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Terms and Conditions

The Customer's attention is particularly drawn to the provisions of clause 14 (Limitation of liability).

Table of Contents

  1. Interpretation
  2. Basis of Contract
  3. Goods and Samples
  4. Delivery of Goods
  5. Quality of Goods
  6. Title and Risk
  7. Supply of Services
  8. Order Cancellations and Amendments
  9. Customer’s Obligations
  10. Charges and Payment
  11. Intellectual Property Rights
  12. Data Protection
  13. Confidentiality
  14. Limitation of Liability
  15. Termination
  16. Consequences of Termination
  17. Force Majeure
  18. Dispute Resolution
  19. General
  1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

  • Definitions:

Authorisation: has the meaning given in clause 8.2

Business Day: a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.

Business Hours: the period from 08.00 am to 4.30 pm on any Monday through Thursday and 8.00 am until 1.00 pm on any Friday that is a Business Day.

CEDR: the Centre for Effective Dispute Resolution Limited, registered in England and Wales with company number 02422813.

Commencement Date: has the meaning given in clause 2.2

Conditions: these terms and conditions as amended from time to time in accordance with clause 19.9

Contract: the contract between Enspec and the Customer for the supply of Goods or Services, or Goods and Services, in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.

Customer: the person or firm who purchases the Goods or Services or Goods and Services from Enspec.

Deliverables: the deliverables set out in the Order produced by Enspec for the Customer.

Delivery Location: has the meaning given in clause 4.2

Dispute: has the meaning given in clause 18.2

Enspec: Enspec Power Ltd, registered in England and Wales with company number 04066153.

Enspec Materials: has the meaning given in clause 9.1.10

Force Majeure Event: has the meaning given to it in clause 17

Goods: the goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Enspec.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks [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, rights in computer software, 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.

Losses: 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).

Order: the Customer’s order for the supply of Goods or Services or Goods and Services, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of Enspec’s quotation as the case may be.

Services: the services, including the Deliverables, supplied by Enspec to the Customer as set out in the Service Specification.

Service Specification: the description or specification for the Services provided in writing by Enspec to the Customer.

UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

Warranty Period: has the meaning given in clause 5.1

  • 1.2. Interpretation:
    • 1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
    • 1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
    • 1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
    • 1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
    • 1.2.5 A reference to writing or written excludes fax but not email unless stated otherwise.
    • 1.2.6 Clause, Schedule, and paragraph headings shall not affect the interpretation of this agreement.

2. Basis of Contract

  • 2.1 The Order constitutes an offer by the Customer to purchase Goods or Services in accordance with these Conditions.
  • 2.2 The Order shall only be deemed to be accepted when Enspec issues written acceptance of the Order, at which point, and on which date the Contract shall come into existence (Commencement Date).
  • 2.3 Any samples, drawings, descriptive matter, or advertising issued by Enspec and any descriptions of the Goods or illustrations or descriptions of the Services contained in Enspec’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force.
  • 2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
  • 2.5 Any quotation given by Enspec shall not constitute an offer and is only valid for the period shown in such quotation.
  • 2.6 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
  • 2.7 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3. Goods and Samples

  • 3.1 The Goods are described in the quotation together with any attachment to or document attached to that specification..
  • 3.2 Where samples are requested by the Customer, the Customer shall pay the full price of the sample, in accordance with clause 10 (Charges and Payments). Subject to Enspec’s prior written agreement, the cost of any samples purchased by the Customer may be refunded to the Customer (minus any delivery costs) if they are returned to Enspec upon demand and in good condition (as determined by Enspec at its sole discretion).  The cost of delivery and return of the samples shall be at the Customer’s expense.
  • 3.3 The Customer shall indemnify Enspec against all Losses suffered or incurred by Enspec arising out of or in connection with any claim made against Enspec for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with Enspec’s manufacture, delivery or use of the Goods in accordance with any Goods Specification, design, drawings, or other data supplied or specified by the Customer or its sub-contractors, servants or agents. This clause 3.3 shall survive termination of the Contract.
  • 3.4 Enspec reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and Enspec shall notify the Customer in any such event.

4. Delivery of Goods

  • 4.1 Enspec shall ensure that:
    • 4.1.1.  each delivery of the Goods is accompanied by a delivery note which shows the date of the Order and Enspec reference numbers the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
    • 4.1.2. The Customer shall ensure that any such packaging material (including but not limited to the tarpaulin covering the Goods) will be in good condition and shall be returned to Enspec within 30 days of the Delivery Date. The Customer shall be charged a fee for the packaging, which Enspec shall refund provided that the Customer complies with this clause 4.1.2.   Returns of packaging materials under this clause 4.1.2 shall be at the Customer’s expense.
  • 4.2 Unless otherwise agreed in writing, Enspec shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Enspec notifies the Customer that the Goods are ready.
  • 4.3 Delivery of the Goods shall be completed on the completion of unloading (or, if the Goods are being collected by the Customer, the loading) of the Goods at the Delivery Location.
  • 4.4 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Enspec shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, or by any delay caused by a supplier or sub-contractor, or by the Customer’s failure to provide Enspec with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  • 4.5 Subject always to clause 8 (Order Cancellations and Amendments), clause 17 (Force Majeure), and clause 18 (Dispute Resolution), if the delivery of the Goods are subject to, or are likely to become subject to, any actual or anticipated shipping or customs delays, cancellations or other issues, then each party shall use all reasonable endeavours to resolve the issues in good faith and to identify mutually agreeable solutions and/or amendments to the Order to achieve those solutions.
  • 4.6 If Enspec fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Enspec shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, or by the Customer’s failure to provide Enspec with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  • 4.7 If the Customer fails to take delivery of the Goods when they are ready for delivery or if Enspec is unable to deliver the Goods when they are ready for delivery due to the Customer’s failure to provide Enspec with adequate delivery facilities or delivery instructions or any other instructions that are relevant to the supply of the Goods or the Customer’s failure to comply with its obligations under the Contract, then:
    • 4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the Business Day after the day on which Enspec notified the Customer that the Goods were ready for delivery; and
    • 4.7.2 the Customer shall reimburse Enspec any costs incurred by Enspec in relation to any such failed, aborted or delayed delivery;
    • 4.7.3 Enspec may store the Goods until actual delivery takes place, and charge the Customer for storage and all related costs and expenses (including insurance); and/or
    • 4.7.4 Enspec may sell or otherwise dispose of part or all of the Goods and (after deducting storage and selling expenses) apply the proceeds to discharge any sums owing to, or claimed by, Enspec under the Contract and then account to the Customer for any balance.
  • 4.8 Enspec may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. Quality of Goods

  • 5.1 Enspec warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period), the Goods shall:
    • 5.1.1 conform in all material respects with their description and any applicable Goods Specification;
    • 5.1.2 be free from material defects in design, material, and workmanship; and
    • 5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
  • 5.2 The Customer may reject any Goods delivered to it that do not comply with clause 5.1, provided that:
    • 5.2.1 the Customer gives notice in writing to Enspec during the Warranty Period that some or all of the Goods do not comply with the warranty set out in clause 5.1:
      • 5.2.1.1 in the case of a defect that is apparent on normal visual inspection, within five Business Days of Delivery;
      • 5.2.1.2 in the case of a latent defect, within a reasonable time of the latent defect having become apparent;
    • 5.2.2 Enspec is given a reasonable opportunity of examining such Goods;
    • 5.2.3 the Customer (if asked to do so by Enspec) returns such Goods to Enspec’s place of business at the Customer’s cost; and
    • 5.2.4 none of the events listed in clause 5.3 apply.
  • 5.3 Enspec shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 if:
    • 5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause;
    • 5.3.2 the defect arises because the Customer failed to follow Enspec’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 regarding the same;
    • 5.3.3 the defect arises as a result of Enspec following any drawing, design or specification supplied by the
    • 5.3.4 the Customer alters or repairs such Goods without the written consent of Enspec;
    • 5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
    • 5.3.6 the Goods differ from their description or the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • 5.4 If the Customer fails to give notice of rejection in accordance with clause 5.2, it shall be deemed to have accepted the Goods.
  • 5.5 If the Customer rejects Goods under clause 5.2 then Enspec shall, at its option:
    • 5.5.1 epair or replace the rejected Goods; or
    • 5.5.2 repay the price of the rejected Goods in full.
  • 5.6 The terms of this agreement shall apply to any repaired or replacement Goods supplied by Enspec.
  • 5.7 Except as provided in this clause 5, Enspec shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

6. Title and Risk

  • 6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
  • 6.2 Title to the Goods shall not pass to the Customer until Enspec receives payment in full (in cash or cleared funds) for the Goods and any other goods or services that Enspec has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.
  • 6.3 Until title to the Goods has passed to the Customer, the Customer shall:
    • 6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Enspec’s property;
    • 6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    • 6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Enspec’s behalf from the date of delivery;
    • 6.3.4 notify Enspec immediately if it becomes subject to any of the events listed in clause 15.2.2. to clause 15.2.4 (inclusive); and
    • 6.3.5 give Enspec such information as Enspec may reasonably require from time to time relating to:
      • 6.3.5.1 the Goods; and
      • 6.3.5.2 the ongoing financial position of the Customer.
  • 6.4 At any time before title to the Goods passes to the Customer, Enspec may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.

7. Supply of Services

  • 7.1 Enspec shall supply the Services to the Customer in accordance with the Service Specification in all material respects.
  • 7.2 Enspec shall use all reasonable endeavours to meet any performance dates for the Services specified in the relevant quotation and Order, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
  • 7.3 Enspec reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Enspec shall notify the Customer in any such event.
  • 7.4 The Customer shall indemnify Enspec against all Loss suffered or incurred by Enspec arising out of or in connection with any claim made against Enspec for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Services.
  • 7.5 Clause 7.4 shall survive termination of the Contract.
  • 7.6 Enspec warrants to the Customer that the Services will be provided using reasonable care and skill.

8. Order Cancellations and Amendments

  • 8.1 The Customer may within 7 days of placing an Order, request to amend or cancel an Order by written notice to Enspec. For the purposes of this clause 8, in respect of the Customer’s request to cancel or amend an Order a written notice does not include an email.
  • 8.2 Enspec may, at its sole discretion, accept the Customer’s request to:
    • 8.2.1 amend; or
    • 8.2.2 cancel;
    • an Order, and in each case any such acceptance shall only be valid if it is provided by Enspec in writing (Authorisation).
  • 8.3 Unless otherwise agreed in writing by the parties, if Enspec consents to the Customer’s request to amend an Order, pursuant to clause 8.2.1, then the Customer shall be liable to Enspec for all costs incurred by Enspec in:
    • 8.3.1 assessing, preparing, and negotiating any such amendment;
    • 8.3.2 fulfilling, or preparing to fulfil, the Order up until the date of Authorisation; and
    • 8.3.3 acting upon the amendments requested in the revised Order.
  • 8.4 Unless otherwise agreed in writing by the parties, if Enspec consents to the Customer’s request to cancel an Order, pursuant to clause 8.2.2, then the Customer shall be liable to Enspec for all costs incurred by Enspec in:
    • 8.4.1 assessing, preparing, and negotiating the cancellation;
    • 8.4.2 in fulfilling, or preparing to fulfil, the Order up until the Authorisation, including any travel or incidental expenses; and
    • 8.4.3 a handling charge of at least 25% of the Contract price or £100 plus VAT, whichever is the greater, in respect of Enspec’s costs of re-stocking, transport and administration.

9. Customer’s Obligations

  • 9.1 The Customer shall:
    • 9.1.1 ensure that the terms of the Order and any information it provides in both the Service Specification and the Goods Specification are complete and accurate;
    • 9.1.2 co-operate with Enspec in all matters relating to the Goods and/or the Services;
    • 9.1.3 provide Enspec, its employees, agents, consultants, and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by Enspec to provide the Services;
    • 9.1.4 provide Enspec with such information and materials as Enspec may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects and is provided in a timely manner and in accordance with Enspec’s requirements or instructions;
    • 9.1.5 immediately advise Enspec of any likely delays, interruptions, or customs or logistical issues which are likely to impact upon the Goods or the Services, providing sufficient information and detail to allow Enspec to fully assess the impact of any such delay or interruption and acting in good faith to resolve any issues;
    • 9.1.6 prepare the Customer’s premises for the supply of the Services;
    • 9.1.7 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
    • 9.1.8 comply with all applicable laws, including health and safety laws and international customs and imports laws and regulations;
    • 9.1.9 co-operate with all relevant authorities on all matters relating to the Goods and/or Services;
    • 9.1.10keep all materials, equipment, documents and other property of Enspec (Enspec Materials) at the Customer’s premises in safe custody at its own risk, maintain Enspec Materials in good condition until returned to Enspec, and not dispose of or use Enspec Materials other than in accordance with Enspec’s written instructions or authorisation;
    • 9.1.11 use all reasonable endeavours to accept, or to procure acceptance of, Delivery of the Goods;
    • 9.1.12 notify Enspec immediately in writing on a change of control of the Customer; and
    • 9.1.13 comply with any additional obligations as set out in the Service Specification or the Goods Specification or both.
  • 9.2 If Enspec’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
    • 9.2.1 without limiting or affecting any other right or remedy available to it, Enspec shall have the right to:
      • 9.2.1.1 suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Enspec’s performance of any of its obligations;
      • 9.2.1.2 to cancel the balance of the Order, without any liability to the Customer.
    • 9.2.2 Enspec shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Enspec’s failure or delay to perform any of its obligations as set out in this clause 9.2; and
    • 9.2.3 the Customer shall reimburse Enspec on written demand for any costs or losses sustained or incurred by Enspec arising directly or indirectly from the Customer Default.
  • 9.3 Without prejudice to its other rights, Enspec shall be entitled to recover all costs, losses, or other expenses reasonably incurred by Enspec in respect of any failure or delay by the Customer to comply with its obligations under the Contract, including but not limited to any costs, losses, or other expenses imposed by Enspec’s suppliers, agents, or sub-contractors.

10. Charges and Payment

  • 10.1 The price for Goods and the Services:
    • 10.1.1 shall be the price set out in the Order; and
    • 10.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
    • 10.1.3 Enspec shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Enspec engages in connection with the Services including travelling expenses, hotel costs, subsistence, and any associated expenses, and for the cost of services provided by third parties and required by Enspec for the performance of the Services, and for the cost of any materials.
  • 10.2 Enspec reserves the right to:
    • 10.2.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Consumer Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Consumer Prices Index.
    • 10.2.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to Enspec that is due to:
      • 10.2.2.1 any factor beyond the control of Enspec (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      • 10.2.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
      • 10.2.2.3 any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give Enspec adequate or accurate information or instructions in respect of the Goods.
  • 10.3 Unless otherwise stated in the quotation, or order acknowledgement in respect of Goods, Enspec shall invoice the Customer on or at any time after delivery. In respect of Services, Enspec shall invoice the Customer on completion of the Services.
  • 10.4 The Customer shall pay each invoice submitted by Enspec:
    • 10.4.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by Enspec and confirmed in writing to the Customer; and
    • 10.4.2 in full and in cleared funds to a bank account nominated in writing by Enspec, and time for payment shall be of the essence of the Contract.
  • 10.5 All sums payable by either party under the Contract shall be paid in sterling or such other currency as may be specified in the quotation or order acknowledgement.
  • 10.6 Enspec reserves the right to request credit references for the Customer. Without prejudice to the generality of the foregoing, Enspec may (at its sole discretion), having informed the Customer that the Goods are ready for dispatch, refrain from delivering the Goods and/or Services until such time as the Customer pays the price in full to Enspec, together with any outstanding amounts which may be due to Enspec under the Contract or on any account whatsoever.
  • 10.7 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by Enspec to the Customer, the Customer shall, on receipt of a valid VAT invoice from Enspec, pay to Enspec such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
  • 10.8 If the Customer fails to make a payment due to Enspec under the Contract by the due date, then, without limiting Enspec’s remedies under clause 15 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 10.8 will accrue each day at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is below 0%.
  • 10.9 Without prejudice to its other rights, Enspec shall be entitled to recover all costs and expenses reasonably incurred by Enspec in collecting or attempting to collect any outstanding payments from the Customer.
  • 10.10 If the Customer disputes any invoice:
    • 10.10.1 the Customer shall notify Enspec in writing within 7 days of the date of receipt of the invoice, specifying the reasons for disputing the invoice;
    • 10.10.2 Enspec shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
    • 10.10.3 the Customer shall pay to Enspec all amounts not disputed by the Customer on the due date as set out in clause 10.4;
    • 10.10.4 the parties shall negotiate in good faith to attempt to resolve the dispute promptly; and
    • 10.10.5 if the parties have not resolved the dispute within 30 days of the Customer giving notice to Enspec, the dispute shall be resolved in accordance with clause 18 (Dispute Resolution).
  • 10.11 Enspec may at any time, without notice to the Customer, set off any liability of the Customer to Enspec against any liability of Enspec to the Customer, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, Enspec may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Enspec of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
  • 10.12 All amounts payable by the Customer under the contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law.)

11. Intellectual Property Rights

  • 11.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Enspec.
  • 11.2 Enspec grants to the Customer or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual licence to copy the Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services and the Deliverables in its business.
  • 11.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted by clause 11.2.
  • 11.4 The Customer grants Enspec a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to Enspec for the term of the Contract for the purpose of providing the Services to the Customer.

12. Data Protection

  • 12.1 The following definitions apply in this clause 12:
    • 12.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing, and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
    • 12.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426).
    • 12.1.3 Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
  • 12.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 12 is in addition to, and does not relieve, remove, or replace, a party’s obligations or rights under the Data Protection Legislation.
  • 12.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and Enspec is the Processor.
  • 12.4 Without prejudice to the generality of clause 12.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Enspec and/or lawful collection of the Personal Data by Enspec on behalf of the Customer for the duration and purposes of the Contract.
  • 12.5 Without prejudice to the generality of clause 12.2, Enspec shall, in relation to any Personal Data processed in connection with the performance by Enspec of its obligations under the Contract:
    • 12.5.1 process that Personal Data only on the documented written instructions of the Customer unless Enspec is required by Domestic Law to otherwise process that Personal Data. Where Enspec is relying on Domestic Law as the basis for processing Personal Data, Enspec shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits Enspec from so notifying the Customer;
    • 12.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
    • 12.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
    • 12.5.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
      • 12.5.4.1 the Customer or Enspec has provided appropriate safeguards in relation to the transfer;
      • 12.5.4.2 the Data Subject has enforceable rights and effective legal remedies;
      • 12.5.4.3 Enspec complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
      • 12.5.4.4 Enspec complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
    • 12.5.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
    • 12.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
    • 12.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and
    • 12.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 12 and immediately inform the Customer if, in the opinion of Enspec, an instruction infringes the Data Protection Legislation.

The Customer consents to Enspec appointing Microsoft and ODOO as third-party processors of Personal Data under the Contract. Enspec confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business and in Enspec confirms reflect and will continue to reflect the requirements of the Data Protection Legislation.

  • 12.6 Either party may, at any time on not less than 30 days’ notice, revise this clause 12 by replacing it with any applicable controller to processor standard clauses or similar terms adopted under the Data Protection Legislation or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).

13. Confidentiality

  • 13.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 13.2.
  • 13.2 Each party may disclose the other party’s confidential information:
    • 13.2.1 to its employees, officers, representatives, contractors or subcontracts or advisers 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 the Contract. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party’s confidential information comply with this clause 13; and
    • 13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  • 13.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

14. Limitation of Liability

  • 14.1 References to liability in this clause 14 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
  • 14.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
    • 14.2.1 death or personal injury caused by negligence;
    • 14.2.2 fraud or fraudulent misrepresentation;
    • 14.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
    • 14.2.4 defective products under the Consumer Protection Act 1987.
  • 14.3 Subject to clause 14.2, Enspec’s total liability to the Customer in respect of all breaches of duty occurring within any contract year shall not exceed the cap.
  • 14.4 In clause 14.3:
    • 14.4.1 cap. The cap is one hundred per cent (100%) of the total charges in the contract year in which the breaches occurred;
    • 14.4.2 contract year. A contract year means a 12-month period commencing with the Commencement Date or any anniversary of it; and
    • 14.4.3 total charges. The total charges means all sums paid by the Customer and all sums payable under the Contract in respect of goods and services actually supplied by Enspec, whether or not invoiced to the Customer.
  • 14.5 This clause 14.5 sets out specific heads of excluded loss:
    • 14.5.1 Subject to clause 14.2, clause 14.5.2 excludes specified types of loss.
    • 14.5.2 The following types of loss are wholly excluded:
      • 14.5.2.1 loss of profits;
      • 14.5.2.2 loss of sales or business;
      • 14.5.2.3 loss of agreements or contracts;
      • 14.5.2.4 loss of anticipated savings;
      • 14.5.2.5 loss of use or corruption of software, data or information;
      • 14.5.2.6 wasted expenditure;
      • 14.5.2.7 consultancy costs, management time, and other personal costs;
      • 14.5.2.8 anticipated savings;
      • 14.5.2.9 loss of or damage to goodwill; and
      • 14.5.2.10 indirect or consequential loss.
  • 14.6 Enspec has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 (Quality of Goods) and clause 7 (Supply of Services). In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
  • 14.7 This clause 14 shall survive termination of the Contract.

15. Termination

  • 15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 6 months’ written notice.
  • 15.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
    • 15.2.1 the other party commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
    • 15.2.2 the other party takes any step or action 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 or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
    • 15.2.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
    • 15.2.4 the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
  • 15.3 Without affecting any other right or remedy available to it, Enspec may terminate the Contract with immediate effect by giving written notice to the Customer if:
    • 15.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
    • 15.3.2 there is a change of Control of the Customer.
  • 15.4 Without affecting any other right or remedy available to it, Enspec may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and Enspec if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 15.2.2 to clause 15.2.4 (inclusive), or Enspec reasonably believes that the Customer is about to become subject to any of them.

16. Consequences of Termination

  • 16.1 On termination of the Contract:
    • 16.1.1 the Customer shall immediately pay to Enspec all of Enspec’s outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, Enspec shall submit an invoice, which shall be payable by the Customer immediately on receipt;
    • 16.1.2 the Customer shall return all of Enspec Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then Enspec 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 this Contract.
  • 16.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations, and liabilities of the parties that have accrued up to the date of termination or expiry, 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.
  • 16.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

17. Force Majeure

  • 17.1 Enspec shall not be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control, including but not limited to any:
    • 17.1.1 acts of God, flood, drought, earthquake, or other natural disaster;
    • 17.1.2 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;
    • 17.1.3 nuclear, chemical, or biological contamination, or sonic boom;
    • 17.1.4 any law or any action taken by a government or public authority, including imposing an export, import, or other customs restriction, quota or prohibition, or failing to grant a necessary licence or consent;
    • 17.1.5 collapse of buildings, fire, explosion, or accident;
    • 17.1.6 any labour or trade dispute, strikes, industrial action or lockouts;
    • 17.1.7 non-performance or delay by suppliers or subcontractors; and
    • 17.1.8 interruption or failure of utility service.
  • 17.2 In the event of a Force Majeure Event Enspec shall be entitled, without liability on its part and without prejudice to its other rights, to terminate the contract or any unfulfilled part thereof, or at its option to suspend or make partial deliveries or extend the time or times for delivery.

18. Dispute Resolution

  • 18.1 Meadow and the Customer each undertake to co-operate with each other, and to provide on reasonable notice such information as the other party may reasonably request for the proper performance of its obligations under the Contract.
  • 18.2 In the event of a dispute arising out of or relating to this contract, including any question regarding its breach, existence, validity or termination, and including any non-contractual claims (whether in tort or otherwise) (Dispute), the parties shall endeavour to reach a resolution of the Dispute satisfactory to both parties. Either party may commence such process by requesting a meeting with the other party, which may take place in person, or remotely. Each party shall nominate a senior executive who shall meet to try to resolve the Dispute.
  • 18.3 Despite the provisions of clause 18.2 and clause 19.11, the parties agree that Enspec may, at its sole option (and regardless of whether Enspec is claimant or respondent), refer a Dispute, for final resolution, to arbitration administered by CEDR under its UNCITRAL Arbitration Rules, which rules are deemed to be incorporated by reference into this clause 18.3. The number of arbitrators will be one. The seat, or legal place, of arbitration will be London, England and the language of the arbitral proceedings will be English. The governing law of the arbitration pursuant to this clause 18 will be the substantive law of England. This clause 18.3 is for the benefit of Enspec. Nothing in this clause will affect any right either party may have to seek interim relief from a national court that is not available from the arbitral tribunal.
  • 18.4 If the Customer has already initiated court proceedings in relation to a Dispute Enspec has commenced arbitration proceedings, it is agreed that, on the demand of Enspec, those court proceedings are to be discontinued by the Customer within 60 days after Enspec has commenced arbitration proceedings in respect of the Dispute. Enspec must deliver the demand for discontinuance within 30 days of service of the court proceedings by the Customer on Enspec and must commence the arbitration proceedings within 30 days of the demand for discontinuance. The Customer will pay all costs incurred in connection with the court proceedings and the Customer will indemnify Enspec in respect of any costs that Enspec may be liable to pay under any order made in the court proceedings.

19. General

  • 19.1 Assignment and other dealings
    • 19.1.1 Enspec may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
    • 19.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Enspec.
  • 19.2 Notices 
    • 19.2.1 Any notice given to a party under or in connection with the Contract 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); or
      • 19.2.1.1 if email notice is not specifically excluded sent by email to the following addresses (or an address substituted in writing by the party to be served):

Enspec: [ADDRESS].

Customer: [ADDRESS]

    • 19.2.2 Any notice shall be deemed to have been received:
      • 19.2.2.1 if delivered by hand, at the time the notice is left at the proper address; or
      • 19.2.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or]
    • 19.2.3 if email notice is not specifically excluded and is sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
    • 19.2.4 A party serving a notice pursuant to clause 19.2.1 will also send a courtesy copy of the notice to the party to be served to the e-mail address given below:

Enspec: [ADDRESS].

Customer: [ADDRESS]

    • 19.2.5 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.
  • 19.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 19.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
  • 19.4 Waiver.
    • 19.4.1 Except as set out in clause 2.7, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    • 19.4.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
  • 19.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
  • 19.6 Entire Agreement.
    • 19.6.1 The Contract constitutes the entire agreement between the parties.
    • 19.6.2 Each party acknowledges that in entering into the Contract it does not rely on 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.
  • 19.7 Further A 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 Contract.
  • 19.8 Third Party Rights.
    • 19.8.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
    • 19.8.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
  • 19.9 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
  • 19.10 Governing law. The Contract 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.
  • 19.11 Jurisdiction. Subject to the provisions of clause 18 (Dispute Resolution), 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 the Contract or its subject matter or formation.