1. Application of Terms and Conditions
1.1 The Supplier shall supply and the Customer shall purchase the Goods and Services in accordance with the purchase order which shall be subject to these Terms and Conditions; and
1.2 The Contract shall be to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer.
2. Definitions and Interpretation
2.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Commencement Date” means the commencement date for the Contract as set out in the aforementioned proposal & invoice terms;
“Confidential Information” means, in relation to either Party, information which is disclosed to that Party by the other Party pursuant to or in connection with this Agreement;
“Contract” means the contract for the purchase and sale of the supply of the Services under these Terms and Conditions;
“Contract Price” means the price stated in the Invoice payable for the services;
“Customer” means the person who accepts a quotation or invoice of the Supplier for the supply of the Services, or whose order for the Services is accepted by the Customer;
“Month” means a calendar month;
“Services” means the Services to be provided to the Customer as set out in the aforementioned invoice; and
“Supplier” means ASTA (CTR Secure Services Limited), a company registered in England under 04947814 of CTR SECURE SERVICES LTD
QUEENS HEAD HOUSE, THE STREET, ACLE, NORWICH, NORFOLK, NR13 3DY and includes all employees and agents of ASTA (CTR Secure Services Ltd)
2.2 Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or email transmission or similar means;
2.2.2 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
2.2.3 “these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the relevant time;
2.2.4 a Schedule is a schedule to these Terms and Conditions; and
2.2.5 a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4 Words imparting the singular number shall include the plural and vice versa.
2.5 References to any gender shall include the other gender.
3. Basis of Sale and Service
3.1 The Supplier’s employees or agents are not authorised to make any representations concerning the Services unless confirmed by the Supplier in writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
3.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Customer and the Supplier.
3.3 Sales literature, price lists and other documents issued by the Supplier in relation to Services are subject to alteration without notice and do not constitute offers to sell Services which are capable of acceptance. No contract for the sale of Services shall be binding on the Supplier unless the Supplier has issued a quotation which is expressed to be an offer to sell the Services or has accepted an order placed by the Customer by whichever is the earlier of:
3.3.1 the Supplier’s written acceptance;
3.3.2 the Supplier’s invoice.
3.4 Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without any liability on the part of the Supplier.
4. The Services
4.1 With effect from the Commencement Date the Supplier shall, in consideration of the price being paid in accordance with Clauses 5 and 6 will provide the Services expressly identified in the aforementioned invoice.
4.2 The Supplier will use reasonable care and skill to perform the Services identified in the aforementioned proposal.
4.3 The Supplier shall use all reasonable endeavours to complete its obligations under the Contract, but time will not be of the essence in the performance of such obligations.
5.1 The price of the Services shall be the price listed in the Supplier’s aforementioned invoice current at the date of acceptance of the Customer’s order or such other price as may be agreed in writing by the Supplier and the Customer.
5.2 Where the Supplier has quoted a price for the Services other than in accordance with the Supplier’s published price list the price quoted shall be valid for 30 days only or such lesser time as the Supplier may specify.
5.3 Except as otherwise stated under the terms of any aforementioned proposal or in any price list of the Supplier, and unless otherwise agreed in writing between the Customer and the Supplier, all prices listed in the invoice are inclusive of the Supplier’s charges for transport unless otherwise stated.
5.4 The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods and Services, which the Customer shall be additionally liable to pay to the Supplier.
6.1 Subject to any special terms agreed in writing between the Customer and the Supplier, the Supplier shall invoice the Customer for the price of the Goods and Services prior to the commencement of the Provision of the Service.
6.2 The Customer shall pay 100% of the Contract Price 30 Business Days of the date of the Supplier’s invoice receipt by the Customer.
6.3 All payments shall be made to the Supplier as indicated on the form of acceptance or invoice issued by the Supplier.
7. Non-Delivery of Services
7.1 If the Supplier fails to provide the Services other than for reasons outside the Supplier’s reasonable control or the Customer’s or its carrier’s fault:
7.1.2 if the Customer gives written notice to the Supplier within 30 Business Days after the Service Delivery Date and the Supplier fails to deliver the Services within 30 Business Days after receiving such notice the Customer may cancel the order and the Supplier’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar services to those not delivered or provided over the price of the Services not delivered or provided.
8. Customer’s Default
8.1 If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to:
8.1.1 cancel the order or suspend any further provision of Services to the Customer;
8.1.2 appropriate any payment made by the Customer to such of the Services as the Supplier may think fit (notwithstanding any purported appropriation by the Customer).
8.2 This condition applies if:
8.2.1 the Customer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
8.2.2 the Customer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
8.2.3 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;
8.2.4 the Customer ceases, or threatens to cease, to carry on business; or
8.2.5 the Supplier reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
8.3 If sub-Clause 8.2 applies then, without prejudice to any other right or remedy available to the Supplier, the Supplier shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9.1 The Supplier will not by reason of any representation, implied warranty, condition or other term, or any duty at common law or under express terms of the Contract (or these Terms and Conditions), be liable for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Supplier’s servants or agents or otherwise) which arise out of or in connection with the supply of Services.
9.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.3 The Customer shall indemnify the Supplier against all damages, costs, claims and expenses suffered by arising from loss or damage to any equipment (including that of third parties) caused by the Customer, its agents or employees.
9.4 Where the Customer consists of two or more persons such expression throughout shall mean and include such two or more persons and each or any of them. All obligations on the part of such a Customer shall be joint and several obligations of such persons.
9.5 The Supplier shall not be liable to the Customer or be deemed to be in breach of these terms and conditions by reason of any delay in performing, or any failure to perform, any of the Supplier’s obligations if the delay or failure was due to any cause beyond the Supplier’s reasonable control.
9.6 Nothing in these Terms and Conditions excludes or limits the liability of the Supplier:
9.6.1 for death or personal injury caused by the Supplier’s negligence;
9.6.2 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
9.6.3 for fraud or fraudulent misrepresentation.
9.7 Subject to the remaining provisions of this Clause 9:
9.7.1 the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
9.7.2 the Supplier shall not be liable to the Customer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
10.1 Each Party undertakes that, except as provided by sub-Clause 10.2 or as authorised in writing by the other Party, it shall, at all times during the continuance of the Contract and for 1 year after its termination:
10.1.1 keep confidential all Confidential Information;
10.1.2 not disclose any Confidential Information to any other person;
10.1.3 not use or deliver the Services of any Confidential Information (Supplier Training Material) for any purpose other than as contemplated by and subject to these Terms and Conditions and the Contract;
10.1.4 not make any copies of, record in any way or part with possession of any Confidential Information; and
10.1.5 ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that Party, would be a breach of the provisions of sub-clauses 10.1.1 to 10.1.4 above.
10.2 Either Party may:
10.2.1 disclose any Confidential Information to:
10.2.1.1 any sub-contractor or supplier of that Party;
10.2.1.2 any governmental or other authority or regulatory body; or
10.2.1.3 any employee or officer of that Party or of any of the aforementioned persons, parties or bodies; to such extent only as is necessary for the purposes contemplated by these Terms and Conditions and the Contract, or as required by law, and in each case subject to that Party first informing the person, party or body in question that the Confidential Information is confidential and (except where the disclosure is to any such body as is mentioned in sub-Clause 10.2.1.2 above or any employee or officer of any such body) obtaining and submitting to the other Party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause 10, to keep the Confidential Information confidential and to use it only for the purposes for which the disclosure is made; and
10.2.2 use any Confidential Information for any purpose, or disclose it to any other person, to the extent only that it is at the date of the Contract, or at any time after that date becomes, public knowledge through no fault of that Party, provided that in doing so that Party does not disclose any part of that Confidential Information which is not public knowledge.
10.3 The provisions of this Clause 10 shall continue in force in accordance with their terms, notwithstanding the termination of the Contract for any reason.
11.1 All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
11.2 Notices shall be deemed to have been duly given:
11.2.1 when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
11.2.2 when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
11.2.3 on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
11.3 All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
12. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
15. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
16. Law and Jurisdiction
16.1 These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
16.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
Updated November 09, 2018