SUPPLY OF GOODS AND SERVICES AGREEMENT
Date of Issue: 2018
1) S.M.R. (UK) Ltd, a company incorporated and registered in England and Wales with company number 03844546 whose registered office is at 10 A 10 B, Norman Way, Severn Bridge Industrial Estate, Portskewett, Caldicot, Gwent, Wales, NP26 5PT (Supplier)
2) A N Other, a company incorporated and registered in England and Wales with company number 0000000 whose registered office is at ??????????? (Customer)
A) The Supplier carries on the business of selling the Products.
B) The Customer wishes to buy, and the Supplier wishes to supply, the Products on the terms and conditions set out in this agreement.
1.1) The following definitions and rules of interpretation in this clause apply in this agreement.
Affected Party: has the meaning given in clause 19.2.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Claim: has the meaning given in clause 11.2.
Commencement Date: the date of this agreement.
Confidential Information: has the meaning given in clause 14.1.
Delivery: completion of delivery of Products specified in an Order in accordance with clause 5.2.
Delivery Date: the date specified for delivery of Products specified in an Order in accordance with clause 3.2(c).
Delivery Location: the location specified for delivery of Products specified in an Order in accordance with clause 3.2(c).
Force Majeure Event: has the meaning given in clause 19.1.
Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.
Holding company: has the meaning given in clause 1.6.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Month: a calendar month.
Order: an order for Products submitted by the Customer in accordance with clause 3.
Order Number: the reference number to be applied to an Order by the Supplier in accordance with clause 3.3.
Products: the products set out in Schedule 1, any other products developed by the Supplier during the Term and, where the context requires, the Products ordered by and supplied to the Customer.
Representatives: has the meaning given in clause 14.2.
(a) Technical support in relation to the use and application of the Products, to be provided either via telephone or face to face as the Customer shall reasonably determine;
(b) Training for the staff and agents of the Customer in the use and application of the Products;
(c) The production by the Supplier of a WRAP compliant quality protocol to produce the Products;
(d) An annual audit by the Supplier of the WRAP compliant quality protocol to produce the Products set out in clause (c) above;
(e) Technical support for up to 3 months from the date of this agreement to be given in such form as the Customer may determine acting reasonably, to any local customers of the Customer (including but not limited to Norfolk County Council) to include advise on testing of any Product and support with any machinery and/or production.
Specification: means the specification set out in the Order
Subsidiary: has the meaning given in clause 1.6?
Term: the term of the agreement, as determined in accordance with clause 15.
VAT: value added tax chargeable in the UK.
Year: 1 January to the following 31 December.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members’ rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.
1.7 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.
1.8 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.9 This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.10 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.11 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.12 A reference to writing or written excludes fax and email.
1.13 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.14 References to a document in agreed form are to that document in the form agreed by the parties and initialled by or on their behalf for identification.
1.15 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.
1.16 References to clauses and Schedules are to the clauses and Schedules of this agreement; references to paragraphs are to paragraphs of the relevant Schedule.
1.17 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Supply of the products
2.1 During the Term, the Supplier shall supply, and the Customer shall purchase, such quantities of Products as the Customer may order for use with its own customers and their projects under clause 3 in accordance with the terms and conditions of this agreement.
2.2 In consideration of the obligations on the part of the Customer in this clause 2, the Supplier undertakes and warrants:
(a) To provide at its sole cost the Services to the Customer during the Term as required by the Customer;
(b) Not to supply any Products or associated services to any other third party in the Area during the Term without prior consent of the customer.
2.3 In consideration of the obligations on the part of the Supplier in this clause 2, the Customer undertakes and warrants to:
(a) Use its reasonable endeavours to promote the sales of the Products;
(b) Not promote any competitive product to the Products in the Area during the Term and for a period of 12 months following the end of this agreement PROVIDED THAT if this agreement shall end as a result of any part of clause 16.1 coming into effect, this restriction shall be treated as having been irrevocably waived.
3.1 When required during the Term, the Customer shall give the Supplier its Order for that month.
3.2 Each Order shall:
(a) be confirmed via email if given orally within two business days;
(b) specify the type and quantity of Products ordered, provide site contact name and contact number; and
(c) unless the parties agree that the Customer may specify the date and location after placing the Order specify the Delivery Date by which the Products ordered are to be delivered, and the Delivery Location. If the Delivery Date and/or Delivery Location are to be specified after the placing of an Order, the Customer shall give the Supplier reasonable advance notice of the relevant information.
3.3 The Customer shall assign a Purchase Order Number to each Order generated and notify such Purchase Order Numbers to the Supplier. Each party shall use the relevant Purchase Order Number in all subsequent correspondence relating to the Order.
3.4 The Customer may at any time prior to despatch of the Products amend but not cancel an Order by written notice to the Supplier. If the Customer amends an Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of amendment, except that where the amendment results from the Supplier’s failure to comply with its obligations under this agreement the Customer shall have no liability to the Supplier in respect of it.
4. Quality and packing
4.1 The Supplier shall manufacture, pack and supply the Products in accordance with generally accepted industry standards and practices that are applicable.
4.2 The Products supplied to the Customer by the Supplier under this agreement shall:
(a) conform to the Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose made known to the Supplier by the Customer;
(c) be free from defects in design, material and workmanship; and
(d) comply with all applicable statutory and regulatory requirements.
4.3 The Supplier shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in good condition.
4.4 The Supplier shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to supply the Products in accordance with the terms of this agreement.
4.5 The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the packing, packaging, marking, storage, handling, and delivery of the Products
5.1 The Supplier shall deliver the Products specified in each Order to the Delivery Location by the Delivery Date. The Supplier shall not deliver an Order more than five Business Days in advance of the Delivery Date without the prior written consent of the Customer.
5.2 Delivery of an Order shall be complete on its arrival at the Delivery Location.
5.3 The Supplier shall supply Orders delivered by instalments for any order exceeding 30 tonnes but shall use its best endeavours to deliver in as few instalments as reasonably possible. Where Orders are to be delivered by instalments, they may be invoiced and paid for separately. References in this agreement to Orders shall, where applicable, be read as references to instalments.
5.4 If an Order is not delivered on the specified Delivery Date, then, without limiting any other right or remedy the Customer may have, the Customer may:
(a) refuse to take any subsequent attempted delivery of the Order;
(b) terminate this agreement with immediate effect;
(c) obtain substitute products from another supplier and recover from the Supplier any costs and expenses reasonably incurred by the Customer in obtaining such substitute products (and shall not be held to be in breach of clause 2.3 b) by so doing) ; and
(d) subject to clause 12, claim damages for any other costs, expenses or losses resulting from the Supplier’s failure to deliver the Order on the Delivery Date, provided that the Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer’s failure to comply with its obligations under this agreement.
5.5 Each delivery of Products shall be accompanied by a delivery note from the Supplier showing the Order Number, the date of the Order, the type and quantity of Products included in the Order and, in the case of Products being delivered by instalments, the outstanding balance of Products specified in an Order remaining to be delivered.
5.6 If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact must be clearly stated on the delivery note accompanying the relevant Order, and any such returns shall be at the Supplier’s expense.
6. Acceptance and defective products
6.1 The Customer shall not be deemed to have accepted any Products until it has had a reasonable time to inspect them following Delivery, or, in the case of a latent defect in the Products, until a reasonable time after the latent defect has become apparent.
6.2 If any Products delivered to the Customer do not comply with clause 4.2, or are otherwise not in conformity with the terms of this agreement, then, without limiting any other right or remedy that the Customer may have, the Customer may reject those Products and:
(a) require the Supplier to repair or replace the rejected Products at the Supplier’s risk and expense within five Business Days of being requested to do so; or
(b) require the Supplier to repay the price of the rejected Products in full (whether or not the Customer has previously required the Supplier to repair or replace the rejected Products); and
(c) claim damages for any other costs, expenses or losses resulting from the Supplier’s delivery of Products that do not conform with the terms of this agreement.
6.3 The Customer’s rights and remedies under this clause 6 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this agreement by the Sale of Goods Act 1979.
6.4 The terms of this agreement shall apply to any repaired or replacement Products supplied by the Supplier.
6.5 If the Supplier fails to promptly repair or replace rejected Products in accordance with clause 6.2(a), the Customer may, without affecting its rights under clause 6.2(c), obtain substitute products from a third party supplier (and shall not be held to be in breach of clause 2.3 b) by so doing), or have the rejected Products repaired by a third party, and the Supplier shall reimburse the Customer for the costs it incurs in doing so.
7. Title and risk
7.1 The risk in Products delivered to the Customer shall pass to the Customer on Delivery.
7.2 Title to Products delivered to the Customer shall pass to the Customer on Delivery.
8. Terms of payment
8.1 The Supplier shall be entitled to invoice the Customer for each Order on or at any time after Delivery. Each invoice shall quote the relevant Order Numbers.
8.2 The Customer shall pay invoices in full within 30 days of receipt. Payment shall be made to the bank account nominated in writing by the Supplier.
8.3 If a party fails to make any payment due to the other under this agreement by the due date for payment, then, without limiting the other party’s remedies under clause 16.1, the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
8.4 If the Customer disputes any invoice or other statement of monies due, the Customer shall immediately notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. The Supplier’s obligations to supply the Products shall not be affected by any payment dispute.
8.5 Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party under this agreement against any amounts payable by it to the other party under this agreement.
8.6 All payments payable to the Supplier or the Customer under this agreement shall become due immediately on its termination. This clause 8.6 is without prejudice to any right to claim for interest under the law or under this agreement.
9.1 During this agreement and for a period of one year afterwards the Supplier shall maintain in force the following insurance policies with reputable insurance companies:
(a) public liability insurance for not less than £5M million per claim; and
(b) product liability insurance for not less than £5M million for claims arising from any single event and not less than £5M million in aggregate for all claims arising in a year.
The Supplier shall ensure that the Customer’s interest is noted on each insurance policy, or that a generic interest clause has been included.
9.2 On taking out and on renewing each policy, the Supplier shall promptly send a copy of the receipt for the premium to the Customer. On the Customer’s written request, the Supplier shall provide the Customer with copies of the insurance policy certificates and details of the cover provided.
9.3 The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under this agreement which they are contracted to fulfil.
9.4 The Supplier shall:
(a) do nothing to invalidate any insurance policy or to prejudice the Customer’s entitlement under it; and
(b) notify the Customer if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change.
9.5 The Supplier’s liabilities under this agreement shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in clause 9.1.
9.6 If the Supplier fails or is unable to maintain insurance in accordance with clause 9.1, or fails to provide evidence that it has paid the current year’s premiums in accordance with clause 9.2, the Customer may, so far as it is able, purchase such alternative insurance cover as it deems to be reasonably necessary and shall be entitled to recover all reasonable costs and expenses it incurs in doing so from the Supplier.
10. Compliance with laws and policies
10.1 In performing its obligations under the agreement, the Supplier shall comply with all applicable laws, statutes, and regulations from time to time in force.
10.2 The Customer may terminate the agreement with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of clause 10.1.
11.1 The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:
(a) any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply or use of the Products;
(b) any claim made against the Customer by a third party (including any end user of any Product) arising out of, or in connection with, the supply of the Products, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Supplier, its employees, agents or subcontractors; and
(c) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defective Products, to the extent that the defect in the Products is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
11.2 If any third party makes a claim, or notifies an intention to make a claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Customer shall:
(a) as soon as reasonably practicable, give written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed), provided that the Customer may settle the Claim (after giving prior written notice of the terms of settlement (to the extent legally possible) to Supplier, but without obtaining Supplier’s consent) if Customer reasonably believes that failure to settle the Claim would be prejudicial to it in any material respect;
(c) give the Supplier access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer , so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and
(d) subject to Supplier providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, take such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
11.3 If a payment due from the Supplier under this clause is subject to tax (whether by way of direct assessment or withholding at its source), the Customer shall be entitled to receive from the Supplier such amounts as shall ensure that the net receipt, after tax, to the Customer in respect of the payment is the same as it would have been were the payment not subject to tax.
11.4 Nothing in this clause shall restrict or limit the Customer’s general obligation at law to mitigate a loss which it may suffer or incur as a result of a matter that may give rise to a claim under this indemnity.
12. Limitation of liability
12.1 This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of:
(a) any breach of this agreement;
(b) any use made or resale of the Products by the Customer, or of any product incorporating any of the Products; and
(c) any representation, statement or tortuous act or omission (including negligence) arising under or in connection with this agreement.
12.2 Nothing in this agreement shall limit or exclude the liability of either party for:
(a) death or personal injury resulting from negligence; or
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) breach of section 2 of the Consumer Protection Act 1987; or
(e) the indemnities contained in clause 11; or
(f) the deliberate default or wilful misconduct of that party, its employees, agents or subcontractors.
12.3 Without prejudice to clause 12.2 or clause Error! Reference source not found., the Customer’s total liability arising under or in connection with this agreement, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall be limited as follows:
(a) for non-payment of invoices for Products purchased, to the amount unpaid, and any interest due on such amount pursuant to clause 8.3; or
(b) for any other type of liability, to the amount unpaid, and any interest due on any non-paid invoices.
13. Assignment and other dealings
13.1 Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under this agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
14.1 Each party undertakes that it shall not at any time during this agreement and for a period of 12 months after termination disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers of the other party or of any member of its Group, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (Confidential Information), except as permitted by clause 14.2.
14.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, agents, consultants or subcontractors (Representatives) who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 14 as though they were a party to this agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this agreement are granted to the other party or to be implied from this agreement. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other intellectual property right held, made, obtained or licensable by either party now or in the future.
15. Commencement and term
15.1 This agreement shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with clause 16, until the third anniversary of the Commencement Date (Term) provided that the Term may be extended by agreement by both Parties in writing.
16.1 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this agreement which breach is irremediable or and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(j) a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.1(d) to 16.1(i) (inclusive);
(l) the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business; or
(m) any Force Majeure Event prevents the other party from performing its obligations under this agreement for any continuous period of three months.
16.2 For the purposes of clause 16.1(b), material breach means a breach (including an anticipatory breach) that is serious in the widest sense of having a serious effect on the benefit which the terminating party would otherwise derive from a substantial portion of this agreement over the term of this agreement. In deciding whether any breach is material no regard shall be had to whether it occurs by some accident, mishap, mistake or misunderstanding. It is agreed that notwithstanding the above, that any breach by the Supplier of clause 2.2 above shall be deemed to be a material breach.
17. Obligations on termination
17.1 Each party shall promptly:
(a) return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it or a member of its Group in connection with the supply of the Products under this agreement;
(b) return to the other party all documents and materials (and any copies) containing the other party’s Confidential Information;
(c) erase all the other party’s Confidential Information from its computer systems (to the extent possible); and
(d) on request, certify in writing to the other party that it has complied with the requirements of this clause 17.
18. Consequences of termination
18.1 On termination of this agreement the following clauses shall survive and continue in full force and effect:
(a) clause 9. (Insurance);
(b) clause 11. (Indemnity);
(c) clause 12. (Limitation of liability);
(d) clause 14. (Confidentiality);
(e) clause 17. (Obligations on termination);
(f) clause 29. (Governing law); and
(g) clause 30. (Jurisdiction)
18.2 Termination of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
19. Force Majeure
19.1 Force Majeure Event means any circumstance not within a party’s reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(f) collapse of buildings, fire, explosion or accident; an
(g) interruption or failure of utility service.
19.2 Provided it has complied with clause 19.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under this agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
19.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
19.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than 3 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
19.5 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 12 weeks, the party not affected by the Force Majeure Event may terminate this agreement by giving 2 weeks’ written notice to the Affected Party.
20.1 Except as expressly provided in this agreement, each party shall pay its own costs incurred in connection with the negotiation, preparation, and execution of this agreement and any documents referred to in it.
21.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
21.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Further assurance
22.1 At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
23.1 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
24.1 A waiver of any right or remedy under this agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
24.2 A failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
24.3 A party that waives a right or remedy provided under this agreement or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
25.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 a.m. on the second Business Day after posting.
25.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
25.4 A notice given under this agreement is not valid if sent by fax or email.
26. Entire agreement
26.1 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
26.2 Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
26.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
26.4 Nothing in this clause shall limit or exclude any liability for fraud.
27. Third party rights
27.1 This agreement, does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
28.1 This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
29. Governing law
29.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
30.1 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement has been entered into on the date stated at the beginning of it.
Schedule 1 The Products and Product Prices
SMR PROPRIEARY BINDER – Developed by SMR UK and introduced into the utility industry for the use of; A Non-Flowable Structural Material for Reinstatement and a Stabilised Fill Material (As per SROH 2010 3rd Edition) and its successors for utility works
A9 approved and is the only binder that can be used in the highway and footpaths. The SMR PROPRIETARY BINDER has been trialled and tested and works with all soil types and heavy clays even locking in contaminates.
SMR HANDMIX – A method that saves time and money when back filling and reinstating small excavations.
SMR BATCHMIX – Gives closed loop recycling that means 100% recycling. Waste is collected and processed at designated SMR Hub sites.
SMR IN-SITU and EX-SITU MIX – A Civil application no spoil is transported from site, nor quarried aggregate imported. The SMR PRO BINDER is rotavated into the ground then compacted resulting in a solid sub base. Prior works being carried out site testing is needed and soils samples taken so the right mix design can be introduced for strength, moisture & sulphate levels.
SMR CIVIL BINDERS – Developed by SMR (UK) Ltd and introduced into the civil industry.
Used as an in-situ or ex-situ mixed binder in the construction of Access roads, car park bases, railway embankment and can be used in many other civil applications including the house building market. SMR CIVIL BINDERS works with most soil types and can lock in contaminates.
SMR’s Geotechnical advisors and operatives carry out on site testing to determine the appropriate mix designs taking into account the soil types through rigorous sample testing by our UKAS Accredited lab. We determine our binder design for strength, moisture & sulphate levels.
SMR (UK) products are available in 10kg, 20kg buckets, 25kg, 1000kg bags & 30 tonne tankers.