In respect of Maintenance Services (as defined below) all clauses of these Supply Terms apply and in respect of Project Services (as defined below) clauses 1 - 22 of these Supply Terms apply and in respect of the supply of all other Goods and/ or Services clauses 1 - 19 of these Supply Terms apply.
1.1 The following defined terms shall have the meaning specified alongside them:
"Agreement" these Supply Terms together with an Order and (where the context permits) any Documentation referable to these Supply Terms;
"Change Request" a request for a change to the terms of an Order made by Customer or DORMA;
"Charges" the sums payable to DORMA by Customer in consideration of the
supply by DORMA of Goods and/ or Services;
"Customer" the party requesting Goods and/ or Services from DORMA;
"Customer Facilities" the premises at which and all equipment and facilities in respect of which DORMA will supply Goods and/ or Services;
"Documentation" any DORMA approved and/ or released documentation referable to these Supply Terms which gives details of Customer's Order and any applicable Special Terms including by way of example and without limitation any Order form, Maintenance Services service level agreement or Project Services proposal;
"DORMA" DORMA UK Limited (registered no.1361508) whose registered office address is at 62 New Cavendish Street, London W1G 8TA;
"Equipment" goods, equipment and/ or other facilities in respect of which DORMA has agreed to supply Maintenance Services;
"Goods" any goods requested by Customer to be supplied by DORMA;
"IP Rights" any copyright, patent, registered design, trademark or other intellectual property right of whatever nature subsisting anywhere in the world;
"Maintenance Services" services in the nature of the maintenance and/ or repair of goods, equipment and/ or other facilities;
"Order" a request by Customer for Goods and/ or Services to be supplied by DORMA;
"Project Services" services in the nature of a supply project which may include without limitation the design, procurement and installation of Goods and supply of related Services;
"Proper Use" the use of Goods strictly in accordance with Documentation and/ or any instructions or recommendations notified by DORMA from time to time;
"Services" any services requested by Customer to be supplied by DORMA
(including without limitation Maintenance Services and Project Services);
"Special Terms" any terms set out in writing by DORMA within Documentation and referable to an Order; and
"Supply Terms" these DORMA UK Limited Supply Terms.
1.2 In this Agreement:
1.2.1 the singular includes the plural and vice versa;
1.2.2 references to gender include references to all genders;
1.2.3 unless otherwise stated, references to clauses are to clauses of this Agreement;
1.2.4 the clause headings are for reference only and shall not affect the construction or interpretation of this Agreement;
1.2.5 references to statutes, any statutory instrument, regulation or order shall be construed as a reference to such statute, statutory instrument, regulation or order as amended or re-enacted from time to time.
2. Scope of Agreement/ Formation of Agreement
2.1 Clauses 1 - 19 inclusive of these Supply Terms apply in their entirety to the
supply of all Goods and/ or Services by DORMA and in addition the following clauses apply to the supply of the following Services:
2.1.1 clauses 20 - 22 inclusive of these Supply Terms apply to both the supply of Maintenance Services and the supply of Project Services; and
2.1.2 clauses 23 - 25 inclusive of these Supply Terms apply to the supply of Maintenance Services.
2.2 Any Order placed by Customer is subject to acceptance by DORMA and no Agreement shall be formed until DORMA indicates such acceptance. Each accepted Order (together with these Supply Terms and any related Documentation) shall constitute an individual legally binding Agreement between DORMA and the Customer.
2.3 DORMA may indicate acceptance of an Order at its discretion including without limitation by signing an Order and/ or Documentation referring to these Supply Terms, verbally, in writing or by delivering and/ or supplying requested Goods and Services.
2.4 This Agreement:
2.4.1 represents the whole agreement and understanding between the parties in respect of the matters referred to herein; and
2.4.2 shall, except in the case of fraud, override and no reliance shall be placed upon any other verbal or written representations, agreements (including without
limitation any contractual terms notified to DORMA by Customer), warranties or understandings in respect of the subject matter of this Agreement and the parties acknowledge that:
18.104.22.168 the remedies available to the parties are exclusively those available under this Agreement, and
22.214.171.124 they have considered and agreed the terms of this clause 2.4.
2.5 In the event of conflict and/ or inconsistency between the provisions comprised within the main body of this Agreement and any Special Terms comprised in Documentation, the latter shall prevail to the extent of the conflict and or inconsistency.
3.1 Customer shall indicate its requirements for Goods and/ or Services by placing an Order and (as required by DORMA) submitting to DORMA such documentation and information as DORMA requires to enable DORMA to fulfil the Order.
3.2 DORMA may indicate at any time that an Order (and related documentation/ information) is deficient and/ or insufficient and Customer shall as soon as
reasonably practicable rectify such deficiency and/ or insufficiency to DORMA's
3.3 Customer shall be solely responsible for the accuracy of each Order (and related documentation/ information) and DORMA shall not be under any obligation to indicate or correct any inaccuracies, omissions or errors.
3.4 Subject to acceptance by DORMA of an Order and to the Customer discharging its obligations provided by this Agreement and in consideration of payment by the Customer of the Charges DORMA shall supply Goods and/ or Services in
accordance with the terms of this Agreement.
3.5 Any Order may be subject to a minimum charge which shall be confirmed by DORMA as applicable.
4.1 DORMA may supply to the Customer a quotation indicating certain details in respect of the Goods and/ or Services including without limitation Charges.
4.2 The parties expressly agree that any quotation supplied by DORMA shall be indicative only and not binding in respect of the matters specified.
5.1 As necessary, DORMA shall undertake design of the Goods and/ or Services by reference to an Order and supply to Customer any relevant Documentation
(including without limitation any drawings and specifications) as required.
5.2 Customer shall be deemed to have accepted the latest version of any relevant Documentation supplied by DORMA at the date of acceptance by DORMA of an Order.
6. Acceptance Tests
6.1 DORMA may specify and undertake tests of the Goods and/ or Services to check Goods and/ or Services are supplied in accordance with the terms of this Agreement and notify Customer accordingly of the results of such acceptance tests.
7. Delivery/ Performance
7.1 DORMA shall use reasonable endeavours to deliver Goods or perform Services in accordance with any time and/ or date confirmed in writing by DORMA provided that time of delivery of Goods and/ or performance of Services shall not be of the essence of this Agreement and DORMA shall not be liable for any loss or damage arising from late delivery or performance.
7.2 DORMA may deliver Goods in installments and invoice Customer accordingly for each installment.
7.3 Customer shall pay all delivery Charges confirmed in writing by DORMA
including Charges for any special delivery requirements supplied upon Customer's request.
8. Risk and Title
8.1 Risk in Goods passes to Customer upon delivery and Customer shall keep Goods insured against loss and damage at all times after delivery until property in Goods passes in accordance with clause 8.2.
8.2 Notwithstanding any other provision of this Agreement the property in Goods shall not pass to Customer until DORMA has received in cash or cleared funds
payment in full of all Charges due in respect of the Goods.
8.3 Until such time as the property in Goods passes to Customer, Customer shall hold the Goods as DORMA's fiduciary agent and bailee and shall keep the Goods separate from those of Customer and third parties and properly stored, protected, insured and identified as DORMA's property but Customer shall be entitled to resell or use the Goods in the ordinary course of its business.
8.4 Until such time as the property in Goods passes to Customer, DORMA may at any time require Customer to deliver up the Goods to DORMA and if Customer fails to do so forthwith enter on any premises of Customer or any third party where Goods are stored and repossess the Goods.
8.5 Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any Goods which remain the property of DORMA but if Customer does so all moneys owing by Customer to DORMA shall (without limiting any other right or remedy of DORMA) forthwith become due and payable.
9. Terms of Payment
9.1 Sums due from Customer to DORMA shall be paid by Customer no later than thirty (30) days after the date of an invoice from DORMA.
9.2 All payments hereunder shall be made in pounds sterling (£) unless otherwise specified by DORMA. The Charges and other sums are expressed exclusive of all duties and taxes including without limitation value added tax which shall be paid by Customer at the rate and in the manner provided by the law governing this Agreement.
9.3 Any Charges that are periodic in nature may be subject to review by DORMA upon written notice.
9.4 In the event that Customer fails to pay any sum by the due date DORMA reserves the right to charge interest on the outstanding amount in accordance with the Late Payment of Commercial Debts Regulations 2002.
9.5 Notwithstanding clause 9.4, if Customer fails to pay any sum by the due date DORMA may at its option, and without prejudice to any other remedy at any time after payment has become due, terminate or suspend performance of this Agreement.
9.6 Customer may at any time after delivery request that unwanted Goods are returned to DORMA. Any such request is subject to acceptance by DORMA and in the event of acceptance of such a request DORMA shall be entitled to retain a minimum of 25% of the Charges paid by the Customer in respect of the returned Goods.
9.7 DORMA reserves the right to charge Customer at standard rates for any goods and/ or services supplied by DORMA which are necessary due to any act or omission of Customer or breach of this Agreement by Customer.
10.1 Customer undertakes not to export the whole or any part of Goods from the United Kingdom without obtaining all necessary prior consents and licences from the appropriate authorities.
11.1 DORMA warrants that:
11.1.1 Goods shall be free of material defects upon delivery; and
11.1.2 Services shall be supplied with reasonable skill and care and by appropriately qualified persons.
11.2 In the event that Customer discovers a material defect in Goods or a breach of clause 11.1.2 in respect of Services and notifies DORMA of the material defect or breach within ten (10) days of delivery of Goods and/ or performance of Services (as applicable) DORMA shall at its sole option either repair or replace the Goods or repeat the Services or refund the Charges or an equitable proportion of the Charges (as applicable) provided that (in DORMA's reasonable opinion) the defect or breach is not due to any act or omission of Customer or any third party.
11.3 Save as expressly specified in this Agreement, all terms, conditions, warranties, representations, or guarantees whether express or implied relating to the performance, quality or fitness for purpose of any part of Goods and/ or Services are hereby excluded. For the avoidance of doubt, where Goods are sold to a Customer dealing as a consumer within the meaning of the Unfair Contract Terms Act 1977 the statutory rights of Customer are not affected by this Agreement.
12.1 Neither party excludes or limits liability to the other party for death or personal injury or any breach of any obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982.
12.2 The liability of DORMA in respect of breaches of this Agreement or of any other duty to Customer or for negligence in connection with the subject matter of this Agreement:
12.2.1 for all or any such matters arising before the date of this Agreement or during the initial period of 12 months following that date ("Initial Period") shall be limited to the aggregate annual value of Charges due to DORMA hereunder in the Initial Period;
12.2.2 for all or any such matters arising in any further period of 12 months after the Initial Period shall be limited to the aggregate annual value of Charges due to DORMA hereunder in that further period provided that the aggregate liability of DORMA for all matters referred to in clauses 12.2.1 and 12.2.2 whenever arising shall be limited to twice the value of Charges paid to DORMA hereunder in the Initial Period.
12.3 Subject always to clause 12.1, in no event shall either party be liable to the other for any of the following however and whenever arising:
12.3.1 loss of profits, business, revenue, data, goodwill or anticipated savings; and/ or
12.3.2 indirect or consequential loss or damage.
12.4 Each party agrees that the limitations of liability contained in this clause 12 have been agreed between the parties in the context of the other provisions of this Agreement and satisfy the requirement of reasonableness within the meaning of sub-section 2(2) and Section 11 of the Unfair Contract Terms Act 1977.
12.5 The parties expressly agree that should any limitation or provision contained in this Agreement be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if any party thereby becomes liable for loss or damage which would otherwise have been excluded such liability shall be subject to the other limitations and provisions set out herein.
13. IP Rights
13.1 Customer acknowledges that (save as to any Customer trade marks, trade names and logos) any and all IP Rights subsisting in or used in connection with the Documentation, Goods and/ or Services shall be and shall remain the sole property of DORMA and Customer shall not at any time dispute such ownership.
13.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, Customer acknowledges that the same shall be the property of DORMA unless otherwise agreed in writing by DORMA.
13.3 Customer warrants that it is the owner or licensee of all IP Rights which Customer requires DORMA to use in fulfilling an Order and shall indemnify DORMA fully against all liabilities, costs and expenses which DORMA may incur as a result of preparations made or work undertaken in accordance with such Order involving infringement of any third party IP Rights.
14. Confidential Information
14.1 DORMA and Customer shall use all reasonable endeavours to keep
confidential (and ensure that their employees and agents keep confidential) all
information received by them relating to any part of the business and affairs of the other party provided that these obligations shall not apply to information which is:
14.1.1 or becomes publicly known through no wrongful act of the party concerned; or
14.1.2 required to be disclosed by an order of law or other binding authority; or
14.1.3 disclosed to any adviser of either party bound by a professional duty of
15. Force Majeure
15.1 DORMA will not be under any liability to Customer for, damage, delay or any other matters of that nature whatsoever arising out of war, rebellion, civil commotion, strikes, lock outs and industrial disputes, fire, explosion, earthquake, acts of God, flood, drought, or bad weather or the requisitioning or other act or order by any Government department, council or other constituted body ("Force Majeure"), provided always that DORMA will use all reasonable endeavours (but without an obligation to incur cost) to minimise the period of disruption caused by the Force Majeure.
16. Termination and Suspension
16.1 Either party may forthwith terminate this Agreement by written notice to the other if any of the following events occur:
16.1.1 if either party commits any material breach of the terms or conditions of this Agreement and fails to remedy such material breach within thirty (30) days after receiving written notice identifying the breach and requiring remedy;
16.1.2 if either party becomes bankrupt or compounds or makes any arrangement with or for the benefit of its creditors or (being a company) enters into compulsory or voluntary liquidation or amalgamation (other than for the purpose of a bone fide reconstruction or amalgamation without insolvency) or has a receiver or manager appointed of the whole or substantially the whole of its undertakings or if the other party is unable to pay its debts in accordance with the law relating to this Agreement; and
16.1.3 a Force Majeure continues for a period of more than 3 months.
16.2 Without prejudice to any right of termination either party shall be entitled by immediate notice to suspend performance of some or all of its obligations under this Agreement upon the occurrence of circumstances specified in clause 16.1, and the Agreement will in any event be deemed suspended in the event of Force Majeure.
16.3 Termination or suspension of this Agreement will be without prejudice to any accrued rights or obligations of either party.
17. Data Protection
17.1 Each party warrants to the other that it shall, in connection with this Agreement, comply with the provisions of the Data Protection Act 1998 and shall indemnify the other party against any reasonable losses, liabilities and costs which it suffers or incurs as a result of a breach of this clause.
17.2 DORMA processes all personal information ("Information") as defined in the Data Protection Act 1998 ("DPA") in accordance with applicable data protection law.
17.3 By submitting Information to DORMA Customer (and each individual as
applicable) consents to such Information being processed by DORMA in
accordance with this clause 17. If Information changes Customer is responsible for informing DORMA of the change so that DORMA can update its records.
17.4 DORMA will use Information as follows:
17.4.1 To supply Goods and Services as requested by Customer including such transfer of Information to employees, agents and third parties as required for this purpose.
17.4.2 For DORMA's internal administration purposes.
17.4.3 To market DORMA goods and services to Customer (and each individual as applicable).
DORMA reserves the right to:
17.4.4 Transfer ownership of DORMA business assets (which include Information) on sale or merger of the whole or part of the DORMA business.
17.4.5 Process Information as required to obtain legal advice, comply with legal requirements, protect DORMA's rights and property and the safety of DORMA employees, clients, suppliers and others.
17.4.6 Transfer Information outside the European Economic Area to DORMA group companies as is necessary for the purposes listed in this clause 17.
18.1 No amendment to this Agreement shall be binding unless made in writing and signed by duly authorised representatives of both parties.
18.2 Customer shall not assign, charge or otherwise transfer to a third party any of its rights or obligations hereunder without the prior written consent of DORMA.
18.3 No waiver of any breach of the other party's obligations hereunder shall
represent a waiver of the waiving party's rights hereunder or of any subsequent breach.
18.4 The parties respectively shall and shall procure that any other necessary party shall execute and/ or do all such documents, acts and things (as applicable) as may reasonably be required on or subsequent to completion of this Agreement for
securing each of the obligations of the parties to this Agreement.
18.5 None of the provisions of this Agreement are intended to or will operate to confer any benefit pursuant to the Contracts (Rights of Third Parties) Act 1999 on a person who is not named as a party to this Agreement.
18.6 Any notice to effect suspension or termination of the whole or any part of this Agreement:
(i) shall be made in writing and either delivered personally or sent by first class recorded delivery to Customer's address as set out in this Agreement or such other address as Customer may specify by notice in writing to DORMA;
(ii) in the absence of evidence of earlier receipt, notice shall be deemed to have been duly given:
(a) if delivered personally, when left at the address referred to in 18.6(i); or
(b) if sent by first class recorded delivery, at the time recorded by the delivery agent.
18.7 For the avoidance of doubt electronic mail shall be deemed to be "writing" for the purpose of this Agreement but this shall not prejudice the express requirements for delivery of notices under clause 18.6.
18.8 If any provision of this Agreement is held to be void or unenforceable in whole or in part, this Agreement shall continue to be valid as to the other provisions
thereof and the remainder of the affected provision.
18.9 This Agreement shall be binding on and shall continue for the benefit of the permitted successors and permitted assigns (as the case may be) of each of the parties hereto.
18.10 All provisions of this Agreement shall so far as they are capable of being performed and observed continue in full force and effect notwithstanding any expiry or earlier termination.
19. Applicable Law
19.1 This Agreement shall be governed by and construed in accordance with English law and each party to this Agreement submits to the exclusive jurisdiction of the English courts.
In addition to clauses 1 - 19 inclusive of these Supply Terms the following clauses 20 - 22 inclusive of these Supply Terms apply to both the supply of Maintenance Services and the supply of Project Services.
20. Customer Facilities
20.1 Upon a date to be notified by DORMA, DORMA may inspect Customer Facilities in accordance with the terms of this Agreement.
20.2 DORMA may indicate to Customer in writing whether Customer Facilities are suitable for the purpose of DORMA supplying Goods and/ or Services and if Customer Facilities are not suitable the necessary steps to be taken by Customer (at Customer's expense) to make Customer Facilities suitable.
20.3 Customer shall use reasonable endeavours to complete any work notified by DORMA in accordance with times and dates indicated by DORMA and otherwise in order to reflect any DORMA requirements.
20.4 DORMA may perform repeat inspections (and the procedure outlined in this clause 20) until DORMA is satisfied that Customer Facilities are suitable for the
purpose of DORMA supplying Goods and/ or Services.
21. Customer Obligations
21.1 Customer shall (in each case insofar as is reasonably necessary to enable DORMA to effectively carry out Maintenance Services and/ or Project Services):
21.1.1 make available to DORMA free of charge such Customer Facilities as are requested by DORMA;
21.1.2 ensure that its employees or other independent contractors co-operate
reasonably with DORMA and its employees, agents or independent contractors;
21.1.3 promptly furnish DORMA with such information and documents as are requested by DORMA;
21.1.4 take all reasonable steps to ensure the health and safety of DORMA
employees, agents or independent contractors subject to such employees, agents or independent contractors complying with any Customer health and safety policy notified in writing by Customer; and
21.1.5 ensure that any IP Rights which DORMA is required to use or modify in order to supply Maintenance Services are either proprietary to Customer or properly licensed to Customer and that DORMA is properly authorised to use or modify the IP Rights. Customer shall indemnify and hold harmless DORMA in respect of any costs, expenses, damages, third party actions or claims arising out of any actual or alleged infringement of third party IP Rights by DORMA or Customer.
21.2 Customer shall be solely responsible for the security of all Customer Facilities.
22. Change Control
22.1 If either party identifies a requirement for a change (including without limitation a change to Goods and/ or Services and/ or Charges) it shall indicate its
requirements to the other party.
22.2 If a Change Request is indicated by DORMA, then DORMA shall state the effect such a change shall have upon the Goods and/ or Services and/ or Charges.
22.3 If a Change Request is indicated by Customer, the indication will constitute a request to DORMA to confirm the effect such a change shall have upon the Goods and/ or Services and/ or Charges. DORMA shall use reasonable endeavours to
confirm the necessary details within 30 days from indication of the Change Request.
22.4 The parties will then decide whether or not to implement the change. If the change is implemented, the amended goods and/ or services and/ or charges shall then become the Goods and/ or Services and/ or Charges and be deemed
incorporated into this Agreement.
In addition to clauses 1 - 22 inclusive of these Supply Terms the following clauses 23 - 25 inclusive of these Supply Terms apply to the supply of Maintenance Services.
23. Customer's Obligations
23.1 Customer shall (in each case insofar as is reasonably necessary to enable DORMA to effectively carry out Maintenance Services):
23.1.1 ensure that adequate electrical power is supplied to all Equipment;
23.1.2 store, operate and maintain Equipment in accordance with Documentation and/ or any instructions confirmed in writing by DORMA;
23.1.3 keep the external surfaces of Equipment clean and in good condition;
23.1.4 ensure that only competent and trained persons operate Equipment;
23.1.5 not make any addition, modification or adjustment to Equipment without the prior written consent of DORMA;
23.1.6 use only accessories and consumables approved by the manufacturer of Equipment or by DORMA in writing (DORMA's approval not to be unreasonably withheld); and
23.1.7 ensure that only DORMA's personnel are permitted to maintain, service or carry out adjustments to Equipment.
23.2 Customer warrants that Equipment is in good condition and fully operational at the date of this Agreement.
24. Replaced Equipment
24.1 All replaced Equipment installed by DORMA in the course of the supply of Maintenance Services ("Replaced Equipment") shall be chargeable unless otherwise confirmed by DORMA. Replaced Equipment provided other than in the course of the supply of Maintenance Services shall be paid for by Customer.
24.2 Equipment removed shall become the property of DORMA and the Replaced Equipment shall become the property of Customer upon installation and subject to payment by the Customer of any due Charges.
24.3 DORMA shall not supply as part of the Maintenance Services any item considered to be a consumable (in DORMA's discretion).
25.1 Maintenance Services does not include any maintenance made necessary by:
25.1.1 fault or defect occurring in any equipment other than the Equipment;
25.1.2 use of Equipment outside Proper Use;
25.1.3 accident, fault, act or omission of Customer and/ or any third party;
25.1.4 use of Equipment in excess of any maximum usage specified by the manufacturer;
25.1.5 failure of electrical power, air conditioning, humidity or other environmental controls;
25.1.7 electrical work external to any Equipment;
25.1.8 damage by vandalism, fire, water or adverse weather conditions;
25.1.9 movement or relocation of Equipment not performed by or on behalf of DORMA;
25.1.10 breach of the Customer obligations in this Agreement;
25.1.11 removal of the whole or any part of Equipment;
25.1.12 goods, accessories, attachments, machines, systems or other devices not referred to in Documentation or approved in writing by DORMA;
25.1.13 maintenance rendered more difficult because of any changes, alterations, additions, modifications or variations to Customer Facilities; or
25.1.14 diagnosis and/ or rectification of problems not associated with Equipment.
25.2 DORMA reserves the right to withdraw Maintenance Services in respect of Equipment (or any part of Equipment) if that Equipment is moved, repaired or modified other than by DORMA or with DORMA's prior written consent. Maintenance Services on such Equipment shall resume as soon as Maintenance Services acceptability tests have been carried out at the expense of Customer and satisfied in DORMA's discretion.