Tml Precision Engineering Limited - Standard Terms and Conditions of Sale
May 1st 2007
These conditions shall apply to each contract (“the contract”) for the sale of, or the carrying out of work on, the goods described in
overleaf (“the goods”) between Tml Precision Engineering Limited (“the Company”) and the customer named on overleaf (“the purchaser”).
These conditions shall apply to the entire exclusion of those of the purchaser and no variation of or addition to these conditions shall
form part of the contract unless specifically accepted in writing by a duly authorised person on behalf of the Company.
a) Unless otherwise specified therein, any quotation submitted by the Company is valid for thirty (30) days and represents
no obligation until the Company acknowledges the purchase order.
b) All prices quoted by the Company are exclusive of Value Added Tax.
If the purchaser requests the Company to manufacture the goods to a specification or instructions of the purchaser:
a) the purchaser must provide the specification or instructions in writing
b) the suitability and accuracy of the specification or instructions will be the responsibility of the purchaser
c) the purchaser warrants in favour of the Company that compliance with such specification or instructions will not infringe
any patent, copyright, trademark or other intellectual property rights and the purchaser shall fully indemnify the Company
against any action claim demand cost charges and expenses arising out of any such infringement.
3. Cancellation or variation of order
No orders placed by the purchaser, which the Company has accepted, may be cancelled or varied by the purchaser
except with the written agreement of the Company. The purchaser will be liable for any loss (including loss of profits)
costs, damages, charges and expenses suffered by the Company as a result of such cancellation and variation.
The Company shall pack the goods in such manner as it considers appropriate but if the purchaser requires a special
method of packing by written notice to the Company at the time of placing an order the Company shall pack the goods as
the purchaser requires at the purchaser’s cost.
a) Any delivery period quoted is an estimate only and commences from the Company's acknowledgement of the
purchaser's order. Provided the Company takes all reasonable steps to deliver the goods at the time stated, the Company
shall be under no liability for any delay or failure in delivery
b) Goods or materials supplied by the Purchaser shall be at all times at the risk of the purchaser. In respect of all other
goods, risk shall pass to the purchaser as soon as they leave the Company’s premises except where delivery is made by
the Company vehicle at the purchaser’s premises in which case risk shall pass when the goods are delivered to the
purchaser. The Company shall not be liable for any loss or damage of goods in transit unless caused by the negligence of
the Company or its employees.
c) On delivery, the purchaser shall carry out a visual examination of the goods and shall notify the Company within
fourteen (14) days of any defect revealed by such examination. Without such notification, we will deem the goods
satisfactory in respect of any defect that such examination should reveal. In the case of shortage or non-delivery of goods,
the purchaser shall notify the Company within seven (7) days of delivery
d) If the Company is unable to deliver, as a result of failure on the part of the purchaser to: accept delivery, give adequate
instructions, failure to collect the goods, the Company shall arrange such storage as it deems appropriate and shall be
entitled to charge the purchaser for storage at a rate comparable to commercial warehousing charges then prevailing.
Storage shall be at the purchasers risk.
e) In the event that delivery is to be in instalments, we will deem each separate delivery a separate contract.
f) In the event that the purchaser wishes to change the required delivery schedule, this must be in writing, indicating the
required revisions in the schedule and giving at least four (4) weeks’ notice to the Company. The Company will
acknowledge this request indicating acceptance or otherwise and detailing a revised delivery schedule where appropriate.
The purchaser will remain responsible for the acceptance of deliveries to this revised schedule.
Save where sub-contracting would contravene terms implicitly or explicitly agreed with the purchaser, the Company shall
be entitled at its discretion to sub-contract the whole or any part of the Contract.
Payment for deliveries shall be due 30 days from date of invoice except where the Company stipulates C.W.O. or C.O.D.
terms, or where alternative terms are agreed.
8. Force Majeure
The performance of all Contracts is subject to variation or cancellation by the Company in the event of any breakdown of
plant or apparatus, fire, explosion, natural disasters, accident, industrial dispute, interruptions in the availability of labour,
energy, transport, or material, government regulations or any other cause or event beyond the control of the Company.
The Company shall have no liability in respect of failure or delay in delivery or in performance of any obligations under the
contract due to any cause outside the Seller's control. These include but are not limited to: act of God, fire, floods, war,
civil disturbances, riot, act of Government, currency restriction, industrial disputes, unavailability of materials or failure of
supplier, carrier or sub-contractor to deliver on time.
Subject to the provisions of clause 5(c) hereof, if the purchaser considers that any goods delivered do not conform to their
specification it shall notify the Company of such non-conformity within two months of receipt by the purchaser and at the
same time return the relevant goods to the Company. The purchaser shall provide to the Company such evidence as the
Company may require as to the date of receipt by the purchaser of the goods in question. If the Company is satisfied after
inspection of the sample returned that the goods differ materially from their specification it shall subject to clause 10 hereof
replace or rework the goods. The foregoing warranty is in substitution for and to the exclusion of any other warranty or
condition as to compliance with description, merchantability, and fitness for a particular purpose or otherwise howsoever
which would otherwise be implied in the Contract. Any claim will be invalid if notified to the Company beyond the two
months referred to above. In no circumstances (other than as provided in clause 10) shall the Company be liable for any
consequential loss (including loss of profits) suffered by the purchaser.
10. Limitation of Liability
a) Items supplied by the purchaser for the contract shall be of suitable quality and shall be free of charge, in the
quantities and at the times required by the Company. Any defect in such items shall not entitle the purchaser to: rescind
the contract, reject the goods, make deductions from the contract price or claim damages in respect of such defect.
Further, the purchaser shall indemnify and keep indemnified the Company from and against all actions, demands, claims,
proceedings, losses or costs arising from the supply of defective items by the purchaser.
b) In any case of work being carried out by the Company on goods or materials supplied by the purchaser (“free
issue materials”), the Company’s liability for damage to or destruction of the free issue material shall be limited
to the invoiced value of the contract unless otherwise agreed in writing by a duly authorised agent of the
c) Save in the case of personal injury or death caused by our negligence, the Company shall not be liable in
contract, tort, breach of statutory duty or otherwise for any loss, injury, destruction or damage suffered by the
purchaser whatsoever or howsoever arising out of or in connection with the supply of goods or services by the
a) Legal title to the goods shall remain with the Company until such time as the Company has received payment
of the price of the goods and the price of any other goods or services previously or subsequently supplied by
the Company to the purchaser whereupon such title shall pass to the purchaser. Insofar as the goods may be
delivered to the purchaser prior to the time when title thereto passes to the purchaser as aforesaid the
purchaser shall until such time hold the goods as the fiduciary agent and bailee of the Company and shall
accordingly remain liable to account to the Seller for the goods.
b) The Purchaser may exercise its right to sell the goods as the fiduciary agent to the Company in the usual
course of the purchaser's business but such right:
(i) may be revoked at any time by the Company. Giving notice to that effect if the purchaser is in
default for longer than seven days in the payment of any sum whatsoever due to the Company, or
if the Seller has bona fide doubts as to the solvency of the purchaser and
(ii) will automatically cease if a receiver, manager or administrator is appointed over the assets,
undertaking or property of the purchaser, or a winding-up or administration order against the
purchaser is made or petitioned, or any petition order in bankruptcy against the purchaser is
presented or made, or the purchaser goes into voluntary liquidation (otherwise than for the
purposes of reconstruction or amalgamation while solvent) or calls a meeting or makes
arrangements or compositions with creditors
(iii) and any warranties, conditions or representations given to or made in favour of third parties by the
purchaser shall not be binding on the Company and the purchaser shall indemnify the Company
with respect thereto
c) Notwithstanding the retention by the Company of legal title to the goods:
(i) risk in the goods shall pass to the purchaser on delivery to the purchaser's delivery address and
the purchaser shall arrange for the Seller's interest in the same to be noted on all relevant
insurance policies and
(ii) the Company shall be entitled to maintain any action against the purchaser for the price of the
goods or any part thereof.
d) Upon determination of condition c) i, ii or iii above, the purchaser shall place the goods at the disposal of the
Company. The Company or representatives thereof shall be entitled to enter any premises of the purchaser to remove the
goods. Alternatively, as may be the case, pay to the Company the proceeds then held by the purchaser as trustee for the
Company in accordance with Condition 11a)
e) While any sums under any Contract between the Company and the
purchaser are unpaid, goods supplied by the Company to the purchaser shall remain the property of the Company until
the Company has received full payment. The purchaser shall hold the goods on behalf of the Company and shall store the
goods in such a way that it is clear that they are the property of the Company. The Company may (without prejudice to any
of its other rights) recover or recall all or some of the relevant goods from the purchaser’s possession and the Company,
its servants or agents are hereby irrevocably authorised to enter upon the purchaser’s premises to recover or recall the
12. Provisions Relating to Certain Goods
The Company shall be entitled not to comply with the terms of any contract if it is of the opinion that to do so would be in
breach of any applicable laws (either in the United Kingdom or elsewhere) relating to the production, storage or supply of
13. Benefit of Contracts
The purchaser shall not be entitled to assign or otherwise transfer all or any of its rights and obligations under the Contract
between it and the Company.
14. Governing Law
These conditions and any Contract between the Company and the purchaser shall be subject to and constructed in
accordance with English law. The purchaser agrees to submit to the non-exclusive jurisdiction of the English courts.
15. Data Protection Act 1998 (unincorporated Customers)
a) The Company, or our banker/financiers, may make credit reference agency searches in respect of your business
and its principals. Please note that credit reference agencies make a record of searches that prevent fraud or money
laundering or by subscribers to make credit decisions about you.
b) We may transfer information about you to our bankers, in order for them to provide their services to us and other
customers of theirs and to help them (1) obtain credit insurance (2) undertake credit control (3) undertake
assessment and analysis (including credit scoring, market, product and statistical analysis) (4) securities debts and
(5) protect their interests.
c) Our bankers may give information about you and your indebtedness to the following for the purpose stated
i) any other divisions or associated companies of theirs - for the business purposes of such divisions or
ii) our or their insurers - to quote for and issue any credit policy or
to deal with any claims any advisers acting our or their behalf – so the advisers can carry out their services
iii) any business to which your indebtedness or our financing arrangements with them may be transferred – to
facilitate such transfer
iv) to any person to whom they have a duty of disclosure or to whom the law permits disclosure
d) i) Our bankers may make decisions about you solely using an automated decision making process, such as credit
scoring, however, they will tell us (and in turn we will tell you) if they make a significant decision only using such a
process. Through the Company, you can request a review of their decision using other means.
ii) Our bankers may monitor and record your phone calls to them for training and/or security purposes.
iii) We will provide you with details of our bankers on request, including a contact telephone number from
where you can obtain details of the credit reference agencies used by them and any third party to whom
information may be transferred.
Tml Purchasing Terms and Conditions (9100 rev C Edition)
The contract between Tml Precision Engineering Ltd. (“Tml”) and the Supplier (“Agreement”) consists of the following:
(a) one or more Orders and any schedule(s) to an Order;
(b) these Purchasing Terms and Conditions; and
(c) any documents expressly incorporated into this contract or expressly referred to in an Order.
If there is any conflict or inconsistency between any of the above, they shall have the following order of precedence: first, the Order and its schedules, second, these Purchasing Terms and Conditions and third, any documents as set out in paragraph (c) above.
This Agreement constitutes the entire legal and contractual relationship between the parties relating to the subject matter of this Agreement and, except in the case of any fraudulent misrepresentation made by either party in connection with the subject matter of this Agreement, terminates, cancels and supersedes all prior or contemporaneous agreements or representations, written or oral, with respect to this Agreement and its subject matter.
1.1 In this Agreement unless the context otherwise requires:
“Charges” means the charges for the Supplies.
"Confidential Information" means the terms of this Agreement and information disclosed by one party ("Disclosing Party") to the other ("Receiving Party") to the extent that such information is designated as such by the Disclosing Party in writing or relates to the business affairs, developments, trade secrets, know-how, personnel, customers or suppliers of the Disclosing Party or that such information may reasonably be regarded as the confidential information of the Disclosing Party.
“Delivery Date” means the date for delivery of the Supplies as set out in the Order or agreed between the parties in writing.
“Intellectual Property Rights” means any patents, trade marks, service marks, registered designs, applications for any of the foregoing, copyright, design rights, database rights, know-how, confidential information, trade and business names and any other similar protected rights in any country.
“Order” means Tml’s purchase order document that states (i) the Supplies to be provided by the Supplier; (ii) Tml’s purchase order number; and (iii) it is subject to these Purchasing Terms and Conditions.
“Products” means any equipment and/or Programs set out in the Order.
“Product Description” means the description of the Supplies set out in the applicable Order and in the product, software and/or service description published (including electronically) by the Supplier or manufacturer at the time that the Order is placed.
“Services” means any services described in the Order.
“Supplier” means the person to whom the Order is addressed and "person" includes partnerships, bodies corporate, corporations, associations, and government bodies and/or departments.
“Supplies” means the Products or Services described in the Order.
“Warranty Period” means in respect of Products twelve (12) months after the Delivery Date, and in relation to Services, ninety (90) days after the date of completion of the Services.
2.0 Health and Safety
The Supplier shall comply with all relevant health and safety legislation. It will ensure Supplies that are potentially dangerous to health or safety are delivered in suitable protective packing and that the external surface of such packing is clearly labelled to indicate any such hazards involved in handling and using the Supplies and the method of safe handling. A copy of any information relating to the safety aspects or proper use of the Supplies should be sent to Tml under separate cover. The Supplier shall be responsible for ensuring that any of its employees or other persons fulfilling the Order who enter Tml’s premises are suitably clothed, issued with appropriate protective equipment, duly warned of hazards which they may encounter on Tml’s premises and that they adhere to all health and safety at work rules and regulations applicable from time to time.
2.4 Security and Immigration Checks
(a) The Supplier shall comply with all security and related policies notified by Tml and shall promptly provide such information regarding its compliance as may be reasonably required by Tml.
(b) The Supplier shall only use employees, agents or contractors (“Personnel”) who are authorised to work for the duration of this Agreement or any Order in the country where the Supplies are being provided. The Supplier shall provide information evidencing such approvals, clearances and right to work at any time on request by Tml and/or Tml’s customers.
(c) Where Tml and/or Tml’s customers carries out security, immigration and/or work permit checks directly on the Personnel, the Supplier shall obtain demonstrable consent from such Personnel permitting release of their personal data for such purpose.
2.5 Data Protection The Supplier shall comply with the Data Protection Act 1998 (or equivalent legislation in the country where the Supplies are being provided) and, where processing personal data on Tml's behalf, shall process such data strictly in accordance with Tml's instructions and put such operational and technological processes in place to safeguard against any unauthorised access, loss, destruction, theft, use or disclosure of the data. The Supplier shall not delegate or subcontract any of its data processing obligations to any third party or transfer personal data outside the EEA without the prior written consent of Tml, such consent not to be unreasonably withheld. Where consent is given and the Supplier transfers personal data outside the EEA pursuant to this Clause, such transfer shall be subject to contractual clauses determined by the European Commission. In addition, notwithstanding Clause 12.2, the Supplier shall indemnify Tml against all costs, expenses, damages, loss, liability or claims incurred by Tml (including those specified in Clause 12.3) as a result of the Supplier's breach of this Clause 2.5.
2.6 Business Continuity The Supplier shall ensure that it has adequate security, business continuity and disaster recovery procedures in place to cope with the risk of major operational disruptions.
3.1 The Supplier shall, at its own expense and during normal business hours (unless Tml otherwise directs), deliver the Supplies, properly packed and secured (in the case of Products), on the Delivery Date to the place specified in the Order or such other location as may be subsequently agreed in writing. Each package should be clearly marked with the Supplier’s name and the delivery address stated on the relevant Order.
3.2 The Supplier shall ensure that one copy of an advice note stating the Order number, the number of packages and the method and route of transport accompanies the Supplies and that a further copy is given to any third party carrier.
3.3 For Supplies delivered in instalments, the Order shall be construed as a single contract in respect of each instalment. However, where Tml has a right to reject any particular instalment, it may at its option reject the entire Order or the instalment.
4.0 Time for Delivery and Performance of the Supplies
4.1 The Supplies may not be delivered or performed earlier or later than the Delivery Date without Tml's permission, otherwise Tml may reject them. Time shall be of the essence of this Agreement and of each Order in relation to delivery of the Supplies.
4.2 If the Supplies or any part thereof are not delivered or performed by the required date Tml shall be entitled to terminate this Agreement and/or cancel the Order, in each case without cost or liability, in respect of the Products undelivered or the Services not performed. Where other Supplies (“Associated Supplies”) have previously been delivered to or performed for or on behalf of Tml by the Supplier and, in the reasonable opinion of Tml, the Associated Supplies cannot be effectively and commercially used by reason of such non-delivery or non-performance of the Supplies then, without prejudice to Clause 7, Tml shall be entitled to reject the Associated Supplies in writing and claim a full refund in respect of any Associated Supplies which have been paid for and no payment shall be due in relation to any Associated Supplies which have not been paid for. Where Tml exercises its option to reject any Associated Supplies, Tml agrees to return to the Supplier, at the Supplier’s expense, any Products or other materials which comprise Associated Supplies as soon as reasonably practicable after it has received a full refund in respect thereof.
5.0 Title and Risk
5.1 Title and risk in the Products shall pass to Tml on delivery, following off-loading and stacking.
5.2 Where Tml exercises its right to reject Associated Supplies pursuant to Clause 4.2, risk and title therein shall revert to the Supplier upon Tml notifying the Supplier in writing that it wishes to exercise its right to reject the Associated Supplies.
6.0 Payment terms
6.1 The Charges shall be stated in the Order and shall be exclusive of VAT or similar duty but inclusive of all other charges. Unless otherwise agreed in writing, Tml shall not be liable to make any payments to the Supplier other than the Charges.
6.2 Subject to Clauses 6.3 and 6.4, Tml shall pay each undisputed invoice properly due, issued and submitted to it by the Supplier thirty (30) days after the (end of month) date of receipt.
6.3 The Supplier must be in possession of an approved Order before commencing any supply under this Agreement. The Supplier shall ensure that Tml’s Order number is referenced on any invoice sent to Tml and acknowledges that without an approved Order number, the invoice will be rejected.
6.4 All invoices must be submitted within thirty days of delivery or performance of the Supplies or expenses being incurred. Unless previously agreed in writing by Tml, invoices submitted more
7.1 In relation to the Supplies, the Supplier undertakes that:
(a) in the case of Products, if within the Warranty Period or a reasonable time thereafter, Tml notifies the Supplier that the Products are in breach of warranty or the provisions of this Agreement then, at Tml’s option, (i) the Supplier will promptly repair or, at Tml's option, replace, the Products so as to remedy the matter constituting the breach without cost (including transportation costs) to Tml; or (ii) the Supplier will accept rejection and return of the Supplies by Tml, whether or not any of the Supplies have been accepted, and the Supplier shall immediately upon receipt return any payments made by Tml in respect of those Supplies. For the avoidance of doubt, risk and title in rejected Products shall immediately on rejection revert to the Supplier; and
(b) in the case of Services, if within the Warranty Period or a reasonable time thereafter, Tml gives written notice that the Services are in breach of warranty or the provisions of this Agreement, the Supplier shall promptly re-perform the Services at no cost to Tml. Where the Supplier fails to provide such remedy, Tml may remedy or have remedied the matter constituting the breach at the cost of the Supplier; and
(c) in any case, if during the Warranty Period the Supplies are in breach of warranty or otherwise in breach of this Agreement, Tml may, at its option, cancel the Order, at no cost or liability to Tml, and/or refuse to accept any further deliveries and/or performance of Supplies. The Supplier shall immediately refund any charges paid in advance by Tml in respect of the Supplies.
7.2 Without prejudice to Tml’s rights under Clauses 7.1, if during the Warranty Period or within two (2) years of its expiry, the Products develop any persistent defects, failures or non-conformities, the Supplier will, on Tml’s request, review such defects, failures or non-conformities with Tml and indicate steps or recommendations which in the Supplier’s reasonable judgement would remedy the same. Subject to an agreed action plan, the Supplier shall at its own cost remedy the defects, failures and non-conformities. Where the Supplier fails to provide such remedy, Tml may remedy or have remedied the failure, defect or non-conformity at the Supplier's cost and reject deliveries of Supplies until the source of failures, defects and non-conformities has been cured.
7.3 Tml’s rights and remedies under Clause 7 are in addition to its other rights and remedies under this Agreement or at law.
8.0 Quality requirements
8.1 : As a supplier to TML Precision Engineering Ltd, it is understood that your
Organization agrees to meet the following stipulations / AS9100 requirements whenever a TML Precision Engineering Ltd Purchase Order specifies that the order is for an aerospace
application/job (or contains some similar aerospace/AS9100 reference). These requirements are, therefore, to be considered as terms and conditions to all aerospace purchased (indicated as Quality System A on purchase order).
8.2 Where required on the TML Precision Engineering Ltd Purchase Order, its suppliers must
use TML Precision Engineering Ltd’s customer-approved special process sources.
8.3 TML Precision Engineering Ltd is to be contacted (by the supplier) in the event of
nonconforming product/material. Arrangements for the approval of supplier nonconforming
product/material must be as directed by a TML Precision Engineering Ltd’s authorized
manager or designee.
8.4 Furthermore, the supplier is required to notify TML Precision Engineering Ltd of any
changes to a product and/or process and to obtain approval from an authorized TML Precision Engineering Ltd manager or designee (if applicable).
8.5 TML Precision Engineering Ltd, their customers, and regulatory authorities retain the right of access to all supplier facilities involved in the aerospace order and to all applicable records.
8.6 The AS9100 standard requires that all applicable customer/regulatory/AS9100 requirements for the supplier to flow-down to sub-tier suppliers (includes requirements in the purchasing documents and key characteristics where required). However, TML Precision Engineering Ltd does not allow its aerospace suppliers to subcontract any product or process to a sub-tier supplier without TML Precision Engineering Ltd expressed written consent.
8.7 TML Precision Engineering Ltd performs inspection activities to ensure that purchased
product meets purchase requirements. They may include:
Receiving inspections (of supplier products / services / documents) may be / are
performed by a designated employee. TML Precision Engineering Ltd verifies the
authenticity of the appropriate certificate of conformity, material certificates, etc. and
other accompanying documentation by review and comparison (as is appropriate) to the
drawing and/or industry specifications or by other means. When necessary, TML Precision Engineering Ltd may inspect or audit at the supplier’s facility.
Furthermore, products are inspected to ensure they meet requirements (dimensions, etc.)
and the results are recorded (as appropriate). All special processes (anodizing, heat treat
etc.) where the compliance cannot be verified by inspections will require a Certificate of
8.8 When appropriate, TML Precision Engineering Ltd may delegate the inspection authority to one of its approved suppliers. TML Precision Engineering Ltd will communicate the
inspection requirements (including approved monitoring and measurement equipment/methods) and TML Precision Engineering Ltd will maintain a record of those approved to carry out such inspections.
8.9 When TML Precision Engineering Ltd or its customer intends to perform verification at the supplier’s premises; TML Precision Engineering Ltd will first state the intended verification arrangements and the method of product release. This information will be communicated on the TML Precision Engineering Ltd Purchase Order or via another acceptable purchasing arrangement.
8.10 Where specified in the contract, the TML Precision Engineering Ltd’s customer or
customer’s representative will be afforded the right, at applicable areas, including at any level of the supply chain, to verify at the supplier’s premises and TML Precision Engineering Ltd premises that subcontracted product conforms to specified requirements. Verification by the customer is not used by TML Precision Engineering Ltd as evidence of effective control of quality by the supplier and shall not absolve TML Precision Engineering Ltd or its supplier of the responsibility to provide acceptable product, nor shall it preclude subsequent rejection by the customer.
8.11 To prevent the purchase of counterfeit or suspect/unapproved products and to ensure product identification and traceability (and for other reasons), TML Precision Engineering Ltd will institute controls that include the requirement of Material Certificates, Certificates of
Conformity, and/or other supporting documentation from its suppliers as appropriate. These requirements may be specified on TML Precision Engineering Ltd’s Purchase Order or may otherwise be communicated to the supplier.
8.12 Records to be forwarded to the organisation will be a Certificate of Conformity. For special processes a National Aerospace and Defense Contractors Accreditation Program (NADCAP) Certificate No, if applicable, is to be annotated on the Certificate of Conformity.
8.13 The supplier is to retain all quality records pertaining to the aerospace product suppliers to TML Precision Engineering Ltd for a period not less than the life of product plus 10 years. TML Precision Engineering Ltd is to be contacted to verify end product details to facilitate document retention periods.
9.0 Dispute Resolution Procedure
9.1 Any question or difference which may arise out of or in connection with this Agreement shall in the first instance be referred to the representatives of Tml and the Supplier nominated for discussion and resolution. If the matter is not resolved within 21 days of such referral, the escalation will continue through two (2) more levels of management. If the unresolved matter is having a serious effect on the performance of this Agreement, the parties will use best endeavours to minimise the escalation time. Neither party may initiate any legal action until the process has been completed, unless such party has reasonable cause to do so to avoid damage to its business or to protect or preserve any right of action it may have, including without limitation to seek injunctive relief in respect of any breach of its Intellectual Property Rights or similar rights.
9.2 If the dispute is not resolved by escalation in accordance with Clause 9.1 above, the parties may seek to resolve disputes between them by an alternative dispute resolution technique recommended by the Centre for Dispute Resolution in the UK.
10.1 If either party: (a) being a company, has a petition presented for its liquidation or calls a meeting to propose a resolution for its liquidation (other than solely for solvent amalgamation or reconstruction) or has a petition presented for the appointment of an administrator or has a receiver or administrative receiver appointed over it or any of its assets or makes any voluntary arrangement with its creditors; or (b) being an individual (or if a firm or partnership, any of its partners or members), has a petition presented for his bankruptcy, or has a receiver appointed over his affairs, or makes any voluntary arrangement with his creditors or (in the case of a firm or partnership) proposes or has presented against it a petition for its dissolution; or (c) in either case undergoes any analogous event in any jurisdiction where it is domiciled, then the other party may terminate this Agreement and/or any Order by written notice to the other taking immediate effect.
10.2 Tml reserves the right to cancel the Agreement or any Order for any reason and without cost or liability (save for any Supplies already delivered or performed) by giving the Supplier written notice at least thirty (30) days prior to the agreed time for delivery or performance.
10.3 Upon termination of this Agreement or, where relevant, an Order for whatever reason:-
(a) the Supplier shall reimburse any sums paid in advance by Tml for Supplies ordered but not yet received as at the date of termination;
(b) the parties will return Confidential Information of the other party and the Supplier shall at its cost forthwith return all Diagnostic Materials and any Tml Property and Tml may enter any premises to recover such items at the Supplier’s cost;
(c) the Supplier shall give Tml all reasonable assistance necessary to facilitate the orderly transfer of the Supplies to an alternative service provider.
11.1 The Receiving Party undertakes that it will take all necessary precautions to ensure that all Confidential Information is treated as confidential and that it (and any person employed or engaged by it in connection with the Supplies) uses Confidential Information of the Disclosing Party only for the purposes of this Agreement and shall not disclose any such Confidential Information to any third party without the prior written consent of the Disclosing Party or as set out herein.
11.2 The Receiving Party may disclose Confidential Information:
(a) pursuant to a duty imposed by law or the requirements of a regulatory authority but only to the extent so required;
(b) to give proper instructions to any professional adviser under an obligation to keep such Confidential Information confidential;
(c) where the Receiving Party is Tml, pursuant to a request made under the Freedom of Information Act 2000.
14.3 Confidential Information shall not include, and the obligations contained in this Clause 14 shall not apply, in respect of information:
(a) which was in the public domain at the time of disclosure;
(b) which, though originally Confidential Information, subsequently falls into the public domain through no fault of the Receiving Party;
(c) independently developed by the Receiving Party or its employees or agents where such party can show it has no access to that information as Confidential Information of the Disclosing Party received under this Agreement; or
(d) lawfully in the possession of the Receiving Party at the time of receipt which is subsequently lawfully received from a third party not under an obligation of confidentiality to the Disclosing Party in respect of that information.
11.4 Without prejudice to the generality of Clauses 11.3 (a) – (d) above, information shall not be deemed to be in the public domain by reason only that it is known to only a few of those people to whom it might be of commercial interest and a combination of one or more items of Confidential Information with information in the public domain shall not cause such Confidential Information to be deemed to be in the public domain.
11.5 Each party undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of Clauses 11.1 and 11.2 by its employees, agents, consultants and sub-contractors. For the avoidance of doubt, the Supplier acknowledges that Tml may require and the Supplier shall procure undertakings as to confidentiality directly from its employees in terms no less onerous than the terms contained in this Clause 11.
11.6 Neither the Supplier nor any person engaged by it whether as an employee, servant, agent or sub-contractor shall use the Confidential Information for the solicitation of business from Tml.
11.7 The Supplier shall not advertise or publicly announce its involvement in the Agreement without the prior written consent of Tml.
12.0 Limitation of Liability and Insurance
12.1 Notwithstanding anything to the contrary in this Agreement, Tml's liability to the Supplier for any loss, damage, costs, claims or expenses suffered by the Supplier under or in connection with this Agreement, whether arising from a breach of contract, negligence or howsoever, shall be limited as follows:
(a) in the case of liability arising from death or injury to persons as a result of any act or omission of Tml which is negligent (as defined by the Unfair Contract Terms Act 1977 section 1) or of any fraud on the part of Tml or of the acts, omissions or frauds of others for whom Tml is at law responsible, there shall be no limit;
(b) in respect of any other liability Tml's aggregate liability shall in no circumstances exceed the Charges for the Supplies in respect of which the claim arises; provided always that Tml’s total aggregate liability for all such claims arising in connection with this Agreement whether in contract, tort (including negligence) or otherwise shall be limited to and in no circumstances exceed £1,000,000.
12.2 The Supplier’s liability to Tml for any loss, damage, costs, claims or expenses suffered by Tml under or in connection with this Agreement, whether arising from a breach of contract, negligence or howsoever, shall be limited as follows:
(a) in the case of breach of Clause 2.5 (Data Protection), and Clause 11 (Confidentiality) or liability arising from death or injury to persons as a result of any negligent act or omission of the Supplier, which is negligent (as defined by the Unfair Contract Terms Act 1977 section 1) or of any fraud on the part of the Supplier or of the acts, omissions or frauds of others for whom the Supplier is at law responsible, there shall be no limit;
(b) in respect of any other liability the Supplier’s aggregate liability shall in no circumstances exceed three (3) times the Charges paid or payable under the Agreement or £1,000,000, whichever is greater.
12.3 Subject to Clauses 12.1(a), and 12.2(a), in no event will either party be liable to the other for:
(a) loss of profits, loss of revenue or loss of anticipated savings; or
(b) loss of business or opportunity, loss of goodwill or injury to reputation, arising out of or in connection with this Agreement.
12.4 Where the Supplier send its employees to Tml’s and/or Tml’s customers’ premises in connection with this Agreement then, notwithstanding any technical supervision exercised by Tml or any instructions issued by Tml, such employees shall remain the Supplier’s employees alone. It is an express condition of this Agreement and each Order that the Supplier effects and maintains in force for the benefit of the Supplier and Tml employer’s liability insurance in respect of such employees. Further the Supplier shall effect and maintain for the duration of this Agreement, or if any Order survives its termination, for the duration of that Order, such other insurance as is appropriate in the circumstances taking into account industry practice, the availability of insurance in the market place and the risks and liabilities which it is accepting under this Agreement. The Supplier shall provide Tml with written evidence of the existence of insurance cover required under this Clause 15 at any time on request, together with evidence that the last premium has been paid and shall notify Tml in writing of any change in the same.
12.5 The Supplier shall indemnify Tml against any loss of or damage to Tml Property and/or Tml’s customers’ property caused by the Supplies or by the act or default of the Supplier or its employees, agents or sub-contractors. All risk of loss or theft of or damage to any property of the Supplier or belonging to the Supplier’s personnel while at Tml’s premises and/or Tml’s customers’ premises for any reason whatsoever shall be and remain the sole risk and responsibility of the Supplier.
13.1 Force Majeure Neither party will be liable for delay in or for failure to perform obligations if that delay or failure is caused by circumstances beyond the reasonable control of the party affected including, but not limited to, refusal or revocation of licence, industrial dispute or impossibility of obtaining materials (a "Force Majeure Event") provided that:
(a) a claim for relief by the Supplier shall not be valid to the extent that a prudent supplier of supplies similar to the Supplies could have foreseen and/or prevented or avoided the Force Majeure Event;
(b) the affected party's obligation to perform the relevant obligations under this Agreement shall (during the continuation of the Force Majeure Event) be read and construed as an obligation to perform such obligations to the best level reasonably achievable in the circumstances;
(c) an inability to obtain sub-contracted services or supplies shall not constitute a Force Majeure Event except where no substitute is available;
(d) industrial action, strikes and lock-outs by employees of the Supplier shall not constitute a Force Majeure Event unless affecting the relevant industry on a national basis; and
(e) if the Supplier is prevented from performing its obligations under an Order by a Force Majeure Event which continues for more than 30 days, Tml may at its option terminate any affected Order without liability to the Supplier forthwith by giving written notice.
13.2 Assignment: The Supplier may not assign, transfer or delegate any of its rights or obligations under this Agreement in whole or in part without the prior written consent of Tml and any purported assignment or transfer shall be null and void and all acts and omissions by the assignee or transferee are deemed to be those of the Supplier. Delegation, whether authorised or not, shall not relieve the Supplier of any of its liability or obligations under this Agreement.
13.3 Notices All notices hereunder shall be in writing addressed to the parties at their respective addresses set forth in the Order or such other address as may be notified from time to time by either party to the other.
13.4 Waiver No terms or conditions hereof shall be deemed waived and no breach or default excused unless such waiver or excuse shall be in writing and signed by the party issuing the same.
13.5 Variations No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of both parties.
13.6 Non-solicitation During the Agreement and for a period of six (6) months after either its termination or the end of the provision of the Supplies (whichever is later), the Supplier shall not solicit the employment or services of any Tml personnel who has been engaged in connection with the Supplies.
13.7 Severance If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
13.8 Survival The following clauses shall survive termination of this Agreement: Clauses 11 (Confidentiality), 12 (Limitation of Liability and Insurance), 13.12 (Governing Law and Jurisdiction).
13.9 Relationship of Parties Nothing in this Agreement shall create a partnership or a fiduciary relationship or the relationship of employment between Tml and the Supplier. The Supplier shall not make any direct or indirect approach to Tml’s customer without Tml’s prior written consent.
13.10 Cumulative Remedies The rights and remedies of the parties under this Agreement are cumulative and without prejudice and in addition to any rights or remedies at law or in equity.
13.11 Rights of Third Parties A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
13.12 Governing Law and Jurisdiction The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by the laws of England and, without prejudice to Clause 9 (Dispute Resolution Procedure), the parties submit to the exclusive jurisdiction of the English courts. Notwithstanding the other provisions of this Agreement, Tml shall be entitled to bring an action in any jurisdiction where this relates to the protection of its Intellectual Property Rights or other rights, or those of its licensors.