for an Interim Order or a petition has been presented for a Bankruptcy Order or if any such order is made or if the Client, whether or not a body corporate, shall carry out or be subject to any analogous act or proceedings under foreign law.
- The Supplier undertakes to use reasonable skill and care in the execution of the Contract. In the event that the Client proves within 12 months of the completion of the Services that the Supplier has failed to use reasonable skill and care in the execution of the Contract the Supplier shall at its option either:
- perform again such of the Services as have not been carried out using reasonable skill and care, or
- repay to the Client the charge for such of the Services that have not been so performed.
- No breach of the warranty set out in (a) above shall entitle the Client to cancel, terminate or repudiate the Contract.
- The undertakings set out in (a) and (b) herein are given in lieu of any other legal remedy and the liability of the Supplier for any breach of the Contract shall be for all purposes limited to the cost of re-performing of the Services or repaying to the Client the cost of the Services in accordance with this condition. Under no circumstances shall the Supplier be liable for any other loss, damage or expense whatsoever occasioned by any breach of contract, negligence or breach of any duty of the Supplier whatsoever and howsoever such loss, damage or expense may have been caused.
- Unless the parties have expressly agreed in writing to modify this condition then, with the exception of the warranty set out in clause 6(a) above, any condition or warranty, statement or undertaking as to the quality of the Services or their fitness or suitability for any purpose however and whenever expressed or which may be implied by statute, customer of the trade or otherwise is hereby excluded.
- The Client shall indemnify and hold the Supplier harmless against:
- any liabilities, losses, claims, costs and expenses that may result from loss of or damage to any property (including that of the Supplier) or injury to or death of any person (including any employee of the Supplier) that may arise out of any act or omission (whether negligent or not) of the Client, his employees, agents or subcontractors in connection with the Contract and;
- any liabilities, losses, claims, costs and expenses of or by any third party arising out of any use or application of or reliance placed upon the Services and/or on the results or findings thereof and/or the use of any equipment supplied in connection therewith by the Client or any third party.
- The Client shall not be entitled to withhold payment of any amount payable under the Contract to the Supplier because of any disputed claim by the Client in respect of the supply of defective Services or any other alleged breach of contract by the Supplier, nor shall the Client be entitled to set-off against any amount payable under the Contract to the Supplier any monies which are not then presently payable by the Supplier or for which the Supplier disputes liability.
- The rights of the Client or the Supplier shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.
- The Supplier reserves the right to carry out the Services at any of its laboratories or establishments. The Supplier may at its discretion subcontract the performance of any part of the Services.
- The Client shall not without the written consent of the Supplier use or part with any drawings, design advice or other data or information supplied by the Supplier as part of the Services for any purpose other than that for which the same were supplied. As between the Supplier and the Client the Supplier shall retain ownership of any development or invention which arises in the course of providing the Services to the Client and shall be entitled to apply for and obtain in its own name Letters Patent relating thereto and the Supplier shall also retain ownership of the copyright or design right in all drawings, designs or written information supplied to the Client and use of any such right by the Client shall be by licence from the Supplier.
The Client warrants that use by the Supplier of designs or instructions supplied by or on behalf of the Client will not cause the Supplier to infringe any patent, registered design, trademark, copyright, design right or similar right protected by law.
The Supplier shall not be liable for any infringement by the Client of the protected rights of others arising from the use of the results or findings of the Services.
- The Supplier will treat as confidential all information supplied by the Client except information which is already known to the Supplier when supplied by the Client, information which is or becomes public knowledge and information which is acquired by the Supplier in good faith from a third party.
- The contract price specified does not include Value Added Tax (VAT), which will be added, where relevant, at the time of invoicing. The Institute’s invoice(s) shall be payable in full within 30 days of the invoice date.
- In the event that, for any reason, any provision or provisions in these conditions or any part thereof is or is held to be void, unenforceable or otherwise invalid, any Contract made which incorporates these conditions shall continue to be fully binding and all other conditions herein, including the remainder of any condition where the effect of some part thereof is avoided, shall remain fully effective.
- The Contract shall be governed by and construed in accordance with the Laws of England. The Client on entering into the contract submits to the jurisdiction of the English Courts.