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These terms and conditions (the “Terms and Conditions”) apply to any purchase of Products and Services from Quorum Technologies Ltd, a company registered in England and Wales with company number 04273003, whose principal place of business is at Judges House, Lewes Road, Laughton, East Sussex, BN8 6BN, United Kingdom (“Quorum”), by the party identified in the corresponding Purchase Order (“You”, “Your”) (each a “Party” and together the “Parties”).
BOTH OF US HEREBY AGREE AS FOLLOWS:
1 Definitions
The following terms have the meanings set forth below whenever they are used in these terms and conditions:
“Applicable Laws “
means all applicable laws, statutes, regulations and codes in force from time to time in the United Kingdom and any other jurisdiction relevant to the performance of the Contract.
“Authorised Approver”
means the individual(s) named by You in the Purchase Order or notified to Quorum by email prior to the Delivery Date who is (are) authorised to approve the Site Acceptance Test and shall include any representative nominated by them in writing.
“Cancellation Fee”
means the fee charged by Quorum in respect of a Purchase Order that has been cancelled by You in accordance with Clause 2.4, and shall be calculated, according to the number of weeks prior to the Delivery Date that notice of cancellation is given:
More than 12 weeks, Cancellation Fee = 10% of Price
Between 6 and 12 weeks (inclusive), Cancellation Fee = 50% of Price Less than 6 weeks, Cancellation Fee = 90% of Price.
"Contract"
means these Terms and Conditions together with a valid Purchase Order and an Order Acknowledgement.
"Customer Data"
means information, designs, and all other materials provided by You (such as, but not limited to, the Equipment make, model number and serial number), in order for Quorum to perform its obligations.
“Delivery”
means delivery of the Products to You at the address and on the terms specified in Our Quote, in accordance with INCOTERMS 2020.
“Delivery Date”
means each of the estimated dates on which Quorum intends to deliver the Products and/or Services as set out in the applicable Order Acknowledgement or as otherwise agreed in writing from time to time.
“Documentation”
means the applicable specification, end user manuals and other information made available by Quorum to You at Quorum’s discretion in either printed or machine readable form with respect to the Products and the Services.
“Equipment”
means Your (or, if You are purchasing for resale, the end-customer’s) microscope or other equipment onto which the Product(s) will be installed.
“Equipment Manufacturer”
means the third party manufacturer of the Equipment.
“Factory Acceptance Test” (“FAT”)
means testing of a Product carried out by Quorum at its premises, to confirm that the Product complies with its Specification.
“Integrated Product”
means a Product that is designed to be installed in and integrated with the Equipment, such as but not limited to a cryo unit.
“Lead Time”
means the anticipated number of calendar days between Quorum’s receiving the Purchase Order from You and the availability of the corresponding Services and Products for despatch to You, and is indicative only.
“Order Acknowledgement”
means Quorum’s written acknowledgement of Your Purchase Order.
“Price”
means the fees to be paid by You to Quorum for the Products and the Services as set out in the applicable Order Acknowledgement.
“Price List”
means Quorum’s then-current price list for the Products.
“Problem Notification”
means Your notification to Quorum of a Problem.
“Problem”
means the failure of a Product to comply with a reasonable interpretation of its Documentation.
“Products”
means the products supplied by Quorum to You as set out in the applicable Quote.
“Purchase Order”
means a written purchase order that has been raised by You, is consistent with the corresponding Quote and acknowledged by Quorum and specifies:
a) that it is subject to these terms and conditions;
b) a description of any Products to be supplied, together with the applicable Price calculated in accordance with Quorum’s then current Quote; and
“Quote”
means a written quotation issued by Quorum that specifies:
a) that it is subject to these Terms and Conditions;
b) a description of any Products to be supplied, together with the applicable Price;
c) a description of any Services to be supplied, together with the applicable service fee
d) the anticipated Delivery address and applicable INCOTERM 2020 rule;
"Services"
means the consultancy, development, training and ad-hoc services provided by Quorum as set out in the applicable Quote.
a) the anticipated Delivery address and terms; and
b) any assumptions and specific obligations for You that will apply to the Quote.
"Site"
means Your site at which the Products shall be delivered and at which the Equipment is located and is set out in the applicable Quote.
“Site Acceptance Test” (“SAT”)
means testing of a Product carried out by Quorum at Your premises, to demonstrate to You that the Cryo Product installed in the Equipment by Quorum complies with its Specification.
“Site Requirements”
means the pre-requisites for the installation or servicing of the Products and/or the delivery of the Services (as appropriate) as specified by Quorum to You in writing,and includes the name(s) of Your Authorised Approver(s).
“Solution”
means the Products and/or Services supplied under the Contract.
"Specification"
means the document setting out the functional and technical specification for the Services and the Products and, for Cryo Products, the relevant technical details of the Equipment (including, but not limited to designs, technical specifications and 3D CAD drawings), as incorporated in or referenced by the applicable Quote.
2 Contract Formation
2.1 Each Contract comprises a separate legally binding contract for the purchase and supply of Services and Products as set out in the applicable Quote, independent of all other Contracts that might exist between Quorum and You.
2.2 In preparing a Quote, Quorum shall be entitled to rely on the accuracy and completeness of the Customer Data provided by You in respect of the Product(s) You wish to purchase.
2.3 Once Your Purchase Order has been assessed, Quorum will provide You with an Order Acknowledgement, setting out the scheduled Delivery Date. While Quorum shall make reasonable endeavours to maintain the timescales quoted, meeting such timescales shall not constitute the essence of any Contract.
2.4 Any terms and conditions set out in any Purchase Order, order or other document supplied by You that are in addition to or at variance with the terms and conditions in these terms and conditions shall be void and of no effect unless Quorum expressly agrees otherwise in writing.
2.5 You agree that a binding Contract is created as soon as Quorum issues an Order Acknowledgement in respect of Your Purchase Order. You may not cancel any such binding Contract without Quorum’s prior written consent, which may be granted or withheld at Quorum’s sole discretion. Any such cancellation shall, in any event, be subject to Your payment of the corresponding Cancellation Fee.
2.6 If You are purchasing Products or Services for resale to a third party end-customer, You shall be solely responsible for ensuring that Your obligations under these Terms and Conditions are met, including any such obligations that You seek to pass on to Your end-customer.
2.7 In the event of any conflict between the documents forming the Contract, the following order of precedence shall apply:
(a) the Order Acknowledgement;
(b) the Quote;
(c) the Specification; and
(d) these Terms and Conditions.
3 Supply of Products and Services
3.1 Quorum agrees to provide Products and Services as described in the Specification, subject to the terms of the relevant Contract.
3.2 Indicative Lead Times for standard Products and Integrated Products are set out in the Price List as a rough guide only.
3.3 If You are purchasing Integrated Products, You may either provide Quorum with the Equipment Specification, or You may request Quorum to obtain it directly from the Equipment Manufacturer, using Customer Data provided by You. You agree that Quorum may use such Customer Data for this purpose and that:
a) Quorum shall not be liable for any loss or damage arising from inaccuracies, errors or omissions in the Customer Data or the Equipment Specification;
b) the Lead Times shall automatically be extended by any delays in Your or the Equipment Manufacturer’s provision of the Equipment Specification; and
c) Quorum shall be entitled to charge for, and You agree to pay, its reasonable costs and expenses incurred in the design or development of the Integrated Product as a result of delays, inaccuracies, errors or omissions in the Customer Data or the Equipment Specification.
3.4 You shall be responsible for ensuring that the Site Requirements are met in full prior to the scheduled Delivery Date. If You are purchasing Products or Services for resale to a third party end-customer, You shall be solely responsible for ensuring that such Site Requirements are met by Your end- customer. In the event that Site Requirements are not met, and Quorum is unable to deliver the Products and/or Services as planned, You agree that Quorum may invoice You for its reasonable costs associated with the rescheduling of such delivery.
3.5 You may request additions or amendments to the Products and/or to the Services. Quorum may also give notice to You that a change in circumstances prompted by You constitutes a request for modification to the Products and/or to the Services even though no formal request for modification has been issued by You. In response to such requests, Quorum shall supply You with a written (to include by email) proposal including the specification for the additional or changed Products and/or to Services, price and approximate timescales for Delivery. Once You have accepted such proposal in writing (to include by email), it shall be attached to the relevant Contract as an amendment to the applicable Quote, or as a new Purchase Order, and shall be delivered subject to the terms and conditions of the relevant Contract.
4 Delivery, Risk and Title
4.1 Quorum shall deliver the Services and Products to the Site in accordance with any agreed Specification.
4.2 You shall ensure that the Authorised Approver (or their nominated representative) is present at the Site to take delivery of the Services and/or Products, and to review the SAT as set out in clause 5 on the Delivery Date.
4.3 Quorum may deliver the Services itself or by its subcontractors, providing always that Quorum shall be fully liable for the acts and omissions of its subcontractors in the performance of the Services.
4.4 If the Services include training, You shall be responsible for the provision of an appropriate venue, refreshments and reasonable facilities for such training.
4.5 In the event that You need to postpone the Delivery Date for Products or Services, You shall notify Us in writing as soon as You become aware of the need to postpone. We shall be entitled to invoice You for the Products or Services on the originally scheduled Delivery Date, not withstanding any such postponement. Provided You have given Quorum not less than 14 days notice of such postponement prior to the scheduled Delivery Date, You may postpone Delivery:
a) for up to 7 days at no additional cost; and
b) thereafter, at a cost of £50 per week for the safe storage of the Products, which We shall invoice upon Delivery.
4.6 We may invoice You for Our unrecoverable travel costs already incurred in connection with the provision of postponed Services and/or Products as at the date of Your postponement, plus an amount equal to 25% of the Price for the Services to compensate Us for the costs associated with rescheduling Our engineering time. If You wish to postpone the delivery of Products or Services upon fewer than 14 day's notice, You must request such postponement from Quorum in writing and Quorum may agree to such, in its sole discretion, subject to Your payment of its reasonable costs associated with such postponement and rescheduling.
4.7 In the event that Quorum is unable to deliver the Services on the scheduled date due to Your failure to meet Your obligations hereunder, the duration of the Services shall be extended by the amount of such delay and the Price shall be increased accordingly.
4.8 Quorum shall use reasonable endeavours to deliver the relevant Products and Services in accordance with the Lead Times set out in the relevant Quote or as soon as possible thereafter subject to Clauses 3.2 and 3.3b.
4.9 Risk in the Products shall pass to You in accordance with the applicable INCOTERMS 2020 rule specified in the Quote or Order Acknowledgement.
4.10 Unless otherwise agreed by Quorum in the Order Acknowledgement, the standard INCOTERMS 2020 rules shall be EXW Quorum Technologies, East Sussex, BN8 6BN for deliveries within the United Kingdom and FCA Quorum Technologies, East Sussex, BN8 6BN for deliveries outside the United Kingdom.
4.11 Title in the Products shall pass to You on receipt by Quorum of payment of all sums due to Quorum in respect of the Products.
4.12 You shall not withhold, deduct or set off any amounts due to Quorum unless required by law.
5 Acceptance
5.1 Prior to shipping any Product to You, Quorum shall carry out the Factory Acceptance Tests and You may attend Quorum’s premises to witness such FAT. Quorum shall provide You with the documented results of such FAT.
5.2 Your Authorised Approver shall sign Quorum’s Acceptance Certificate to confirm the satisfactory completion of the SAT, prior to the departure of the Quorum engineer from the Site. For the avoidance of doubt, if the Product is demonstrated to comply with its Specification but does not meet a specific requirement that is not incorporated in or referenced by the Specification, You shall not be entitled to refuse to sign the Acceptance Certificate. Any such additional requirements may be addressed through a request for change in accordance with clause 3.5.
5.3 If Quorum has attended Site to deliver Services only, You may (and are encouraged to) review the Services prior to the departure of the Quorum engineer from the Site to satisfy Yourself that the Services have been delivered in accordance with the Contract. You acknowledge that if You subsequently identify an issue with the Services that requires resolution under warranty, You shall be liable for Quorum’s travel expenses incurred in visiting the Site to resolve the issue, as set out in clause 10.5.
6 Integrated Products
6.1 You hereby warrant that You are authorised by the Equipment Manufacturer to provide Quorum with the Equipment Specification and to permit Quorum to design and implement the Integrated Products. Quorum shall have no liability to You for any loss or damage arising from Your failure to seek or obtain such authorisation.
6.2 For Integrated Products that have been installed in the Equipment by Quorum, You may request a Site Acceptance Test to verify Quorum’s proper installation of the Integrated Product in the Equipment. You agree that:
a) the normal operation of the Equipment may be affected by the installation and/or use of an Integrated Product;
b) a certain degree of performance degradation is unavoidable when Equipment is used with Integrated Products, and degradation within normal parameters shall not be sufficient cause for SAT to fail; and
c) subject to Quorum’s compliance with the reasonable technical instructions of the Equipment Manufacturer, Quorum shall not be liable for damage to the Equipment resulting from the installation or use of the Integrated Product.
7 Your Cooperation
7.1 You shall provide co-operation and support to Quorum in Quorum’s efforts to deliver the Products and the Services. Such co-operation and support shall include, but not be limited to:
a) ensuring that the Site Requirements are met by You, or the end-customer, prior to delivery of any Products and/or Services;
b) a reasonable level of responsiveness to Quorum’s requirements and communications;
c) the timely transmittal and release of appropriate and accurate documentation and information;
d) the prompt review and analysis of the work performed;
e) making available of facilities when and to the extent as is reasonably requested by Quorum; and
f) the making available of competent personnel to assist Quorum when and to the extent as is reasonably requested.
7.2 You agree that if You do not perform Your obligations under a Contract, Quorum shall not be considered in default to the extent that it is delayed in meeting its obligations as a result of such failure, and You shall remain fully obligated to pay Quorum as provided in the relevant Contract as though no delay had occurred.
8 Personnel
8.1 In the event that either party visits the premises of the other (the “Host”), the visiting party (the “Guest”) shall be advised of all rules, regulations and practices they should comply with whilst on the Host’s premises. The Guest's staff, agents and sub-contractors shall comply with such rules and regulations whenever they are on the Host’s premises. The Host shall take reasonable precautions to ensure the health and safety of the Guest’s staff, agents and sub-contractors whilst they are on its premises.
8.2 Without in any way restricting the right of an employee freely to accept employment and change employment, if either party (the "Hiring Party") induces the other party's employee engaged in the performance of the relevant Contract to enter its service at any time during the term of the relevant Contract or during a period of six months thereafter, then the Hiring Party shall pay to the other party an amount being equivalent to twenty-five percent (25%) of the employee's net annual salary, such sum being a genuine pre-estimate of the cost of the disruption that such inducement would cause to the efficient conduct of the affected party's business.
9 Payment & Taxes
9.1 Quorum may invoice You prior to shipment unless otherwise specified. As standard, Quorum will invoice on shipment, based on EXW or FCA, unless otherwise agreed by Quorum in the Order Acknowledgement.
9.2 Quorum may invoice You for its reasonable expenses incurred directly in the performance of the Services, as approved by You in writing (to include by email), monthly in arrears.
9.3 You shall pay each of Quorum’s valid invoices within thirty (30) days of the date of invoice without deduction, withholding, set-off or counterclaim.
9.4 You shall be liable for any national, European Union, value added, sales, excise, state, local, withholding or other taxes or customs duties applicable.
9.5 You shall pay debt collection fees and interest charges on any undisputed sum that is overdue in accordance with the Late Payment of Commercial Debts (Interest) Act (1998) (as amended). You shall notify Quorum in writing within ten (10) days of receipt of an invoice that the invoice is in dispute.
9.6 Quorum may increase the Prices from time to time upon not less than 30 days prior written notice, such increase to apply to all Products and Services ordered after the expiry of such notice period.
9.7 Without prejudice to any other rights, Quorum reserves the right to:
(a) charge interest on overdue amounts at a rate of 4% above the Bank of England base rate, accruing daily;
(b) suspend performance of any Contract, including withholding delivery or Services, until payment is made in full; and
(c) treat non-payment as a material breach and terminate the relevant Contract in accordance with Clause 12.2(a).
9.8 If Quorum reasonably believes that Your financial position has deteriorated such that payment is at risk, Quorum may require advance payment or adequate security before continuing performance.
10 Warranty and Warranty Remedies
10.1 Quorum warrants that the Services will be performed with reasonable skill and care by personnel with qualifications and experience appropriate to the tasks allocated to them.
10.2 Subject to Clause 10.4, Quorum warrants that, for a period of twelve (12) months from Delivery, the Products will be free from defects in materials and workmanship and will comply in all material respects with their Specification.
10.3 Where expressly stated in the applicable Specification or required by Applicable Laws, Quorum warrants that the Products will comply, at the point of Delivery, with the applicable regulatory and safety requirements identified in the Specification. Quorum gives no warranty that the Products will comply with any law, regulation, standard or requirement not expressly identified in the Specification or otherwise agreed by Quorum in writing.
10.4 The warranties in this Clause 10 do not apply to any defect, failure, non-conformance or damage arising from:
(a) designs, specifications, Customer Data, Equipment information, materials or instructions provided or specified by You;
(b) installation, modification, repair or maintenance by You or any third party not authorised by Quorum;
(c) misuse, improper use, abnormal use, negligence, accident, abuse or unauthorised modification;
(d) storage, installation, operation or maintenance outside the Specification, Documentation or Quorum’s written instructions;
(e) failure or malfunction of the Equipment or any third-party product used with the Products; or
(f) fair wear and tear, consumables, environmental conditions or causes outside Quorum’s reasonable control.
10.5 You shall inspect the Products promptly on Delivery. Any defect or non-conformance apparent on reasonable inspection must be notified to Quorum in writing within five (5) business days of Delivery. Any defect or non-conformance not apparent on reasonable inspection must be notified to Quorum in writing within a reasonable time after discovery and, in any event, before expiry of the applicable warranty period. You shall provide all information reasonably requested by Quorum to investigate and resolve the alleged defect or non-conformance.
10.6 If Quorum confirms a valid warranty claim, Quorum’s sole obligation and Your exclusive remedy shall be, at Quorum’s option, to:
(a) repair the defective or non-conforming Product;
(b) replace the defective or non-conforming Product;
(c) re-perform the defective or non-conforming Services; or
(d) refund the portion of the Price paid for the affected Product or Services. Quorum may require return of the Product to Quorum’s facility or may attend the Site, as Quorum considers appropriate.
10.7 Quorum shall bear the reasonable cost of parts and labour required to remedy a valid warranty claim. You shall be responsible for Quorum’s reasonable travel, accommodation and subsistence costs necessarily incurred in performing any on-site warranty services, unless otherwise agreed by Quorum in writing.
10.8 Any repaired or replacement Product may be new or refurbished and shall be warranted for the remainder of the original warranty period or for thirty (30) days from completion of the remedy, whichever is longer.
10.9 If Quorum is unable to identify or reproduce the alleged defect or non-conformance, the Product may be returned to You with “no fault found” and You shall be liable for Quorum’s reasonable costs of testing, investigation, return, travel, accommodation, subsistence and engineer time at Quorum’s then-current rates.
10.10 Where Products are damaged, faulty or otherwise require service outside the applicable warranty, or where the matter falls within the exclusions in Clause 10.4, You may request repair or replacement. Quorum may, at its discretion and subject to availability, offer such repair or replacement at Quorum’s then-current rates.
10.11 Except as expressly set out in this Clause 10, Quorum gives no warranties, representations, guarantees or conditions in relation to the Products or Services, whether express, implied, statutory or otherwise. To the fullest extent permitted by law, all implied warranties, representations, guarantees and conditions, including those relating to satisfactory quality, fitness for a particular purpose, performance, compatibility, non-infringement or ability to achieve any particular result, are excluded.
10.12 This Clause 10 states Quorum’s entire liability and Your sole and exclusive remedies for any defect, failure, non-conformance or breach of warranty in relation to the Products or Services, subject always to Clause 11.1.
11 Limitation of Liability
11.1 Nothing in any Contract shall exclude or limit Quorum’s liability for
(i) fraud or other criminal act,
(ii) death or personal injury caused by Quorum’s negligence, or
(iii) any other liability that cannot be excluded by law.
11.2 Subject to Clause 11.1, in no event will Quorum be liable for any damages resulting from:
(i) loss of, damage to or corruption of data,
(ii) loss of use,
(iii) lost profits,
(iv) loss of revenue,
(v) loss of reputation or
(vi) any indirect or consequential loss. Such liability is excluded whether such damages were reasonably foreseeable or actually foreseen.
11.3 Except as provided in Clause 11.1 and in Clause 11.2 Quorum’s maximum aggregate liability to You for any cause whatsoever shall be for direct costs and damages only and will be limited to a sum equivalent to 100% of the aggregate of the Price paid and payable by You under the Contract that is the subject of Your claim.
11.4 Quorum hereby excludes, to the fullest extent permitted by law, all liability that it has not expressly accepted in the relevant Contract. The limitations and exclusions set out in Clause 11 will apply regardless of the form of action, whether under statute, in contract, tort (including negligence) or any other form of action.
11.5 No action, regardless of form, arising out of transactions occurring under or contemplated under a Contract may be brought by either party more than two (2) years after the cause of action has accrued.
11.6 Save as provided in Clause 11.7, You shall have no remedy in respect of any representation (whether written or oral) made to You upon which You relied in entering into a Contract ("Misrepresentation") and Quorum shall have no liability to You other than pursuant to the express terms of the relevant Contract.
11.7 The liability cap in Clause 11.3 shall apply in aggregate to all claims arising under or in connection with the relevant Contract.
11.8 You shall indemnify and keep indemnified Quorum against all losses, damages, liabilities, claims, costs and expenses, including reasonable legal costs, arising out of or in connection with any third-party claim resulting from:
(a) misuse of the Products;
(b) integration or use of the Products with third-party equipment, except to the extent caused by Quorum’s breach of Contract; or
(c) failure to follow the Documentation or Quorum’s written instructions.
11.9 Subject always to Clause 11.1, all indemnities given by Quorum under or in connection with any Contract, including the indemnity in Clause 13.3, shall be subject to the exclusions and limitations of liability in this Clause 11. For the avoidance of doubt, the cap in Clause 11.3 applies in aggregate to all liability arising under or in connection with such indemnities, including any liability for damages, settlement sums, defence costs, legal fees, losses, costs and expenses.
12 Duration & Termination
12.1 Each Contract shall become effective on the date of Quorum’s Order Acknowledgement and shall continue until each party has fulfilled all of its obligations thereunder, unless terminated earlier in accordance with the provisions of Clause 12.2.
12.2 Either party (the "Initiating Party") may forthwith terminate any Contract at any time upon giving written notice to the other party, if the other party:
a) commits any material breach of any term of the relevant Contract that is not reasonably capable of remedy or, if it commits a breach which is reasonably capable of remedy, fails to remedy such breach to the reasonable satisfaction of the Initiating Party within thirty (30) days of a written request to do so; or
b) has a receiver or administrative receiver appointed over it or any of its undertaking or assets, or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction where the resulting entity shall assume all of the liabilities of it), or a court of competent jurisdiction shall make an order to that effect, or if it shall become subject to an administration order, or shall enter into any voluntary arrangement with its creditors, or shall cease or threaten to cease to carry on its business, or if any substantially similar event shall take place under the laws of another jurisdiction.
12.3 The expiry of these terms and conditions or the termination thereof for whatever reasons shall be without prejudice to any other rights or remedies a party may be entitled to under law and shall not affect the respective rights and liabilities of the parties accrued prior to such termination.
13 Intellectual Property
13.1 Quorum is the owner or licensee of any and all patents, copyright, trade secrets, trademarks and any other intellectual property rights that subsist in the Products. For the avoidance of doubt, title and all intellectual property rights to any design, new software, new protocol, new interface, enhancement, update, derivative works, revised screen text or any other items that Quorum creates for You shall remain vested in Quorum or its licensors. Any rights not expressly granted herein are reserved to Quorum.
13.2 You are the owner or licensee of any and all patents, copyright, trade secrets, trademarks and any other intellectual property rights that subsist in the Customer Data. Title to the Customer Data and media shall remain vested in You or Your licensors. You hereby grant Quorum an irrevocable, royalty free, world-wide licence to use the Customer Data for the purpose of providing the Products and the Services, and for fulfilling its obligations under the Contract.
13.3 Subject to the provisions of this Clause 13, Quorum shall defend at its own expense any claim brought against You alleging that the normal use or possession of a Product infringes a patent, copyright, or mask work belonging to a third party in the United States of America, the United Kingdom or the European Union ("Intellectual Property Claim") and Quorum shall pay all damages awarded or agreed to be paid to any third party in settlement of an Intellectual Property Claim provided that You:
a) promptly furnish Quorum with written notice of the Intellectual Property Claim upon becoming aware of the same;
b) make no admissions or settlements without Quorum’s prior written consent;
c) act in accordance with Quorum’s reasonable instructions and provide it with reasonable assistance in respect of the Intellectual Property Claim; and
d) give to Quorum the sole authority to defend or settle the Intellectual Property Claim.
13.4 If in Quorum’s reasonable opinion a Product may become the subject of an Intellectual Property Claim then Quorum shall either:
a) obtain for You the right to continue using the Product which is (or may become) the subject of the Intellectual Property Claim; or
b) replace or modify the Product which is the subject of the Intellectual Property Claim so it becomes non-infringing; or
c) if such remedies in (a) and/or (b) above are not in Quorum’s opinion reasonably available, then You shall return the Product and Quorum shall refund to You the corresponding portion of the Price paid by You, as depreciated on a three (3) year straight line basis.
13.5 Quorum shall have no liability for any Intellectual Property Claim resulting from the combination of the Product with the Equipment or any other products that were neither supplied nor combined with the Product by it, or if the same results from any breach of Your obligations under the Contract.
13.6 This Clause 13 states Quorum’s entire obligation and liability and Your sole remedy in respect of any infringement or alleged infringement of any intellectual property rights arising from its acquisition, possession or use of the Solution. Quorum hereby excludes all other obligations and liabilities in relation to infringement or alleged infringement of the intellectual property rights of any person to the fullest extent permitted by law.
14 Confidentiality
14.1 All confidential information concerning the Products, business, assets, affairs, customers, clients or suppliers of Quorum supplied by Quorum to You, the extent of the Parties’ negotiations, the terms of the Contract, and the contents of all discussions between the Parties shall be held in confidence. Unless Quorum agrees in writing, You shall not use such information for purposes other than carrying out the purchase of the Products from Quorum, nor disclose such information to any third parties other than Your senior employees, directors or advisers who need to know that information for the purposes of carrying out the purchase of the Products.
14.2 Confidential Information shall be defined as any information (whether disclosed in oral, written or electronic form) belonging or relating to a party's business affairs or activities and which:
(i) has been marked as confidential or proprietary,
(ii) has been identified orally or in writing as being of a confidential nature, or
(iii) may reasonably be supposed to be confidential in the circumstances.
14.3 Each party undertakes that for a period of five (5) years from the date of disclosure it will not, without the prior written consent of the other party, use, disclose, copy or modify the other party's Confidential Information (or permit others to do so) other than is necessary for the performance of its rights and obligations under the relevant Contract. In any event, each party hereby agrees that it shall treat the other's Confidential Information with the same degree of care as it employs with regard to its own Confidential Information of a like nature and in any event in accordance with best current commercial security practices, disclosing such Confidential Information only to those of its employees, consultants and bona fide professional advisers who need to have such information for the purposes of the relevant Contract, and ensuring that such employees, consultants and professional advisers shall be bound by the same confidentiality obligations as are set out in this Clause 14. Each party agrees that it shall be liable for any breach of this Clause 14 by any employee, consultant or professional advisor to whom it has disclosed the other party's Confidential Information as though it had committed the breach itself.
14.4 The provisions of Clause 14.3 shall not apply to:
a) any information in the public domain otherwise than by breach of the relevant Contract;
b) information lawfully in the possession of the receiving party thereof before disclosure by the disclosing party, as evidenced by written documents;
c) information lawfully obtained without restriction from a third party, as evidenced by written documents; and
d) information required to be disclosed by a court of competent jurisdiction, governmental body or applicable regulatory authority provided that the party under such duty to disclose shall use all reasonable endeavours to give the other party as much prior notice of such disclosure as is reasonably practicable and permitted by law.
14.5 Quorum may publicise its involvement with You with Your prior written consent, such consent not to be unreasonably withheld or delayed.
15 Assignment
15.1 You may not assign any Contract or otherwise transfer any rights or obligations under it except with Quorum’s prior written consent.
16 Force Majeure
16.1 Quorum shall not be responsible for any delay in performance or failure to perform under any Contract where such delay or failure is due to causes beyond Quorum’s reasonable control, including, without limitation, fire, storm, flood, earthquake, explosion, accident, acts of God, war, rebellion, insurrection, riot, civil disturbance, sabotage, epidemic, quarantine restrictions, government-imposed shutdowns, labour disputes, labour shortages, transportation embargoes, failures or delays by suppliers, inability to secure raw materials or to secure raw materials at a commercially reasonable price, action by any government or agency, and judicial action. In the event of production difficulties, Quorum may reallocate production in its reasonable discretion.
17 Notices
17.1 All notices made pursuant to the relevant Contract must be made in writing. Any written notice to be given or made pursuant to the provisions of the relevant Contract shall be sent postage prepaid by registered or recorded mail or reputable courier service, and in the case of notices to be sent to Quorum, shall be addressed to the address stated above marked for the attention of the directors, and in the case of notices to be sent to You, shall be sent to the address on Your Purchase Order and marked for the attention of the directors. Unless otherwise provided in the relevant Contract, all notices shall be deemed as given on the day of their receipt by the receiving party.
18 Entire Agreement
18.1 Each Contract constitutes the entire agreement between the parties with respect to its subject matter and shall supersede all previous representations, agreements and other communications between the parties, both oral and written. The terms and conditions of the relevant Contract shall prevail notwithstanding any variance with the terms and conditions of any order or purchase order submitted by You.
19 Law & Jurisdiction
19.1 In the event of any dispute arising under any Contract the parties will attempt to settle it by mediation. The mediator shall be selected from the Ministry of Justice Civil Mediation Directory, subject to the agreement of both parties. Save in respect of late or non-payment of undisputed invoices, no party may commence court proceedings in respect of any dispute arising out of these terms and conditions until it has attempted to settle the dispute by mediation and either the parties have been unable to agree on a mediator or the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay. Unless agreed otherwise the mediator's costs and expenses shall be shared equally between the parties. Nothing in this Clause shall prevent either Party from seeking urgent injunctive or interim relief from a court of competent jurisdiction.
19.2 Subject to Clause 19.1, each party hereby irrevocably agrees that England shall have jurisdiction to settle any disputes arising out of or relating to any Contract and that the laws of England shall govern any Contract. Each party agrees that its rights and obligations under any Contract are not subject to or governed by the United Nations Convention on Contracts for the International Sale of Goods.
19.3 Notwithstanding the provisions of Clause 19.1, nothing in this agreement shall limit either party's right to seek injunctive relief.
20 Survival
The following clauses shall continue to be in effect after the termination or expiration of the relevant Contract: 1, 2.4, 2.5, 2.6, 4.8, 4.9, 4.10, 4.11, 6.1, 8.2, 9, 11, 12.3, 13, 14, and 17 to 23 inclusive.
21 General
If any provision of any Contract is adjudged by a court of competent jurisdiction to be invalid, void, or unenforceable, the parties agree that the remaining provisions shall not be affected thereby, and that the remainder of any Contract shall remain valid and enforceable. No waiver by either party of any term hereof shall constitute a waiver of any such term in any other case whether prior or subsequent thereto. No single or partial exercise of any power or right by either party shall preclude any other or further exercise thereof. No Contract may be changed, modified, amended, released or discharged except by a subsequent written agreement or amendment executed by duly authorised representatives of Quorum and You. A person who is not a party to any Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of any Contract except as expressly set out herein, but this does not affect any right or remedy that such third party may have without reference to the Contracts (Rights of Third Parties) Act 1999.
22. Data Protection
22.1 Each Party shall comply with all applicable data protection legislation in force from time to time, including the UK GDPR, the Data Protection Act 2018 and any successor or replacement legislation. The terms “controller”, “processor”, “personal data”, “processing”, “data subject” and “personal data breach” shall have the meanings given to them in such legislation.
22.2 The Parties acknowledge that, unless otherwise agreed in writing, You are the controller and Quorum is the processor in respect of any personal data provided by You to Quorum for the purposes of performing the Contract. Where each Party independently determines the purposes and means of processing personal data, each Party shall act as an independent controller in respect of that processing.
22.3 To the extent that Quorum processes personal data on Your behalf, Quorum shall process such personal data only on Your documented instructions, including with regard to any international transfer, unless required to do otherwise by applicable law. Where Quorum is required by law to process personal data other than on Your instructions, Quorum shall inform You of that legal requirement before processing, unless prohibited by law.
22.4 Quorum shall ensure that persons authorised to process personal data are subject to appropriate confidentiality obligations and shall implement appropriate technical and organisational measures designed to protect personal data against unauthorised or unlawful processing and against accidental loss, destruction or damage, having regard to the nature, scope, context and purposes of the processing.
22.5 Quorum shall not appoint a sub-processor to process personal data on Your behalf without Your prior written authorisation, which may be given generally or specifically. Where general authorisation is given, Quorum shall inform You of any intended material changes concerning the addition or replacement of sub-processors and shall ensure that each sub-processor is bound by written obligations that are materially no less protective than those set out in this Clause 22.
22.6 Taking into account the nature of the processing and the information available to Quorum, Quorum shall provide reasonable assistance to You, at Your cost, in responding to data subject rights requests and in meeting Your obligations relating to security, personal data breaches, data protection impact assessments and consultations with supervisory authorities.
22.7 Quorum shall notify You without undue delay after becoming aware of a personal data breach affecting personal data processed by Quorum on Your behalf and shall provide such information and assistance as You may reasonably require to meet Your obligations under applicable data protection legislation.
22.8 Quorum shall not transfer personal data outside the United Kingdom unless it has ensured that appropriate safeguards are in place in accordance with applicable data protection legislation or the transfer is otherwise permitted by law.
22.9 At Your written request and subject to applicable law, Quorum shall delete or return personal data processed on Your behalf following completion or termination of the relevant Contract, unless Quorum is required by law to retain such personal data.
22.10 Quorum shall make available to You such information as is reasonably necessary to demonstrate compliance with this Clause 22 and shall allow for and contribute to reasonable audits or inspections, provided that such audits are conducted on reasonable notice, during normal business hours, no more than once in any twelve-month period unless required by a supervisory authority or following a personal data breach, and in a manner that does not unreasonably disrupt Quorum’s business or compromise the confidentiality, security or rights of Quorum or its other customers.
22.11 You warrant that You have all necessary rights, notices, consents and lawful bases required to provide personal data to Quorum and to instruct Quorum to process that personal data for the purposes of performing the Contract. You shall ensure that any personal data supplied to Quorum is accurate, relevant and limited to what is necessary for those purposes.
23. Export Control and Sanctions
23.1 Quorum and You each represent and warrant that they comply and will continue to comply with all applicable export control laws and regulations, including but not limited to the EAR (Export Administration Regulations) and ITAR (International Traffic in Arms Regulations), and that neither Party will export Products or components in breach of applicable export control laws or regulations to any person or country for which an export licence is required without first obtaining the relevant licence and approvals. You confirm that You will not transfer to Quorum any information, including but not limited to software, technical data, designs, source codes and technology, in breach of such controls. Quorum will not accept any responsibility or liability for any unauthorised or illegal transmission of such information to it by You. Each Party shall comply, and shall procure that all persons associated with it or performing services in connection with the Contract comply, with all applicable laws, regulations and orders. You warrant that, at the date of the Contract and for its duration, You are not:
(a) on a sanctions list, owned or controlled by anyone listed on a sanctions list, or located in or incorporated under the laws of a country or territory that is subject to sanctions; and
(b) in contravention of any laws or regulations relating to economic or financial sanctions, trade sanctions, immigration sanctions, aircraft or shipping sanctions, export controls, trade embargoes or restrictive measures imposed, administered or enforced by a sanctions authority.