PROMAR INTERNATIONAL TERMS AND CONDITIONS
These Terms and Conditions apply only to the provision by Promar International of Goods and provision of Services as defined below. Any associated supply of goods or provision of other services by Promar International is governed by Promar International’s separate terms and conditions applicable to such supply or provision.
1.1 In these Conditions:
“Authorised Recipient” has the meaning set out in Condition 17.3;
“Conditions” means the standard terms and conditions of Promar International as set out here in as amended from time to time in accordance with clause 2.5;
“Confidential Information” has the meaning given in Conditions 17.1;
“Contract” means a contract for the Supply of Goods and/or the provision of Services by Promar International to the Customer whether made verbally or in Writing that incorporates these Conditions;
“DPA” means the Data Protection Act 1998;
“Customer” means the person from whom an Order to Supply Goods and/or provide Services is received by Promar International;
“Force Majeure Event” means any event or circumstances beyond the reasonable control of Promar International including (without limitation) strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events (human or animal) including without limitation outbreaks of Foot and Mouth Disease and/or similar animal disease which affects Promar International’s provision of the Goods and/or Services, natural disasters or extreme adverse weather conditions, compliance with the law or a governmental order, rule, regulation or direction, or any default of suppliers or subcontractors;
“Goods” means the goods which Promar International is to supply, distribute and/or store under the Contract as specified in the Order and where the context so admits includes processed materials and/or manufactured products whether processed or manufactured by Promar International or not;
“Intellectual Property” means:
(a) patents, trade marks, service marks, registered designs, applications for any of those
rights, trade and business names, unregistered
trade marks and service marks,
designs and inventions;
(b) the sui generis right for the maker of a database to prevent extraction or re-utilisation or both of the whole or a substantial part of the contents of that database, as described in Directive 96/9/EC on the legal protection of databases;
(c) rights under licences, consents, orders, statutes or otherwise in relation to a right in paragraphs (a) and (b); and
(d) rights of the same or similar effect or nature as or to those in paragraphs (a), (b) and (c),
in each case in any jurisdiction;
“Literature” means Promar International catalogues, pamphlets, price lists and advertising literature;
“Order” means an order placed by the Customer for the Supply of Goods and/or the provision of Services whether verbally or in Writing;
“Personal Data” means personal data (as defined in the DPA) which is supplied to Promar International by the Customer or obtained by Promar International in the course of Promar International providing the Goods and/or Services;
“Promar International” means Promar International Limited, (registered in England and Wales No. 3004562) whose registered office is at Belvedere House, Basing View, Basingstoke, Hampshire, RG21 4HG and also, where the context so admits, any representative (whether an employee or sub-contractor) of Genus plc;
“Recommendations for Use” means the recommendations (if any) relating to the storage, handling, application and/or use of the Goods contained in the published literature of Promar International (or, if relevant, a Supplier) or any recommendations made in Writing by an authorised representative of Promar International (or, if relevant, a Supplier);
“Services” means the work or services, including without limitation consultancy services and the storage and transport of Goods but excluding any work or services requiring direct physical contact with any animal by any representative of Promar International, to be provided by Promar International under the Contract;
“Supplier” means any person, firm or company who or which supplies the Goods and/or provides the Services to Promar International in substantially the form in which they are supplied and/or provided to the Customer;
“Supply” includes where the context so admits, any lease, hire or loan of the Goods and “supplied” shall be construed accordingly;
“Working Days” means any day on which banks are generally open for business in the City of London (other than Saturdays, Sundays or public holidays);
“Writing” includes typing, printing, lithography, photography, facsimile transmission and other modes of representing or reproducing words in a legible and non transitory form but excludes electronic mail;
1.1 Words importing the singular number shall include the plural and vice versa, words importing
gender shall include all other genders and words importing persons shall include bodies
corporate, unincorporated associations, partnerships and individuals and headings are for convenience only and shall not affect interpretation.
2 Orders, Acknowledgements, Conditions and Variations
2.1 A quotation by Promar International does not constitute an offer. Notwithstanding that Promar International may have given a detailed quotation or estimate either verbally or in Writing, no Contract shall come into existence until the Order has been acknowledged in Writing by Promar International or the Goods are delivered or the Services are provided by Promar International to the Customer pursuant to the Order (whichever is earlier), at which point the Contract shall come into existence. All Orders are subject to availability and Promar International reserves the right to refuse any Order in whole or in part. The Customer shall ensure that the terms of its Order and any applicable specification are complete and accurate.
2.2 Promar International reserves the right to withdraw or revise a quotation at any time prior to Promar International’s acceptance of the Customer’s Order. Any quotation shall only be valid for a period of thirty (30) Working Days from its date of issue.
2.3 These Conditions are incorporated in every Contract and contain the entire obligations between Promar International and the Customer in relation to the provision of the Goods and/or Services pursuant to the Contract. These Conditions shall apply in place of and prevail over any terms or conditions (whether or not in conflict or inconsistent with these Conditions) contained or referred to in any documentation submitted by the Customer or in correspondence or elsewhere or implied by trade custom, practice or course of dealing. In the event of Promar International entering into the Contract without Promar International having submitted a written quotation or other letter or document incorporating or referring to these Conditions but in circumstances where the Customer has had prior notice of these Conditions then the Contract shall be subject to these Conditions.
2.4 Acceptance by the Customer of delivery of the Goods or provision of the Services shall (without prejudice to Condition 2.1 or any other manner in which acceptance of these Conditions may be evidenced) be deemed to constitute unqualified acceptance of these Conditions.
2.5 No variation of the Contract by the Customer shall be binding upon Promar International unless accepted in Writing by Promar International.
2.6 No representations or warranties made by or on behalf of Promar International prior to the Contract (whether verbally or in Writing) shall form part of the Contract.
3.1 The price payable for the Goods shall be as set out in Promar International’s retail price list current at the date of acceptance of the Order for the Goods. The price payable for the Services shall be Promar International’s current rate at the dates of provision of the Services. Promar International may at its discretion vary such rates at any time or as agreed in Writing between the parties.
3.2 Any price set out in any quotation or estimate shall be considered to have been given solely for information and shall not constitute an obligation on the part of Promar International that it will deliver the Goods and/or provide the Service at that price.
3.3 All prices are exclusive of any applicable Value Added Tax which will be charged at the rate
applicable at the date of invoice.
4 Terms of Payment
4.1 Notwithstanding any other provision of these Conditions Promar International shall be entitled to invoice and require payment for Goods and/or Services in advance of delivery.
4.2 Unless otherwise agreed the price for the Goods and/or Services shall be due and payable to Promar International in full in Pounds Sterling (in cash or cleared funds) within twenty eight (28) days of the date of invoice. Time for payment is of the essence of the Contract.
4.3 If the Customer does not pay the whole or any part of the price due to Promar International under the Contract by the due date, then the Customer shall pay to Promar International interest on the amount outstanding from the due date until the actual date of payment (whether before or after judgement) at the rate of 4% per annum over the base rate of Barclays Bank PLC from time to time in force, which shall accrue on a daily basis and be calculated on the basis of a year of 365 days. The parties agree that this constitutes a substantial remedy in terms of the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall pay the interest together with the overdue amount and any expense incurred by Promar International in connection with the recovery of the outstanding amount (including legal costs).
4.4 So long as any payment due from the Customer to Promar International is outstanding, whether under the same or any other Contract or transaction between Promar International and the Customer, Promar International shall have a lien on any Goods or property of the Customer in its possession and shall be entitled to retain them and/or suspend the provision of Goods and/or services to the Customer under any Contract until such payments have been made.
4.5 The Customer shall not be entitled to withhold payment of any amount due to Promar International by reason of any disputed claim by the Customer in connection with the Contract nor shall the Customer be entitled to set off against any amount payable under the Contract to Promar International against any amount which is not then due and payable to Promar International or for which Promar International disputes liability. Promar International may at any time, without limiting any other right to or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Promar International to the Customer.
4.6 All payments payable to Promar International under a Contract shall become due immediately on its termination despite any other provision.
5.1 Delivery of Goods shall be deemed to be effected by Promar International at the following times:
5.1.1 where Goods are delivered by Promar International or by an independent carrier arranged by Promar International, when the same are unloaded at the Customer’s premises or at premises nominated by the Customer; or
5.1.2 where Goods are collected by or on behalf of the Customer at the time that Promar International notifies the Customer that the Goods are ready for collection.
5.2 Delivery of Services shall be deemed to be effected by Promar International at the time of completion by Promar International of the Services.
5.3 Whilst Promar International will make every reasonable effort to complete the Contract by the date
or dates therein specified for delivery
of Goods and/or provision of Services such date or
dates are approximate only and shall only constitute the times by which Promar International expects to effect such delivery of Goods and/or provision of Services and shall not have any contractual effect. Time for delivery of Goods and/or provision of Services by Promar International shall not be of the essence of the Contract and shall not be made so by service of any notice. Promar International failure to so deliver and/or provide by the due date or dates shall not constitute a breach of Contract and shall not entitle the Customer to terminate or rescind the Contract. Promar International may wholly or partly suspend deliveries of Goods and/or provision of Services and the Customer shall accept late delivery of such Goods and/or provision of Services and shall not be entitled to any compensation in respect thereof.
6.1 Where Goods are to be delivered and/or Services are to be provided by instalments each instalment shall be deemed to be sold under separate Contract and failure by Promar International to provide any one or more instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.2 If Goods and/or Services are to be delivered and/or provided by Instalments, Promar International shall be entitled to invoice each instalment as and when delivery and/or provision is made and payment for all delivered and/or provided instalments shall be due notwithstanding the non-delivery and/or non-provision of other instalments or other default by Promar International. Failure by the Customer to make payment by the due date for any one instalment for whatever reason shall entitle Promar International to suspend deliveries of any Goods and/or provision of any Services under the Contract but without prejudice to any other right Promar International may have under any of the provisions of these Conditions.
6.3 Section 32(2) of the Sale of Goods Act 1979 does not apply to the Contract, such that where Promar International delivers Goods to a carrier and the Goods are lost or damaged in the course of transit, the Customer may not automatically hold Promar International liable for its failure to conclude a reasonable contract with the carrier on behalf of the Customer and/or hold Promar International responsible in damages.
7 Suspension and Termination
7.1 If the Customer becomes subject to any of the events in Condition 7.2 or Promar International has reason to believe that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to Promar International, Promar International may :-
7.1.1 stop any Goods in transit and suspend further deliveries; and/or
7.1.2 suspend work on the Contract; and/or
7.1.3 hold by way of lien all materials or other property of the customer in the possession of Promar International in respect of work carried out or to be carried out by Promar International for the Customer or for the general balance of account for the time being owing to Promar International by the Customer; and/or
7.1.4 exercise its rights under Condition 11; and/or
7.1.5 terminate the Contract forthwith and if the Goods and/or Services or any part of them have
been delivered and/or provided but not paid for, the price shall become
immediately due and payable not withstanding any previous agreement or
arrangement to the contrary but without prejudice to Promar International rights to any unpaid price for Goods delivered and/or Services provided under the Contract and to damages for loss (both direct, indirect and consequential) suffered in consequence of such termination.
7.2 For the purposes of Condition 7.1, the relevant events are:
7.2.1 the Customer fails to give delivery instructions or take delivery of the Goods or make any payment when it becomes due (either under the Contract or under any other Contract or transaction between Promar International and the Customer) or commits any other breach of the Contract and fails to remedy the same within seven (7) days of receiving Promar International’s request in Writing so to do, or shall act in such a way as to impede or interfere with Promar International’s performance of the Contract;
7.2.2 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
7.2.3 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
7.2.4 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
7.2.5 (being an individual) the Customer is the subject of a bankruptcy petition or order;
7.2.6 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days;
7.2.7 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
7.2.8 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
7.2.9 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
7.2.10 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 7.2.2 to 7.2.9
7.2.11 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business;
7.2.12 the Customer’s financial position deteriorates to such an extent that in Promar International’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
7.2.13 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
7.3 Where the Contract relates solely to the provision of Services either party may terminate the Contract at any time upon not less than one (1) month’s notice in Writing to the other party (or such shorter period or notice as Promar International may in its absolute discretion agree to accept from the Customer).
7.4 Any termination or suspension of a Contract in accordance with these Conditions shall not relieve the Customer of the obligation to pay to Promar International all charges accrued under the relevant Contract in respect of the Goods delivered and/or Services performed prior to the date of termination or suspension (as applicable) and so that Promar International shall have a lien as provided in Condition 7.1.3.
7.5 Promar International shall within fourteen (14) days after the date of termination refund to the Customer any payment made by the Customer under the Contract representing a prepayment for the Goods delivered and/or Services not yet performed prior to the date of termination but after deduction of any amount owed to Promar International by the Customer whether or not under the Contract.
7.6 In the event of Promar International (other than in any of the circumstances set out in Condition 7.2) being prevented from completing the Contract either wholly or in part in accordance with the terms thereof by a Force Majeure Event then further performance of the Contract shall be suspended for the period during which Promar International is so prevented provided that in the event of the Contract being suspended for a continuous period of more than three months then either party may give the other notice in Writing to terminate the Contract forthwith and in such circumstances the Customer shall pay for all Goods supplied and/or Services provided to the date of such termination, such payments to be made on or before the last day of the month following the month during which termination was effected. Promar International shall be under no liability whatsoever to the Customer for any direct, indirect or consequential loss or damage suffered by the Customer as a result of Promar International’s inability to perform its obligations under the Contract in these circumstances.
7.7 If Promar International shall be prevented from delivering Goods and/or providing Services in accordance with the Contract as a result of:
(a) delay or default on the part of the Customer; or
(b) any other reason beyond Promar International’s reasonable control,
and the Contract is not terminated in accordance with the other provisions of this Condition 7
Promar International shall be entitled to reschedule
the date or dates for such delivery of Goods
and/or provision of Services to such time or times as it shall reasonably require taking
into account its commitments to third parties. In the event of (a) above Promar International
shall also be entitled to be paid storage charges for the relevant Goods (and notwithstanding Condition 12 such Goods shall be at the sole risk of the Customer) and to make a reasonable
charge in respect of the Promar International representative’s visit to the Customer’s premises when provision of the relevant Services was so prevented.
7.8 Termination of the Contract, howsoever arising, shall be without prejudice to the accrued rights and liabilities of the parties and shall not affect any continuing obligations of the parties under these Conditions. Conditions which expressly or by implication survive termination of the Contract shall continue in full force and effect.
8 Warranties of Promar International
8.1 Promar International undertakes to use reasonable care and skill in performance of the Services and/or supply of the Goods and Promar International undertakes to comply with all legislation and regulations for the time being in force applicable to Promar International’s performance of Contract.
8.2 Subject as otherwise expressly provided in these Conditions and subject always to the provisions of the Unfair Contract Terms Act 1977 the warranty set out in Condition 8.1 shall be in lieu of and to the exclusion of any other warranties, terms, conditions or undertakings whether express or implied by statute, common law or otherwise howsoever.
9 Limitation of Liability
9.1 Promar International’s liability to the Customer (whether for breach of contract, tort (including negligence), breach of statutory duty or otherwise howsoever) under the Contract shall (subject to the provisions of Condition 9.3, 9.5, 9.6, and 9.7) be limited as set out in this Condition. Promar International shall not be liable to the Customer or any other party for:
9.1.1 late delivery of the Goods and/or Services (even if caused by Promar International’s negligence);
9.1.2 non-delivery or non-performance of the Goods and/or Services unless the Customer notifies Promar International of a claim in Writing within seven (7) days of the date of Promar International’s invoice or the agreed date for delivery or performance, whichever is earlier;
9.1.3 shortages in quantity of Goods delivered unless the Customer notifies Promar International of a claim in Writing within seven (7) days of receipt of the Goods by the Customer;
9.1.4 damage to or loss of the Goods or any part of them in transit (where the Goods are carried by Promar International’s own transport or by a carrier on behalf of Promar International) unless the Customer notifies Promar International of a claim in Writing within seven (7) days of receipt of the Goods or the scheduled date of delivery, whichever is the earlier;
9.1.5 defects in the Goods caused by:
18.104.22.168 fair wear and tear;
22.214.171.124 abnormal or unsuitable conditions of storage or use;
126.96.36.199 or any act, neglect or default of the Customer or of any third party; or
other defects in the Goods or Services unless notified to Promar International within
fourteen (14) days of receipt of the Goods by the Customer or provision of the
Services or if the defect would not have been apparent on reasonable inspection, within twelve (12) months of receipt of the Goods or provision of the Services.
9.2 No claims for shortages in quantity, partial loss or damage to or defects in Goods will be accepted by Promar International unless any Goods in respect of which a claim is made together with the packaging are preserved intact as received for a period of twenty-one (21) days from notification of any such claim (or thirty-five (35) days in the case of an export order) and the Customer permits Promar International full and free rights of access to inspect and investigate the claim.
9.3 If liability is accepted by Promar International under Conditions 9.1.2, 9.1.3, 9.1.4 and/or 9.1.6, or Promar International is adjudged to be liable under those Conditions by a court of competent jurisdiction, Promar’s only obligation is at its sole option:
9.3.1 to make good any shortage or non-delivery; or
9.3.2 to replace or repair any Goods found to be damaged or defective; or
9.3.3 to re-perform the Services; or
9.3.4 to refund to the Customer the amount paid by the Customer for the Goods and/or Services which are the subject of a claim under Condition 9.1.
9.4 Promar International is not liable for any loss, damage or liability of any kind suffered by any third party directly or indirectly caused by repairs or remedial work to the Goods or Services carried out without Promar International’s prior written approval. The Customer shall indemnify Promar International against each loss, liability and cost arising out of such claims.
9.5 Subject to Conditions 9.6 and 9.7 and without prejudice to Conditions 9.1, 9.2 and 9.3, Promar International’s aggregate liability to the Customer for direct losses (whether for breach of contract, negligence, breach of statutory duty, misrepresentation, restitution or otherwise howsoever) under the Contract and in relation to the Goods and Services shall in no circumstances exceed the fees paid and/or due from the Customer in respect of the relevant Goods or Service supplied under the Contract in the twelve (12) month period preceding the event or earliest of the connected events giving rise to any claim.
9.6 In no circumstances and notwithstanding any other provision of these Conditions shall Promar International be liable for any indirect, special or consequential liabilities, losses, charges, damages, costs and expenses suffered by the Customer howsoever caused and including, without limitation, pure economic loss, loss of anticipated profits, anticipated savings, goodwill, revenue, reputation, management time, business receipts or contracts or losses or expenses resulting from third party claim.
9.7 Nothing in these Conditions shall exclude or restrict any liability of Promar International:
9.7.1 for death or personal injury of any human being resulting from Promar International’s negligence;
9.7.2 under Section 2(3) Consumer Protection Act 1987;
9.7.3 for any matter which it would be illegal for Promar International to exclude or attempt to exclude its liability; or
9.7.4 for fraud or fraudulent misrepresentation.
10 Liability To Third
10.1 If at any time it is alleged that the Goods infringe the rights of any third party or if in Promar International’s reasonable opinion such an allegation is likely to be made, Promar International may at its option and at its own expense:
10.1.1 modify or replace the Goods without detracting from the overall performance of the Goods, so as to avoid the infringement;
10.1.2 procure for the Customer the right to continue to use the Goods; or
10.1.3 repurchase the Goods from the Customer at the price paid by the Customer less depreciation at the rate that Promar International applies to its own equipment.
10.2 The Customer shall notify Promar International immediately of any claim made or action brought or threatened alleging infringement of the rights of any third party. Promar International shall have control over and conduct any such proceedings in such manner as it shall determine. The Customer shall provide all such reasonable assistance as Promar International may request. The cost of any such proceedings shall be borne by such proportions as the parties shall determine.
10.3 If Promar International or its employees or agents design the Goods pursuant to a commission from the Customer (whether in consideration of any order or otherwise) then any copyright or design or other Intellectual Property Rights, as applicable, created in relation to the Goods shall vest in Promar International. The Customer agrees that it shall do any acts and execute any documentation required by Promar International to secure the proper vesting of title to such copyright or design rights in Promar International.
11 Title to Goods
11.1 Until payment in full (in cash or cleared funds) of all monies due and owing by the Customer to Promar International under any Contract or on any account whatsoever has been received in full legal and beneficial ownership of the Goods shall be retained by Promar International notwithstanding that the risk in the same shall pass to the Customer at the time of delivery.
11.2 Until title to the Goods has passed to the Customer, the Customer shall:
11.2.1 hold the Goods on a fiduciary basis as Promar International’s bailee;
11.2.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Promar International’s; and
11.2.3 maintain the Goods in satisfactory condition, store the Goods according to product instructions and keep them insured against all risks for their full price from the date of delivery;
11.2.4 notify Promar International immediately if it becomes subject to any of the events listed in Condition 7.2; and
11.2.5 give Promar International such information relating to the Goods as Promar International may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business (subject
to the Customer obtaining any applicable licence, which it shall be the Customer’s responsibility to
11.3 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in Condition 7.2, or Promar International reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, used or irrevocably incorporated into another product, and without limiting any other right or remedy Promar International may have, Promar International may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
12.1 The risk in the Goods shall pass to the Customer at the time of delivery as provided for in Condition 5.1.
12.2 Any property of the Customer in Promar International’s possession or under its control and all property supplied to Promar International by or on behalf of the Customer is held by Promar International at the Customer’s risk.
12.3 From the time of delivery until ownership of the Goods passes to the Customer in accordance with Condition 11, the Customer shall insure the Goods against all risks for their full value with a reputable insurance office to the reasonable satisfaction of Promar International. Upon request, the Customer shall use all reasonable endeavours to have Promar International’s interest in the Goods noted on the insurance policy and shall produce the policy of insurance to Promar International. The Customer shall hold the proceeds of any claim on the insurance policy on trust for Promar International and shall immediately account to Promar International with the proceeds.
13 Health and Safety at Work Act 1974
The attention of the Customer is drawn to the provisions of Section 6 of the Health and Safety Act 1974. Promar International will make available upon request information on the design, construction, installation, maintenance and use of its products to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used cleaned or maintained. It is the responsibility of the Customer to take such steps as are necessary to ensure that such information relevant to the Goods and/or Services which is appropriate is made available to its servants, agents or any person to whom the Customer supplies them and to any other person to whom the Customer reasonably considers any such information should be given.
14 Customer’s Obligations and Warranties
14.1The Customer shall:
14.1.1 co-operate with Promar International in all matters relating to the provision of the Goods and/or Services;
14.1.2 provide Promar International, its employees, agents, consultants and subcontractors, with access to the Customer’s premises and other facilities as reasonably required by Promar International for provision of the Goods and/or Services;
14.1.3 prepare the Customer’s
premises for the supply of the
Goods and/or Services;
14.1.4 obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start or Goods are to be delivered; and
14.1.5 provide Promar International with such information and materials as Promar International may reasonably require in order to supply the Services and ensure that such information is accurate in all material respects.
14.2 The Customer warrants, represents and undertakes to Promar International that the Customer will install, operate or otherwise use or store the Goods strictly in accordance with the Recommendations for Use and with all relevant or applicable statutory or other regulations governing the installation, operation, use of storage of the Goods.
14.3 The Customer shall indemnify Promar International against any claim, liabilities, expenses, losses or damages (including, without limitation, any direct, indirect, consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Promar International arising out of or its connection with any breach of the warranty contained in Condition 14.
15.1 Promar International undertakes to use reasonable care and skill in the compilation of its Literature.
15.2 Notwithstanding the provisions of Condition 15.1, any figures, statements, descriptions, illustrations, photographs, drawings or any other matters contained in the Literature are not guaranteed to be accurate and are intended merely to represent a general picture of Promar International’s goods and services and shall not form part of the Contract.
16 Data Protection
16.1 In relation to all Personal Data, Promar International shall at all times comply with the DPA as a data processor or data controller (as appropriate), including if necessary maintaining a valid and up to date notification under the DPA covering the data processing to be performed in connection with the Contract.
16.2 Promar International shall, to the extent that it processes any personal data in connection with the Customer:
16.2.1 act only on instructions from the Customer in relation to its processing of the Personal Data;
16.2.2 implement and maintain appropriate technical and organisational measures to ensure that the Personal Data is kept secure, together with appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing, accidental loss or destruction or damage;
16.2.3 use and retain personal data only for the purposes of fulfilling its obligations under the Contract; and
16.2.4 not transfer personal data to
the European Union without the prior
of the Customer.
16.3 Promar International shall not be obliged by clauses 16.1 or 16.2 or any other provision of these Conditions to do anything which would constitute a breach by Promar International of its obligations as a data processor and/or data controller under the DPA.
17 Confidential Information
17.1 In this clause 17, Confidential Information means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by Promar International to the Customer whether before or after the date of the Contract including information relating to Promar International’s products, operations, processes, plans or intentions, product information, know-how, trade secrets and other Intellectual Property, market opportunities, business affairs, financial information and other confidential information.
17.2 During the term and after expiry or termination of the Contract for any reason, the Customer:
17.2.1 may not use Confidential Information for any purpose other than the performance of its obligations under these Conditions;
17.2.2 may not disclose Confidential Information to a person except with the prior written consent of Promar International or in accordance with clauses 17.3 and 17.4; and
17.2.3 shall make every effort to prevent the use or disclosure of Confidential Information, including by restricting access to Confidential Information.
17.3 During the term, the Customer may disclose Confidential Information to any of its directors, other officers and employees (each an Authorised Recipient), to the extent that disclosure is necessary for the purposes of the Contract.
17.4 Before disclosure of Confidential Information to an Authorised Recipient, the Customer shall ensure that the Authorised Recipient executes a confidentiality agreement in favour of Promar International in a form approved by Promar International. The Customer shall ensure that the Authorised Recipient at all times complies with the confidentiality agreement.
17.5 Clauses 17.2 to 17.4 do not apply to Confidential Information which:
17.5.1 is, at the date of the Contract, or at any time after that date becomes, publicly known other than by the Customer’s or Authorised Recipient’s breach of these Conditions;
17.5.2 can be shown by the Customer to Promar International’s satisfaction to have been known by the Customer before disclosure by Promar International to the Customer; or
17.5.3 is required to be disclosed by law or a court of competent jurisdiction.
If at any time any one or more of the provisions of these Conditions becomes or is invalid, illegal or unenforceable in any respect under any law or is held by a court to be invalid, illegal or unenforceable the validity and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby.
19 Governing Law and Jurisdiction
These Conditions and each and every Contract made pursuant thereto shall be governed by and
construed in all respects in accordance with English law and Promar International and the Customer
hereby agree to submit to the non-exclusive jurisdiction of the
courts of England and Wales.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may prior to the relevant time have been notified pursuant to this provision to the party giving the notice and, in the case of a company, marked for the attention of the Company Secretary or in the absence of a company secretary, a company director. Email notice shall not be valid for the purposes of these Conditions.
No waiver by Promar International of any breach of any provision of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision and Promar International shall not be prejudiced by any forbearance or indulgence granted by it to the Customer.
22.1 The Customer may not assign or transfer or purport to assign or transfer any of its rights or obligations under a Contract without first having obtained Promar International’s written consent.
22.2 Promar International may at any time assign a Contract or any part of it to any person.
23 Third Party Rights
Nothing in this Contract is intended to confer on any person any right to enforce any Condition of a Contract which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
Each right or remedy of Promar International under a Contract is without prejudice to any other right or remedy of Promar International whether under the Contract or not.
Registered in England and Wales No. 3004562
Registered office: Belvedere House,
Basing View, Basingstoke,
Hampshire, RG21 4HG