Terms & Conditions

Terms & Conditions

1. DEFINITIONS

In these terms and conditions (the “Terms”):

• “Company” shall be a reference to Unatrac Limited, a company registered in England with company number 03428184 whose registered office is 252 Bath Road, Slough, Berkshire, SL1 4DX, UK;
• “Contract” shall be a reference to a contract for the sale and purchase of Products between the Company and the Customer formed by the Company’s acceptance of an Order in accordance with Clause 4;
• “Customer” shall be a reference to the purchaser of any Product from the Company;
• “Order” shall be a reference to an order placed by the Customer for the supply of Products;
• “Product(s)” shall be a reference to any item(s) supplied by the Company to the Customer and shall include without limitation, New Products and Used Products; 
• “New Products” shall be a reference to Products in new condition manufactured by a third party; and
• “Used Products” shall be a reference to second-hand Products.

 

2. APPLICATION OF CONDITIONS

 

• The placing by the Customer of an Order under and in accordance with these Terms, and acceptance thereof by the Company in accordance with Clause 4(a) shall create a Contract, subject to these Terms.

 

(b)             Subject to Clauses 4(a) and 21, any Contract for the supply of Products shall be on these Terms to the exclusion of any other terms and conditions, including any terms and conditions which the Customer purports to apply under any purchase order, confirmation order or other document.  The terms contained in any such document sent to the Company shall have no effect.

 

3. QUOTATIONS

Any quotation made by the Company shall constitute an invitation to treat and not an offer. The Company may withdraw or amend any quotation at any time.  The Company will endeavour to hold the terms of any quotation given by it for a period of 30 days or for such other period as is specified in writing; but shall have no obligation or liability to do so.

4. FORMATION OF CONTRACT

(a)             The Company may, at its discretion, decline any Order placed by the Customer.  No Contract shall come into existence until the Customer’s Order has been accepted in writing by the Company, or until Products described in an Order have been dispatched to the Customer, whichever event occurs sooner. 

 

• Any Order must be accompanied by sufficient information to enable the Company to proceed with the Order forthwith and thereafter any modification shall be subject to prior agreement by the Company in writing.  All verbal Orders and amendments to Orders must be confirmed by the Customer in writing.  An Order shall contain an order number, a date, the Company’s Quotation reference, and a description of the Products and their respective reference numbers.

 

• These Terms apply to the exclusion of any other terms that the Customer seeks to impose or incorporate (whether that be through any Order or purchase confirmation submitted by or on behalf of the Customer, or any other written or oral communication between the Customer and the Company), or which are implied by trade, custom, practice or course of dealing.

 

5. PRICES

The prices for Products shall be as set out in Orders’ accepted by the Company in accordance with Clause 4(a), provided that such prices may be subject to alteration by the Company from time to time without prior notice to reflect any increase in cost to the Company of supplying such Products to the Customer.  All sums payable under these Terms or any Contract are exclusive of Value Added Tax (if and to the extent payable).  Any Value Added Tax, sales taxes, or any other applicable taxes or duties, whether government, local or otherwise, which the Company may be required to pay or collect shall be added to the sale price and paid by the Customer unless a valid exemption certificate is furnished.

6. CURRENCY

All prices and payments hereunder shall be in US Dollars, unless otherwise agreed in a Contract.

7. PAYMENT

(a)             The Company offers a variety of payment terms. Specific terms may be agreed with the Customer during negotiations and will be confirmed in writing. Provided that if no such terms are agreed, invoices from the Company shall be due for payment prior to release of the Products.  Payments hereunder shall be made by direct bank transfer to Company’s nominated bank account or by such other means as may be agreed between the parties in the Contract.

 (b)            In the event of the Customer failing to effect full payment by the due date, the Company shall be entitled, without prejudice to any other rights available to it, to be paid interest on any outstanding balance at an annual rate of 5% above Bank of England base lending rate from time to time in force, calculated on a weekly basis, and to discontinue forthwith the supply of any further Products or services whether forming part of these Terms or any other contract. In such circumstances the Company shall be under no liability in respect of, or arising out of, or in connection with such discontinuance, and the Customer shall be liable to the Company for any costs, claims, damages or loss suffered by the Company by reason of, or in connection with such failure to pay by the Customer.

 

(c)             All sums payable for the Products shall be payable in full without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.

(d)            The Customer acknowledges that any and all deposits paid to the Company are paid on a non-refundable basis, unless otherwise expressly agreed in writing by the Company. The Customer agrees that any such agreed refund by the Company of an amount deposited in accordance with these Terms shall be satisfied by way of a credit note issued to the Customer by the Company, which may be redeemed against future orders of goods or services from the Company.

8. DISPATCH / DELIVERY

 

• Any time or date given by the Company in respect of dispatch delivery shall be deemed an estimate only, and the Company shall not be liable for any loss or damage suffered by the Customer as a consequence of delays.  Any such period for dispatch delivery shall in any event only run from the date of acceptance of the relevant Order in accordance with Clause 4(a). The Customer agrees that unless expressly agreed in writing, time shall not be of the essence.

 

• The Company shall use reasonable commercial endeavor to supply the Product by the time or date given by the Company in respect of dispatch delivery at the location agreed by the parties, at any time during the Customer’s normal business hours after the Company notifies the Customer that the products are ready.

 

• Delivery shall take place at the place nominated by the Company, unless otherwise agreed in the Contract. Any reference to Incoterms shall be a reference to the most current version of Incoterms at the time of order. The Customer shall inspect all New Product promptly upon delivery and shall notify the Company promptly in writing if it considers there to be any material defects in material or workmanship. If the Customer has not notified the Company of any such defect within five (5) business days of the date of acceptance (receipt), the Customer shall be deemed to have accepted the Product.

 

• The Company shall not be liable to the Customer for short shipment claims, unless notification of such claims are received by the Company in writing within the earlier of 7 days of delivery of the relevant Products in accordance with Clause 8(c) or 21 days of arrival of the delivering vessel/aircraft at a destination port. The customer shall remain liable to the Company for the full purchase price of the Products until such time as the Company has notified the Customer of its acceptance of such short shipment claim. The Company reserves the right to reject short shipment claims at its own discretion.

 

• The Company shall ensure that:

 

(i)    The Products are properly packed according to the manufacturer’s requirements or as otherwise stated in the Contract;

 

 

• If the Company fails to deliver the product, its liability shall (subject to Clause 13(a)) be limited to the costs and expenses incurred by the Customer in obtaining replacement product of similar description and quality in the cheapest market available, less the price of the Product. The Company shall not be liable for any delay in the delivery of the Product that is caused by the failure of the Customer to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

 

• The Company shall not deliver the product in instalments without the Customer’s prior written consent. Where it is agreed that Product may be delivered by instalments, such instalments shall be invoiced and paid separately. However, failure by the Company to deliver any one instalment on time or at all, or any defect in an instalment, shall not entitle the Customer to cancel any other installment.

 

• If the Customer is unable to accept delivery of the Product at the delivery location within five (5) business days of the Company notifying the Customer that the Product is ready, then, except where this is caused by a force majeure event or the Company’s failure to comply with an obligation under the Contract: (a) delivery of the Product shall be deemed to have been completed at 9:00 am on the fifth (5th) business day after the day the Company notified the Customer that the Product is ready; and (b) the Company shall store the Product until the delivery takes place and the Customer shall be liable for all related costs and expenses incurred by the Supplier, including but not limited to, insurance, storage and finance charges.  

 

• If, ninety (90) days after the day on which the Company notified the Customer that the Product was ready for delivery, the Customer has not taken delivery of the Product, the Company may resell or otherwise dispose of part or all of the Product and, after deducting all reasonable costs incurred by the Company in connection with the storage and sale of the Product, account to the Customer for any excess over the price of the Product or charge the Customer for any shortfall below the price of the Product.

 

• The Company shall not be liable to the Customer for short shipment claims unless notification in writing of such claim is received by it within five (5) business days of delivery of the Product. The Customer shall remain liable for the full cost of the Product until such time as the Company notifies the Customer of its acceptance of the short shipment claim. The Company reserves the right to reject such claims at its sole discretion. 

 

9. RETENTION OF TITLE AND PASSING OF RISK

(a)             Unless otherwise agreed by the Company in writing, risk of loss or damage to the Products shall pass to the Customer on delivery of the Products in accordance with Clause 8(c).

 (b)            Notwithstanding delivery and the passing of risk in any Products, the Products shall remain the sole and absolute property of the Company as legal and equitable owner until the Company has received in full (in cash or cleared funds) all sums due to it under these Terms, at which point title to the Products passes unconditionally and irrevocably to the Customer.

 (c)            The Customer acknowledges that it is in possession of Products solely as bailee for the Company until such time as the Company has received in full (in cash or cleared funds) all sums due to it under these Terms and shall ensure they remain clearly identifiable at all times as the Company’s property, shall not remove, deface or obscure any mark identifying the Company’s ownership of the Products, and shall maintain them in satisfactory condition and keep them insured against all risks for their full price from the date of delivery (with the Company’s interest in such Products to be expressly noted on the policy of insurance to be obtained by the Customer). The Products are and will remain the Company’s property regardless of their use or manner of attachment to immovable property and the Company reserves the right, title and interest in the Products until all amounts owing to the Company have been irrevocably paid in full. Until completion of all payments in respect of the Products, the Customer shall give the Company such information relating to the Products as the Company may require from time to time. Upon completion of all payments in respect of the Products, the Company will transfer title and ownership of the Products through a bill of sale.   

 (d)            The Company reserves the immediate right of repossession of any Products to which the Company has retained title hereunder which shall be exercisable at any time after delivery of the Products (without being liable for any damage thereby occasioned), which shall be exercisable at any time after delivery of the Products, following a material breach of the Contract by the Customer that has been notified by the Company to the Customer in writing following which the Company may at its sole discretion remotely disable the applicable unit(s) of the Products.

(e)             For the purpose of exercising its rights under Clause 9(d), the Customer hereby grants, and shall procure that any third party which holds such Products shall grant, an irrevocable right and license to the Company’s employees, agents and contractors, to enter upon all or any premises where Products are stored with at least five (5) business days written notice for the purpose of inspecting or repossessing such Products, including the separation or disassembly of the Products from any movable or immovable property to which they might be attached.

 (f)             Until such time as all sums owing to the Company under these Terms have been received by the Company (in cash or in cleared funds), the Customer shall be liable for and shall indemnify the Company against all loss or damage to the Products following delivery in accordance with Clause 8(c) from whatever cause.

 (g)            Following delivery of the Product, but prior to full payment being made in respect of such Products, the Customer shall be entitled to process Products in such fashion as the Customer may wish and or incorporate them in, or with, any other goods, provided that such action does not adversely affect the Company’s right to repossess such Products in accordance with Clause 9(d), and that such action does not affect title to the product.

(h)            If by reason of instructions or lack of instructions from the Customer or any other act or omission of the Customer, the dispatch of the Products in accordance with these Terms is delayed, risk of loss or damage to the Products shall pass to the Customer at the time such delivery was to have taken place. The Customer shall be liable to pay all costs incurred by the Company, including but not limited to storage charges, which arise as a result of the delay. The Customer shall further be liable to meet its payment obligations under these Terms notwithstanding any delay in delivery of the Products.

 

• Until the Company has received in full (in cash or cleared funds) all sums due to it for the products, the Customer shall, at the request of the Company, grant to the Company a continuing first ranking security interest over the Customer’s interest in the Products by executing a charge with respect to such Products, in a form satisfactory to the Company. The Customer shall, at its expense, do any and all actions and execute, acknowledge, deliver, file, register and record such charge as and when requested by the Company and any documents that the Company deems desirable to protect the security interest in the Products and the rights of the Company under the Contract as evidenced by the charge.

 

10. SPECIFICATIONS

All descriptive and technical specifications, drawings, catalogues, illustrations and particulars and weights and dimensions submitted by the Company with a quotation are approximate only and none of these shall form part of any Contract.  In any event, figures for performance of the Product vary according to the nature of the site upon which the Product is being used, and the circumstances of use.  The Company shall have no responsibility and bear no liability if the Product is not fit for the Customer’s purpose.  In any event, figures for performance of Product man vary according to the nature of the site upon which they are being used, and the circumstances of use.

11. CANCELLATION OF ORDERS AND CONTRACTS

The parties may from time to time agree cancellation charges which shall be payable upon the cancellation of a Contract (or any part thereof). In the event of the Customer wishing to cancel an Order or Contract (or a part thereof), it shall give the Company written notice of such proposed cancellation.  Unless otherwise agreed in writing, the Company may at its sole discretion accept or reject the request from the Customer to cancel an Order or Contract.  In the event of a request to cancel being accepted by the Company, the Company reserves the right to apply a cancellation charge (if applicable), and upon the Customers acceptance of the cancellation charge (if applicable) the Company would then confirm in writing the cancellation of the Order or Contract, and any and all terms and charges which, unless otherwise agreed in a Contract, shall be payable by the Customer within thirty (30) days of receipt of the Company’s invoice.

12. WARRANTY

 

• The Company guarantees that in the event of a defect occurring in any New Products supplied by it, the Company will arrange for an inspection to be carried out where the Company, at its sole discretion, considers such inspection to be necessary. Subject to the provisions of Clauses 12(d), (e) and (f) below, in the event of a defect occurring in any New Products supplied by the Company is in its reasonable opinion due faulty design, workmanship or the use of defective materials, it shall either repair or (at its sole discretion) replace the same. 

 (b)            The Company undertakes to use reasonable endeavors to procure the assignment to the Customer of any manufacturer’s standard warranty terms (to the extent that such terms exist and are assignable to the Customer) in respect of New Products and the Customer acknowledges that under no circumstances shall the Company provide any warranty in respect of any Product other than those which it is itself in receipt of (and which remain in force) from the original equipment manufacturer.

(c)             The Customer acknowledges that all Used Products are supplied by the Company on an “as is” basis without warranty, and that such sales of such Used Products are based on the condition of the Products at the time of sale.  The Customer shall inspect all Used Products prior to their purchase and shall rely solely upon its own assessment of the Used Product’s condition, quality, fitness for any purpose and compliance with statutory requirements. 

 (d)            The Company’s obligations in sub-clauses (a) and (b) above are subject to the following:

 (i)      The Customer giving the Company immediate written notification on discovery of the alleged defect and full details thereof;

(ii)      The Product being defective by reason of faulty workmanship or the use of defective materials;

(iii)     The Customer returning such Products (or any part thereof) to the Company’s nominated delivery address if so required by the Company. The Customer is responsible for all costs associated with the transportation of such Products. Such returned Products shall be adequately packed for carriage and shall be clearly marked for identification with the name and address of the Customer; and

(iv)     The Customer having properly maintained and operated such Products and complied with all service requirements, manuals and recommendations of the Company or the manufacturer (where applicable).

 (e)            For the avoidance of doubt, the Company shall not be liable in respect of any defect arising out of or in connection with misuse, neglect, lack of adequate daily operating maintenance, willful or accidental damage, or normal wear and tear, as determined by the Company at its sole discretion.  Where any inspection is carried out in accordance with sub-clause (a) hereof or where any Product or part thereof is returned to the Company but the Company at its sole discretion determines that it or the manufacturer is not responsible for any repair or replacement, the Company will be entitled to charge for such inspection work and will notify the Customer in writing accordingly after the expiry of thirty (30) days from the date of the letter of notification, and the Company may at its sole option either return the part or Product to the Customer, or dispose of it and utilise the proceeds of sale in extinction of any debt then due to the Company from the Customer

 (f)             The Company’s warranty obligations hereunder shall exclude all consumable items, including but not limited to oil, grease, fuel and filters, which will be provided by the customer or purchased by the Customer at the Company’s then current selling price.

 (g)            Except as otherwise agreed in writing by the Company, all work in respect of the Company’s obligations under this Clause and in respect of any commissioning, installation, repair, maintenance, inspection or similar work carried out on the Products or in connection with a sale of the Products shall be performed on the basis of the Company’s Standard Terms and Conditions of Servicing from time to time applicable, and all such work shall be performed during the normal working hours of the Company.  Where the Customer requires the work to be performed outside the said hours, the Customer will pay any increased labour costs so incurred.

 (h)            Defects in either the quality or quantity of any consignment of the Products shall not be a ground for cancellation of the remainder of the Order or of any other Order for the Products.

 (i)             The Company accepts responsibility for all technical advice given by its officers or servants for which a specific charge is made (subject to the Company’s Standard Terms and Conditions of Servicing from time to time applicable).  Technical advice made available to Customers without charge is given with all reasonable care but without liability on the part of the Company.

(j)              These Terms set out the full extent of the parties' obligations and liabilities arising out of or in connection with the purchase of Products by the Customer and is its sole remedy in respect thereof and it agrees there are no conditions, warranties, representations or terms, express or implied, that are binding on the parties except as specifically stated in these Terms or in any Contract.  Any condition or warranty, representation or term which might otherwise be implied or incorporated in these Terms, a Contract, or any collateral contract, whether by statute, common law or otherwise, is hereby expressly excluded.

 (k)            Subject to Clause 13 (b) below, the Company’s liability in respect of defective Products shall be limited to the liability accepted in sub-clauses (a)-(j) above.

13. LIABILITY

(a)             Subject to Clause 13(b), the Company’s maximum aggregate liability to the Consumer in respect of any Contract or any collateral contract, whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise shall in no circumstances exceed the price payable pursuant to such Contract.

 

(b)             Nothing in this Clause 13 or otherwise in these Terms or in any Contract shall exclude or in any way limit either party’s liability for fraud or any other liability to the extent that the same may not be excluded or limited as a matter of law.

 (c)             The Company shall not be liable for any failure in the performance of its obligations under these Terms or any Contract, to the extent that such failure results directly from a failure by the Customer to provide the Company within a reasonable time, any information reasonably requested by the Company for the performance of its obligations hereunder.

 (d)            The Company shall in no circumstances be liable under or in connection with these Terms, a Contract, or any collateral contract for any loss of income, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of business, loss of anticipated savings, loss of, damage to or corruption of data, or for any indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.

 (e)            The Customer shall be liable for and shall indemnify the Company against any and all claims, actions, liabilities, losses, damages and expenses (including legal expenses) incurred by the Company which arise out of or in connection with, directly or indirectly, the Customer’s performance, purported performance or non-performance under these Terms or any Contract including without limitation any losses or expenses arising out of any third party demand, claim or action (including any claim alleging infringement of third party rights) or any misrepresentation, negligence, fraud, willful misconduct or breach of statutory duty of the Customer or its employees, agents or contractors.

 (f)             The Customer shall effect and maintain in respect of each Contract insurance in respect of its obligations and liabilities hereunder, including without limitation policies of public liability and product liability.  Such policy or policies shall be non-cancellable and not subject to any reduction in policy or policy amount except upon terms reasonably acceptable to the Company.  The Customer shall provide written evidence of such coverage to the Company at the Company’s request.

14. REPRESENTATIONS AND WARRANTIES

(a)            The Company warrants as at the date of the Contract, the date of the transfer of title to the Product and the date of performance of any services with respect thereto that:

 

• It has been incorporated or formed in accordance with the laws of its place of incorporation or formation, is validly existing under those laws and has power and authority to own the Product;

 

• It has power to enter into the Contract, to comply with its obligations under it and exercise its rights under it;

 

• It has in full force and effect all authorizations necessary for it to enter into this document, to comply with its obligations and exercise its rights under it and to allow them to be enforced;

 

• Its obligations under these Terms and the Contract are valid and binding and are enforceable against it in accordance with their terms;

 

• It is not insolvent;

 

• It will be the sole legal and beneficial owner of and have good title to the Product immediately prior to the transfer of title to the Product to the Customer under the Contract; and

 

• Upon the transfer of title to the Product, the Product shall be free from any adverse claims, encumbrance, third party interest and any other claims that may affect the interest of the Customer and the Company undertakes to fully indemnify the Customer in the event of any third-party claims over ownership or other claims in respect of the Product.

 

(viii)         The Customer acknowledges that under no circumstances shall the Supplier provide any warranty in respect of any Goods supplied under this Contract other than those which the Supplier is itself in receipt of (and which remain in force) from the original equipment manufacturer.

 

(b)            The Customer represents and warrants to the Company that:

 

(i)             The Contract shall constitutes its valid obligation, legally binding upon the Customer and enforceable according to its terms;

 

(ii)            Where the Product is supplied in credit terms, the Customer will use the Product for business purposes only and not for personal, family or household use unless specified in the Contract;

 

(iii)           The Customer must promptly pay all taxes, assessments, fees and other charges arising from the Contract or the Product, except for the Company’s income taxes; 

 

(iv)           Where the Product is supplied in credit terms, the Customer must provide all financial information and reporting that the Company may reasonably require, including, information requested for an annual review of the Customer by the Company;

 

(v)            All credit, financial and other information submitted to the Company in connection with the Contract is and will be true, correct and complete;

 

(vi)           The Customer will not change its name, principal place of business or primary residence (including any merger, consolidation, or restructure) without prior written notice to the Supplier;

 

(vii)          The Customer must not cede, assign the Contract or any right or obligation under it without the Company’s prior written consent;

 

(viii)         The Company may share any of the Customer’s information provided by the Customer or gathered by the Company with any affiliate of the Company that has or may extend credit to the Customer, and with any assignee;

 

(ix)           The Customer will defend at its own expense any action, proceeding or claim affecting or arising from the Product;

 

(x)            The Customer is able to pay its debts as they fall due, is not in breach of the payment terms of any existing contract or arrangement and no order has been made or petition presented, meeting convened, or resolution passed, for the winding up of the Customer nor has any distress, execution or other process been levied in respect of the Customer’s business or assets;

 

(xi)           Where the Product is supplied in credit terms, the Customer shall be responsible for keeping the Product in good working order and condition at all times and shall follow all manufacturer’s recommendations for operating, servicing, maintenance and repair of the Product; and

 

(xii)          No administrative or other receiver has been appointed by any person over the business or assets of the Customer or any part thereof, nor has any order been made by or petition presented to any court for the appointment of an administrator or other analogous insolvency professional in respect of the Customer. No documents have been filed with any court for the appointment of such an administrator or other analogous insolvency professional and nor has any notice of intention to appoint such an administrator been given by any such person.

 

(c)            In Clauses 14(d) – (f) below, the terms "personal data", "process" and "processor" shall have the meanings given in the applicable Data Protection Laws, being all laws in relation to the protection of personal data including the Data Protection Act 2018, the General Data Protection Regulation (Regulation 2016/679) ("GDPR") and applicable data protection domestic legislation supplementing it in the United Kingdom and any applicable member state of the European Union, and their equivalent laws applicable to the Supplier and the Customer under this Agreement.

 

(d)            Each party shall:

 

(i)             at all times during the term of the Contract, comply with the Data Protection Laws; and

 

(ii)            to the extent applicable under the Data Protection Laws, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under the Contract.

 

(e)            In relation to all personal data provided or made available to the Company by or on behalf of Customer and/or any of its group members, the Company:

 

(i)             acknowledges (and the Customer agrees) that, as between the parties, it acts only (other than in the circumstances specified in clause 14(g) below) as a processor;

 

(ii)            shall only process such personal data in accordance with the Contract and Customer's instructions issued from time to time;

 

(iii)           shall implement and operate, and shall procure that any permitted sub-processor implements and operates, appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by any processing of such personal data, in particular protection from accidental loss or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by the Company pursuant to the Contract; and

 

(iv)           shall not, without the prior written consent of Customer, transfer any such personal data from a country or territory where the Company is located to another country or territory unless: (i) such transfer is to a country approved under the applicable Data Protection Laws; (ii) adequate contractual or other assurances have first been put in place such as will enable each party to comply with the requirements of the Data Protection Laws; or (iii) a specific derogation set out in the applicable Data Protection Laws applies to such transfer..

 

(f)             The Company:

 

(i)             shall provide reasonable cooperation and assistance to Customer in ensuring compliance with:

 

1. Customer's obligations to respond to any complaint or request from any applicable data protection authority or data subjects seeking to exercise their rights under any Data Protection Laws as they relate to this Contract;

 

1. any binding obligations on the Customer to:

 

• ensure the security of the processing;

 

• notify the relevant supervisory authority and any data subjects, where relevant, of any personal data breach;

 

• carry out any data protection impact assessments ("DPIA") on the impact of the processing on the protection of personal data

 

• consult the relevant supervisory authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by the Customer to mitigate the risk; and

 

(ii)            shall provide all assistance (including information) requested by Customer to demonstrate Supplier's compliance with its obligations set out in Clauses 14(d) - (f).

 

(g)            Details of how the Supplier collects, secures, utilizes and discloses information including personal data are set out in its Data Governance Statement, which can be accessed at https://www.mantracgroup.com/en-eg/privacy-policies/ and the contents of which are hereby acknowledged and accepted by the Customer. 

 

15. HEALTH AND SAFETY

If the Customer does not have an operating manual for the Product or requires information on any Product’s maximum capabilities, the conditions in which it can be safely operated or any other matter relating to its safe operation, the Customer should contact the Company in order that this documentation and information, to the extent available, can be made available to it.

16. PATENTS AND INTELLECTUAL PROPERTY

(a)             The Company endeavors not to offer for sale Products which infringe rights to patents, trade marks, copyright, registered designs nor any applications to register any of the aforementioned rights or any similar rights (“IP Rights”).

 (b)            Where the Company provides advice to the Customer in matters of techniques, or supplies Products for carrying a technique into effect, the tendering of such advice or the supply of such Products carries no guarantee that such a technique will avoid the infringement of IP Rights belonging to a third party as a result of the Customer following the advice tendered by the Company or the use of such Products.

 (c)             All drawings, catalogues, descriptive and technical specifications, illustrations and other documents published or supplied to the Customer by the Company are subject to copyright and may not be reproduced or disclosed to third parties other than the ultimate user of the relevant Product.

 (d)            All IP Rights in and in relation to the Products shall be and remain the sole and exclusive property of the Company (or its licensors).

17. CONFIDENTIAL INFORMATION

(a)             Confidential Information means information belonging or relating to the Company, its business, business plans, affairs or activities which is confidential to the Company, including without limitation trade secrets, information and data relating to its existing or potential customers, technical and business information relating to its inventions or products, research and development, production, manufacturing and engineering processes, employees or officers, customer lists or requirements, price lists or pricing structures, marketing and sales information, business plans or dealings, financial information or plans, designs, product lines, any document marked "Confidential", or any information which the Customer has been informed is confidential or which it might reasonably expect the Company would regard as confidential, and any proprietary and confidential information of the Company's clients, customers, suppliers or other third parties.

 (b)            The Customer acknowledges that, whether by virtue of and in the course of dealings with the Company, it shall receive or otherwise become aware of Confidential Information. 

 (c)             The Customer undertakes to maintain and procure the maintenance of the confidentiality of Confidential Information at all times and to keep and procure the keeping of all Confidential Information secure and protected against theft, damage, loss or unauthorized access, and not at any time, whether during the term of these Terms or any Contract or at any time thereafter, without the prior written consent of the Company, directly or indirectly, to use or authorize or permit the use of or disclose, exploit, copy or modify any Confidential Information, or authorize or permit any third party to do the same, other than for the sole purpose of the performance of its rights and obligations hereunder.

 (d)            The Customer undertakes to disclose Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under these Terms or any Contract, and to procure that such officers, employees, agents and contractors are made aware of and observe the confidentiality obligations in this Clause 17.

 (e)            The Customer shall immediately upon becoming aware of the same give notice to the Company of any unauthorized disclosure, misuse, theft or other loss of Confidential Information, whether inadvertent or otherwise.

 (f)             Upon the earlier of a written request from the Company, or the termination of these Terms or any Contract, the Customer shall return any and all Confidential Information then in its possession or control and will not retain any copies of the same.

 (g)            The terms of and obligations imposed by this Clause 17 shall survive the termination of these terms or any Contract but shall not apply to any Confidential Information which:

 (i)     At the time of receipt by the Customer is in the public domain, or subsequently comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;

(ii)     Is lawfully received by the Customer from a third party on an unrestricted basis;

(iii)    Is already known to the Customer before receipt hereunder; or

(iv)    Is independently developed by the Customer or its employees, agents or contractors.

 (h)            The Customer may disclose Confidential Information as may be required by law, regulation or order of a competent authority, provided that the Company is in each case given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same.

 

• The existence of these Terms and any Contract are confidential and, save as required by law, regulation or order of a competent authority, may not be disclosed by the Customer to any third party without the Company's prior written consent.

 

• The Customer agrees that the Company may disclose information related to the Customer and the Contract to the applicable equipment manufacturer for warranty, product support, product improvement and customer engagement purposes.

 

18. SPECIAL EXPORT CONDITIONS

(a)             All packing cases, crates and other containers are non-returnable except as otherwise stated.

 

(b)             The Customer shall be responsible for obtaining at its own expense all export and import licenses. In the event of these not being granted the Company may forthwith terminate the Contract with immediate effect and shall not be liable for any loss or damage suffered by the Customer arising out of or in connection with such termination.  In the event of termination pursuant to this Clause 18(b), the Customer may additionally be liable to pay Cancellation Charges.

 

 

19. FORCE MAJEURE

The Company shall not be liable for any loss or damage suffered as a result of a failure by it to supply the Products where such failure arises by reason of riot, civil commotion, war whether declared or not, accident, shortened hours of labor, strikes, lock-outs, mechanical breakdown of facilities, failures by third parties to supply it with raw materials or goods, storm, flood, fire or any other circumstances, whether of the kind above mentioned or not, which are beyond the control of the Company (“Force Majeure Event”).  The Company shall not, however, be relieved from supplying the Products nor the Customer from accepting them when the above causes interfering with delivery shall have ceased.  In such circumstances, Clause 5 shall continue to apply.  If the period of delay or non-performance continues for 6 months, the party not affected may terminate the Contract by giving thirty (30) days written notice to the affected party. The Company and the Customer expressly acknowledge that under no circumstances may failure to make a payment due under the Contract constitute a Force Majeure Event. 

20. WAIVER AND ASSIGNMENT

(a)             The failure of the Company to enforce any term or right arising pursuant to these Terms or any Contract does not constitute a waiver of such term or right and shall in no way affect the Company’s right to enforce or exercise the term or right.

 

(b)             The Customer shall not assign, sub-license, or sub-contract these Terms or any Contract or any of its rights or obligations there under without the Company’s prior written consent.

 

21. TERMINATION

If the Customer shall commit a breach of these Terms or of any Contract, or if any distress or execution shall be levied upon its property or assets, or if it shall make or offer to make any arrangement or composition with his creditors, or if any resolution or petition to wind up the Customer’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver of the Customer shall be appointed, or if the Customer shall commit any act or omission entitling any party to take any of the above or any similar steps in any jurisdiction, the Customer’s financial position deteriorates to such an extent that in the Company’s reasonable opinion, the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy, the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business, or the Company is unable to supply the Product to the Customer in accordance with its obligation in Clause 23(a), the Company shall have the right forthwith to terminate these Terms and/or any Contract (as the case may be) then subsisting with immediate effect upon written notice of such termination being posted to the Customer’s last known address, in which case these Terms and/or any Contract shall be deemed to have been terminated without prejudice to any claim or right the Company may otherwise make or exercise.  In addition, the Customer’s right to possession of any Products, the title of which has not yet passed shall cease and the Company shall be entitled to repossess the Products in accordance with Clause 9 (d) hereof.

22. VARIATION

No variation or waiver of these Terms or any Contract shall be of any effect unless in writing and signed by an authorized representative of the Company.

23. COMPLIANCE

 

• In performing their obligations under the Contract, the parties shall comply with all laws, statutes, regulations and codes from time to time in force which are applicable to the supply of the Product.

 

• Each party represents that, in connection with the Contract and related matters, that it is knowledgeable about applicable laws that prohibit the bribery of, or the providing of bribes, unlawful gratuities, improper payments (including facilitation payments), or other benefits to, any Government Official (as defined below) or any other person, including: (A) the United States Foreign Corrupt Practices Act of 1977; (B) the United Kingdom Bribery Act 2010; and (C) any other applicable anti-corruption laws, together referred to herein as “Anti-Bribery Laws”, and complies with such laws and that it has not and will not, whether directly or through any other person, make, promise, authorize, solicit, offer, or accept anything of value (including money, gifts, or favors) to or for the use or benefit of any Government Official or any other person in order to: (1) influence any acts, decisions, or omissions by any Government Official or any other individual to obtain or retain business or secure an improper business advantage; (2) induce any individual to act improperly in violation of his or her duty; or (3) induce any Government Official, or any other individual, to use his or her influence with a government, an instrumentality (such as a state-owned or controlled company), or private sector party to commit an improper act or to obtain or retain business or to otherwise violate the relevant Anti-Bribery Laws.

 

“Government Official” means anyone who holds a legislative, administrative or judicial position for any country or who exercises a public function for any country, public agency or public enterprise and includes;

 

(i)       officers and employees, regardless of rank, of local governments, national governments, government-owned or -controlled companies (such as national oil companies or central banks), public hospitals, public schools, sovereign wealth funds, and public international organizations, such as the United Nations or World Bank; and

(ii)     political parties, party officials, candidates for public office, and sometimes royal family members and includes immediate family member (meaning a spouse, dependent child, parent or household member) of any of the above.

• Each party will immediately notify the other party if it becomes aware or receives a request for anything of value from a Government Official or any other individual covered by the preceding paragraph or if it becomes aware of any violation or potential violation of the relevant Anti-Bribery Laws by it, its personnel, and/or any third parties working at its direction, and will co-operate in good faith and respond to all reasonable requests by the other party for assistance and information in relation to such violation or potential violation. Further, each party agrees that the other party may disclose any information relating to any potential violation of the Anti-Bribery Laws, including the existence and terms of this Contract, to any relevant government agencies and to any other person or entity that the other party determines has a legitimate need to know.

 

• Each party represents that, in connection with this Contract and related matters, it is knowledgeable about applicable laws that prohibit money laundering and terrorist financing, including (A) the US Bank Secrecy Act of 1970 and the Anti-Money Laundering Act of 2020; (B) the UK Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, as well as the Proceeds of Crime Act 2002; (C) Directives (EU) 2015/849 (“the fourth AML Directive”), 2018/843 (“the fifth AML Directive”), 2018/1673 (“the sixth AML Directive”); and (D) any other applicable anti-money laundering and terrorist financing laws, together referred to herein as “AML Laws”, and complies with such laws.

 

Each party will immediately notify the other party if it becomes aware of any violation or potential violation of the relevant AML Laws by it, its personnel, and/or any third parties working at its direction, and will co-operate in good faith and respond to all reasonable requests by the other party for assistance and information in relation to such violation or potential violation. Further, each party agrees that the other party may disclose any information relating to any potential violation of the AML Laws, including the existence and terms of the Contract, to any relevant government agencies and to any other person or entity that the other party determines has a legitimate need to know.

 

• The Customer will:

 

• comply with all applicable laws concerning the import, export, re-export, or transfer of goods, software, or technology (“Items”), including but not limited to:

 

• applicable customs regulations;

 

• Regulations (EU) 2021/821, 833/2014, 2022/263, 692/2014, as well as any other applicable regulations issued by the European Union or the Office of Financial Sanctions Implementation of His Majesty’s Treasury in the UK;

 

• the International Traffic in Arms Regulations ("ITAR") administered by the U.S. Department of State Directorate of Defense Trade Controls (“DDTC”);
• the Export Administration Regulations ("EAR") administered by U.S. Department of Commerce Bureau of Industry and Security (“BIS”); and

 

• the regulations and Executive Orders issued or administered by the US Department of the Treasury Office of Foreign Assets Control (“OFAC”) in relation to economic sanctions and anti-boycott matters (points (A)-(E) above collectively defined as “Trade Control Laws”);

and, where necessary, it will provide Supplier with necessary data to comply with the Trade Control Laws.

• be responsible for obtaining all necessary import, export, and customs licenses which may be required by the Trade Control Laws, and for overseeing and implementing any conditions imposed by any such licenses.

 

• ensure that, except and unless it obtains the prior written consent of the Company:

(A)     Items supplied by the Company hereunder are not exported, reexported, or transferred to or used in or by:

 (1)        any countries or territories that are subject to U.S. comprehensive economic sanctions  (“Restricted Jurisdictions”) or any other countries or territories that are subject to relevant prohibitions or restrictions under the Trade Control Laws (“Restricted Jurisdictions”);;

 (2)        any person designated on the United Nations Financial Sanctions Lists, European Union (EU) or EU Member State Consolidated Sanctions Lists, the list maintained by His Majesty’s Treasury in the UK, OFAC Lists, DDTC Lists, or BIS Lists, or other applicable lists prohibiting or restricting the supply of Items to particular end users (“Restricted Parties”) or any persons  acting on behalf of Restricted Parties or owned or controlled by Restricted Parties, in accordance with the applicable law;

(3)         any person targeted by any other applicable national, regional, or multilateral economic sanctions; or

(4)         any end uses prohibited or restricted under the Trade Control Laws;

(5)           any other way that is prohibited under the Trade Control Laws.

(B)     Customer personnel with access to the Company’s technical information, information technology resources (including to Company’s infrastructure), or to the Company’s worksites, are not Restricted Parties or from a Restricted Jurisdiction;

• The Customer affirms that neither the Customer nor any of its direct or indirect beneficial owners or other entities that may control the Customer, in accordance with the applicable law, are Restricted Parties and agrees, in the event that it becomes a Restricted Party, to notify the Supplier as soon as possible.

 

• The Customer agrees that it will impose restrictions of equivalent effect to those outlined in this Clause 23(e) on all third parties having any involvement with the Products forming the subject matter of the Contract.

 

 

• Each party will maintain adequate internal controls and procedures to ensure compliance with the Anti-Bribery Laws, the AML Laws, the Trade Control Laws, as well as the obligations in Clause 23(e)(iii) and (iv), including by proper and accurate recording of transactions in its books and records and will keep and preserve any records and accounts that relate to the Contract throughout its term, and for five years after its expiration or termination or the length dictated by its data retention policies, whichever is greater, subject to any applicable legal privilege, data protection or data privacy law or express legal restriction.

 

• Each party certifies that it has taken reasonable measures to ensure that its employees, agents and subcontractors are aware of such controls and procedures and to prevent subcontractors, subagents, or any other third parties performing services in connection with this Contract from breaching the Anti-Bribery Laws, the AML Laws, the Trade Control Laws, as well as the obligations in Clause 23(e)(iii)).

 

 

• The Customer represents and warrants that it does not know or have any reason to suspect that: (i) the monies used to fund the purchase of Product from the Company have been or will be derived from or related to any illegal activities, including but not limited to, money laundering activities; and (ii) no Restricted Party has any interest, direct or indirect, present, future, or contingent in the funds used to purchase the Product from the Company, or in the Product itself. Furthermore, the Customer represents and warrants that neither the Customer nor any of its direct or indirect beneficial owners or other entities that may control the Customer, in accordance with the applicable law, presently is a Restricted Party.  The Supplier has in place procedures and controls which are designed to forestall and prevent money laundering or other infringements of the Anti-Bribery Laws, the AML Laws and the Trade Control Laws.

 

• If the Supplier suspects that a money laundering or other infringement of the Anti-Bribery Laws, the AML Laws, the Trade Control Laws or the obligations in Clause 23(e)(iii) is or has been committed, the Customer acknowledges that the Supplier may, in accordance with its legal responsibilities, disclose the suspicion to law enforcement officials, regulators or other competent authorities in the relevant jurisdictions.

 

• The Customer acknowledges that any failure to comply with the Trade Control Laws or the Anti-Bribery Laws, the AML Laws, the Trade Control Laws or the obligations in Clause 23(e)(iii) and (iv) referred to above on its part or on the part of any of its officers, employees, agents, subcontractors or partners will expose the Supplier to material risk and liability and accordingly agrees that where the Supplier, acting reasonably, considers that the delivery of any Goods or Services may violate any of the Anti-Bribery Laws, the AML Laws, the Trade Control Laws or the obligations in Clause 23(e)(iii) and (iv) referred to above, or where the Customer’s conduct with respect to this Contract violates applicable Anti-Bribery Laws, AML Laws, Trade Control Laws or the obligations in Clause 23(e)(iii) and (iv), the Supplier shall be entitled, at its sole discretion, to suspend or cancel such delivery without any liability. .

 

For the avoidance of doubt, the Customer agrees and acknowledges that an infringement of the Anti-Bribery Laws, AML Laws, Trade Control Laws or the obligations in Clause 23(e)(iii) and (iv) will amount to a material breach of the terms of the Contract and shall in addition to its rights under Clause 20, entitle the Company to terminate the Contract with immediate effect.  In case of a material breach, the Company shall also be entitled to seek appropriate remedies, including liquidated damages of 25% of the total value of the Contract or price of the Product exported, whichever is higher.

 

• If a party reasonably suspects that the provisions of the Contract have been violated, the other party and its authorized representatives will have the right to audit, examine and make copies of all records that relate to it in whatever form they may be kept by the other party including, but not limited to, relevant accounting records, transactional records, financial documents, or written policies and procedures.

 

• In the event of any breach by a party (the defaulting party) of Anti-Bribery Laws, AML Laws, Trade Control Laws, the obligations in Clause 23(e)(iii) and (iv), or any other related undertakings under this Clause 23, the defaulting party will hold the non-defaulting party harmless and shall indemnify it for all losses and expenses arising out of the defaulting party’s breach of this Clause 23.

 

24. SEVERABILITY

If any term of these Terms or any Contract is found to be illegal, invalid or unenforceable under any applicable law, such terms shall, insofar as it is severable from the remaining terms, be deemed omitted from these Terms and/or any Contract, and shall in no way affect the legality, validity or enforceability of the remaining terms.

25. ENTIRE AGREEMENT

These Terms together with any Contracts contain all the terms agreed between the parties regarding its subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing.  No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to entering into these Terms and any Contracts except as expressly stated in these Terms and any Contracts.  Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied when entering into an Order or Contract (unless such untrue statement was made fraudulently or was as to a matter fundamental to the other party’s ability to perform its obligations) and that party's only remedies shall be for breach of contract as provided in these Terms. 

26. LAW AND JURISDICTION

The construction, validity and performance of these Terms and any Contract shall be construed according to the laws of England and Wales.

The Company and Customer agree that:

• They will make commercially reasonable and good faith efforts to resolve any dispute that might arise in connection with the subject matter of the Contract, by escalating the matter or matters in dispute to senior executives within each of their respective businesses who, in each case, have (i) not had direct prior involvement in the negotiation of the Contract and (ii) have sufficient authority to agree on a comprehensive resolution to the matters in dispute (each a “Senior Representative”). The Supplier and Customer agree that they will each nominate a Senior Representative within three (3) Business Days of service by either part on the other of notice of a dispute in respect of the subject matter of the Contract. The Supplier and Customer agree that the Senior Representatives shall meet within five (5) Business Days of such nomination to hold good faith discussions with a view to identifying a commercial resolution to the matter in dispute and shall allow a period of five (5) Business Days for such discussions to take place before resorting to the dispute resolution mechanism outlined below.

 

• Any dispute, controversy or claim arising out of or in connection with the Contract, including any question regarding its existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it must be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration (“LCIA”) existing as at the date of the Contract (the “LCIA Rules”), which LCIA Rules are deemed to be incorporated by reference into this Clause, subject to the other provisions of this Clause.

 

• A sole arbitrator shall be appointed by the LCIA unless the LCIA determines that, in view of the circumstances, a panel of three arbitrators is appropriate, in which case, the Company and the Customer shall each select and appoint an arbitrator, with the third arbitrator being appointed by the LCIA.

 

• The seat, or legal place, of arbitration shall be London, UK, and the arbitration proceedings shall be conducted in English, unless otherwise agreed by the parties.

 

• By agreeing to arbitration in accordance with this Clause, the parties (i) agree that they waive irrevocably their right to apply to the court for determination of a point of law; and (ii) undertake to carry out any award immediately and without delay, and the parties waive irrevocably their right to any form of appeal, review or recourse in respect of any such award to any court or other judicial authority, in so far as such waiver may be validly made

 

• The subject matter of any dispute and/or arbitral proceedings hereunder, including documents produced in connection therewith and arbitral awards and orders, must be kept confidential, save to the extent the same is in the public domain or disclosure may be required by legal duty, to protect or pursue a legal right or to enforce an award in legal proceedings before a court or other judicial authority. This undertaking also applies to the arbitrators and any other person involved in the arbitration, whether as an expert, witness or otherwise.

 

• The Customer agrees that the provisions set out in Clause 26 are included for the sole benefit of the Company and that nothing herein shall limit the right of the Company, at its sole discretion, to take proceedings against the Customer before English courts and the Customer agrees that following any such election on the part of the Company, it will submit to, and shall not on any grounds seek to challenge or otherwise dispute the jurisdiction of, the English courts.

 

 

27. MONITORING SYSTEMS

(a)            The Product may be equipped with a Unit Monitoring System (including, but not limited to, Cat® Product Link) and the Customer agrees not to remove, disable, interfere with or impair such Unit Monitoring System, and agrees to permit Caterpillar Inc. and all of its subsidiaries and affiliates, (collectively “Caterpillar”), and Caterpillar dealers to access data concerning such Product and their condition and their operation transmitted from the Unit Monitoring System. The information may be used to:

 

• administer, implement and enforce the terms and conditions of the Contract;

 

• recover the Product if necessary, and

 

• to improve Caterpillar’s products and services.

 

(b)            The Customer agrees that information transmitted via the Unit Monitoring System may include the serial number, VIN, Unit location, operational data, including but not limited to fault codes, emissions data, fuel usage, service meter hours, software and hardware version numbers, and installed attachments.

28. NOTICES

 

Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its address specified in the Contract, or such other address as is notified 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.  A notice or other communication shall be deemed to have been received: if delivered personally, when left at such address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second 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, upon the earlier of acknowledgement or one Business Day after transmission (provided no “failure to deliver” message relating to such notice or communication has been received by the sender prior to the point).   However, these provisions shall not apply to the service of any proceedings or other documents in any legal action. 

 

 

29. GENERAL

(a)             Clause headings are for convenience only and shall not be used in construing the meaning of the Clauses.

 (b)            In the event of any inconsistency between terms set out in an Order and these Terms, the latter shall prevail to the extent of the inconsistency.

• The Company shall be entitled to correct any clerical errors and omission in any Contract relating to the Products.

 

• No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.