Terms And Conditions Of Sale
1. DEFINITIONS AND INTERPRETATION
1.1. Capitalised words and phrases in these Terms shall have the following meanings: Confidential Information means any information in any form or medium disclosed by one party (the Disclosing Party) to the other (the Receiving Party) at any time concerning the business affairs, technology, plans, strategy, products or services (or future products or services) of the Disclosing Party or any of its affiliates, or which is otherwise confidential to the Disclosing Party or any of its affiliates.
Contract means the contract between Owen Mumford and the Customer for the sale of Products and/or the supply of Services incorporating the Proposal and these Terms.
Customer means the person purchasing the Products and/or Services from Owen Mumford. GMP means principles of good manufacturing practice relevant to the manufacture of medical devices as set out in EC Directive 93/42/EEC or the Code of Federal Regulations Title 21 part 280. Owen Mumford means Owen Mumford Limited, a company registered in the United Kingdom under company no. 1257871 with its registered office address at Owen Mumford Limited, Brook Hill, Woodstock, Oxfordshire, OX20 1TU.
Products means the products agreed in the Contract to be supplied by Owen Mumford.
Proposal means any quotation, proposal, standard price list or contractual document (such as a reseller or distribution agreement) issued by Owen Mumford referencing these Terms. Services means the services agreed in the Contract to be supplied by Owen Mumford. Terms means these terms and conditions.
1.2. Phrases beginning with the words including, in particular, for example and similar words shall be construed as illustrative and not exhaustive.
1.3. References to a person include any individual, company, partnership or other body corporate.
1.4. References to a statute, regulation, statutory or regulatory provision or code include references to it as modified or re-enacted or both from time to time and to any re-enactments or subordinate legislation.
2. APPLICATION OF TERMS
2.1. The Contract shall be on these Terms to the exclusion of all other terms and conditions (including any which the Customer purports to apply under any purchase order or other document), excepting any contained in a Proposal or other document expressly agreed between the parties and expressed to take priority over these terms and conditions. Any terms and conditions which might otherwise be implied by statute, course of dealing or otherwise are excluded from the Contract to the extent permissible by law.
2.2. Each order by the Customer shall be deemed to be an offer by the Customer to buy Products and/or Services subject to these Terms. No order shall be deemed to be accepted by Owen Mumford, and no Contract is formed, until a written acceptance of the order is issued by Owen Mumford or until Owen Mumford commences work to supply the Products and/or Services.
2.3. Any quotation given by Owen Mumford shall not constitute an offer and shall only be valid for a period of thirty (30) days from its date. Owen Mumford may withdraw any quotation at any time at its sole discretion.
2.4. Nothing in these Terms shall limit the provisions of any Quality and Technical Agreement or similar agreement entered into between the parties in relation to the quality of Products provided by Owen Mumford.
3. GENERAL OBLIGATIONS OF THE CUSTOMER
3.1. The Customer will co-operate with Owen Mumford in all matters relating to the manufacture and supply of Products, or performance of Services, and will respond in a timely manner to all reasonable requests for information from Owen Mumford.
3.2. The Customer will supply, or procure the supply to Owen Mumford of any information or materials (including as relevant samples of any drug identified in the Contract) as may be reasonably required by Owen Mumford for performance, together with material safety data sheets and any other information reasonably necessary to ensure safe storage and handling of those materials by Owen Mumford, and will ensure that any information provided by the Customer is accurate and complete. Owen Mumford shall only use such materials for the purposes of performing the Contract and will return them to the Customer on termination of the Contract or completion of performance.
3.3. If the Contract refers to any minimum order quantity for the Products, the Customer will ensure its orders meet or exceed the applicable minimum order quantity.
3.4. If Owen Mumford’s performance of its obligations under the Contract is prevented or delayed by any breach of this clause 3 by the Customer, or any other action or omission by the Customer, Owen Mumford will not be liable for such non-performance or delay and shall be entitled to payment as if it had performed.
4. DEVELOPMENT WORK AND OTHER SERVICES
4.1. Owen Mumford shall use reasonable endeavours to supply the Services to the Customer in accordance with applicable law (including GMP) and (subject to clause 5.2) in material accordance with any specification agreed between Owen Mumford and the Customer.
4.2. While Owen Mumford shall perform the Services in accordance with the Contract in all material respects, it is the Customer’s responsibility to ensure that the Services and any deliverables as described in the Contract are suitable for its intended purposes.
4.3. Owen Mumford shall use reasonable endeavours to meet any performance dates agreed between Owen Mumford and the Customer in relation to the Services, but any such dates shall be estimates only. Owen Mumford will keep the Customer reasonably informed of the progress of the Services. If Owen Mumford becomes aware of any reason which will or is likely to delay or impair Owen Mumford’s performance of the Services, Owen Mumford will notify the Customer and notify the Customer of any corrective actions planned by Owen Mumford.
4.4. If in the Proposal Owen Mumford has identified any assumptions or dependencies, Owen Mumford will not be liable for any delay or non-performance arising from any assumption or dependency not being fulfilled. Owen Mumford may, acting reasonably and by written notice to the Customer, adjust the price payable for the Services or any estimated timescales to address any non-fulfilment of assumptions or dependencies or any act or omission of the Customer.
5. AMENDMENTS TO SPECIFICATIONS
5.1. The Customer may at any time request an amendment to the specifications for the Product and/or Services. Where such an amendment is reasonably practicable, Owen Mumford will at its option provide the Customer with a proposed adjustment of the charges payable to Owen Mumford and any timelines performance as would be necessary to accommodate the proposed amendment. Owen Mumford may also at any time recommend to the Customer an amendment to the specifications for the Product and/or Services, and shall at the same time provide a proposed adjustment of charges and timelines. The Customer may in either case at its option elect to proceed with the amendment, accepting Owen Mumford’s adjustment to the charges and applicable timings, by notifying Owen Mumford within fourteen (14) days after receiving Owen Mumford’s proposed adjustment.
5.2. Owen Mumford reserves the right to amend the specification of any Products and/or Services if necessary to comply with any applicable law or regulatory requirement, to avoid infringement of third party intellectual property rights, or if the amendment will not materially affect the nature or quality of the Product and/or Services.
6.1. Owen Mumford will be responsible, at its cost, for preparing and maintaining all approvals and registrations of manufacturing facilities and quality assurance systems required for manufacture of Products under the Contract.
6.2. The Customer will be responsible for obtaining and maintaining all necessary regulatory approvals and registrations for the use of the Product in each country in which it intends to use or sell the Product. Any Product registration should be secured in the name of Owen Mumford wherever possible (and otherwise in the name of the Customer) and the Customer shall provide Owen Mumford with a complete copy of all documents filed and relevant correspondence connected with any registration. The Customer shall transfer any such registration and all related correspondence and documentation to Owen Mumford, or Owen Mumford’s nominee, if requested by Owen Mumford and shall provide all reasonable assistance requested in relation to that transfer. If Owen Mumford requests the transfer of any product registration, Owen Mumford shall reimburse to the Customer any fees paid by the Customer to the applicable regulatory authority in applying for and maintaining the registration, pro-rated against the remaining life of such registration.
6.3. Owen Mumford will maintain in accordance with GMP records relating to the manufacture of the Products and will provide copies of these to the Customer on request.
6.4. If requested by the Customer, Owen Mumford may provide any documents in addition to those mentioned above, and such other assistance as may be agreed, to support the submission to health authorities of regulatory dossiers for the Product. Owen Mumford may charge its usual hourly rates for such work.
6.5. The Customer shall comply with all applicable regulatory requirements in connection with the Products, including those relating to licences, complaints, distribution and storage. The Customer shall maintain appropriate up-to-date and accurate records to enable the immediate recall of any batches of the Products or any of them from any subsequent purchaser of the Products. These records will include records of deliveries to any subsequent purchasers (including details of batch numbers, delivery date, name and contact details of each subsequent purchaser).
7. PRODUCTS – ORDERING AND DELIVERY
7.1. The Products are described in Owen Mumford’s catalogues, brochures or website (as the case may be), or in the Proposal, and will be supplied in accordance with their applicable specification.
7.2. If any minimum order quantity and/or batch size has been agreed in the Contract, the Customer shall order in accordance with that minimum order quantity and/or batch size.
7.3. If the Customer has agreed to purchase a specified quantity of Products and call off delivery of those Products over a period of time, it shall give Owen Mumford reasonable notice of its delivery requirements during that period.
7.4. The Customer shall provide any materials (such as quantities of drug) necessary for the fulfilment of each order to Owen Mumford prior to, or as soon as possible after, placing each order for the Products. Owen Mumford may refuse any order until it has received the relevant materials.
7.5. Without limiting clause 7.4, where relevant:
a) all primary container systems (syringes and cartridges), system components (bungs, needle shields etc) and drug product samples (water for injection, drug) required for commercial batch release testing and other test purposes are to be supplied free issue by the Customer to Owen Mumford (at a quantity be mutually agreed as early as possible prior to order submission);
b) the specification will specify acceptable syringes including break loose and glide force limits for use with the Product. Owen Mumford will release batches of Product tested with syringes supplied by the Customer on the basis that they are compatible with the specification; and
c) the Customer shall be responsible for the costs of any batches which fail pre-release testing, and the costs of any investigation work, due to syringe incompatibility issues.
7.6. Owen Mumford will use reasonable endeavours to deliver the Products within the lead time agreed in the Contract (excluding any carriage requested by Customer). Any dates specified by Owen Mumford for delivery are an estimate only.
7.7. Unless otherwise agreed in writing by Owen Mumford, delivery of the Products shall take place at Owen Mumford’s place of business when Owen Mumford notifies the Customer that the Products are ready for collection. The Customer will collect or arrange for collection of the Products within five (5) working days after delivery. If Owen Mumford agrees arrange for carriage of the Products to any other address, then it shall do so at the Customer’s expense, any carriage will be at the Customer’s risk, and the Customer shall be responsible for unloading.
7.8. Owen Mumford may deliver the Products in instalments. Any delay in delivering, or defect in, any instalment shall not entitle the Customer to cancel any other instalment.
7.9. If for any reason the Customer refuses to accept delivery, or does not arrange for collection of any Products under clause 7.7, or if Owen Mumford is unable to deliver the Products on time because the Customer has not provided appropriate instructions, documents, licences or authorisations, then the Products will be deemed to have been delivered on Owen Mumford’s intended delivery date and Owen Mumford may charge for all costs associated with storing them (including insurance) until the Customer collects them.
7.10. If Owen Mumford delivers to the Customer a quantity of Products more or less than the quantity set out in the order then:
a) in the case of a shortfall, the Customer shall not be entitled to object to or reject the Products actually delivered for reason solely of the shortfall; and
b) in the case of a surplus, the Customer shall return such surplus to Owen Mumford at Owen Mumford’s risk and cost or alternatively with agreement of Owen Mumford, pay for such surplus.
8. PRODUCTS – WARRANTY AND INSPECTION
8.1. Owen Mumford warrants that the Products will be manufactured in accordance with GMP and will comply with their applicable specifications in all material respects on delivery or for such warranty period as may be agreed in the Proposal.
8.2. Where applicable, prior to delivery of any Products, Owen Mumford will perform tests (including as set out in any applicable quality agreement) to verify that the Products comply with their specifications and will supply a certificate of conformity with each batch of the Products.
8.3. The Customer shall acknowledge receipt of delivery of each shipment of Products as soon as it has been received by the Customer. The Customer will inspect each batch of Products within fourteen (14) days after receipt and may, by giving written notice to Owen Mumford within that time, reject any batch of Products that does not comply with the warranty in clause 8.1. Owen Mumford will at its option as soon as reasonably practicable either replace that batch of Products at its own cost (provided that Owen Mumford shall not bear any cost in relation to any Customer materials comprised within the Products) or refund to the Customer any sums paid to Owen Mumford in respect of that batch. If Owen Mumford so requests, the Customer will return the rejected batch to Owen Mumford at Owen Mumford’s expense. Provided that Owen Mumford complies with its obligations under this clause 8.3, it will have no further liability to the Customer in relation to any failure of the Products to comply with the warranty in clause 8.1.
8.4. If the parties disagree on whether or not a particular batch of Products complies with the warranty, the parties will refer the matter for review and/or analysis by an independent expert laboratory to be agreed by the parties. The decision of the expert laboratory will be binding on the parties (except in the case of fraud or manifest error) and the costs of determination will be borne by the party with which the expert laboratory disagrees.
8.5. Owen Mumford will not be liable for any failure of the Products to comply with the warranty in clause 8.1 where the defect is a result of damage in transit.
9. RISK/TITLE IN PRODUCTS
9.1. Risk in the Products passes to the Customer on delivery (or deemed delivery under clause 7.9).
9.2. Ownership of the Products will not pass to the Customer until Owen Mumford has received all sums due to it in respect of the Products, provided that if the Customer resells the Products as permitted under clause 9.4 ownership will pass to the Customer at the time of resale.
9.3. Until ownership of the Products has passed to the Customer, the Customer will:
a) hold the Products on a fiduciary basis as Owen Mumford’s bailee;
b) store the Products (separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as Owen Mumford’s property);
c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Products; and
d) maintain the Products in satisfactory condition, keep them insured for their full price against all reasonable risks and hold the proceeds of such insurance on trust for Owen Mumford.
9.4. The Customer may resell the Products before ownership has passed to it provided that such sale:
a) shall be in the ordinary course of the Customer’s business at full market value; and
b) shall be a sale of Owen Mumford’s property on the Customer’s own behalf as principal.
9.5. If before title to the Products passes to the Customer the Customer undergoes any of the events set out in clause 15.3.c) or the Customer encumbers or in any way charges any of the Products:
a) the Customer’s right to resell the Products shall cease immediately;
b) the Customer’s right to use the Products in the ordinary course of its business shall cease immediately; and
c) Owen Mumford may at any time require the Customer to deliver up all Products in its possession that have not been resold or irrevocably incorporated into another product and if the Customer fails to do so promptly may enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
9.6. The Customer grants Owen Mumford, its agents and employees an irrevocable licence to enter any premises where the Products are or may be stored at any time on reasonable notice in order to inspect them or, where the Customer’s right to possession has terminated, to recover them.
10. PRICE AND PAYMENT
10.1. The price for the Products and/or Services will be the price set out in Owen Mumford’s Proposal or acceptance of order. The prices will be exclusive of VAT, which if applicable shall be payable by the Customer at the prevailing rate, subject to the receipt of a valid VAT invoice.
10.2. Unless otherwise stated in the Contract, Owen Mumford may invoice the Customer:
a) for the Products at any time on or after the date of actual or deemed delivery;
b) for Services for which a fixed fee is payable, at each milestone specified for invoicing in the Contract and in the instalments specified, or, if no milestones have been agreed at the commencement of the relevant Services; and
c) for Services charged on a time-and-materials basis, monthly in arrears.
10.3. The Customer will pay the amount invoiced by Owen Mumford in cash or cleared funds to a bank account nominated by Owen Mumford within thirty (30) days after the date of Owen Mumford’s invoice. Time for payment will be of the essence.
10.4. Owen Mumford may vary the payment terms applicable to the Customer by written notice at any time, and in particular may do so where it judges the Customer to present a credit risk. Such variations might include requiring payment on order and/or withdrawing credit terms such that invoices are payable on presentation.
10.5. All payments shall be made in full without any deduction or set-off.
10.6. In the event of late payment Owen Mumford may claim, and the Customer shall pay, interest and costs of recovery in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
11.1. The Receiving Party shall:
a) keep the Confidential Information in strict confidence and take all reasonable precautions to prevent the unauthorised disclosure of it to any third party, which shall be no less stringent than the precautions taken by the Receiving Party in relation to its own proprietary information;
b) not disclose any of the Confidential Information in whole or in part to any third party without the prior written consent of the Disclosing Party or as otherwise expressly permitted by any other clause of the Contract;
c) not use the Confidential Information for any purpose other than the performance of the Contract (or taking legal or professional advice from its representatives) without the prior written consent of the Disclosing Party;
d) not file any patent application referencing any of the Disclosing Party’s Confidential Information or use such Confidential Information to challenge, oppose or seek to invalidate any patent or patent application owned or controlled by the Disclosing Party; and
e) inform the Disclosing Party promptly if it becomes aware of the possession, use or knowledge of any of the Confidential Information by an unauthorised person.
11.2. The Receiving Party may disclose the Confidential Information of the Disclosing Party to such of its directors, officers, employees, agents, and legal and professional advisors (and, if necessary, to the affiliates for whom those individuals work) who reasonably require access to it in connection with the performance of the Contract or, in the case of advisors, to provide legal or professional advice. In each case before any Confidential Information is disclosed to such individuals the Receiving Party shall ensure they are made aware of its confidential nature and that they are under written obligations of confidentiality and non-use materially equivalent to those in this clause 11. The Receiving Party will be liable to the Disclosing Party for any disclosure or misuse of the Confidential Information by any person to whom the Receiving Party discloses the Confidential Information.
11.3. The obligations of confidence and non-use set out in this clause will not apply to any Confidential Information which the Receiving Party can evidence (by reference to written records):
a) was at the time of disclosure to the Receiving Party or subsequently becomes (through no fault of the Receiving Party) published, known publicly or otherwise in the public domain;
b) was, prior to the time of disclosure to the Receiving Party, known to the Receiving Party;
c) is, at any time, disclosed to the Receiving Party by a third party in circumstances where it has no reason to believe that there has been a breach of an obligation of confidence owed to the Disclosing Party; or
d) is independently developed by or on behalf of the Receiving Party without reliance on the Confidential Information received from the Disclosing Party.
11.4. The Receiving Party will not be in breach of its obligations under clauses 11.1.a) and
11.1.b) to the extent that it is required to disclose any Confidential Information under any law or by or to a court or other public, regulatory or financial authority that has jurisdiction over it, provided that the Receiving Party gives the Disclosing Party written notice prior to disclosing any of the Confidential Information (where permissible by law) and that the disclosure is made only to the extent required and for the purpose of complying with the requirement.
11.5. On termination of the Contract, the Receiving Party will immediately cease all use of Confidential Information disclosed and will promptly destroy or return to the Disclosing Party all that Confidential Information in its possession. As an exception to this obligation, the Receiving Party may retain one copy of the Confidential Information solely for the purpose of record-keeping and ensuring compliance with its obligations under the Contract and/or GMP, and shall not be required to delete Confidential Information from any backup or archive provided that it is not accessed after termination of the Contract.
11.6. Neither party will use the other’s name or logo in any press release or product advertising, or for any other promotional purpose, without first obtaining the other’s written consent.
12. INTELLECTUAL PROPERTY RIGHTS
12.1. Nothing in the Contract will affect the ownership of any intellectual property rights of either of the parties nor operate to grant to the other party any licence under such intellectual property rights except as expressly set out in the Contract.
12.2. The Customer grants to Owen Mumford a non-exclusive, royalty-free licence under any intellectual property rights in any materials provided by the Customer to Owen Mumford solely as necessary to perform the Services and supply the Products to the Customer. The Customer warrants that it is free to provide such materials and grant such licence and that such use by Owen Mumford will not infringe any third party’s intellectual property rights.
12.3. All intellectual property rights in or arising out of or in connection with the provision of any Services shall be owned by Owen Mumford. The Customer may not make any patent application or register any patent in relation to or covering the combination of the Product with any drug.
12.4. Owen Mumford does not make any representation and gives no warranty that the use of the Products by the Customer or any other person will not infringe the intellectual property rights or other rights of any third party and will have no liability to the Customer for any such claim.
12.5. If the Products are to be manufactured in accordance with a modified specification, agreed between Owen Mumford and the Customer, the Customer shall indemnify Owen Mumford against all losses, liabilities, damages and expenses (including reasonable legal fees and costs) suffered or incurred by Owen Mumford in connection with any claim made against Owen Mumford for actual or alleged infringement of any third party intellectual property rights arising out of or in connection with Owen Mumford’s application or use of such modified specification.
13. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS EXPRESSLY DRAWN TO THIS CLAUSE
13.1. Nothing in the Contract will operate to limit or exclude either party’s liability for death or personal injury caused by its negligence, for fraud, for any sort of liability that cannot lawfully be limited or excluded or, in the case of the Customer, for its payment obligations.
13.2. Owen Mumford will indemnify the Customer against all losses, liabilities, damages and expenses (including reasonable legal fees and costs) suffered or incurred in connection with any claims, brought against it by any third party for death or personal injury arising directly out of any breach by Owen Mumford of the warranty in clause 8.1 or negligence on the part of Owen Mumford, except to the extent that such losses, liabilities, damages or expenses are attributable to any negligence, breach of contract or wilful misconduct on the part of the Customer or to the use of any drug or any directions or specification from Customer.
13.3. The Customer will indemnify Owen Mumford against all losses, liabilities, damages and expenses (including reasonable legal fees and costs) suffered or incurred in connection with any claims, brought against it by any third party for death or personal injury arising directly out of any development, manufacture, sale or use of any Product (or any drug contained within that Product) developed pursuant to the Contract except to the extent that such losses, liabilities, damages or expenses are attributable to Owen Mumford’s negligence or breach of the warranty in clause 8.1.
13.4. The indemnities given in clauses 13.2 and 13.3 are subject to the party or person claiming the indemnity:
a) promptly notifying the indemnifying party in writing with details of the claim;
b) not making any admission in relation to the claim;
c) allowing the indemnifying party to have the conduct of the defence or settlement of the claim; and
d) giving the indemnifying party all reasonable assistance (at the indemnifying party’s expense) in dealing with the claim.
13.5. Subject to clause 13.1, and except under the indemnity in clause 13.2, Owen Mumford’s liability for any breach of the Contract, for any negligence, or arising in any other way out of the subject matter of the Contract:
a) will not extend to any indirect or consequential damages or losses, or any loss of profits, loss of contracts, wasted or lost management time or loss of goodwill or loss of business (in each case whether direct or indirect); and
b) will not exceed the total price of the Products and/or Services supplied or to be supplied to the Customer under the Contract.
13.6. During the term of the Contract and for a period of two (2) years after the expiry or termination of the Contract, each party will maintain with a reputable insurance company comprehensive third party liability insurance including product liability with cover of at least £5 million per claim. Each party will, if requested by the other, provide evidence confirming the maintenance of such cover.
14.1. Owen Mumford shall be responsible for investigation of any complaints (including as relevant, any adverse events) relating to the Product unless it is attributable in any way to the use of any Customer-provided or Customer-designed materials (such as any drug, components, cartridges or parts) or any modifications to the Product made at the request of the Customer. The Customer shall be responsible for investigation of any other complaints. The Parties agree to cooperate with each other as far as necessary to address any complaints including as relevant to provide information required by regulatory authorities.
14.2. If the Customer has reason to believe a Product should be recalled or withdrawn, it shall promptly notify Owen Mumford in writing, including the reasons why it should be recalled or withdrawn. The Customer shall comply with Owen Mumford’s reasonable instructions concerning whether, and how, to conduct any Product recall or withdrawal. If any recall or withdrawal is necessitated solely due to Owen Mumford’s negligence or breach of clause 8.1, Owen Mumford agrees to reimburse the direct and reasonable costs of such recall or withdrawal.
15. SUSPENSION, CANCELLATION AND TERMINATION
15.1. Owen Mumford may suspend any deliveries to the Customer and/or performance of the Services if the Customer fails to make any payment under the Contract or any other contract with Owen Mumford by its due date or if the Customer commits or becomes subject to, or Owen Mumford reasonably believes that the Customer is about to commit or become subject to, any of the acts or events listed in clause 15.3 which would entitle Owen Mumford to terminate (and in the event of such suspension Owen Mumford shall be entitled to the remedies referred to in clause 15.5 b).
15.2. Orders may not be cancelled except at Owen Mumford’s absolute discretion. Any consent by Owen Mumford to cancellation may be subject to additional conditions or payments.
15.3. Either party may terminate the Contract by written notice with immediate effect if the other:
a) materially breaches any term of the Contract which is not capable of remedy;
b) materially breaches any term of the Contract which is not remedied within thirty (30) days from receipt of written notice specifying the breach and requesting remedy;
c) has a receiver, administrator or other similar officer appointed over it or over any part of its undertakings or assets, passes a resolution to, or is ordered to, wind up (other than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), enters into an arrangement with its creditors, ceases to carry on business, is deemed by applicable law to be unable to pay its debts or undergoes or is subject to any analogous occurrences or proceedings.
15.4. Owen Mumford may terminate the Contract by written notice with immediate effect, and at its option cancel all orders for relevant Products or Services, if Owen Mumford’s Products are subject to any recall or if any concern has been identified by Owen Mumford in relation to product safety or the infringement of third party rights in connection with the relevant Products or Services. If Owen Mumford terminates under this clause it shall return to the Customer any prepaid sums for Products or Services not supplied by Owen Mumford under the cancelled orders but shall otherwise have no liability to the Customer.
15.5. On termination of the Contract for any reason, the Customer shall, without limiting Owen Mumford’s other rights and remedies:
a) immediately pay to Owen Mumford all outstanding unpaid invoices and any interest due on them; and
b) pay Owen Mumford at the agreed contract rate for all work performed by it or its sub-contractors up to the date of termination (or if no rate has been agreed, a reasonable sum determined by Owen Mumford on a pro rata basis by reference to the agreed price for the Services), reimburse Owen Mumford for any costs or disbursements set out in the Proposal, and reimburse Owen Mumford if requested for any other costs incurred or commitments by Owen Mumford prior to the date of termination. Owen Mumford will invoice the Customer for all amounts due under this clause promptly after the date of termination.
15.6. Clauses 1, 11 through 14 (inclusive), 15.5 and 16 through 18 (inclusive) will survive termination of the Contract for whatever reason.
16.1. Neither party will be liable to the other for any delay or non-performance of its obligations under the Contract (other than a payment obligation) arising from any cause beyond that party’s reasonable control. Either party shall, if affected by such an event, notify the other, indicating the nature, effect and likely duration of that event. If performance is delayed for three (3) months or longer either party may terminate the Contract by written notice with immediate effect.
16.2. Owen Mumford may perform its obligations through sub-contractors provided that Owen Mumford remains liable to the Customer for the performance of all obligations, whether or not sub-contracted.
16.4. The Contract constitutes the entire agreement between the parties in relation to its subject matter. Each party acknowledges that in entering into the Contract it does not rely on any representation or warranty not set out in it.
16.5. No waiver of any right or remedy under the Contract shall be valid unless in writing. The exercise by a party of any right or remedy under the Contract shall not limit its other rights or remedies.
16.6. If any provision or part-provision of the Contract is found by a court to be unlawful, unenforceable or void, that provision or part-provision shall be severed and the remainder of the Contract shall remain in force.
16.7. The Customer may not assign or otherwise transfer any of its rights or obligations under the Contract without Owen Mumford’s prior written consent.
16.8. Owen Mumford shall comply with all applicable laws relating to anti-bribery and anti-corruption including the Bribery Act 2010. Owen Mumford is not obliged to comply with the Customer’s anti-bribery, ethics or anti-corruption procedures, even if provided to Owen Mumford. The Customer shall report to Owen Mumford any offer of or request for any undue financial or other advantage of any kind by any employee or agent of Owen Mumford.
16.9. The Contract may only be varied by the written agreement of the parties.
16.10. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of the Contract.
Notices under the Contract shall be in writing and delivered by hand or post at the recipient’s registered office or such other address for service as may be agreed from time to time or sent by email to such address for service as may be agreed from time to time (and notices to Owen Mumford may be sent to firstname.lastname@example.org. Any notice shall be deemed received: i) if delivered by hand or post, on delivery; or ii) if sent by email, on sending (provided receipt is confirmed). This clause does not apply to the service of any proceedings or other documents in any legal action or method of dispute resolution.
18. GOVERNING LAW AND JURISDICTION
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and subject to the exclusive jurisdiction of the courts of England and Wales.
Owen Mumford – Terms and Conditions for the Sale of Goods and Supply of Services – version 20 December 2021