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ALGEMENE VOORWAARDEN AKTRION BELGIUM BV BE0763.313.091
1.1 In deze Algemene Voorwaarden worden verstaan onder:
Aktrion: de vennootschap die Diensten zal leveren aan de Klant in het kader van een te sluiten overeenkomst. Naar gelang de aard van de te leveren Diensten door Aktrion, gaat
het om één van de volgende entiteiten: Aktrion Automotive Services bv, met ondernemingsnummer 1009.425.055 OF Aktrion Logistics & Compound Services bv, met ondernemingsnummer 1009.425.253 OF Aktrion Production &Inspection Services bv, met ondernemingsnummer 1009.428.223, alle met maatschappelijke zetel gevestigd te 9100 Sint-Niklaas, Hoge Heerweg 32, hierbij rechtsgeldig vertegenwoordigd door Yuja bv met als vaste vertegenwoordiger dhr. Jannes Jacobs.
- Klant: de onderneming die Diensten bestelt bij Aktrion.
- Partij(en): Aktrion en/of de Klant.
- Diensten: De dienstverlening die Aktrion aanbiedt in haar vestiging hetzij on site bij Klant waaronder inspectiediensten naar kwaliteit en schade aan Goederen van Klant, remarketing en herstel van Goederen van Klant, recyclagewerkzaamheden aan Goederen, tijdelijke bewaring van Goederen bij Aktrion in het kader van uit te voeren Diensten door Aktrion met uitzondering van zuivere opslag van Goederen. De specifiek voor Klant te leveren Diensten maken het voorwerp uit van de Bijzondere Voorwaarden
van Aktrion.
- Goederen: Goederen die Klant toevertrouwt aan Aktrion met het oog op uitvoering van Diensten in dat kader.
- De Bijzondere Voorwaarden: dit zijn de specifieke voorwaarden opgenomen in de offertes en overeenkomsten met Aktrion waarin de Diensten, de plaats van uitvoering,
de tarieven e.a. worden gespecificeerd. De Bijzondere Voorwaarden hebben voorrang op deze Algemene Voorwaarden.
1.2 Definities opgesteld in het meervoud omvatten ook het enkelvoud ervan en omgekeerd.
2.1 Deze Algemene voorwaarden zijn van toepassing op alle aanbiedingen, offertes, bestellingen, orderbevestigingen en overeenkomsten tussen Partijen betreffende de levering van Diensten door Aktrion voor Klant. Deze Algemene Voorwaarden maken dan ook deel uit van de contractuele relatie tussen Partijen.
2.2 Deze Algemene Voorwaarden worden samen met de offerte van Aktrion aan Klant digitaal en/of afgedrukt bezorgd. Deze Algemene Voorwaarden zijn tevens raadpleegbaar op de website van Aktrion (www.aktrion.com).
2.3 De Klant wordt geacht deze Algemene Voorwaarden te aanvaarden door het plaatsen van een bestelling bij Aktrion.
2.4 Algemene voorwaarden, onder welke benaming ook, van Klant die afwijken van onderhavige Algemene Voorwaarden zijn niet van toepassing en niet tegenstelbaar aan Aktrion,
behoudens in het geval Aktrion deze voorafgaand aan enige contractsluiting met Klant uitdrukkelijk en schriftelijk heeft aanvaard.
2.5 Indien enige bepaling van deze Algemene Voorwaarden wordt vernietigd dan wel nietig of anderszins niet afdwingbaar blijkt te zijn, zal het eventueel wel rechtsgeldige gedeelte
daarvan in stand blijven en zal dit de geldigheid en de afdwingbaarheid van de overige bepalingen van deze Algemene Voorwaarden niet aantasten. Het vernietigde, nietige of niet
afdwingbare gedeelte zal worden vervangen door een bepaling die de bedoelingen van die oorspronkelijke bepaling weergeeft voor zover maximaal wettelijk is toegestaan.
2.6 Indien deze Algemene Voorwaarden tevens zijn opgemaakt in een andere taal dan de Nederlandse, dan zal de Nederlandstalige tekst steeds primeren.
3.1 Offertes van Aktrion bepalen de Bijzondere Voorwaarden en specificeren de Diensten, de plaats en wijze van uitvoering ervan. Tenzij andersluidend beding in de Bijzondere
Voorwaarden, bindt de offerte Aktrion gedurende 15 kalenderdagen met ingang van datum van uitgifte van de offerte. De offerte beperkt zich tot de Diensten die erin beschreven zijn.
3.2 De overeenkomst komt tot stand op het ogenblik dat Klant de offerte van Aktrion heeft aanvaard, dewelke door Aktrion desgevallend nog eens wordt bevestigd bij wijze van
orderbevestiging. Van dergelijke orderbevestiging kan Aktrion evenwel afzien zonder dat dit afbreuk doet aan de toepassing van deze Algemene Voorwaarden.
4.1 Tenzij andersluidend beding in de Bijzondere Voorwaarden zijn de opgegeven prijzen van Diensten in de offertes exclusief BTW en andere heffingen van overheidswege.
4.2 Tenzij andersluidend beding in de Bijzondere Voorwaarden zijn in de opgegeven prijzen van de Diensten geen andere kosten verbonden aan de overeenkomst met Klant inbegrepen zoals bijvoorbeeld verplaatsingskosten, parkingkosten, stallingskosten e.d.m.
4.3 Aktrion is gerechtigd haar prijzen te allen tijde aan te passen. Dergelijke prijswijzigingen hebben geen invloed op offertes waarvan de geldigheidsduur niet is verstreken en op
lopende overeenkomsten met Klant.
4.4 Aktrion kan evenwel de prijs van haar Diensten opgenomen in lopende offertes en bestaande overeenkomsten met Klant herzien, op basis van een stijging van de parameters
die een reële kost in de prijs vertegenwoordigen (zoals maar niet beperkt tot de prijs van grondstoffen, energie, nutsvoorzieningen, arbeidskosten, etc.). Dientengevolge zal het deel
van de prijs dat de voornoemde kosten vertegenwoordigt met hetzelfde bedrag worden verhoogd, tot een maximum van tachtig procent (80%) van de eerder opgegeven prijs.
5.1 Levering van Diensten.
Aktrion voert de overeengekomen Diensten uit naar beste inzicht, op een voorzichtige en kwalitatieve wijze conform een normaal zorgvuldige onderneming in dezelfde sector.
Tenzij andersluidend beding in de Bijzondere Voorwaarden zijn de verbintenissen van Aktrion te kwalificeren als inspanningsverbintenissen en geen resultaatsverbintenissen.
Aktrion is gerechtigd voor de uitvoering van de Diensten beroep te doen op derden (onderaannemers hetzij interim-werknemers).
5.2 Uitvoeringstermijn.
Tenzij andersluidend beding in de Bijzondere Voorwaarden zijn de opgegeven uitvoeringstermijnen indicatief en niet bindend. Sowieso kan eventuele vertraging in de levering van Diensten geen aanleiding geven tot het betalen van enige vergoeding door Aktrion aan Klant, tenzij er een herhaalde zware fout of bedrog in hoofde van Aktrion is bewezen.
5.3 Plaats uitvoering Diensten
Uitvoering van Diensten gebeurt in één van de vestigingen van Aktrion hetzij on site bij de Klant. De plaats van uitvoering van de Diensten wordt vastgelegd in de overeenkomst tussen Aktrion. Indien de overeengekomen Diensten worden uitgevoerd bij de Klant on site, zorgt Klant ervoor dat de uit te voeren Diensten veilig door Aktrion kunnen worden uitgevoerd en dat de plaats waar de Diensten moeten worden geleverd toegankelijk en operationeel klaar is voor de uitvoering van de Diensten.
Artikel 6. Verbintenissen Klant.
6.1 Informatieplicht Klant.
Klant verleent aan Aktrion alle noodzakelijke en nuttige informatie inzake de Goederen waarop de door Aktrion te verlenen Diensten betrekking hebben evenals alle noodzakelijke en nuttige informatie nodig voor Aktrion teneinde een juiste inschatting te kunnen maken van de Diensten waarvoor Klant Aktrion wenst in te schakelen.
6.2 Personeel van Aktrion ingezet voor uitvoering van de Diensten.
Het personeel verbonden door een arbeidsovereenkomst met Aktrion, ingezet bij de uitvoering van de overeenkomst tussen Aktrion en Klant, werkt steeds onder de verantwoordelijkheid en het gezag van Aktrion en ontvangt geen enkele bindende richtlijn, bevel of order van Klant (zoals: toelating en rechtvaardiging van afwezigheden, loon- en arbeidsvoorwaarden, disciplinaire sancties, enzovoort), met uitzondering van instructies van technische aard die specifiek zijn voor de uit te voeren Diensten, interne opleidingen inzake veiligheid en welzijn, enzovoort.
Verbod afwerving personeel: Klant verbindt zich om het personeel van Aktrion niet in dienst te nemen gedurende de looptijd van de overeenkomst, en in de periode van twaalf (12) maanden die volgt op de beëindiging van de overeenkomst tussen Aktrion en Klant. Bij elke inbreuk op deze bepaling, is Klant een schadevergoeding verschuldigd aan Aktrion, gelijk aan de totale jaarlijkse patronale kost van desbetreffende werknemer (o.m. lonen, voordelen, sociale lasten, facturen, vergoedingen, premies,…). Aktrion behoudt zich het recht voor om een hogere vergoeding te vorderen indien de werkelijk geleden schade die voortvloeit uit de inbreuk hoger ligt.
6.3 Verzekering Goederen Klant
Klant verklaart dat hij als eigenaar of gemachtigde gerechtigd is om de Goederen aan Aktrion toe te vertrouwen voor de uitvoering van de Diensten. Indien de Goederen met het oog op de uit te voeren Diensten zich tijdelijk bij Aktrion in één van haar vestigingen bevinden, staat Klant zelf in voor het afdoende verzekeren van de Goederen bij een in België erkende verzekeringsmaatschappij tegen het geheel of gedeeltelijk tenietgaan ervan door brand, overmacht, tegen het verlies ervan door diefstal …. (afstand van verhaal). Aktrion als tijdelijke bewaarnemer ervan kan in geen geval aansprakelijk worden gesteld voor het geheel of gedeeltelijk verlies of tenietgaan van de Goederen wanneer de Goederen zich bij Aktrion bevinden in het kader van te leveren Diensten, tenzij in geval een zware of opzettelijke fout en/of in hoofde van Aktrion is bewezen.
Artikel 7. Klachten – Contractuele aansprakelijkheid Aktrion.
7.1 Klant dient de Goederen en geleverde Diensten na te kijken en in ontvangst te nemen onmiddellijk na voltooiing van de Diensten. Opmerkingen omtrent de conformiteit van de geleverde Diensten en zichtbare gebreken dienen ofwel op de afleveringsnota te worden vermeld ofwel wat betreft zichtbare gebreken die niet na een vlugge controle konden worden vastgesteld binnen een termijn van drie (3) dagen na het in ontvangstnemen van de Goederen en/of voltooiing van de Diensten, bij gebreke waaraan Aktrion elke klacht als niet-ontvankelijk mag verwerpen.
7.2 In geval de Diensten aan de Goederen on site bij de Klant worden uitgevoerd, voert Klant dergelijke controle ter plaatse uit na voltooiing van de dienstverlening.
7.3 In geval de Diensten aan de Goederen worden verleend in één van de vestigingen van Aktrion, dient de Klant de termijn voor ophaling van de Goederen door Klant of termijn van aflevering van de Goederen door Aktrion bij Klant te respecteren en in dat kader dergelijke controle uit te voeren. Sowieso gaan alle risico’s met betrekking tot de Goederen over op het moment dat de termijn voor ophaling door Klant of termijn van aflevering door Aktrion is verstreken. Op het moment dat het risico met betrekking tot de Goederen is overgegaan op Klant is Klant een stallingskost verschuldigd zonder dat Aktrion enige dienstverlening (zoals onder meer bewaking) voor de Klant verricht en waarbij Aktrion geenszins aansprakelijk of verantwoordelijk is voor schade en verlies aan de Goederen, dit onverminderd het recht van Aktrion om haar daadwerkelijke schade te vorderen.
7.4 Klachten omwille verborgen gebreken dienen op straffe van verval schriftelijk en gedetailleerd te worden gemeld aangetekend aan Aktrion binnen de drie (3) dagen na ontdekking daarvan, en in ieder geval uiterlijk binnen de 24 maanden na voltooiing van de Diensten. Klant dient vervolgens alle vorderingen omwille van verborgen gebreken, op straffe van verval, binnen een termijn van twee (2) maanden nadat Aktrion het verborgen gebrek of haar aansprakelijkheid daarvoor heeft betwist, in te stellen.
8.1 Het is Klant niet toegestaan een overeenkomst met Aktrion eenzijdig te beëindigen zonder voorafgaande schriftelijke toestemming van Aktrion. In dergelijk geval zal de Klant sowieso een forfaitaire schadevergoeding gelijk aan 25% van de prijs exclusief BTW verschuldigd zijn, onverminderd het recht van Aktrion om vergoeding te vorderen voor alle geleden schade.
8.2 Zowel Aktrion als Klant behouden zich het recht voor om de overeenkomst zonder voorafgaande rechterlijke tussenkomst en zonder voorafgaande ingebrekestelling te
ontbinden in geval van faillissement of kennelijke onvermogen van de andere Partij.
9.1 Behoudens afwijkende wettelijke bepalingen, is Aktrion enkel aansprakelijk voor zware en opzettelijke fouten begaan in het kader van de dienstverlening. Haar contractuele
aansprakelijkheid ingevolge de uitvoering van dienstverlening is sowieso beperkt tot directe schade met uitsluiting van gevolgschade en indirecte schade en kan nooit hoger zijn dan het bedrag van de corresponderende factuur die Aktrion aan Klant heeft uitgereikt. Ingeval van nalatige of foutieve uitvoering van dienstverlening zal Aktrion ofwel de dienstverlening op eigen kosten opnieuw uitvoeren ofwel de schade aan Klant vergoeden met een maximum van het bedrag van de corresponderende factuur.
9.2 Andere dan contractuele schade ingevolge uitvoering van de dienstverlening door Aktrion is beperkt tot het verzekerd bedrag aan lichamelijke en stoffelijke schade. Aktrion verbindt zich ertoe haar burgerlijke aansprakelijkheid te allen tijde te verzekeren bij een binnen de E.U. erkende verzekeringsmaatschappij. Klant kan op eerste verzoek een verzekeringsattest opvragen bij Aktrion.
9.3 In ieder geval kan Aktrion niet aansprakelijk worden gesteld voor enige schade ten gevolge van overmacht en/of ten gevolge van gebeurtenissen die buiten de macht van Aktrion liggen, met inbegrip van maar niet beperkt tot arbeidsconflicten, blokkades, weersomstandigheden, bedrijfsstoringen, transportmoeilijkheden of andere tekortkomingen van derden, epidemieën en pandemieën, quarantaines en andere door de overheid opgelegde beperkingen die een normale uitvoering van een overeenkomst met Klant onmogelijk
maken.
10.1 Tenzij schriftelijk anders overeengekomen zijn de facturen van Aktrion onmiddellijk betaalbaar op haar vennootschapszetel.
10.2 Bij gebreke aan betaling op vervaldag, is Klant van rechtswege en zonder enige voorafgaande ingebrekestelling een intrest verschuldigd gelijk aan de Wet van 2 augustus
2002 betreffende de bestrijding van de betalingsachterstand bij handelstransacties evenals een forfaitaire schadevergoeding gelijk aan 10% van de niet betaalde facturen met een
minimum van € 100,00. In dergelijk geval vervallen ook alle aan Klant toegestane betalingsfaciliteiten en worden alle vorderingen van Aktrion opzichtens Klant, al dan niet reeds gefactureerd, onmiddellijk opeisbaar.
10.3 In geval van niet of niet tijdige betaling van de prijs en/of facturen, is Aktrion gerechtigd haar verbintenissen opzichtens Klant op te schorten. In dergelijk geval is Aktrion eveneens gerechtigd een retentierecht uit te oefenen op de Goederen van Klant met dien verstande dat het risico met betrekking tot de Goederen op Klant overgaat.
10.4 Schuldvergelijking door Klant met vorderingen van Klant op Aktrion is uitdrukkelijk uitgesloten. Aktrion heeft het recht om alle vorderingen op Klant te compenseren met enige
in haar hoofde openstaande schulden, van welke aard ook en ongeacht of deze schulden zeker, opeisbaar of vaststaand zijn. Huidige bepaling en deze mogelijkheid zijn tevens geldig
en tegenwerpelijk in geval van insolventie, ontbinding, gerechtelijke reorganisatie of faillissement in hoofde van Klant.
10.5 Elk protest m.b.t. de facturen van Aktrion dient schriftelijk en omstandig gemotiveerd te gebeuren binnen de 8 dagen na factuurdatum. Bij ontstentenis van klacht binnen deze
termijn, wordt de Klant geacht de factuur te hebben aanvaard.
11.1 Deze algemene voorwaarden, de totstandkoming, de geldigheid, de uitlegging en de uitvoering van de overeenkomsten tussen Aktrion en Klant waarop deze algemene
voorwaarden van toepassing zijn, zijn aan het Belgisch recht onderworpen.
11.2 Elk geschil betreffende de totstandkoming, de geldigheid, de uitlegging, de uitvoering of beëindiging van de overeenkomst tussen Partijen, behoren naar keuze van de eiser tot de uitsluitende bevoegdheid van de rechtbanken van de vennootschapszetel van Aktrion of de rechtbanken van het gerechtelijk arrondissement van de woonplaats van de verweerder.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions")
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:-
"Aktrion" means Aktrion Manufacturing Support Services Limited (Registered No: 3458202) trading as Aktrion Automotive whose registered office is at 1st Floor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatory policy, guidance or industry code, rule of court or directives or requirements of any regulator, delegated or subordinate legislation or note of any regulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision of Services and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined under Condition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services (including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
1.2 In these Conditions references to a gender include every gender and reference to the singular include the plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditions including any terms or conditions which the Client purports to apply (under any purchase order, specification or other document whatsoever and whenever) or which are implied by trade, custom, practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall have no effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be an offer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrion issuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be accepted entirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation are complete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotation or estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only.
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, details or illustrations contained in Aktrion's catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services and Goods described in them and they will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, with Aktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs, expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and in a good and workmanlike manner, except to the extent inconsistent with any express instructions from the Client. Goods supplied by Aktrion will conform in all material respects with their description and (if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lack of relevant assistance from the Client (including lack of availability of test components or parts from the Client) or the condition of the premises at which the Services are to be provided or the facilities thereat (except where such premises are controlled by Aktrion), then provision of the relevant element of the Services and Goods will be deemed to have been completed and the relevant element of the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods, however, any dates and/or times given are approximate only and the time of delivery is not of the essence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance with the Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for any defect or failure in the Services or Goods, unless:-
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises at which the Services are to be provided or when the Goods are deemed to have been delivered pursuant to Condition 4.2.
4.2 If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods are ready, then, except where such delay is caused by Aktrion's failure to comply with its obligations under the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion (regardless of whether they have been delivered and risk has passed to the Client) until:-
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to any other right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goods and, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any third party where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal, equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require in relation to the Contract including (without limitation):-
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in good time before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Services obtain all rights afforded to them under the Regulations, including without limitation:-
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all such assistance, information, materials and rights of access to premises, property, facilities and information as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, the Client shall procure:-
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudice to its other rights under the Contract, be entitled on notice to the Client to immediately suspend its performance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees, agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against all claims, demands, actions, proceedings and all direct and indirect damages, losses, costs and expenses (including economic loss and loss of profit and legal and other professional adviser's fees) and any consequential loss made against or incurred or suffered by Aktrion resulting directly or indirectly from:-
5.11 The Client shall maintain in force (with a reputable insurer) for the period of the Contract and for 6 years thereafter such insurance policies as are appropriate and adequate having regard to its obligations and liabilities under the Contract, including insurance in respect of the Parts (wherever these may be) and in respect of Aktrion's employees, agents and sub-contractors whilst they are at premises controlled by the Client.
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:-
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Services and/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way of set-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a valid court order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may apply such payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes are payable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UK legislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on or before the due date for payment then all sums then owing by the Client to Aktrion shall become due and payable immediately and, without prejudice to any other right or remedy available to Aktrion, Aktrion shall be entitled to:-
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with any mandatory changes in Applicable Laws (including, but not limited to, national minimum wage, national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costs it incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have not been provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall at its option within a reasonable time and as an entire discharge of its liability under this warranty:-
7.2 Condition 7.1 shall not apply unless the Client:-
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuant to Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as it was originally required to provide the Services and Goods or at its own premises. The legal, equitable and beneficial title to the defective Goods which are being replaced shall (if it has vested in the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary to deliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previously performed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:-
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by statute, common law, custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law.
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Services and/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respect of:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury caused by Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known or otherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of, or in connection with the performance, non-performance or contemplated performance of the Contract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid or payable (or which would be payable but for the event which gave rise to the liability taking place) by the Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrion arising out of, or in connection with the performance, non-performance or contemplated performance of the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to the provision of services the same as or materially similar to the Services ("Related Contracts") the total aggregate liability of Aktrion arising out of, or in connection with the performance, non-performance or contemplated performance of the Contract shall in no event exceed an amount which, when aggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or in connection with the performance, non-performance or contemplated performance of this or any other contract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out in these Conditions and the Client, by placing an Order, accepts such limitation and exclusion and agrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited its liability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent, representative or subcontractor of either party) shall not have any right to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay in performance or non-performance of any of its obligations, where such delay or non-performance is due to circumstances beyond its reasonable control, including acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplied of adequate or suitable materials provided that, if the event such circumstances continue for a continuous period of three months or more, either party shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies it may have against the Client) immediately suspend further performance of the Contract or terminate the Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiry or termination of the Contract, it shall not without the prior written consent of Aktrion directly or indirectly:-
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed by Aktrion at any time during the period of the Contract during the six months following expiry or termination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person's gross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%, up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court or tribunal awards, costs and expenses (including without limitation legal and other professional expenses) and including any claim for breach of contract, sex, race or disability discrimination, equal
22.06.18/CP/IMS 10 pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to the Employment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or in connection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:-
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks and service marks, copyright and any applications for them and trade names existing anywhere in the world and in each case whether registered or unregistered) arising out of or in connection with the performance of the Contract or otherwise in the provision of the Services and Goods shall remain Aktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any other right to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consent of the other, disclose to any third party or otherwise make public the terms or existence of the Contract, the existence or basis of any disputes or any other confidential or sensitive information of the other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party may give to the other party written notice setting out the material particulars of the dispute. A senior executive officer from each of the parties shall meet personally at such place to be agreed between the parties within 10 business days of the receipt of such notice by the relevant party and endeavour to resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties may at their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolution procedure as recommended to the parties by the Centre for Effective Dispute Resolution, Exchange Tower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree to resolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courts in accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractual disputes or claims) shall be governed by and be construed in all respects in accordance with Slovak law.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusive jurisdiction of the Slovak courts to which the parties irrevocably submit.
QD008, Issue 12, October 2019.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the United Kingdom.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
Terms and Conditions for the Supply of Services and Goods by Aktrion (the "Conditions"), for the UK.
Please get in touch with your national account manager for more info in regards to your national terms and conditions.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"Aktrion" means Aktrion Manufacturing Support Services Limited (RegisteredNo: 3458202) trading as Aktrion Automotive whose registered office is at 1stFloor, 1 Hawksworth Road, Central Park, Telford TF2 9TU;
"Applicable Laws" means any applicable law, statute, bye-law, regulation, order, regulatorypolicy, guidance or industry code, rule of court or directives or requirementsof any regulator, delegated or subordinate legislation or note of anyregulator;
"Client" means the person named as such in the Order Confirmation and in these Conditions person shall be taken to mean an individual, company, corporation, firm or partnership as the case may be;
"Contract" means the contract between Aktrion and the Client for the provision ofServices and/or Goods, as set out in the Order Confirmation and these Conditions;
"Fee(s)" means the fee to be paid by the Client to Aktrion as defined underCondition 6;
"Goods" means the ancillary goods (if any) to be supplied as part of the Services(including any part or parts of them);
"Order Confirmation" means Aktrion's written Authorisation Form / Order Confirmation detailing the Services and Goods, which confirmation shall together with these Conditions form the terms of the agreement between the parties;
"Services" means the services specified in the Order Confirmation;
"Standard Fee" means the amount specified in the Order Confirmation;
1.2 In these Conditions references to a gender include every gender and reference to the singular includethe plural and vice versa as the context admits or requires.
1.3 The words and phrases "other", "including" and "in particular" shall not limit the generality of anypreceding words where a wider construction is possible.
1.4 Headings are for ease of reference only and shall not affect the construction of these Conditions.
1.5 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enactedfrom time to time and shall include all subordinate legislation made from time to time under thatstatute or statutory provision.
2. BASIS OF CONTRACT
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditionsincluding any terms or conditions which the Client purports to apply (under any purchase order,specification or other document whatsoever and whenever) or which are implied by trade, custom,practice or course of dealing.
2.2 Any variation of these Conditions and any representations about the Services or Goods shall haveno effect unless expressly agreed in writing and executed by Aktrion.
2.3 Each order for Services and/or Goods by the Client from Aktrion ("Order") shall be deemed to be anoffer by the Client to purchase Services and Goods subject exclusively to these Conditions.
2.4 No Order placed by the Client shall be deemed to be accepted by Aktrion until the earlier of Aktrionissuing an Order Confirmation or providing the Services and/or Goods. Any Order shall be acceptedentirely at the discretion of Aktrion.
2.5 It is the Client's obligation to ensure that the details in the Order and in any Order Confirmation arecomplete and accurate.
2.6 Any quotation or estimate made by Aktrion is given subject to these Conditions and such quotationor estimate shall not constitute an offer. Quotations are valid for 14 days from the date of issue only
2.7 All descriptive matter, specifications and advertising issued by Aktrion and any descriptions, detailsor illustrations contained in Aktrion's catalogues, brochures or website are issued or published forthe sole purpose of giving an approximate idea of the Services and Goods described in them andthey will not form part of the Contract unless otherwise agreed in writing.
2.8 The Client can only cancel an Order (or any part of an Order) that Aktrion has already accepted, withAktrion's prior agreement in writing and provided that the Client indemnifies Aktrion in full for all costs,expenses and losses thereby incurred by Aktrion, including any set-up and mobilisation costs.
3. PROVISION OF SERVICES AND GOODS
3.1 Aktrion warrants that it shall provide the Services to the Client with reasonable skill and care and ina good and workmanlike manner, except to the extent inconsistent with any express instructions fromthe Client. Goods supplied by Aktrion will conform in all material respects with their description and(if applicable) with any specification agreed by Aktrion and included in the Order Confirmation.
3.2 Where Aktrion is available to perform the Services but is prevented from doing so by reason of a lackof relevant assistance from the Client (including lack of availability of test components or parts fromthe Client) or the condition of the premises at which the Services are to be provided or the facilitiesthereat (except where such premises are controlled by Aktrion), then provision of the relevantelement of the Services and Goods will be deemed to have been completed and the relevant elementof the Fee shall be due and payable at the time Aktrion was so available.
3.3 Aktrion shall have the right to make any changes to the Services which are necessary to comply withany applicable law or safety requirement, or which do not materially affect the nature of the Services.
3.4 Aktrion will endeavour to meet any dates and/or times quoted for delivery of the Services and Goods,however, any dates and/or times given are approximate only and the time of delivery is not of theessence of the Contract.
3.5 The Client will be deemed to have accepted the Services and Goods as being in accordance withthe Contract and shall not be entitled to reject the Services or Goods or hold Aktrion liable for anydefect or failure in the Services or Goods, unless:
4. DELIVERY OF ANY GOODS SUPPLIED BY AKTRION
4.1 Delivery of the Goods shall take place when the Goods are physically delivered to the premises atwhich the Services are to be provided or when the Goods are deemed to have been deliveredpursuant to Condition
4.2. If the Client fails to take delivery of the Goods within 5 days of being notified that the Goods areready, then, except where such delay is caused by Aktrion's failure to comply with its obligationsunder the Contract in respect of the Goods:
4.3 The Goods shall be at the risk of the Client from the time of delivery.
4.4 Full legal, beneficial and equitable title to and property in the Goods shall remain vested in Aktrion(regardless of whether they have been delivered and risk has passed to the Client) until:
4.5 Until title to the Goods has passed to the Client, the Client shall:
but the Client may use the Goods in its ordinary course of business.
4.6 Until title in the Goods passes to the Client in accordance with Condition 4.4, without limitation to anyother right or remedy it may have, Aktrion may at any time require the Client to deliver up the Goodsand, if the Client fails to do so promptly, Aktrion may enter any premises of the Client or of any thirdparty where the Goods are being stored (with or without vehicles) to recover the Goods.
4.7 Aktrion shall be entitled to maintain an action against the Client for the Fee notwithstanding that legal,equitable and beneficial title to and property in the Goods has not passed to the Client.
5. THE CLIENT'S OBLIGATIONS
5.1 The Client shall pay the Fee to Aktrion in accordance with Condition 6.
5.2 The Client shall ensure that the terms of any Order are complete and accurate.
5.3 The Client shall, on request, provide Aktrion with all such information as Aktrion may require inrelation to the Contract including (without limitation):
5.4 The Client agrees to notify Aktrion of the information detailed in Conditions 5.3.1 and 5.3.2 in goodtime before the commencement of the Services and without delay during the term of the Contract.
5.5 The Client shall be responsible for ensuring that any workers/consultants providing the Servicesobtain all rights afforded to them under the Regulations, including without limitation:
5.6 The Client shall provide Aktrion (including its employees, agents and sub-contractors) with all suchassistance, information, materials and rights of access to premises, property, facilities andinformation as Aktrion may require in relation to the Contract.
5.7 Where Aktrion is to perform the Services at premises other than premises controlled by Aktrion, theClient shall procure:
5.8 Where the Client is in breach of its obligations under Condition 5.7, Aktrion shall, without prejudiceto its other rights under the Contract, be entitled on notice to the Client to immediately suspend itsperformance of the Contract including suspending provision of the Services and Goods.
5.9 The Client shall take all necessary precautions to prevent the exposure of Aktrion's employees,agents or sub-contractors to any unreasonable risk, hazard or danger.
5.10 The Client shall indemnify Aktrion in full and on demand and keep Aktrion so indemnified against allclaims, demands, actions, proceedings and all direct and indirect damages, losses, costs andexpenses (including economic loss and loss of profit and legal and other professional adviser's fees)and any consequential loss made against or incurred or suffered by Aktrion resulting directly orindirectly from:-
6. PAYMENT TERMS
6.1 The Client shall pay to Aktrion:
6.2 Aktrion shall be entitled to invoice the Client for the Services and/or Goods periodically.
6.3 Payment of the Fee is due 30 days after the earlier of the date on which provision of the Servicesand/or Goods is completed or the date on which an invoice regarding the Fee is issued.
6.4 No payment shall be deemed to have been received until Aktrion has received cleared funds.
6.5 The Client shall make all payments due under the Contract without any deduction whether by way ofset-off, withholding, counterclaim, discount, abatement or otherwise unless the Client has a validcourt order requiring an amount equal to such deduction to be paid by Aktrion to the Client.
6.6 If payments received from the Client are not stated to refer to a particular invoice, Aktrion may applysuch payment to any outstanding invoice addressed to the Client from Aktrion.
6.7 The Fee shall be exclusive of any value added tax or other similar taxes or levies. All such taxes arepayable by the Client upon receipt of a valid VAT invoice and will be applied in accordance with UKlegislation in force at the tax point date.
6.8 Aktrion reserves the right to increase the Standard Fee subject to statutory requirements, including without limitation, any equal rights under the Regulations, by giving 14 days notice of such changes.
6.9 If any sum due from the Client to Aktrion under the Contract or any other contract is not paid on orbefore the due date for payment then all sums then owing by the Client to Aktrion shall become dueand payable immediately and, without prejudice to any other right or remedy available to Aktrion,Aktrion shall be entitled to:
6.10 If, during the term of the Order, Aktrion increases its staff’s pay strictly in accordance with anymandatory changes in Applicable Laws (including, but not limited to, national minimum wage,national insurance etc.), Aktrion shall be entitled to increase the Fees to reflect any increased costsit incurs as a result.
7. WARRANTY OF QUALITY OF SERVICES AND GOODS
7.1 If the Client establishes to Aktrion's reasonable satisfaction that the Services and/or Goods have notbeen provided in accordance with the Contract and in particular Condition 3.1, then Aktrion shall atits option within a reasonable time and as an entire discharge of its liability under this warranty:
7.2 Condition 7.1 shall not apply unless the Client:
7.3 If Aktrion elects to repair, make good or re-perform the provisions of Services and Goods pursuantto Conditions 7.1.1 or 7.1.2, Aktrion shall (at its own option) do so either at the same premises as itwas originally required to provide the Services and Goods or at its own premises. The legal,equitable and beneficial title to the defective Goods which are being replaced shall (if it has vestedin the Client) re-vest in Aktrion. The Client shall make any arrangements as may be necessary todeliver up to Aktrion any defective Goods that are to be replaced or the Parts relating to the previouslyperformed Services.
7.4 Aktrion shall be under no liability under Condition 7.1 above:
7.5 These Conditions shall apply in place of all warranties, conditions, terms, representations,statements, undertakings and obligations whether expressed or implied by statute, common law,custom, usage or otherwise, all of which are excluded to the fullest extent permitted by law
7.6 This Condition 7 sets out the Client's exclusive remedy for failure by Aktrion to provide the Servicesand/or Goods in accordance with Condition 3.1.
8. EXCLUSION AND LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 7.6, this Condition 8 sets out the entire liability of Aktrion in respectof:
8.2 Nothing in these Conditions shall exclude or limit Aktrion's liability for death or personal injury causedby Aktrion's negligence or for fraudulent misrepresentation.
8.3 Aktrion shall not be liable to the Client whether in contract, tort (including negligence), breach ofstatutory duty, or otherwise for any:
in each case whether or not such loss or damage was foreseen, direct, foreseeable, known orotherwise.
8.4 Subject to Conditions 8.2, 8.3, 8.5, 8.6 and 8.7, the total aggregate liability of Aktrion arising out of,or in connection with the performance, non-performance or contemplated performance of theContract shall in no event exceed an amount equal to 150% of the Fees (exclusive of VAT) paid orpayable (or which would be payable but for the event which gave rise to the liability taking place) bythe Client under the Contract.
8.5 Subject to Condition 8.2 and notwithstanding Condition 8.4, the total aggregate liability of Aktrionarising out of, or in connection with the performance, non-performance or contemplated performanceof the Contract whether shall as an absolute maximum in no event exceed £50,000.
8.6 Where there is a series of connected contracts between Aktrion and the Client relating to theprovision of services the same as or materially similar to the Services ("Related Contracts") the totalaggregate liability of Aktrion arising out of, or in connection with the performance, non-performanceor contemplated performance of the Contract shall in no event exceed an amount which, whenaggregated with Aktrion's liability under the Related Contracts, exceeds £50,000.
8.7 Subject to Condition 8.2, the total aggregate liability of Aktrion in any one year arising out of, or inconnection with the performance, non-performance or contemplated performance of this or any othercontract with the Client shall in no event exceed an amount equal to £75,000.
8.8 The Fee has been calculated on the basis that Aktrion will exclude and limit its liability as set out inthese Conditions and the Client, by placing an Order, accepts such limitation and exclusion andagrees that it will insure against or bear itself any loss for which Aktrion has excluded or limited itsliability in these Conditions and Aktrion shall have no further liability to the Client.
9. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
9.1 The Client shall not be entitled to assign, charge, subcontract or transfer the Contract or any part ofit without the prior written consent of Aktrion.
9.2 Aktrion may assign, charge, subcontract or transfer the Contract or any part of it to any person.
9.3 A person who is not a party to the Contract (including without limitation any employee, officer, agent,representative or subcontractor of either party) shall not have any right to enforce any term of theContract which expressly or by implication confers a benefit on that person without the express prioragreement in writing of Aktrion and the Client.
10. FORCE MAJEURE
10.1 Aktrion shall not be in breach of the Contract or otherwise liable to the Client for any delay inperformance or non-performance of any of its obligations, where such delay or non-performance isdue to circumstances beyond its reasonable control, including acts of God, governmental actions,war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes orother labour disputes (whether or not relating to either party's workforce), or restraints or delaysaffecting carriers or inability or delay in obtaining supplied of adequate or suitable materials providedthat, if the event such circumstances continue for a continuous period of three months or more, eitherparty shall be entitled to give notice in writing to the other to terminate the Contract.
11. TERMINATION
11.1 Aktrion may, by notice in writing to the Client, (without prejudice to any other rights or remedies itmay have against the Client) immediately suspend further performance of the Contract or terminatethe Contract without liability to Aktrion if:-
11.2 The termination or suspension of the Contract shall be without prejudice to the rights and remediesof either party which may have accrued up to the date of termination or suspension.
11.3 Any provision of the Contract which expressly or by implication is intended to come into or continuein force on or after termination of the Contract shall remain in full force and effect.
12. NON-SOLICITATION
12.1 The Client agrees that for the term of the Contract and for the period of six months following expiryor termination of the Contract, it shall not without the prior written consent of Aktrion directly orindirectly:
12.2 Where the Client does, with prior written consent of Aktrion, engage a person who was employed byAktrion at any time during the period of the Contract during the six months following expiry ortermination of the Contract, the Client shall pay Aktrion a sum equal to percentage of that person'sgross annual salary (based on his/her final Aktrion wage) on the following basis: up to £19,000: 20%,up to £29,000: 25% and over £29,000: 30%.
13. TUPE
13.1 The Client will indemnify Aktrion against all demands, proceedings, damages, losses, court ortribunal awards, costs and expenses (including without limitation legal and other professionalexpenses) and including any claim for breach of contract, sex, race or disability discrimination, equal22.06.18/CP/IMS 10pay, redundancy, unfair dismissal, wrongful dismissal or failure to inform or consult pursuant to theEmployment Rights Act 1996, incurred by Aktrion and arising directly or indirectly from or inconnection with:-
14. NOTICES
14.1 All notices between the parties about this Contract must be in writing and delivered by hand or sentby pre-paid first class post or sent by e-mail / facsimile transmission:-
14.2 Notices shall be deemed to have been received:
15. GENERAL
15.1 Any intellectual property rights (including, without limitation, patents, designs, trade marks andservice marks, copyright and any applications for them and trade names existing anywhere in theworld and in each case whether registered or unregistered) arising out of or in connection with theperformance of the Contract or otherwise in the provision of the Services and Goods shall remainAktrion's property. Nothing in the Contract shall be deemed to give the Client a licence or any otherright to use any of the intellectual property rights of Aktrion.
15.2 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture orrelationship of employer and employee or principal and agent between the parties.
15.3 No failure or delay by a party to exercise any right or remedy provided under the Contract or by lawshall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the furtherexercise of that or any other right or remedy. No single or partial exercise of such right or remedyshall preclude or restrict the further exercise of that or any other right or remedy.
15.4 If any court or competent authority finds that any provision of the Contract (or part of any provision)is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, bedeemed to be deleted, and the validity and enforceability of the other provisions of the Contract shallnot be affected.
15.5 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legalif some part of it were deleted, the provision shall apply with the minimum modification necessary tomake it legal, valid and enforceable.
15.6 The Contract constitutes the entire agreement between the parties and supersedes and extinguishesall previous drafts, agreements, arrangements and understandings between them, whether writtenor oral, relating to its subject matter.
15.7 Each party agrees that it shall have no remedies in respect of any representation or warranty(whether made innocently or negligently) that is not set out in the Contract. No party shall have anyclaim for innocent or negligent misrepresentation based upon any statement in the Contract.
15.8 Both Aktrion and the Client shall each keep confidential and shall not, without prior written consentof the other, disclose to any third party or otherwise make public the terms or existence of theContract, the existence or basis of any disputes or any other confidential or sensitive information ofthe other party (unless required to do so by law).
16. DISPUTE RESOLUTION
16.1 If any dispute arises between the parties in connection with or under the Contract, either party maygive to the other party written notice setting out the material particulars of the dispute. A seniorexecutive officer from each of the parties shall meet personally at such place to be agreed betweenthe parties within 10 business days of the receipt of such notice by the relevant party and endeavourto resolve the dispute through good faith negotiations within a further 10 business days.
16.2 If the dispute is not resolved through negotiations in accordance with Condition 16.1 the parties mayat their election attempt in good faith to resolve the dispute through an Alternative Dispute Resolutionprocedure as recommended to the parties by the Centre for Effective Dispute Resolution, ExchangeTower, London.
16.3 If the dispute is not resolved in accordance with Condition 16.1 and the parties cannot agree toresolve the dispute in accordance with Condition 16.2, the parties may seek to recourse to the courtsin accordance with Condition 17.
16.4 Nothing in this Condition 16 shall prevent either party from seeking interim relief from the Court.
17. LAW AND JURISDICTION
17.1 This Contract and any dispute or claim arising out of or in connection with it (including non-contractualdisputes or claims) shall be governed by and be construed in all respects in accordance with Englishlaw.
17.2 All disputes or claims arising out of or relating to this Contract shall be subject to the exclusivejurisdiction of the English courts to which the parties irrevocably submit.
