Heras Terms and Conditions of Sale
1 Definitions and interpretation
1.1 In these Conditions:-
“Business Day” means a day other than a Saturday, Sunday or public holiday for both England, Scotland;
“Conditions” means the conditions set out in this document and (unless the context otherwise requires) includes any special conditions agreed in writing with the Customer and Heras;
“Contract” means the contract for the supply of the Goods and/or Services in accordance with these conditions;
“Customer” means the person who purchases the supply of Goods and/or Services from Heras;
“Delivery” has the meaning set out in condition 6;
“Delivery Location” has the meaning set out in condition 6.1;
“Goods” means those goods (including any instalment of the same) or Works which Heras is to supply in accordance with these Conditions;
“Heras” means Heras Perimeter Protection Ltd (registered in England under company number 02840742 and whose Registered Office is at Herons Way, Carr Hill, Balby, Doncaster, South Yorkshire, DN4 8WA);
“Order” the Customer’s order for Goods and/or Services as accepted by Heras in writing (who shall notify the customer of the same as required from time to time), or the Quotation accepted by the Customer and subsequently confirmed by Heras in writing; and submitted in a form approved by Heras who shall notify the Customer of the same as required from time to time;
“Personal Data” means any information relating to an identified or identifiable natural person, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person;
“Price” the price for the Goods and/or Services as set out in condition 4;
“Quotation” the written quotation for the Goods and/or Services supplied by Heras;
“Services” the services, as set out in the Quotation and/or Order;
“Works” the works, as set out in the Quotation and/or Order;
1.2 Reference in these Conditions to legislation or legislative provision shall include reference to that provision as amended, re-enacted or extended at the relevant time and shall include all subordinate legislation made under the legislation or legislative provision. Headings in these Conditions are for convenience only and shall not affect their interpretation.
1.3 A reference to writing or written includes faxes and e-mails but in relation to emails, they will only constitute writing in the event that they have been received and acknowledged by a duly authorised representative of Heras.
1.4 Any words following the terms including, include, in particular, for example or any similar expressions shall be construed as illustrative and shall not limit the sense of the words, descriptions, definitions, phrase or term preceding those terms.
2 The supply
2.1 The Order or Quotation shall only be deemed to be accepted when the Customer issues a written acceptance of the Order or the Quotation, at which point the Contract shall come into existence.
2.2 Heras supplies, and the Customer purchases the Goods and/or Services in accordance with the Order subject to these Conditions which govern the Contract to the exclusion of any other terms including any which the Customer attempts to incorporate or which are implied by trade, custom, practice or course of dealing.
2.3 Any samples, drawings, descriptive matter or advertising issued by Heras and any illustrations or descriptions of the Goods or Services contained in Heras’s catalogues or brochures are issued or published for the sole purpose of giving a preliminary description of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
2.4 Any Quotation given by Heras shall not constitute an offer, and is only valid for a period of 15 Business Days from its date of issue.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.6 No variation to these Conditions shall be binding unless approved in writing by a director of Heras.
2.7 Any advice or recommendation given by Heras, its employees or agents to the Customer as to the use of Goods which is not confirmed in writing by Heras is acted upon at the Customer’s own risk. Accordingly Heras is not liable for any advice or recommendation not so confirmed.
2.8 Any error or omission in any sales literature, Quotation, price list, invoice or other document or information issued by Heras is subject to correction without liability to Heras.
2.9 No right is granted to the Customer under any intellectual property right save the right to use or resell the Goods.
2.10 Heras shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
2.11 Where necessary for the provision of the Goods and/or Services, the Customer shall obtain within fourteen (14) days business days of the date of the Contract (or such other period as Heras may agree) and shall (at the Customer’s expense) obtain and maintain in force all necessary permits including those required:
(a) to enable the Goods to be imported into the country of destination; and
(b) to enable payment to be effected (which is payable in UK Sterling only unless expressly agreed in writing by Heras) in accordance with the Contract, and the Customer shall provide written confirmation of the requisite permits including the permit number, date and period of validity to Heras on request. In the event of any breach of this obligation, Heras shall be entitled, without prejudice to any other rights or remedies available to it, to cancel the Contract.
2.12 Heras shall be under no obligation to manufacture or supply the Goods and/or Services before receipt of such permit information detailed in condition 2.11.
2.13 If Heras performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other rights or remedy it may have, Heras shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
3 Orders and specifications
3.1 No Order is deemed accepted by Heras unless confirmed in writing by the UK Finance Director, UK Operations Director or Chief Commercial Officer or Commercial Manager of Heras. All such acceptances by Heras will be at Heras sole discretion.
3.2 The Customer is responsible for ensuring the accuracy of any Order (including applicable drawings, descriptions, specifications and other information), and confirms that all such information is in all respects complete, accurate and entirely suitable for the Customer’s requirements. The Customer shall provide Heras with any necessary information relating to the Goods and/or Services in a sufficient time to enable Heras to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and/or Services must be set out in an acceptable format (to Heras) in the accepted Order.
3.4 To the extent that the Goods are to be provided in accordance with a specification submitted by the Customer, the Customer will indemnify Heras against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Heras in connection with any claim made against Heras for infringement of a third party’s intellectual property rights resulting from Heras’s use of the Customer’s specification. This condition 3.4 shall survive termination of the Contract.
3.5 Heras shall have the right to make any changes to the Goods and/or Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Goods and/or Services, and Heras shall notify the Customer in any such event.
3.6 An Order may only be cancelled by the Customer with Heras written consent. Should Heras agree to cancel an Order then a charge maybe applied at the following % percentage rates, depending on which stage of the Order it is at:
3.7 If the Customer wishes to cancel scheduled installation and commission services within 48 hours of the booked time for provision of those services then a charge maybe applied at follows:
(a) Demarcation Team – £650.00 per day per team
(b) Electrical Mechanical team – £950.00 per day per team
3.8 The Customer shall provide Heras with clear, uninterrupted access and safe working areas where the Services are to be provided. Should Heras arrive at the Customer site and find that the site is not ready to receive the Services, or any associated delivery then an abortive visit charge and any associated delivery cancellation charges will be applied as followed:
(a) Demarcation Team – £650.00 per day per team
(b) Electrical Mechanical team – £950.00 per day per team
(c) Associated delivery cancellation charges will be notified at the point of delivery cancellation and cost substantiated.
3.9 Unless otherwise expressly agreed, Heras shall have no responsibility for the performance, suitability or durability or any goods or any materials or workmanship comprised in the Services to the extent that the same is manufactured in accordance with the Customer’s designs, drawings, standards or specifications.
4.1 In order to offer a competitive price, Heras has not included within its price(s) (unless specifically listed in the Order) the cost of any works which are not identified within the Order, including any civils works, ducting, mains or control cables. As these are to be provided by third party suppliers. Any prices for such works which are included in the Order are provided as an estimate only and are based on the assumption that the existing sub-structure is to the required and adequate standard. Heras reserve the right to review any estimate prices provided for such works, shall advise the Customer of any revises prices accordingly. Heras shall not proceed with the Services until the Customer has approved the revised pricing.
4.2 Heras may by giving notice to the Customer at any time before delivery, of increases to the Price to reflect any increase in the cost to Heras due to any factor beyond its reasonable control including, changes to site conditions, foreign exchange fluctuations, currency regulation, alteration of duties, increases in the cost of labour materials or manufacture, increases of any third party costs, a change in delivery dates quantities or specifications for Goods and/or Services requested by the Customer, delay caused by instructions of the Customer or a failure of the Customer to give Heras adequate information or instructions.
4.3 Save as otherwise agreed in writing (and subject to condition 6.1), the Price for the Goods is the Heras Doncaster factory Ex-Works (EXW) (Incoterms 2020 Rules).
4.4 Where Heras agrees in writing to deliver the Goods the Customer is liable to pay Heras the costs of arranging transport, documentation preparation, packaging and insurance. Heras accepts no liability for acts or omissions of any carrier.
4.5 The Price is exclusive of applicable value added tax and any other tax or duty or any costs relating to the manufacture, transportation, export, import, sale or delivery of the Goods and/or Services which the Customer is liable to pay to Heras.
4.6 The cost of pallets and returnable containers will be charged to the Customer in addition to the Price. Full credit for the cost of such pallets and returnable containers will be given to the Customer if these are returned undamaged to Heras before the final invoice payment due date.
4.7 Where the Price includes Services, the Price stated in the Contract allows for carriage of materials within ten metres of a permanent road surface or metalled road. Any additional carriage shall be added to the Price.
4.8 Where the Price includes Services, the Price stated in the Contract assumes (where applicable) normal excavation in soil. Where Heras encounters physical conditions or obstructions (whether artificial or natural) Heras shall advise the Customer of the options available to remedy the conditions to obstructions, and the revised Price. Heras shall cease the provision of the Services until the Customer provides written confirmation that it accepts the revised Prices. The revised Price shall include the cost of delays and non-working time to be paid by the Customer, which may include abortive and delayed time on site as outlined under conditions 3.7 and condition 3.8
4.9 Where the Price includes Services, the Customer shall be responsible for the true and proper setting out of the Services and for the correctness of the position, levels, dimensions and alignment of all parts of the Services as defined and agreed during the pre-construction phase meeting. If, at any time during the progress of the Services any error shall appear in the position of the levels, dimensions or alignment of any part of the Services the Customer shall at Heras’s request and at the Customer’s cost rectify such error.
4.10 Where the Price for the Goods is varied by the parties in writing in accordance with this condition 4, the Price as varied shall be binding on both parties and either party shall not be permitted to terminate the Contract other than in accordance with these conditions.
5.1 Unless otherwise agreed in writing, the Customer shall pay Heras invoices within 30 business days from the date of invoice.
5.2 When deliveries are made in instalments, each instalment will be invoiced and paid for separately in accordance with the provisions of the Contract and in line with condition 5.1.
5.3 The Price is payable as follows:
5.4 If the Order is deemed by Heras to be an export Order then the price is payable as follows:
5.5 If the completion of the Contract is delayed due to circumstances outside the control of Heras, Heras shall submit an invoice for the value of the works completed up to the date of invoicing
5.6 Failure to pay any invoice by the due date shall without prejudice to any other rights or remedies that Heras may have, entitle Heras to suspend further deliveries of the Goods and/or Services (including those to be provided) under any other Contract between the Customer and Heras). In addition Heras will be given a reasonable period to organise and recommence the provision of the Goods and/or Services, without liability following any suspension under this condition.
5.7 Unless otherwise agreed in writing or stipulated within these Conditions, Heras may invoice the Customer for Goods and/or Services on or at any time after Delivery. Heras may invoice the provision of annual maintenance services comprised within the Orders either 6 or 12 months (as Heras may stipulate) in advance of the relevant provision.
5.8 Unless otherwise agreed in writing or stipulated within these Conditions, the Customer will pay the Price (together with any other costs levied under condition 4) in full without deduction or set off. Heras may recover such Price notwithstanding that delivery may not have taken place and title in the Goods not passed to the Customer. Time of payment of the Price is of the essence of the Contract. Receipts for payment will be issued only upon request.
5.9 If the Customer fails to make any payment due under the Contract on its due date then, without prejudice to its other rights or remedies, Heras may:-
(a) cancel the Contract or suspend any further provision of the Goods and/or Services to the Customer without notice to the Customer;
(b) appropriate any payment made by the Customer to such of the Goods and/or Services (or goods or services supplied under any other contract between the Customer and Heras) as Heras may think fit notwithstanding any purported appropriation by the Customer; and
(c) charge the Customer interest on the amount unpaid from the due date until payment of the overdue sum (whether before or after judgement) at the rate of 8% per annum above Barclays Bank plc base rate from time to time, (and part of a month being treated as a full month for the purpose of calculating interest).
5.10 Where the Contract provides for payment upon submission of a pro-forma invoice or other demand Heras shall not be obliged to deliver and or supply any of the Goods or Services in question until payment has been made in full.
6.1 Where applicable delivery of the Goods is made by the Customer collecting them from Heras’s premises after Heras has notified the Customer that the same are ready for collection or, if some other place for delivery is agreed by Heras in writing, by Heras delivering the Goods to that place (“Delivery”).
6.2 For the avoidance of doubt, unless otherwise agreed in writing, the Goods shall be collected by the Customer from Heras Doncaster factory Ex-Works (“EXW”) (Incoterms 2020 Rules). Will be delivered Ex-Works United Kingdom, unless otherwise stated, where “EXW” or any other commercial terms as may be agreed.
6.3 If the Quote and/ Order stipulates, or the Customer requests, and Heras accepts such a request in writing, special packing and/or transport arrangements, the extra cost of such packing and/or transport arrangements will not be included in the Price and will be provided at the Customer’s expense.
6.4 Where Services (excluding installation, wiring, commissioning and testing) are being delivered, Delivery of such Services will be deemed to have taken place upon completion of the performance of such Services.
6.5 The Customer will inspect delivered Goods as soon as reasonably practicable following Delivery and will notify Heras in writing of any shortfalls in Delivery within 5 business days of Delivery (such notice being accompanied by a copy of the relevant despatch note).
6.6 Any and all dates given by Heras for delivery of Goods, and/or the provision of Services (including any and all dates specified in any Order and any and all dates confirmed or accepted by Heras) are estimates only. Although Heras will use its reasonable endeavours to comply with such dates, it shall not be in breach of the Contract, in the event of any failure to meet such dates. The Goods may be delivered in advance of the quoted delivery date upon Heras giving reasonable notice to the Customer. Time of delivery of Goods or performance of Services shall not be of the essence of the Contract.
6.7 Where the Goods are to be delivered in instalments, each delivery constitutes a separate contract. Failure by Heras to deliver any one or more instalments in accordance with these Conditions or any delay howsoever arising or any claim by the Customer in respect of any one or more instalments will not entitle the Customer to treat the Contract as a whole as repudiated, or to withhold any payment for previously invoiced instalments, or to reject any delivery or any further instalment or part of the order or any other order from Heras.
6.8 If the Customer fails to take delivery of the Goods on the agreed date or fails to give Heras adequate instructions for delivery then, unless otherwise agreed and without prejudice to its other rights or remedies, Heras shall:
(a) store the Goods until actual delivery and charge the Customer 1% of the Price per week for the period between when the Goods should have been delivered to the actual date on which the goods are delivered. The Customer agrees that this percentage is an estimate of the cost to Heras of storing the Goods; or
(b) sell the Goods at the best price readily obtainable and (after deducting reasonable expenses) charge the Customer for any shortfall below the Price.
7 Risk and title
7.1 Risk in the Goods passes to the Customer:
(a) the earlier of: (i) when the Customer collects the Goods from Heras’s premises; or (ii) when Heras notifies the Customer that the same are available for collection; or
(b) where Heras agrees in writing to deliver the Goods to a location other than Heras’s premises, on delivery or, if the Customer fails to take delivery of the Goods, when Heras has tendered delivery.
7.2 Where the Contract includes Services, it shall further be the responsibility of the Customer at its own cost to provide adequate dry and secure storage of the Goods from the point of Delivery and completion of such Services
7.3 Notwithstanding the passing of risk in the Goods, title in the Goods shall not pass to the Customer until Heras has received (in cash or cleared funds) full payment of the Price of the goods (together with any interest and where applicable the delivery costs) and all other goods or services supplied by Heras to the Customer for which payment is then due, in which case title to the Goods shall pass at the time of payment of all such sums.
7.4 Until title in Goods passes to the Customer:
(a) the Customer will; keep the Goods in good condition; keep the Goods separate from other Goods of the Customer and third parties and properly; and properly store the Goods; insure the Goods against all risk for their full Price from the date of delivery; not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and ensure that the Goods remain readily identifiable as being Heras’s property. If the Customer manufactures another article or articles from the Goods with or without the addition of other materials and/or mixes the Goods in any way whatsoever with other materials and/or incorporates the Goods into any other article as a component part, the property in the products of such manufacture, mixing or incorporation shall be transferred to Heras at the time of such manufacture, mixing or incorporation and the Customer will hold the same as Heras’s fiduciary agent and bailee, keep the same in good condition and separate from other goods of the Customer and third parties and properly stored protected insured and identified as being Heras’s property until Heras is paid in full by the Customer
(b) Heras may (unless the Goods have been resold) require the Customer to deliver up the same to Heras and, if the Customer fails to do so, Heras may enter the premises of the Customer or any third party where the Goods are stored and repossess the same, and the Customer shall give, or shall procure, Heras free and unobstructed access to the such premises. Any goods repossessed by Heras may be resold and the Customer shall reimburse any shortfall.
8 Warranties, liability and Force Majeure
8.1 Heras warrants that, on delivery of the Goods will correspond with their relevant formal drawings and specification and agreed during the pre-construction phase meeting, and, will be free from defects in material and workmanship. Heras warrants that any Services will be provided with reasonable skill and care.
8.2 Subject to the provisions of conditions 8. 3 below, Heras warrants that the Goods, will be free from defects in material and workmanship for a period of 12 months from delivery (the “Warranty Period”). Any claim by the Customer that the Goods are defective must be in writing and accompanied by the Goods in question (suitably packed and returned to Heras at the Customer’s expense) and a written statement identifying in as much detail as Heras may reasonably require their date of delivery of the Goods, and the nature of any defect claimed. Where a claim is notified to Heras under this condition and which is substantiated to Heras’s reasonable satisfaction, Heras (at its discretion) may replace or repair the Goods (or a relevant part of the same) free of charge or refund to the Customer the Price (or a reasonable proportion of the same), but shall have no further liability to the Customer under this condition 8.2. For the avoidance of doubt the Customer’s remedies in respect of any claim under this condition 8 or any condition or warranty implied by and any other remedy which would otherwise be available in law is hereby excluded except to the extent that such exclusions is a claim in respect of any defect or failure to comply with the specification or Order or in respect of any delivery or instalment of an Order or any part thereof shall not entitle the Customer to cancel or refuse delivery of or payment for the Order or any other Order.
8.3 Heras shall not be liable for the Goods’ failure to comply with the warranty in condition 8.2 if:
(a) the Customer makes any further use of such Goods after giving a notice in accordance with condition 8.2;
(b) the defect arises because the Customer failed to follow Heras’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
(c) the defect arises as a result of Heras following any drawing, design or Goods specification supplied by the Customer;
(d) the Customer alters or repairs such Goods without the written consent of Heras;
(e) the defect arises as a result of fair wear and tear, wilful damage, misuse, negligence, or abnormal working conditions;
(f) if the Price of the Goods has not been paid by the due date for payment;
(g) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
(i) the Goods are deemed to have been damaged by the Customer during the removal of the Goods and subsequent transport back to Heras Premises
8.4 Except as provided in this condition 8, Heras shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in condition 8.1 or 8.2.
8.5 Any Goods replaced will belong to Heras and any repaired or replacement Goods will be guaranteed on these terms for the portion of the 12 month period (as set out above in condition 8.2.) remaining at the time of replacement. The warranties given under conditions 8.2 do not extend to parts materials or equipment not manufactured by Heras, for which the Customer may only have the benefit of any warranty or guarantee given by the manufacturer insofar as Heras may transfer the same to the Customer.
8.6 Subject as provided in these Conditions and save where the Goods are sold to a person dealing as a consumer (defined in Unfair Contract Terms Act 1977), all terms implied by law are excluded to the fullest extent permitted.
8.7 Any claim by the Customer under condition 8.2 must be notified to Heras as soon as reasonably practicable after discovery of the same and in any event within 5 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure, provided that the Customer notifies Heras of such defect or failure within 12 months of delivery unless otherwise agreed between the parties in writing. If the Customer does not notify Heras accordingly in accordance with this condition 8.7;
(a) the Customer may not reject the Goods
(b) Heras has no liability for such defect or failure, and
(c) the Customer is bound to pay the Price as if the Goods had been delivered in accordance with the Contract.
8.8 Heras’s liability to the Customer for missing or damaged Goods up to the time of delivery shall be limited to sums recoverable by Heras under a policy of insurance in respect of such risks which may be maintained by Heras at its sole discretion. If no such sums are recoverable or if no such policy of insurance is maintained, Heras does not accept any liability whatsoever in respect of such Goods. If title in the Goods has passed to the Customer but the Goods are kept at Heras’s premises at the Customer’s request, Heras shall have no responsibility in respect of the safety of the Goods thereafter and accordingly the Customer should insure the Goods (at its own expense) against all risks as is deemed appropriate by the Customer and for their full Price.
8.9 The restriction on liability in this condition 8 apply to every liability under or in connection with the Contract including liability in Contract, tort (including negligence), misrepresentation, restitution or otherwise. Nothing in the Contract limits any liability which cannot be legally limited, including liability for: death and personal injury caused by Heras’s negligence, fraud or fraudulent misrepresentation; breach of the terms implied by section 12 of the Sale of Goods Act 1979; or defective products under the Consumer Protection Act 1987.
8.10 Subject to condition 8.9, Heras is not liable to the Customer by way of representation (unless fraudulent), common law duty or under any express or implied term of the Contract, for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of damage to goodwill or indirect or consequential loss or damage (whether caused by the negligence of Heras, its employees or agents or otherwise) arising in connection with the supply of Goods (or their use or resale by the Customer) or Services. The entire liability of Heras in connection with the Contract shall to exceed the Price, save as expressly provided in these Conditions. This condition 8.10 shall survive termination of the Contract.
8.11 Heras obligations under the Contract will be suspended, and it shall not be in breach of the Contract nor liable for the delay in performing or failure to perform any of its obligations under the Contract (in whole or in part), to the extent that is prevented or hindered from complying with the same by any cause beyond its reasonable control including any Act of God, third party acts or omissions, war, sabotage, insurrection, Government regulation or action, embargo, strike, labour dispute, illness pandemic or epidemic, flood, fire, tempest or shortage of raw materials or services. Heras will use reasonable endeavours to remedy such cause and will resume the performance of such obligations as soon as reasonably possible after the removal of the cause provided that any time scale (express or implied) which Heras has to meet under the Contract will be extended by the period that the cause in question continued.
8.12 The risk in goods passes to the Customer when specified in condition 7 above, and Heras accepts no responsibility for any damage, shortage or loss in transit thereafter. Claims for any damage, shortage or loss in transit should be notified immediately in writing via email or telephone, subsequently in writing to the carrier and to Heras and the carrier’s conditions in relation to the claims for damage, shortage or loss in transit must be strictly complied with. If the carriers’ conditions are not strictly complied with, the Customer will indemnify Heras against all loss resulting therefrom.
9 Intellectual Property Right Infringement, Compliance and Testing
9.1 If a claim is made against the Customer that the Goods or their use infringes the intellectual property rights of any person, company or organisation, then unless the claim arises from the use of any drawing or specification supplied by the Customer, and subject to condition 8.9, Heras is to indemnify the Customer against all loss incurred by the Customer in connection with the claim, or paid by the Customer in settlement of the claim, provided that:
(a) Heras is given full control of any related proceedings or negotiations;
(b) the Customer gives Heras all reasonable assistance for the purposes of such proceedings or negotiations and does nothing which would or might compromise any such proceedings without Heras’s consent;
(c) the Customer does nothing which would or might vitiate any insurance policy or cover which the Customer has in relation to such infringement, and this indemnity will not apply to the extent that the Customer recovers any sums under any such policy or cover (which the Customer will use its best endeavours to do);
(d) the Customer does not, without prior agreement from Heras, make any admission relating to the claim or attempt
(d) without prejudice to any common law duty of the Customer, Heras may require the Customer to take such steps as Heras may reasonably require to mitigate any such loss for which Heras is liable to indemnify the Customer under this condition.
9.2 The Customer will:-
(a) comply with all statutory and regulatory requirements relating to possession and use of the Goods and ensure that any person buying the Goods from the Customer complies with such requirements;
(b) comply with all reasonable requirements of Heras relating to the provision of Goods (and/or the receipt of Services) including ensuring that it has in place at any site at which Heras is perform Services and deliver the Goods public liability insurance to a level and covering such risks as Heras may approve; and
(c) indemnify Heras against any liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal cost (calculated on a full indemnity basis) and all other professional costs and expenses resulting from any failure to comply with such requirements.
9.3 The Customer agrees to indemnify Heras against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal cost (calculated on a full indemnity basis)) suffered by Heras to the extent that the same are caused by or related to:
(a) defective materials or products supplied by the Customer to Heras and incorporated by Heras in Goods produced by Heras for the Customer;
(b) the improper incorporation, assembly, use, processing, storage, maintenance or handling of Goods by the Customer; or
(c) the failure of the Customer to notify Heras of the nature of the ground and subsoil, the form and nature of the site, to prepare the site for provision of the Goods and/or Service and to provide Heras with all necessary information as to risk contingencies and all other circumstances influencing Heras provision of the Goods and/or Service.
9.4 Heras shall only be obliged to carry out tests which are specified in the Contract. The Customer shall not be entitled to reject any Goods provided they comply materially with the Order. Tests and inspections shall take place under Heras’s standard testing arrangements. Any additional testing which Heras expressly agrees to carry out for the Customer is not included in the Price and shall be charged extra to the Customer and shall be undertaken subject to those conditions. Where the Customer requires to be present at any tests or inspections Heras shall give the Customer as much notice as is reasonably possible of the date and time such tests and inspections shall take place and if the Customer or any third party fails to attend such tests and inspections, Heras shall be permitted to undertake such tests and inspections without the Customer being present and shall notify the Customer of the results and the Customer shall not be entitled to request further tests and inspections.
9.5 If any special arrangements have to be made to facilitate the requirements of the Customer, then at the discretion of Heras, a change may be made for all costs incurred in facilitating the inspection of the Goods.
10 Insolvency of Customer
10.1 Without prejudice to its other rights or remedies, Heras may terminate the Contract or suspend any further provision of Goods and/or Services under the Contract with immediate effect if:-
(a) the Customer takes any step or actions in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business, becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation.
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the Customer’s undertaking;
(c) the Customer ceases, or threatens to cease, to carry on all or a substantial part of its business; or
(d) Heras reasonably believes that any of the above events is about to occur.
10.2 If the Goods are delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
11.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, initiatives or other information which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, affairs, customers, clients, suppliers, or products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this condition as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This condition 11 shall survive termination of the Contract. The copyright in all documents provided by Heras will remain vested in Heras.
12.1 Without limiting its other rights or remedies, Heras may terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 30 days after receipt of notice in writing from Heras to do so;
(b) any of the provisions of condition 10.1 above apply.
12.2 Without limiting its other rights or remedies, Heras may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
12.3 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to Heras all of Heras’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has yet been submitted, Heras shall submit an invoice, which shall be payable by the Customer immediately on receipt or within 30 business days of invoice date.
(b) the Customer shall deliver up on demand all Goods which have not been fully paid for. If the Customer fails to do so, then Heras may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) conditions which expressly or by implication have effect after termination shall continue in full force and effect.
13 Data Protection
13.1 For the purpose of this Condition 13:
(a) EU GDPR means the General Data Protection Regulation (EU) (2016/679), as it has effect in EU law; and
(b) UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
(c) the terms commissioner, controller, data subject, personal data, personal data breach, processor and processing, shall have the meaning given to them in the UK GDPR
(d) Applicable Data Protection Laws means:
(i) to the extent the UK GDPR applies, the law of the United Kingdom of a part of the United Kingdom which relates to the protection of personal data; and
(ii) to the extent the EU GDPR applied, the law of the European Union or any member state of the European Union to which Heras is subject, which relates to the protection of personal data;
(e) Shared Personal Data means the personal data to be shared by Heras under the Contract;
(f) Supervisory authority shall have the meaning given it in the EU GDPR
(g) Rights request shall refer to any request by a data subject to exercise any of his or her rights pursuant to Articles 15-21 of the UK GDPR;
13.2 Both parties will, when processing Share Personal Data:
(a) comply with all applicable requirements of Applicable Data Protection Laws. This Condition 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Applicable Data Protection Laws; and
(b) process Shared Personal Data only on the basis of a lawful ground for processing as set out in Article 6 or Article 9 as applicable.
13.3 The parties have determined that, for the purposes of Applicable Data Protection Laws, both parties shall act as co-controllers with respect to the Shared Personal Data.
13.4 Should the determination in Condition 13.3 change, each party shall use all reasonable endeavours to make any changes that are necessary to this Condition 13.
13.5 Without prejudice to Condition 13.2, each party will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Shared Personal Data to the other or lawful collection of the same by the other for the duration and purposes of this Contract.
13.6 Without prejudice to condition 13.2, if a party (the “Requested Party”) receives a Rights Request, the other party (the “Assisting Party”) shall (without undue delay and taking into account the duty of the Requested Party to respond to the data subject within one month) provide the Requested Party with any information and assistance reasonably required by the Requested Party in order to comply with its obligations in respect of the Rights Request.
13.7 The parties shall implement and maintain appropriate technical and organisational measures to:
(a) prevent unauthorised or unlawful processing of, and accidental loss or destruction of, or damage to, the Shared Personal Data; and
(b) ensure a level of security appropriate to the risk and the nature of the Shared Personal Data, and to the harm that might result from unauthorised or unlawful processing or accidental loss, destruction or damage
13.8 Each party shall comply with its obligations to report any personal data breach to the appropriate supervisory authority and (where applicable) data subjects, and shall each:
(a) inform the other party of any personal data breach without undue delay irrespective of whether there is a requirement to notify any supervisory authority or data subject(s), and thereafter provide details of the personal data breach including, where possible, the categories and approximate number of data subjects and Shared Personal Data concerned, the likely consequences of the personal data breach, and the measure it has taken or purposes to take to address and mitigate the effects of the personal data breach; and
(b) provide the other party with any information and assistance reasonably required by that other party in connection with any personal data breach.
13.9 Each party shall assist the other to cooperate with any request made by a supervisory authority in connection with this Contract.
14.1 Heras may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party. The Customer shall not, without the prior written consent of Heras, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
14.2 Any notices required or permitted to be given under these Conditions must be in writing addressed to the relevant party at its registered office or principal place of business by hand or by pre-paid first-class post or other next working day delivery service. Any notice shall be deemed to have been received: (i) if delivered by hand, at the time the notice is left; or (ii) if sent by pre-paid first-class post or other next working day delivery service, at 09:00am on the second Business Day after posting.
14.3 No failure or delay by Heras to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, not shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
14.4 If any provision of these Conditions is or becomes invalid, illegal or unenforceable in whole or in part, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. Rights of Heras against the Customer or be regarded as a waiver of any of these conditions.
14.5 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 each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
14.6 If a dispute arises out of or in connection with the Contract of the performance validity or enforceability of it, each party will make a good faith effort to resolve such dispute prior to commencing legal action. These efforts may include an offer to arrange for executive level discussions or an offer to submit the dispute to non-binding mediation. This section shall not apply if (i) a party considers the immediate commencement of legal action for an injunction necessary to protect its interests (e.g to protect against the improper use or disclosure of its confidential information); or (ii) the dispute is subject to another provision in the Contract that includes a different dispute resolution process.
14.7 The provision of the Contract (Rights of Third Parties) Act 1998 are expressly excluded from the Contract.
14.8 The Contract constitutes the entire agreement between the parties and superseded and extinguishes all previous agreements, promises, assurances, warranties, representations and understanding between them, whether written or oral, relating to its subject matter. The Customer agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.