SPL_3190_5 – A-845-003 HASL Terms and conditions for the purchase of goods and services
The following definitions and rules of interpretation apply in these Conditions.
Background IP: Intellectual Property owned by, in possession of, or licensed to either party prior to the date of this Contract.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.8.
Confidential Information: all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of the Contract, including but not limited to:
(a) the terms of the Contract;
(b) any information identified or marked to indicate that it is confidential in nature;
(c) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies to which the disclosing party belongs); and
(d) any information developed by the parties in the course of carrying out the Contract.
Contract: the contract between HASL and the Supplier for the supply of Goods or Services or both in accordance with these Conditions and any Order and any Statement of Work where applicable.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Materials: all materials, equipment and tools, drawings, specifications and data supplied by HASL to the Supplier.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Goods or Services in any form or media, including but not limited to drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Foreground IP: means Intellectual Property which is derived from this Contract.
Goods: the goods (or any part of them) set out in the Order or Statement of Work.
Goods Specification: any specification for the Goods, including any related plans, drawings and processes.
HASL: Hydrogen Aircraft Services Limited registered in England with company number 10003897.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring rights, moral rights, trade marks, business names, rights in get-up , goodwill and the right to sue for passing off , rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mandatory Policies: HASL’s business policies listed in Schedule 1.
Order: HASL’s order for the supply of Goods or Services or both, as set out in HASL’s purchase order form.
Representatives means, in relation to a party, its employees, officers, representatives and advisers.
Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Statement of Work.
Statement of Work: the description of Goods and Services agreed in writing by HASL and the Supplier.
Services Specification: any specification for the Services, including any related process or any procedural documentation.
Supplier: the person or firm from whom HASL purchases the Goods or Services or both.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal Representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes email.
2. Basis of Contract
2.1 Goods and Services shall be ordered via an Order. The Order constitutes an offer by HASL to purchase Goods or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.5 The Supplier shall operate in accordance with a quality management system which shall be better than or equivalent to ISO9001. Where the Supplier is certified to operate in accordance with a quality management system the supplier shall inform HASL of any change in the status of such certification. HASL may conduct an audit of the Supplier’s quality management system and the Supplier shall remedy any non-conformity. HASL and the Supplier may agree additional quality requirements.
2.6 The Supplier shall promptly notify HASL of any changes to processes or methods including change of any subcontractor or location of performance and shall obtain approval form HASL for such change.
2.7 The Supplier shall promptly notify HASL of any non-conforming processes, Goods or Services and shall obtain approval from HASL for disposition.
2.8 HASL shall have the right of final acceptance of any Goods or Services.
2.9 The Supplier shall co-operate with HASL in all matters relating to the Goods and Services and shall comply with all applicable laws, regulations, import and export controls, regulatory policies, guidelines or industry codes which may apply to the provision of the Goods or Services, and comply with all instructions of HASL.
2.10 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods or Services.
2.11 The Supplier shall not do or omit to do anything which may cause HASL to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that HASL may rely or act on the Goods or Services.
2.12 HASL may designate certain subcontractors that the supplier shall use for performance of work under the Contract.
2.13 Notwithstanding clause 2.12 the Supplier may not subcontract any of its rights or obligations under the Contract without the prior written consent of HASL. The Supplier shall ensure that the subcontractor meets all applicable requirements and shall remain responsible for all the acts and omissions of its subcontractors as if they were its own. The Supplier shall apply appropriate controls to its subcontractors to ensure the requirements of any Contract are met.
2.14 The Supplier shall keep all relevant and necessary documentation for a period of ten years. Documentation shall be kept in a manner consistent with the Supplier’s quality management system.
2.15 The Supplier shall hold Customer Materials in safe custody at its own risk, maintain the Customer Materials in good condition until returned to HASL, and not dispose or use the Customer Materials other than in accordance with HASL’s written instructions or authorisation.
2.16 The supplier shall provide reasonable access by HASL (or its representative), HASL’s customer and any regulatory authority to applicable areas of facilities and to applicable documentation, including those of any subcontractor.
2.17 The supplier shall ensure that all employees and subcontractors are aware of their contribution to conformity of Goods and Services, their contribution to safety and the importance of ethical behaviour in the performance of their obligations under the Contract.
2.18 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. Supply of Goods
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description in the Statement of Work and any applicable Goods Specification;
(b) be of satisfactory quality (within the meaning of the Consumer Rights Act 2015) and fit for any purpose held out by the Supplier or made known to the Supplier by HASL, expressly or by implication, and in this respect HASL relies on the Supplier’s skill and judgement;
(c) be measured or tested with measurement systems that are tested for repeatability and reproducibility and that are calibrated and traceable to appropriate standards;
(d) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
(e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods; and
(f) not contain any counterfeit parts.
3.2 HASL may inspect and test the Goods, any documentation and any processes of the Supplier or Supplier’s subcontractor at any time before delivery including first article inspection, test specimens, verification, design approval and audit. The Supplier shall remain fully responsible for the Goods, documentation or processes despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
3.3 If following such inspection or testing HASL considers that the Goods, documentation or processes do not comply or are unlikely to comply with the Supplier’s undertakings at clause 3.1, HASL shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.4 HASL may conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.5 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) it states clearly on the delivery note any requirement for HASL to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
3.6 The Supplier shall deliver the Goods:
(a) on the date specified in the Order or,
(b) to HASL location as is set out in the Order or as instructed by HASL before delivery (Delivery Location); and
(c) Delivered Duty Paid (DDP) Incoterms 2020; and
(d) during HASL’s normal hours of business, or as instructed by HASL.
3.7 The Supplier shall not deliver the Goods in instalments without HASL’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle HASL to the remedies set out in clause 5.
3.8 Title and risk in the Goods and title in the Deliverables shall pass to HASL on completion of delivery.
4. Supply of Services
4.1 The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to HASL in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Order or Statement of Work.
4.3 In providing the Services, the Supplier shall:
(a) ensure that the Services will conform with all descriptions, standards and Service Specifications set out in the Statement of Work, and that the Deliverables shall be fit for any purpose that HASL expressly or by implication makes known to the Supplier;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
(d) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(e) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to HASL, will be free from defects in workmanship, installation and design;
(f) comply with the Mandatory Policies; and
(g) comply with any additional obligations as set out in the Statement of Work.
5. HASL remedies
5.1 If the Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or both, HASL shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by HASL in obtaining substitute goods or services from a third party;
(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided or Goods that it has not delivered; and
(e) to claim damages for any additional costs, loss, interest or expenses incurred by HASL which are in any way attributable to the Supplier’s failure to meet such dates.
5.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, HASL shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by HASL in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by HASL arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
5.3 If the Supplier has supplied Services that do not comply with the requirements of clause 4.3 then, without limiting or affecting other rights or remedies available to it, HASL shall have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to return the Deliverables to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
(d) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by HASL in obtaining substitute services or deliverables from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by HASL arising from the Supplier’s failure to comply with clause 4.3.
5.4 These Conditions shall extend to any substituted or remedial services or repaired or replacement goods supplied by the Supplier.
5.5 HASL’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
6. Customer’s obligations
6.1 HASL shall:
(a) provide the Supplier with reasonable access at reasonable times to HASL’s premises for the purpose of providing the Services;
(b) provide such necessary information for the provision of the Goods or Services as the Supplier may reasonably request; and
7. Charges and payment
7.1 The price for the Goods shall be the price set out in the Order and shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by HASL.
7.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by HASL, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.3 Each invoice shall include such supporting information required by HASL to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
7.4 Unless otherwise stated in the Statement of Work;
(a) in respect of the Goods, the Supplier shall invoice HASL on or at any time after completion of delivery.
(b) in respect of Services, the Supplier shall invoice HASL on completion of the Services.
7.5 In consideration of the supply of Goods and/or Services by the Supplier, HASL shall pay the invoiced amounts within 30 days of the date of a valid invoice to a bank account nominated in writing by the Supplier.
7.6 All amounts payable by HASL under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to HASL, HASL shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods or Services at the same time as payment is due for the supply of the Goods or Services.
7.7 If HASL fails to make a payment due to the Supplier under the Contract by the due date, then HASL shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at the greater of 4% a year above the Bank of England’s base rate from time to time, or 4%.
7.8 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow HASL to inspect such records at all reasonable times on request.
8. Intellectual property rights
8.1 All Customer Materials are the exclusive property of HASL.
8.2 Background IP shall remain the property of the owning party and no representation or act by a party during the performance of the Contract shall indicate or be construed as providing any other right, title or interest in such Background IP.
8.3 HASL shall be the sole owner of all Foreground IP in or arising out of the Contract and shall have the right to freely exploit the same including the right to grant rights in any Foreground IP to any other party.
8.4 The Supplier grants to HASL a fully paid, perpetual, irrevocable, non-exclusive, worldwide, royalty-free right, with the right to sub-licence, to use its Background IP for the sole purpose of using, operating and maintaining any Deliverables or Goods provided under this Contract
8.5 HASL grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify the Customer Materials for the term of the Contract for the purpose of providing the Services to HASL.
9.1 The Supplier shall indemnify HASL against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by HASL arising out of or in connection with:
(a) any claim made against HASL for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding Customer Materials);
(b) any claim made against HASL by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and
(c) any claim made against HASL by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services due to the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
9.2 If any third party makes a claim, or notifies an intention to make a claim, against HASL which may reasonably be considered likely to give rise to a liability under this indemnity (a “Claim”), HASL shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) give the Supplier access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, or representatives and to any relevant, documents and records within the power or control of HASL, so as to enable the Supplier and its professional advisers to examine them for the purpose of assessing the Claim; and
(d) take such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim
10. Limitation of Liability
10.1 References to liability in this clause 10 include every kind of liability arising in connection with the Contract including, but not limited to, for negligence.
10.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
10.3 Nothing in any Contract shall limit the Supplier’s liability under clause 9 of these terms and conditions.
10.4 Nothing in any Contract shall limit any liability which cannot legally be limited, including but not limited to liability for:
(a) death or personal injury caused by negligence; and
(b) fraud or fraudulent misrepresentation.
10.5 Subject to this clause 10 the Supplier’s total liability to HASL in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
10.6 In this Clause 10;
(a) The cap is the greater of £1,000,000 and one-hundred-and-twenty per cent (120%) of the total charges in the contract year in which the breach occurred;
(b) A contract year means a 12 month period ending with the date of the breach; and
(c) The total charges means all sums paid by HASL and all sums payable under the Contract in respect of Goods and Services supplied by the Supplier, whether or not invoiced to HASL
10.7 Subject to this clause 10 HASL’s total liability to the Supplier shall not exceed the total of all sums due under the Contract in respect of Goods and Services supplied by the Supplier.
10.8 The following types of loss are wholly excluded:
(a) Loss of profits.
(b) Loss of sales or business.
(c) Loss of agreements or contracts.
(d) Loss of anticipated savings.
(e) Loss of use or corruption of software, data or information.
(f) Loss of or damage to goodwill.
(g) Indirect or consequential loss.
11.1 During the term of the Contract and for a period of five years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on HASL’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
12.1 The provisions of this clause shall not apply to any Confidential Information that:
(a) is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
(b) was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
(c) was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
(d) the parties agree in writing is not confidential or may be disclosed.
12.2 Each party shall keep the other party’s Confidential Information confidential and shall not:
(a) use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with the Contract (Permitted Purpose); or
(b) disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 12.
12.3 A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
(a) it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
(b) it procures that its Representatives shall, in relation to any Confidential Information disclosed to them, comply with the obligations set out in this clause as if they were a party to the Contract, and
(c) at all times, it is liable for the failure of any Representatives to comply with the obligations set out in this clause 12.
12.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
12.5 A party may, provided that it has reasonable grounds to believe that the other party is involved in activity that may constitute a criminal offence under the Bribery Act 2010, disclose Confidential Information to the Serious Fraud Office without first informing the other party of such disclosure.
12.6 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in the Contract are granted to the other party, or to be implied from the Contract.
12.7 On termination of the contract, each party shall:
(a) destroy or return to the other party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other party’s Confidential Information;
(b) erase all the other party’s Confidential Information from computer and communications systems and devices used by it, including such systems and data storage services provided by third parties (to the extent technically and legally practicable); and
(c) certify in writing to the other party that it has complied with the requirements of this clause, provided that a recipient party may retain documents and materials containing, reflecting, incorporating or based on the other party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this clause shall continue to apply to any such documents and materials retained by a recipient party, subject to clause 13 (Termination).
13.1 Without affecting any other right or remedy available to it, HASL may terminate the Contract:
(a) with immediate effect by giving written notice to the Supplier if:
(i) there is a change of control of the Supplier; or
(ii) the Supplier’s financial position deteriorates to such an extent that in HASL’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(iii) the Supplier commits a breach of clause 2.9,
(b) for convenience by giving the Supplier 14 days’ written notice.
13.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction]; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
(d) the relevant conditions of clause 15, Force Majeure, apply
14. Consequences of termination
14.1 On notice of termination of the Contract under clause 13 and unless otherwise instructed by HASL the Supplier shall acting reasonably halt all work in progress minimise commitment of resources and not commence any new work.
14.2 On termination of the Contract, the Supplier shall immediately deliver to HASL all Deliverables, Goods and work in progress whether or not then complete.
14.3 On termination of the Contract the Supplier shall immediately return all Customer Materials. If the Supplier fails to do so, then HASL may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
14.4 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
14.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
15. Force majeure
15.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from events, circumstances or causes beyond its reasonable control including, without limitation (a “Force Majeure Event”);
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) any law or any action taken by a government or public authority, including without limitation imposing an extraordinary export or import restriction, quota or prohibition;
(e) collapse of buildings, fire, explosion or accident.
15.2 The party suffering delay or non-performance (Affected Party) shall;
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than five days from its start, notify the other party in writing of the Force Majeure Event;
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
15.3 If the period of delay or non-performance continues for 30 days the party not affected may, in accordance with clause 13.2, terminate the Contract by giving written notice to the Affected Party.
16.1 Assignment and other dealings.
(a) HASL may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.
(b) The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of HASL.
(a) Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its principal place of business or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when delivered to the address referred to in Clause (a); if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the third Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
16.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 16.3 shall not affect the validity and enforceability of the rest of the Contract.
16.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.7 Third party rights.
(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
16.8 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised Representatives.
16.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
16.10 Arbitration. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
16.11 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim which remains unresolved by arbitration pursuant to clause 16.10 (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
16.12 Survival. Any provision of these Conditions or any Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry, including clauses 5 HASL remedies, 8 Intellectual property rights, 9 Indemnity, 11 Insurance, 12 Confidentiality, 14 Consequences of termination, 16.9 Governing Law, 16.10 Arbitration, 16.11 Jurisdiction and this clause 16.12 shall remain in full force and effect.
Schedule 1 Mandatory Policies
The Mandatory Policies are:
· Ref P-2000 Fire Health Safety & Environmental Policy
· Ref P-2002 Data Protection Policy (as applicable to a Supplier)
· Ref P-2004 Anti-Bribery and Corruption Policy
· Ref P-2005 Information Technology and Communications Policy