FACULTATIEVE TECHNOLOGIES LIMITED
UK TERMS AND CONDITIONS
The Customer’s attention is particularly drawn to the provisions of clause 25 (Limitation of Liability).
1 Definitions and Interpretation
1.1 The following definitions and rules of interpretation apply in these Conditions:
“Acceptance” Equipment Acceptance and/or Spare Part Acceptance (as its context
requires);
“Applicable Law” the laws of England and Wales and any other laws or regulations,
regulatory policies, guidelines or industry codes and apply to the
Equipment, Services, crematoriums (and their operations) and all
other matters related to the Contract;
“Beneficial Use” the Equipment completing 3 cremations;
“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 8.00am to 4.00pm on any Business Day;
“Charges” together, the Equipment Charges, the Maintenance Charges, Spare
Part Charges, Consumable Charges and the Training Charges and any
other charges, costs, increased charges or other fees that may be
payable by the Customer to FTL (including charges for ad-hoc
professional advice);
“Commencement Date” has the meaning given in clause 2.8;
“Conditions” these terms and conditions as amended from time to time in
accordance with clause 28.12;
“Consumable Charges” has the meaning given in clause 22.9;
“Consumables” the consumables for the Equipment and/or Third Party Equipment, that
are supplied to the Customer as part of the Maintenance Services (if
any) as expressly set out in the Order Confirmation;
“Contract” the contract between FTL and the Customer for the supply of the
Equipment and/or Services (as applicable) in accordance with these
Conditions and the applicable Order Confirmation and any quote;
“Contract Year” each 12 month period starting from the Commencement Date and each
anniversary of the Commencement Date thereafter. The final Contract
Year shall commence on the relevant anniversary of the
Commencement Date and end on the date of expiry or termination of
this agreement;
“Corrective
Maintenance”
means, as applicable:
(a) making any adjustments to the Equipment and/or Third Party
Equipment; and/or
(b) replacing any parts or components of the Equipment and/or
Third Party Equipment,
15173861_11 Page 1in each case, as required to restore the Equipment to Good Working
Order in accordance with clause 13;
“Costs” all outgoings, payments, losses, liabilities, costs, claims, demands,
charges, and expenses of any kind incurred in connection with
litigation, professional fees, disbursements, and any value added tax
to be charged on any of those items;
“Customer” the person or firm who purchases the Equipment and/or Services from
FTL;
“Customer Equipment the equipment and systems of the Customer to which the Equipment
and Systems” is to be connected;
“Customer Site” the Customer’s premises at which the Equipment is to be delivered,
installed and/or operated, and where the Services are to be performed;
“Customisation” any bespoke customisations or specification that are made specifically
for the Customer to any part of the Equipment or Services, including
any related plans, designs, details and drawings, that is agreed in
writing by the Customer and FTL;
“Equipment” the crematorium equipment supplied to the Customer under the
Contract, that unless specified otherwise shall include Spare Parts but
exclude Consumables;
“Equipment Acceptance” has the meaning given in clause 6.1;
“Equipment Charges” has the meaning given in clause 22.1;
“Equipment Delay” has the meaning given in clause 7.1;
“Equipment any specification, layout drawings, and data sheets for the Equipment
Specification” and/or Spare Parts provided by FTL to the Customer in writing,
including in a quote and/or Order Confirmation;
“Excluded Cause” (a) use of (i) Equipment and/or Software with equipment or
materials not supplied or approved by FTL; or (ii) Third Party
Equipment with equipment or materials not supplied or
approved by the relevant third party;
(b) any maintenance, alteration, modification or adjustment to the
(i) Equipment and/or Software performed by persons other than
FTL or its employees or agents unless approved by FTL; or (ii)
Third Party Equipment performed by persons other than the
relevant third party or its employees or agents unless approved
by the relevant third party;
(c) fair wear and tear, wilful damage, negligence, or abnormal
storage or working conditions;
(d) the abnormal or hazardous contents of a coffin;
(e) the use of the Equipment, Third Party Equipment and/or
Software in breach of any of the provisions of the Contract;
(f) the Customer’s failure to follow FTL’s oral or written
instructions for the storage, commissioning, use and/or
maintenance of the Equipment and/or Software (as
applicable) or good trade practice regarding the same;
15173861_11 Page 2(g) the Customer’s failure to follow the relevant third party’s oral
or written instructions for the storage, commissioning, use
and/or maintenance of the Third Party Equipment or good
trade practice regarding the same;
(h) a failure, interruption or surge in the electrical power or its
related infrastructure connected to the Equipment, Third Party
Equipment and/or Software; or
(i) the Customer's neglect or misuse of the Equipment, Third
Party Equipment and/or Software;
“FTL” Facultatieve Technologies Limited, a company registered in England
and Wales, with company number 00633222 and its registered office
address at Facultatieve Technologies Ltd, Moor Road, Leeds, West
Yorkshire, LS10 2DD;
“FTL IPR” has the meaning given to it in clause 23.1;
“Force Majeure Event” has the meaning given to it in clause 28.3;
“Good Working operating in accordance with the instructions and/or expectations of
Order” FTL or the applicable third party, in the case of Third Party Equipment;
“Installation and the installation and commissioning Services (if any) in relation to the
Commissioning Services” Equipment and/or Third Party Equipment as set out in
the quote and/or the Order Confirmation;
“Insolvency Event” the other party: (a) enters into liquidation or a winding up petition is
presented against the company or a resolution is passed for the
voluntary winding up of the company; (b) enters into administration or
any steps are taken to place the company into administration such as
the filing at court of a an administration application or a notice of
intention to place the company into administration; (c) proposes to
make any voluntary arrangements with its creditors; (d) has a
receiver, liquidator, administrator, nominee, supervisor, trustee or an
individual with a similar role appointed over any of its assets; or (e)
suffers an event that, under the law of a different country, is equivalent
to any of the previously specified acts or events;
“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 getup 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;
“IAC Delay” has the meaning given in clause 12.1;
“Maintenance Charges” has the meaning given in clause 22.6;
“Maintenance Services” the Maintenance Services (if any) set out in the Order Confirmation;
15173861_11 Page 3“Maintenance Services the term for the provision of the Maintenance Services as referred to
Term” and/or attached to the Order Confirmation (including the start date);
“O&M Manual” means the operation and maintenance manual provided by FTL to the
Customer in relation to the Equipment;
“Order” the Customer’s order for the supply of Equipment and/or Services, as
set out in the Customer’s purchase order form, as the case may be;
“Order Confirmation” FTL’s written confirmation of the Customer’s Order, excluding any auto
generated response or acknowledgement;
“Recall Notice” has the meaning given in clause 21.2;
“Services” together, and individually (as applicable) the
(a) Installation and Commissioning Services;
(b) Maintenance Services; and/or
(c) Training Services;
“Software” the pre-installed software provided to the Customer by FTL within the
Equipment, that is used to control and monitor the Equipment;
“Spare Part Charges” has the meaning given in clause 22.4;
“Spare Part Acceptance” has the meaning given in clause 6.4;
“Spare Parts” the spare service parts for Equipment and/or Third Party Equipment
(or any part of them) expressly set out in writing in the Order
Confirmation;
“Third Party Equipment” the crematorium equipment owned by the Customer, supplied by any
third party, including each of its spare parts (if any);
“Training Charges” has the meaning given in clause 22.7;
“Training Services” the training services to be provided by FTL to the Customer (where
relevant) in relation to:
(a) the installation of the Equipment (excluding Third Party
Equipment); and/or
(b) additional ad-hoc training in relation to the operation and
maintenance of the Equipment (excluding Third Party
Equipment),
as set out in the Order Confirmation;
“VAT” value added tax chargeable in the UK or elsewhere;
“Voluntary Recall has the meaning given in clause 21.1; and
Notice”
“Warranty Period” has the meaning given in clause 9.1.
1.2 In the Contract:
1.2.1 a “person” includes a natural person, corporate or unincorporated body (whether
or not having separate legal personality);
15173861_11 Page 41.2.2 a reference to a “company” shall include any company, corporation or other body
corporate, wherever and however incorporated or established;
1.2.3 any reference to legislation or a legislative provision is a reference to it as amended,
extended or re-enacted from time to time and all subordinate legislation made from
time to time under that legislation or legislative provisions;
1.2.4 a reference to “writing” or “written” excludes fax but not email; and
1.2.5 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.
1.3 The Contract shall be binding on, and enure to the benefit of, the parties to the Contract and
their respective personal representatives, successors and permitted assigns, and references
to any party shall include that party's personal representatives, successors and permitted
assigns.
2 Basis and Application of Conditions
2.1 These Conditions apply to the provision of the Equipment, Consumables and Services (as
applicable) by FTL to the Customer.
2.2 The purchase of Equipment by the Customer from FTL will not always include the Installation
and Commissioning Services, the provision of Maintenance Services or the provision Training
Services.
2.3 These Conditions apply as follows:
2.3.1 where the Customer is purchasing the Equipment, Consumables and/or Spare
Parts: clauses 3 to 10 (inclusive) shall apply;
2.3.2 where the Customer is purchasing the Installation and Commissioning Services:
clauses 11 to 13.3 (inclusive) shall apply;
2.3.3 where the Customer is purchasing Maintenance Services: clauses 15 to 18
(inclusive) shall apply (note that where Maintenance Services include Spare Parts
and/or Consumables, clauses 3 to 10 (inclusive) shall also apply);
2.3.4 where the Customer will receive Training Services: clause 19 shall apply; and
2.3.5 for all contracts: clauses 1, 2 and 20 to 30 (inclusive) shall apply.
It is possible that more than one of the above will apply to the Contract – i.e. if the Customer
is purchasing the Equipment and also receiving Maintenance Services.
2.4 Orders may be placed by the Customer at any time. This may include the orders placed as
part of a tender exercise, following a quotation provided by FTL, through a framework
agreement and/or directly, in each case with a corresponding purchase order.
2.5 The Order constitutes an offer by the Customer to purchase the Equipment, Consumables
and/or Services (as applicable), in each case in accordance with these Conditions.
2.6 The Customer is responsible for ensuring that the terms of the Order and any applicable
Customisation requests within an Order are complete and accurate.
2.7 Each Order shall be deemed to be a separate offer by the Customer to purchase Equipment,
Consumables and/or Services on the terms of the Contract, that FTL shall be free to accept
or decline at its absolute discretion.
15173861_11 Page 52.8 The Order shall only be deemed to be accepted by FTL when FTL issues written acceptance of
the Order, by issue of the earlier of: (a) its Order Confirmation; and (b) when FTL issues an
invoice to the Customer relevant to the Order, at which point, and on which date, the Contract
shall come into existence (“Commencement Date”). FTL may also decline an Order. If FTL does
not decline the Order, issue an Order Confirmation or an invoice, in each case in accordance
with this clause 2.8, the Order shall not be accepted by FTL.
2.9 The Customer is unable to cancel or amend any Order on or after the Commencement Date,
without the prior written consent of FTL, and any such cancellation or amendment shall be
subject to any fees reasonably incurred by FTL from the Commencement Date to the date
of cancellation or amendment.
2.10 Any samples, drawings, descriptive matter or advertising issued by FTL and any descriptions
of the Equipment or Consumables or illustrations or descriptions of the Equipment or
Consumables contained in FTL’s catalogues, brochures or advertising materials are issued or
published for the sole purpose of giving an approximate idea of the Equipment and/or
Consumables described in them. They shall not form part of the Contract nor have any
contractual force.
2.11 Any quotation provided by FTL shall not constitute an offer, and unless expressly specified
otherwise in writing by FTL, is only valid for a period of 60 calendar days from its date of
issue. Any Order made in relation to a quotation provided by FTL must quote the quotation
number or reference.
2.12 FTL shall be free to directly and/or indirectly sell and market equipment and services the
same as or similar to the Equipment and Services, to any person whosoever, and the
Contract does not create any exclusivity on either party.
2.13 For the avoidance of doubt, FTL shall not operate the Equipment for or on behalf of the
Customer.
3 Supply of Equipment
3.1 The Equipment is, in all material respects, as described in the Equipment Specification.
3.2 The Equipment Specification is based on the accuracy of all Customer information, including
specific information about the Customer Site, Customer Equipment and Systems. FTL shall
have no liability for any failure or delay, or loss caused by any failure or delay, in providing
the Equipment to the extent caused by any error or inaccuracy in information provided by
the Customer.
3.3 To the extent that the Equipment includes Customisations based on the Customer’s
specifications, drawings or designs, or any other information supplied by the Customer, the
Customer shall indemnify FTL against all liabilities, costs, expenses, damages and losses
(including any direct, indirect or consequential losses, loss of profit, loss of reputation and
all interest, penalties and legal costs (calculated on a full indemnity basis) and all other
professional costs and expenses) suffered or incurred by FTL arising out of or in connection
with any claim made against FTL for actual or alleged infringement of a third party’s
Intellectual Property Rights arising out of or in connection with FTL’s use of the Customer’s
specifications, drawings, designs or other information. This clause shall survive termination
of the Contract.
3.4 FTL reserves the right to amend the Equipment Specification if required by any applicable
statutory or regulatory requirement, and FTL shall notify the Customer in any such event.
3.5 All gauges, weights, chemical composition and analysis, quantities and sizes within the
Equipment Specification are subject to non-material tolerances. The Customer shall inspect
the Equipment on delivery and at installation and shall not be entitled to reject or require
replacement of any Equipment (or any part of it):
3.5.1 that is subject to non-material tolerances; or
15173861_11 Page 63.5.2 once FTL has installed the Equipment and initially vacated the premises where the
Equipment was installed.
4 Delivery of Equipment
4.1 Subject to full and cleared payment of all Charges by the Customer, the Equipment will be
delivered to the Customer Site at any time after FTL notifies the Customer that the
Equipment is ready for delivery.
4.2 Delivery of the Equipment (whether or not Installation and Commissioning Services are
provided in addition) shall be completed on the completion of unloading of the Equipment at
the Customer Site, unless alternative delivery terms are expressly set out in the Order
Confirmation.
4.3 The Customer is responsible for ensuring that the Customer Site is prepared in all respects
for delivery and unloading, and that all necessary access is given to the Customer Site to
allow for delivery of the Equipment, including clear access and hard standing for any cranage,
and for delivery vehicles.
4.4 Any dates quoted for delivery are approximate only, and time of delivery is not of the
essence. FTL shall not be liable for any failure or delay in delivery of the Equipment that is
caused by:
4.4.1 a Force Majeure Event;
4.4.2 an Excluded Cause;
4.4.3 the Customer’s failure to comply with clause 4.3; or
4.4.4 the Customer’s failure to provide FTL with adequate delivery instructions or any
other instructions that are relevant to the supply of the Equipment; or
4.4.5 an Equipment Delay or any other circumstances set out in clause 7.
4.5 If FTL fails to deliver the Equipment, its liability shall be limited solely 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 Equipment.
5 Delivery of Spare Parts and Consumables
5.1 Subject to full and cleared payment of all Charges by the Customer, the Spare Parts and/or
Consumables will be delivered to the Customer Site at any time after FTL notifies the
Customer that the Spare Part(s) and/or Consumable(s) is ready for delivery.
5.2 Delivery of the Spare Parts and/or Consumables shall be completed on the completion of
unloading, unless alternative delivery terms are expressly set out in the Order Confirmation.
5.3 The Customer is responsible for ensuring that the Customer Site is prepared in all respects
for delivery and unloading, and that all necessary access is given to the Customer Site to
allow for delivery of the Spare Parts and/or Consumables, including clear access and hard
standing for any cranage, and for delivery vehicles.
5.4 Any dates quoted for delivery are approximate only, and time of delivery is not of the
essence. FTL shall not be liable for any failure or delay in delivery of the Spare Parts and/or
Consumables that is caused by:
5.4.1 a Force Majeure Event;
5.4.2 an Excluded Cause;
5.4.3 the Customer’s failure to comply with clause 4.3; or
15173861_11 Page 75.4.4 the Customer’s failure to provide FTL with adequate delivery instructions or any
other instructions that are relevant to the supply of the Spare Parts and/or
Consumables; or
5.4.5 in the circumstances set out in clause 7.
5.5 If FTL fails to deliver the Spare Parts and/or Consumables, its liability shall be limited solely
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 Spare
Parts and/or Consumables.
6 Acceptance of Equipment, Consumables and Spare Parts
6.1 The Equipment shall be deemed to have been accepted by the Customer as being compliant
with the Equipment Specification (“Equipment Acceptance”) on the earlier of:
6.1.1 the date on which the Equipment passes the final emissions test (completed by
FTL, its subcontractors or any third party nominated by FTL);
6.1.2 90 calendar days after project delivery date;
6.1.3 the Equipment having been installed;
6.1.4 the date that the Equipment is stored pursuant to clause 7.3.2 or clause 7.6;
6.1.5 the Equipment being used for Beneficial Use; and
6.1.6 the Equipment having been put into operational use by the Customer for any period
of 3 consecutive calendar days.
6.2 Where the Equipment fails the final emissions test due to any of the excluded warranty
causes in clause 9.4, then FTL shall not be liable for the costs of any corrective action, that
will be chargeable to the Customer.
6.3 The Customer shall not unreasonably withhold or delay the use of decedents within the
Equipment for the purposes of delaying the date of Beneficial Use.
6.4 The Spare Parts shall be deemed accepted by the Customer on the date of delivery (“Spare
Part Acceptance”).
6.5 The Consumables shall be deemed accepted by the Customer on the date of delivery.
7 Equipment, Consumables and Spare Parts Delay
7.1 Subject to clause 20.2, if that the Customer is unable to accept delivery of the Equipment,
Consumables and/or Spare Parts (as applicable) on the delivery date in clause 4 (for any
reason), this is an “Equipment Delay”.
7.2 In the event of an Equipment Delay, howsoever caused, including where this is caused by
delay or failure of other contractors at the Customer Site, then without prejudice to its other
rights and remedies under the Contract and at law, FTL shall be entitled to suspend the
provision of the delivery of the Equipment, Consumables and/or Spare Parts (as applicable).
7.3 If the Customer fails to take delivery of the Equipment, Consumables and/or Spare Parts (as
applicable) within 3 calendar days of FTL notifying the Customer that the Equipment,
Consumables and/or Spare Parts (as applicable) is ready, then, except where such failure or
delay is caused by a Force Majeure Event or FTL’s material failure to comply with its
obligations under the Contract in respect of the Equipment, Consumables and/or Spare Parts
(as applicable):
15173861_11 Page 87.3.1 delivery of the Equipment, Consumables and/or Spare Parts (as applicable) shall
be deemed to have been completed at 9.00 am on the third calendar day after the
day on which FTL notified the Customer that the Equipment, Consumables and/or
Spare Parts (as applicable) was ready; and
7.3.2 FTL (its subcontractors or nominated third party/ies) shall store the Equipment,
Consumables and/or Spare Parts (as applicable) until actual delivery takes place,
and charge the Customer for all related costs and expenses (including insurance).
Such costs and expenses shall be charged at the greater of: (a) the actual costs
incurred by FTL; and (b) 0.25% of the total Charges stated under the Order to
which the Equipment, Consumables and Spare Parts (as applicable) relates,
charged on a weekly basis. Both parties agree that this fee is fair, reasonable and
proportionate in the circumstances and may be charged by FTL.
7.4 Once the Equipment Delay is rectified, the Customer shall inform FTL and FTL will provide
the Customer with re-arranged dates for delivery of the Equipment, Consumables and/or
Spare Parts (as applicable). When providing the rearranged dates for delivery, FTL shall:
7.4.1 notify the Customer of any additional costs that it has incurred because of the
Equipment Delay, including to the costs of any storage of the Equipment,
Consumables and/or Spare Parts (as applicable), including those in clause 7.3; and
7.4.2 where the Equipment Delay has continued for a period of more than 40 Business
Days, FTL shall be entitled to revise the Charges to consider its increased costs of
supply of the Equipment, Consumables and/or Spare Parts (as applicable).
7.5 Any additional costs and increased Charges will be invoiced by FTL with effect from re-
delivery of the Equipment, Consumables and/or Spare Parts (as applicable) in accordance
with clause 22.
7.6 If it is agreed between the parties in writing that FTL (its subcontractors or nominated third
party/ies) shall store the Equipment, Consumables and/or Spare Parts (as applicable) (for
any reason other than under clause 7.3) FTL shall charge the Customer for all related costs
and expenses (including insurance). Such costs and expenses shall be charged at the greater
of: (a) the actual costs incurred by FTL; and (b) 0.25% of the total Charges stated under
the Order to which the Equipment, Consumables and Spare Parts (as applicable) relates,
charged on a weekly basis. Both parties agree that this fee is fair, reasonable and
proportionate in the circumstances and may be charged by FTL. Such additional costs will
be invoiced at any time (including on a regular basis) by FTL and payable on demand by the
Customer.
7.7 The Customer has no right to delay or postpone delivery of the Equipment, Consumables
and/or Spare Parts (as applicable). However, if the Customer requests delay or
postponement of the same for whatever reason (in writing) FTL may, at its sole discretion,
accept such postponement or delay, that may be subject to revised Charges and timeframes,
and any acceptance of FTL will be subject to the Customer agreeing to the revised Charges
and timeframes.
7.8 Delays in the delivery of an Order for any reason shall not entitle the Customer to refuse to
take delivery of the Order, claim damages, and/or terminate the Contract.
8 Software
8.1 Unless agreed otherwise, the Equipment is provided with the Software pre-installed.
8.2 Subject to full and cleared payment of all Charges by the Customer, FTL grants the Customer
a non-exclusive, non-sublicensable, non-transferrable, revokable licence to use the Software
solely for the purposes of operating the Equipment.
8.3 FTL may, where it provides Maintenance Services, obtain access to the Software via remote
access to assist with fault identification and diagnostics.
15173861_11 Page 98.4 The Customer acknowledges and agrees that:
8.4.1 title to the Intellectual Property Rights and all other proprietary rights in the
Software shall at all times remain with FTL, as owners or sub-licensees (as
applicable) of the Software;
8.4.2 it shall comply with any additional terms and conditions provided by FTL or third
party licensors from time to time, in relation to the Software; and
8.4.3 it shall not seek to access the Software to reverse engineer, disassemble, modify,
alter, translate, transfer, sub-licence, lease, decompile or decrypt the Software.
9 Quality
9.1 FTL warrants that on completion of delivery, and for a period of:
9.1.1 in the case of Equipment, 12 months from the Equipment Acceptance; or
9.1.2 in the case of Spare Part(s), 12 months from delivery,
the Equipment and/or Spare Parts (as applicable) shall:
9.1.2.1 conform in all material respects with the Equipment Specification; and
9.1.2.2 be free from material defects in design, material and workmanship,
in each case, the applicable time frames in clauses 9.1.1 (for the Equipment) and 9.1.2 (for
the Spare Parts) shall be the “Warranty Period”.
9.2 Notwithstanding any other term of these Conditions, no warranties are provided in relation
to: (a) the Consumables; or (b) any Equipment that has been stored in accordance with
clause 7.3.2 or clause 7.6 for a period of 2 years or more.
9.3 Subject to clause 9.4, if:
9.3.1 the Customer gives notice in writing to FTL during the Warranty Period and within
a reasonable time of discovery (being no later than within 21 calendar days of
discovery) that the Equipment and/or Spare Parts (as applicable) does not comply
with the warranty set out in clause 9.1; and
9.3.2 FTL is given a reasonable opportunity of examining the Equipment and/or Spare
Parts (as applicable) at the Customer Site to determine any non-conformance,
then FTL shall, at its option, repair or replace the defective Equipment and/or Spare Parts
(as applicable), or refund a proportionate price of the Equipment commensurate with the
impact on functionality of the Equipment and/or Spare Parts (as applicable), provided that
where the Customer is being provided with Maintenance Services and the defect can be fixed
as part of the scope of Maintenance Services, then this shall constitute the Customer’s sole
remedy for the defect.
9.4 FTL shall not be liable for the failure of the Equipment or Spare Parts (as applicable) to
comply with the warranty set out in clause 9.1 if:
9.4.1 the warranty failure can be fixed as part of the scope of Maintenance Services
provided to the Customer;
9.4.2 the alleged failure or defect was present during and has been approved as part of
the acceptance test process at clause 4 or 5 or at the point of Acceptance;
9.4.3 the Customer makes any further use of the Equipment and/or Spare Parts (as
applicable) after giving a notice in accordance with clause 9.2;
15173861_11 Page 109.4.4 the Software diagnosed a fault or error, and the Customer has not immediately
ceased to operate the Equipment and/or Spare Parts (as applicable);
9.4.5 the Equipment and/or Spare Parts (as applicable) has been stored pursuant to
clause 7.3.2 or clause 7.6 for a period of 2 years or more;
9.4.6 the failure or defect arises because the Customer failed to follow FTL’s oral or
written instructions as to the storage, installation, commissioning, use or
maintenance of the Equipment and/or Spare Parts (as applicable), including the
O&M Manual, and good trade practice regarding the same;
9.4.7 the failure or defect arises as a result of FTL following any drawing, design, detail,
information or specification supplied by the Customer;
9.4.8 the Customer alters, modifies or repairs the Equipment and/or Spare Parts (as
applicable) without the written consent of FTL;
9.4.9 the Customer alters, modifies or repairs the building to which the Equipment and/or
Spare Parts (as applicable) relate without identifying such alteration, modification
or repair prior to placing the Order;
9.4.10 the failure or defect arises as a result of the use or installation of any components,
fittings, consumables or spare parts in or added to the Equipment and/or Spare
Parts (as applicable) that were not supplied and installed by FTL;
9.4.11 the failure or defect arises as a result of fair wear and tear, wilful damage,
negligence, damage caused by the Customer or its contractors and personnel, or
abnormal working conditions; or
9.4.12 the Equipment differs from the Equipment Specification as a result of changes made
to ensure they comply with applicable statutory or regulatory requirements.
9.5 Except as provided in this clause 9, FTL shall have no liability to the Customer in respect of
the failure of the Equipment and/or Spare Parts (as applicable) to comply with the warranty
set out in clause 9.1.
9.6 These Conditions shall apply to any repaired or replacement Equipment and/or Spare Parts
(as applicable) supplied by FTL.
10 Title and Risk
10.1 The risk in the Equipment, Consumables and/or Spare Parts (as applicable) shall pass to the
Customer on completion of delivery.
10.2 Title to the Equipment, Consumables and/or Spare Parts (as applicable) shall not pass to the
Customer until FTL receives payment in full (in cash or cleared funds) for the Equipment,
Consumables and/or Spare Parts (as applicable) and any other goods and services that FTL
has supplied to the Customer, in which case title to the Equipment, Consumables and/or Spare
Parts (as applicable) shall pass at the time of payment of all such sums.
10.3 Until title to the Equipment, Consumables and/or Spare Parts (as applicable) has passed to
the Customer, the Customer shall:
10.3.1 maintain the Equipment, Consumables and/or Spare Parts (as applicable) in
satisfactory condition and keep all parts of it insured against all risks for their full
price on FTL’s behalf from the date of delivery;
10.3.2 notify FTL immediately if it becomes subject to any Insolvency Event; and
10.3.3 give FTL such information as FTL may reasonably require from time to time relating
to the Equipment, Consumables and/or Spare Parts (as applicable) and the ongoing
financial position of the Customer.
15173861_11 Page 1110.4 At any time before title to the Equipment, Consumables and/or Spare Parts (as applicable)
passes to the Customer, FTL may enter the Customer Site and any other premises of the
Customer or of any third party where the Equipment, Consumables and/or Spare Parts (as
applicable) is located in order to recover it.
11 Installation and Commissioning Services
11.1 FTL shall provide the Installation and Commissioning Services as detailed in full in the quote
and/or Order Confirmation.
11.2 The Installation and Commissioning Services are only provided in respect of the Equipment
and Third Party Equipment as set out in an Order, and are only provided at the Customer
Site.
11.3 FTL will provide Installation and Commissioning Services after it has undertaken a pre-site
survey to ensure that the Customer Site and any Third Party Equipment meets any
requirements for Installation and Commissioning Services. FTL may provide an initial
estimated programme for Installation and Commissioning Services within the Order
Confirmation, but these dates are estimates only and are subject to change. Post-delivery
of the Equipment (where the Equipment has been provided by FTL in accordance with these
Conditions) FTL will provide a window of available dates for Installation and Commissioning
Services to the Customer, who shall select a date, and provided that if the Customer does
not select a date within 24 hours of being requested to do so, then FTL shall be entitled to
select a date.
11.4 If FTL is unable to carry out Installation and Commissioning Services on the scheduled date
due to any failure or delay of the Customer, including the Customer failing to have adequate
coffins available for the Installation and Commissioning Services, then FTL shall be entitled
to charge the Customer in full for its costs and expenses, and any rescheduling will be subject
to a further quotation for the relevant services.
11.5 The Customer warrants and represents that all information it provides and responses to any
questions asked around Installation and Commissioning Services are true and accurate in all
respects.
11.6 The Customer acknowledges and agrees that the Installation and Commissioning Services
are subject to the exclusions, dependencies and assumptions made by FTL, as may be
identified in the Order Confirmation.
11.7 If the Customer breaches the warranty at clause 11.5, or the Customer Site or requirements
change from those identified, then without prejudice to its other rights and remedies under
the Contract and at law, FTL shall be entitled at its discretion to either: (a) terminate the
Contract in respect of the provision of Installation and Commissioning Services or as a whole;
or (b) to extend its timeframe for performance of the Installation and Commissioning Services
and to increase the Charges to reflect the changes.
12 Installation and Commissioning Services Delay
12.1 If the Customer is unable to grant FTL access to the Customer Site to provide the Installation
and Commissioning Services on the required date for the provision of those Services as per
clause 5, then this shall constitute a “IAC Delay”.
12.2 In the event of an IAC Delay, howsoever caused, including where this is caused by delay or
failure of other contractors at the Customer Site, then without prejudice to its other rights
and remedies under the Contract and at law, FTL shall be entitled to suspend the provision
of the Installation and Commissioning Services.
12.3 Once the IAC Delay is rectified, the Customer shall inform FTL and FTL will provide the
Customer with re-arranged dates for the provision of the Installation and Commissioning
Services. When providing the rearranged dates for the service provision, FTL shall:
15173861_11 Page 1212.3.1 notify the Customer of any additional costs or expenses that it has incurred as a
result of the IAC Delay, including the costs of any re-scheduling, that the Customer
must pay; and
12.3.2 where the IAC Delay has continued for a period of more than 40 Business Days,
FTL shall be entitled to revise the Charges to consider its increased costs and/or
expenses of the provision of the Installation and Commissioning Services.
12.4 The additional costs, expenses and increased Charges will be invoiced by FTL with effect
from re-performance of the Installation and Commissioning Services.
12.5 The Customer has no right to delay or postpone the provision of Installation and
Commissioning Services. However, if the Customer requests delay or postponement of the
same for whatever reason (in writing) FTL may, at its sole discretion, accept such
postponement or delay, that may be subject to revised Charges and timeframes, and any
consent to the Customer request will be subject to the Customer agreeing to these revised
Charges and timeframes.
12.6 Delays in the provision of the Installation and Commissioning Services shall not entitle the
Customer to claim damages or terminate the Contract.
12.7 FTL shall have no liability to the Customer for any failure or delay in providing of the
Installation and Commissioning Services to the extent that any failure or delay is caused by
the Customer's failure to comply with its obligations under the Contract.
13 Warranties on Installation and Commissioning Services
13.1 FTL shall use reasonable endeavours to provide the Installation and Commissioning Services.
13.2 FTL warrants and agrees that:
13.2.1 it will use reasonable endeavours to ensure that the Installation and Commissioning
Services will be delivered by any estimated dates set out in Order Confirmation;
13.2.2 to the extent that the Installation and Commissioning Services involve the
provision of any deliverables, those deliverables will be accurate and complete in
all materials respects;
13.2.3 it shall procure, install and configure the Equipment and/or Third Party Equipment
for installation and commissioning, in each case at the Customer Site; and
13.2.4 it shall use reasonable endeavours to observe all health and safety and security
requirements that apply at the Customer Site, and that have been communicated
to it provided that it shall not be liable under the Contract if, as a result of such
observation, it is in breach of any of its obligations under the Contract.
13.3 FTL shall not be liable for the failure of the Installation and Commissioning Services to comply
with the warranty set out in clause 13.2 if:
13.3.1 the Customer makes any further use of the Equipment and/or Spare Parts (as
applicable) to which the Installation and Commissioning Services were provided;
13.3.2 the failure or defect arises because the Customer failed to follow FTL’s oral or
written instructions as to the storage, installation, commissioning, use or
maintenance of the Equipment and/or Spare Parts (as applicable);
13.3.3 the Customer alters or repairs the Equipment and/or Spare Parts (as applicable) to
which the Installation and Commissioning Services were provided without the
written consent of FTL;
15173861_11 Page 1313.3.4 the Customer alters, modifies or repairs the building to which the Installation and
Commissioning Services relate without identifying such alteration, modification or
repair prior to placing the Order;
13.3.5 the failure or defect arises as a result of the use of any components, fittings,
consumables or spare parts in or added to the Equipment and/or Spare Parts (as
applicable) that were not supplied and installed by FTL; or
13.3.6 the failure or defect arises as a result of fair wear and tear, wilful damage,
negligence, damage caused by the Customer or its contractors and personnel, or
abnormal working conditions.
13.4 Except as provided in this clause 13, FTL shall have no liability to the Customer in respect of
the failure of the Equipment and/or Spare Parts (as applicable) to comply with the warranty
set out in clause 13.2.
14 Customer Obligations Regarding Installation and Commissioning Services
14.1 Where FTL is providing Installation and Commissioning Services, the provision of such
Services and the estimated time thereof is subject to the Customer:
14.1.1 ensuring that the Equipment and/or Third Party Equipment (as applicable) is at the
Customer Site and is placed in-situ; supplying for the free use of FTL, as and when
it may require all necessary services and facilities including (without limitation to the
generality of the foregoing) scaffolding, lifting tackle, appliances, power, hot water,
cold water, steam and condensate, mineralised water, where provided for in the
specific Contract, lighting supplies, and adequate drain facilities;
14.1.2 providing adequate protection for all materials that are delivered to the Customer
Site and a satisfactory and continuous means of access to the Customer Site with
clear passage for all parts of the Equipment and/or Third Party Equipment (as
applicable); and
8.1.3 providing all services and utilities connections for the Equipment and/or Third Party
Equipment (as applicable) including all electricity, gas or oil services, and be
responsible for the costs of the same, save that FTL is responsible for the
distribution boards and gas valve within the Equipment and/or Third Party
Equipment (as applicable).
14.2 If through no fault of FTL any operational test (where appropriate) cannot be run
immediately on completion of installation and/or commissioning, FTL reserves the right to
withdraw its installation or testing staff and to make a charge for travelling time and
expenses if it is called upon by the Customer at a subsequent date to return to the site to
attend or carry out such operational test.
14.3 The Customer shall accept full responsibility for and indemnify and keep FTL fully indemnified
against any loss injury or damage sustained by FTL and its servants, representatives, agents
or contractors in any way arising or alleged to have arisen in consequence of any negligence of
the Customer its servants, representatives, agents or contractors or of any defect or
unsuitability in any tackle plant or apparatus provided to FTL by the Customer and against any
claims by any third parties and any claims by any workmen under the Factories Act, the
Employer’s Liability (Defective Equipment) Act, the Health and Safety at Work Act or at common
law, or under any other regulation or statute in respect thereof.
14.4 In all cases where installation is included in a quotation for Installation and Commissioning
Services only such labour as shall be specified in the quotation or as shall otherwise be
deemed necessary by FTL (whose decision in this respect shall be final and binding on the
Customer) will be provided. All other labour required to assist with the installation must be
provided by the Customer at the Customer Site at its own expense as and when requested
by FTL.
15173861_11 Page 1414.5 All work on foundations, drains alterations to buildings, site levelling, the running and
connecting of steam, water, gas, air pipes or other services to Equipment and Third Party
Equipment (as applicable) must be carried out by the Customer at its own expense.
14.6 No provision is made in any quotation for the supply of any fuel, services, consumable
materials, or power used in the initial starting or subsequent working of the Equipment
supplied or installed by FTL or any similar costs in relation to Third Party Equipment.
14.7 The Customer shall be responsible for the connection of the Equipment and/or Third Party
Equipment (as applicable) to utilities.
15 Maintenance Services
15.1 The Maintenance Services are only provided in respect of Equipment and/or Third Party
Equipment.
15.2 The Maintenance Services may include Spare Parts, where agreed by the parties in writing.
Where Spare Parts are not included within the Maintenance Services, then they must be
ordered via a separate Order submitted to FTL for Spare Parts.
15.3 The Maintenance Services consist of FTL providing a service engineer to attend at the
Customer Site, and any further details of the Maintenance Services as detailed in the Order
Confirmation.
15.4 FTL shall only be required to provide Maintenance Services at the Customer Site, and if the
Equipment and/or Third Party Equipment (as applicable) is moved from the Customer Site,
FTL may, at its discretion, either terminate the Maintenance Services, or increase the charges
for the same to take into account the move in location.
15.5 Servicing is excluded in the following circumstances, and FTL reserves the right to charge
for call out, servicing and costs incurred when attending the Customer Site at which no
maintenance is provided due to any of these exclusions being applicable:
15.5.1 maintenance/call out as a result of operator error, accidental damage, inadequate
site services (electricity, water, drains, ventilation, air);
15.5.2 damage caused by inappropriate items contained within coffins or other receptacles;
15.5.3 maintenance/call out following repair or modifications carried out by third parties;
15.5.4 component degradation because of the use of chemicals that have not been
approved and validated by FTL or any member of its group of companies;
15.5.5 any damage or loss caused to the Equipment by the negligence or wilful default of
any of the servants or agents of the Customer that results in the requirement of
assistance by FTL will be outside the scope of the contract and shall be chargeable
at FTL’s current rates of callout. This includes failing to operate the Equipment
and/or Third Party Equipment in accordance with the O&M Manual and in
accordance with output of Training Services received.
15.6 Following notification from the Customer, or otherwise in accordance with the Contract, FTL
may suggest that one of its representatives may attend the Customer Site to perform
Corrective Maintenance.
15.7 FTL shall not be liable for any delay in providing the relevant Corrective Maintenance if,
including if, in FTL’s reasonable opinion, it needs to remove the Equipment and/or Third
Party Equipment as applicable (or part thereof, if applicable) for repair off-site and the
Customer refuses such request.
15.8 If FTL representative discovers that the Equipment and/or Third Party Equipment (as
applicable) is defective, is malfunctioning or has failed or is not otherwise in Good Working
15173861_11 Page 15Order in the course of providing Corrective Maintenance, the representative may use
reasonable endeavours to repair it during that visit at the Customer Site. If that is not
reasonably practicable the representative of FTL may, at its sole discretion, remove the
Equipment and/or Third Party Equipment as applicable (or part thereof, if applicable) for
repair off-site and may arrange for new Equipment to be delivered to the Customer Site or
suggest that the Third Party Equipment is repaired or replaced by the Customer.
15.9 Where FTL is performing or has performed the Corrective Maintenance in circumstances
where it is established that the Equipment and/or Third Party Equipment (as applicable) was
not in Good Working Order due to any Excluded Cause, FTL may charge, and the Customer
shall pay, any and all additional charges in respect of that work.
16 Customer Obligations Regarding Maintenance Services
16.1 The Customer:
16.1.1 shall provide full and unrestricted access to the Equipment and/or Third Party
Equipment in order that FTL can provide the Services, including an operating ASDL
connection for any remote assistance. if FTL is unable to obtain sufficient access to
the Equipment and/or Third Party Equipment, then the Customer will be charged
for an aborted visit; and
16.1.2 is responsible for reporting any and all breakdowns, faults and issues with the
Equipment and/or Third Party Equipment with immediate effect from their
occurrence, with such detail to assist FTL in diagnosing the fault. FTL will be unable
to schedule a maintenance visit until such time as the Customer has provided
sufficient detail to allow for initial diagnosis.
16.2 FTL may provide Consumables as part of the Maintenance Services, including such volume
of reagent as set out in the Order Confirmation. The Customer is responsible for ensuring
that the Equipment is replenished with reagent, and for requesting further supplies of
reagent, on at least 15 Business Days’ notice.
16.3 Where FTL is collecting waste reagent as part of the Maintenance Services, the Customer
will give FTL at least 30 calendar days’ notice of a collection requirement.
16.4 FTL will organise delivery and collection of reagent after having been notified by the
Customer pursuant to clauses 16.2 and 16.3. Any dates given are estimates only and time
is not of the essence.
16.5 The Customer warrants that:
16.5.1 the Equipment and/or Third Party Equipment is as set out in the Order, and is all
located at the Customer Site;
16.5.2 the Customer Site is in the state disclosed by the Customer to FTL prior to the
Order Confirmation;
16.5.3 it shall use the Equipment and/or Third Party Equipment properly in accordance
with good industry practice and the applicable operating and maintenance
manual(s), and in accordance with any and all manuals, and shall ensure that
conditions specified in any such manual are maintained constantly and any
instructions with regard to day-to-day care are followed; and
16.5.4 it shall only use chemicals approved and type-tested or validated by FTL, and if the
Customer does so use any non-approved, type-tested or validated chemicals this
invalidates all warranties under the Contract or at law.
17 Duration of Maintenance Services
The Maintenance Services shall continue for the Maintenance Services Term unless the
Contract is otherwise terminated in accordance with its terms.
15173861_11 Page 1618 Warranties on Maintenance Services
18.1 FTL shall use reasonable endeavours to provide the Maintenance Services.
18.2 FTL warrants and agrees that:
18.2.1 it will use reasonable endeavours to ensure that the Maintenance Services will be
delivered by any estimated dates set out in the Order Confirmation;
18.2.2 only to the extent that the Maintenance Services involve the provision of
Consumables, then the Consumables:
18.2.2.1 conform in all material respects with their specification (if any);
18.2.2.2 are and will be free from material defects in design, material and
workmanship; and
18.2.2.3 are suitable for use within the Equipment and/or Third Party Equipment;
18.2.3 to the extent that the Maintenance Services involve the provision of any
deliverables, those deliverables will be accurate and complete in all material
respects;
18.2.4 it shall use reasonable endeavours to observe all health and safety and security
requirements that apply at the Customer Site, and that have been communicated
to it provided that it shall not be liable under the Contract if, as a result of such
observation, it is in breach of any of its obligations under the Contract.
19 Training Services
19.1 FTL may, if agreed in the Order Confirmation, provide Training Services to the Customer’s
staff.
19.2 The Training Services will be supplied at a location, time and date agreed between FTL and
the Customer in writing.
19.3 FTL warrants that:
19.3.1 it will provide the Training Services in accordance with the Order in all material
respects; and
19.3.2 the Training Services will be provided using reasonable care and skill.
19.4 The Charges for Training Services are non-refundable, and the Training Services may not be
cancelled by the Customer, save that the Customer may request re-arrangement of the
Training Services on giving FTL at least 14 calendar days’ advance written notice.
20 Customer General Obligations
20.1 The Customer shall:
20.1.1 provide any bank guarantees as may be required by FTL from time to time;
20.1.2 ensure that the terms of the Order and any pre-contract information it provides,
including as to the Customer Site and Customisations (if any) are complete and
accurate;
20.1.3 ensure that all Equipment, Consumables, Third Party Equipment and Systems (as
applicable) comply with any requirements of FTL in order for the Equipment,
Consumables, Third Party Equipment and/or systems to operate correctly;
15173861_11 Page 1720.1.4 provide FTL, its employees, agents, consultants and subcontractors, in a timely
manner and at no charge, access to the Customer Site, office accommodation and
other facilities as reasonably required by FTL to discharge its obligations;
20.1.5 permit FTL, its employees, agents, consultants and subcontractors, access to the
Equipment and/or Third Party Equipment and systems (as applicable) in order to
complete reviews and extract information;
20.1.6 take all such steps as may be necessary to ensure the safety of any of FTL’s
representatives when attending any Customer Site;
20.1.7 provide to FTL in a timely manner all documents, information, items and materials
in any form (whether owned by the Customer or a third party) required under the
Order Confirmation or otherwise required by FTL, and ensure that they are
accurate and complete;
20.1.8 where FTL provides the Customer with a deadline for any approval and/or
comments on any documentation, to provide the response by the required
deadline;
20.1.9 inform FTL of all health and safety and security requirements that apply at the
Customer Site;
20.1.10 obtain and maintain all necessary licences and consents and comply with all relevant
legislation as required to enable FTL to provide the Services, including in relation
to the installation, commissioning and maintenance of the Equipment and/or Third
Party Equipment (as applicable), insofar as such licences, consents and legislation
relate to the Customer’s business, premises (including the Customer Site), staff
and equipment, in all cases before the date on which the provision of the Services
are to start;
20.1.11 ensure that any and all of the Equipment and Third Party Equipment (as applicable) is
in good working order and suitable for the purposes for which it is to be used;
20.1.12 co-operate with FTL in all matters relating to the provision of the Equipment and
Services (as applicable);
20.1.13 not use the Equipment and/or Third Party Equipment (as applicable) for any unlawful
purpose;
20.1.14 maintain operating and maintenance records of the Equipment and/or Third Party
Equipment (as applicable) and make copies of such records readily available to
FTL;
20.1.15 comply with all Applicable Laws and indemnify FTL against all liabilities, costs,
expenses, damages and losses (including any direct, indirect or consequential
losses, loss of profit, loss of reputation and all interest, penalties and legal costs
(calculated on a full indemnity basis) and all other professional costs and expenses)
suffered or incurred by FTL arising out of or in connection with any claim made
against FTL that the Equipment, Consumables and/or Third Party Equipment has
not been used in accordance with Applicable Laws;
20.1.16 obtain and maintain in force for the Term all licences, permissions, authorisations,
consents and permits needed to use, hold and operate the Equipment,
Consumables and Third Party Equipment (as applicable) at the relevant Customer
Site in accordance with the terms of the Contract;
20.1.17 permit only trained and competent personnel to use the Equipment, Consumables
and/or Third Party Equipment (as applicable);
20.1.18 not make any changes to the Equipment and Consumables, including by any Spare
Parts or replacements, without FTL’s prior written consent to such change; and
15173861_11 Page 1820.1.19 comply with any additional obligations as set out in the O&M Manual, Order
Confirmation and Equipment Specification (as applicable).
20.2 If FTL’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”):
20.2.1 without limiting or affecting any other right or remedy available to it, FTL shall
have the right to 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 FTL’s performance of any of its obligations;
20.2.2 FTL shall not be liable for any costs or losses sustained or incurred by the Customer
arising directly or indirectly from FTL’s failure or delay to perform any of its
obligations as set out in this clause 20.2; and
20.2.3 the Customer shall reimburse FTL on written demand for any costs or losses
sustained or incurred by FTL arising directly or indirectly from the Customer
Default.
21 Equipment Recall
21.1 FTL may issue a notice to recall or withdraw the Equipment in full or in part from the market
(“Voluntary Recall Notice”) if:
21.1.1 the supply or use of the Equipment infringes, or may infringe, a third party's
Intellectual Property Rights;
21.1.2 the Equipment is, or may be, unsafe;
21.1.3 the Equipment is, may be, or may become illegal or non-compliant with any law,
regulation or government agency or industry standard;
21.1.4 a defect in the Equipment may cause harm to the reputation or brand of FTL; or
21.1.5 any other reasonable ground(s).
21.2 If the Customer is the subject of a request, court order or other directive of a governmental or
regulatory authority to withdraw any Equipment from the market or the possession of the
Customer (“Recall Notice”) it shall immediately notify FTL in writing enclosing a copy of the
Recall Notice.
21.3 The Customer must immediately:
21.3.1 comply with any Recall Notice or Voluntary Recall Notice; and
21.3.2 give such assistance as FTL reasonably requires to recall or withdraw the
Equipment from the market, and comply with FTL instructions about the process
of implementing that recall or withdrawal.
21.4 Unless required by law, the Customer may not undertake any recall or withdrawal without
the written permission of FTL and only then in strict compliance with FTL’s instructions about
the process of implementing the withdrawal.
22 Charges and Payment
Equipment Charges
22.1 The prices for the purchase of the Equipment (excluding Spare Parts) (“Equipment
Charges”), shall be the prices set out in the quote and/or Order Confirmation, subject to
15173861_11 Page 19adjustment in accordance with this clause and, save where set out in the Order Confirmation,
shall be exclusive of all costs and charges of packaging, insurance and transport that shall (where
relevant) be invoiced to the Customer in addition. Where Equipment Charges are not set out in
the Order Confirmation, they shall be at FTL’s rates in place from time to time.
22.2 All packaging, where stated to be returnable, will be credited in full on return to FTL’s works,
carriage paid in good condition, within 1 calendar month of receipt by the Customer.
22.3 In addition to the other rights and remedies in relation to Equipment Charges in these
Conditions, FTL reserves the right to increase the price of the Equipment Charges, or charge
a fee in addition, by giving notice to the Customer at any time before delivery to reflect any
increase in the cost of the Equipment to FTL that is due to:
22.3.1 any factor beyond the control of FTL (including foreign exchange fluctuations,
increases in taxes and duties, and increases in labour, materials and increases in fuel
and power, insurance, carriage and transport and other manufacturing costs);
22.3.2 any request by the Customer to change the delivery date(s), Customisations, Order
or the Equipment Specification;
22.3.3 the Customer requesting or requiring Consumables (including reagent) above any
agreed volume within the Order Confirmation, in which case FTL reserves the right
to vary the Charges for the Maintenance Services to take into account its additional
costs of supply and removal of Consumables and waste; and/or
22.3.4 any delay caused by any instructions of the Customer in respect of the Equipment
or failure of the Customer to give FTL adequate or accurate information or
instructions in respect of the same.
Spare Parts Charges
22.4 The prices for the purchase of the Spare Parts (“Spare Part Charges”), shall be the prices
set out in the quote and/or Order Confirmation, subject to adjustment in accordance with
this clause and, save where set out in the Order Confirmation, shall be exclusive of all costs
and charges of packaging, insurance and transport that shall (where relevant) be invoiced
to the Customer in addition. Where Spare Part Charges are not set out in the Order
Confirmation, they shall be at FTL’s rates in place from time to time.
22.5 In addition to the other rights and remedies in relation to Spare Part Charges in these
Conditions, FTL reserves the right to increase the price of the Spare Part Charges, or charge
a fee in addition, by giving notice to the Customer at any time before delivery to reflect any
increase in the cost of the Spare Part Charges to FTL that is due to:
22.5.1 any factor beyond the control of FTL (including foreign exchange fluctuations,
increases in taxes and duties, and increases in labour, materials and increases in fuel
and power, insurance, carriage and transport and other manufacturing costs);
22.5.2 any request by the Customer to change the delivery date(s) or Order; and/or
22.5.3 any delay caused by any instructions of the Customer in respect of the Spare Part
Charges or failure of the Customer to give FTL adequate or accurate information
or instructions in respect of the same.
Maintenance Charges
22.6 The prices for the Maintenance Services (“Maintenance Charges”) shall be the prices set out
in the quote and/or Order Confirmation, subject to adjustment in accordance with this clause
(and any other applicable term of these Conditions) and shall be exclusive of all costs and
charges of packaging, insurance and transport that shall (where relevant) be invoiced to the
Customer. In some cases, the total prices in the quote and/or Order Confirmation may include
a combination of prices (for example, a combined total price for Equipment and Maintenance
Charges for a 15 year service plan). The Customer shall contact FTL for further
15173861_11 Page 20information about the quote and/or Order Confirmation, in writing, where clarification is
required. Where Maintenance Charges are not set out in the Order Confirmation , they shall
be at FTL’s rates in place from time to time.
22.7 In addition to the other rights and remedies in relation to Equipment Charges in these
Conditions, FTL reserves the right to increase the Charges for the Maintenance Services at
any time:
22.7.1 before Acceptance, to reflect any increase in the Retail Prices Index from the date of
the Order Confirmation to the date of Acceptance. Unless notified otherwise by FTL,
such increase shall be no less than the increase in the Retail Prices Index; and
22.7.2 annually, to reflect labour rate increases, and, on an annual basis with effect from
each anniversary of the Acceptance, in line with the percentage increase in the
Retail Prices Index in the preceding 12-month period and the first such increase
shall take effect on the first anniversary of Acceptance and shall be based on the
latest available figure for the percentage increase in the Retail Prices Index.
Training Charges
22.8 The prices for the Training Services (“Training Charges”) shall be the prices set out in the
Order Confirmation, subject to adjustment in accordance with this clause 22 and shall be
exclusive of all associated expenses that may be charged under clause 22.10. Where Training
Charges are not set out in the Order Confirmation, they shall be at FTL’s rates in place from
time to time.
Consumable Charges
22.9 The prices for the Consumables (“Consumable Charges”) shall be the prices set out in the
Order Confirmation or the Contract, subject to adjustment in accordance with this clause 22
and shall be exclusive of all associated expenses that may be charged under clause 22.10.
Where Consumable Charges are not set out in the Order Confirmation, they shall be at FTL’s
rates in place from time to time.
All Charges
22.10 Unless specified otherwise, additional charges, costs, increased Charges or other fees that are
not considered Equipment Charges, Maintenance Charges or Training Charges shall be
payable in accordance with this clause 22 at FTL’s rates in place from time to time.
22.11 All charges for Services are quoted on the basis that the Services will be carried out between
7.00am to 7.00pm from Monday to Friday (inclusive). If FTL is required to carry out Services
outside of these normal working hours, an additional charge will be charged by FTL and
payable by the Customer.
22.12 Unless expressly stated otherwise in an Order Confirmation or the Contract, FTL shall invoice
the Customer as set out in the Order Confirmation or the Contract, and provided that where
no invoicing dates are set out therein, FTL may invoice for the Equipment and Services (as
applicable) at a rate of 40% on the Commencement Date, and thereafter, on a monthly
basis, based on the value of work in progress undertaken by FTL in that month, regardless
of delivery/receipt by the Customer.
22.13 The Customer shall pay each invoice submitted by FTL:
22.13.1 within 30 calendar days of the date of the invoice or in accordance with any credit
terms set out in the Order Confirmation or the Contract; and
22.13.2 in full and in cleared funds to a bank account nominated in writing by FTL.
22.14 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of
VAT and any other tax or duty relating to the manufacture, transport, export, import or delivery
or sale of the Equipment or Services. Any such taxes and duties shall be invoices to
15173861_11 Page 21the Customer. Where any taxable supply for VAT purposes is made under the Contract by
FTL to the Customer, the Customer shall, on receipt of a valid VAT invoice from FTL, pay to
FTL such additional amounts in respect of VAT as are chargeable on the supply at the same
time as payment is due.
22.15 If the Customer fails to make a payment due to FTL under the Contract by the relevant due
date, then, without limiting FTL’s remedies under clause 26, 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 22.15 will accrue each day at 4% a year above
the Bank of England’s base rate from time to time, but at 4% a year for any period when
that base rate is below 0%.
22.16 All amounts due under the Contract by the Customer to FTL 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).
22.17 Where a quotation is given in currency other than sterling it is based on the rate of exchange
at the time of quotation, and is subject to revision based on the relevant exchange rate as
at the date of invoice.
23 Intellectual Property Rights
23.1 All Intellectual Property Rights in or arising out of or in connection with the Equipment,
Software and Services, including any and all Customisations, shall be owned by FTL (“FTL
IPR”).
23.2 If the Customer receives any rights in the Intellectual Property Rights of FTL by law, it shall
immediately assign such rights to FTL.
23.3 The Customer undertakes:
23.3.1 not to use FTL IPR for any other purpose other than pursuant to the terms of the
Contract; and
23.3.2 to return on reasonable request to FTL all FTL IPR (if any) howsoever stored
together with copies thereof.
23.4 Any goodwill however arising out of or in connection with the Customer’s use of any
Intellectual Property Rights permitted pursuant to the Contract or any FTL IPR shall enure
to the benefit of FTL.
23.5 The Customer grants FTL a fully paid-up, non-exclusive, royalty-free nontransferable licence
to copy and modify any materials, information and data provided by the Customer to FTL for
the term of the Contract for the purpose of providing the Services to the Customer.
23.6 FTL shall not provide the Customer with designs and drawings for the Equipment unless
otherwise agreed in writing, in which case any such designs and drawings are provided
strictly for the purpose of the Customer’s use and maintenance of the Equipment and must
not be disclosed or provided to any third party. Any such designs and drawings are FTL’s
confidential information and the provisions of clause 24 apply accordingly.
24 Confidentiality
24.1 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 FTLs of the other
party or of any member of the group of companies to which the other party belongs, except
as permitted by clause 24.2.
24.2 Each party may disclose the other party’s confidential information:
24.2.1 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
15173861_11 Page 22or 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 24; and
24.2.2 as may be required by law, a court of competent jurisdiction or any governmental
or regulatory authority.
24.3 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.
25 Limitation of Liability
25.1 References to liability in this clause 25 include every kind of liability arising under or in
connection with the Contract including liability in contract, tort (including negligence),
misrepresentation, restitution or otherwise.
25.2 Nothing shall limit the Customer's payment obligations under these Conditions.
25.3 Nothing in the Contract limits any liability that cannot legally be limited, including liability
for:
25.3.1 death or personal injury caused by negligence;
25.3.2 fraud or fraudulent misrepresentation; or
25.3.3 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).
25.4 Subject to clause 25.3 and 25.5, FTL’s total liability to the Customer arising out of or in
relation to these Conditions, including liability falling under any indemnities provided by FTL
to the Customer, shall not exceed the lower of the following:
25.4.1 where the liability arose in the first Contract Year, the total charges to be payable
by the Customer to FTL for Goods and Services in the first Contract Year;
25.4.2 where the liability arose in any Contract Year (including the final Contract Year but
excluding the first Contract Year) the total charges paid in full and cleared funds
by the Customer to FTL for Goods and Services in the Contract Year in which the
liability arose; and
25.4.3 where the liability arose after termination or expiry of these Conditions, the total
charges paid by the Customer to FTL for Goods and Services in the final Contract
Year,
provided always that the combined maximum aggregate liability of FTL to the Customer
arising out of or in connection with these Conditions shall not exceed the total Charges paid
in full and cleared funds by the Customer to FTL for Goods and Services pursuant to these
Conditions.
25.5 If breaches committed in more than one Contract Year give rise to a single claim or a series
of connected claims, FTL’s total aggregate liability for those claims shall not exceed the single
highest annual cap for those Contract Years.
25.6 This clause 25.6 sets out specific heads of excluded loss:
25.6.1 subject to clause 25.3, the following types of loss are wholly excluded:
25.6.1.1 loss of profits;
25.6.1.2 loss of sales or business;
15173861_11 Page 2325.6.1.3 loss of agreements or contracts;
25.6.1.4 loss of anticipated savings;
25.6.1.5 loss of use or corruption of software, data or information;
25.6.1.6 loss of or damage to goodwill or reputation;
25.6.1.7 loss caused by any Excluded Cause;
25.6.1.8 loss caused by any Third Party Equipment; and
25.6.1.9 indirect or consequential loss.
25.7 Where, due to a defect or failure of the Equipment or the provision of Services, the Customer
is unable to use the Equipment, then it agrees to seek to mitigate its loss to the maximum
extent possible, including by having cremations undertaken at a third party facility.
25.8 FTL shall have no liability to the Customer for any failure or delay in delivering an Order or
any part of an Order to the extent that any failure or delay is caused by the Customer's
failure to comply with its obligations under the Contract.
25.9 FTL has given commitments as to compliance of the Equipment and/or Services (as
applicable to the Order) with relevant specifications in clauses 9, 18.2 and 19.3. 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.
25.10 Save where expressly set out in these Conditions, all terms, conditions, warranties, guarantees
and other assurances whatsoever whether express or that would otherwise be implied or
imposed by statute or at common law or otherwise howsoever are excluded to the fullest
extent permitted by Applicable Law.
25.11 Unless the Customer notifies FTL that it intends to make a claim in respect of an event within
the notice period, FTL shall have no liability for that event. The notice period for an event shall
start on the day on that the Customer became, or ought reasonably to have become, aware
of the event having occurred (as opposed to it becoming aware of its having grounds to make
a claim in respect of it) and shall expire 6 months from that date. The notice must be in writing
and must identify the event and the grounds for the claim in reasonable detail.
25.12 This clause 25 shall survive termination of the Contract.
26 Termination
26.1 FTL may terminate the contract on immediate written notice to the Customer where:
26.1.1 other than in relation to payments in which case clause 26.1.3 shall apply, the
Customer commits any material breach of the Contract, and where that breach is
remediable the same has not been remedied within 5 Business Days of request;
26.1.2 the Customer persistently breaches any term or terms of the Contract; or
26.1.3 the Customer fails to pay any amount due under the Contract on the due date for
payment.
26.2 FTL may terminate the Contract with immediate effect by giving written notice to the
Customer if one or more of the following applies to the Customer: (a) it ceases to trade; (b)
it is unable to pay its debts; and/or (c) it suffers an Insolvency Event.
26.3 Without limiting its other rights or remedies, FTL may suspend supply of Equipment or
Services under the Contract or any other contract between the Customer and FTL if the
Customer becomes subject to an Insolvency Event or FTL reasonably believes that the
15173861_11 Page 24Customer is about to become subject to any of them, or if the Customer fails to pay any
amount due under the Contract on the due date for payment.
26.4 On termination of the Contract for any reason the Customer shall immediately pay to FTL all
of FTL’s outstanding unpaid invoices and interest. Termination of the Contract, however
arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that
have accrued as at termination.
26.5 Clauses that expressly or by implication survive termination of the Contract shall continue
in full force and effect.
27 Consequences of Termination
27.1 On termination of the Contract:
27.1.1 the Customer shall immediately pay to FTL all of FTL’s outstanding unpaid invoices
and interest and, in respect of Services and any aspect of work in progress
undertaken by FTL and in respect of any part of the Equipment and Services
supplied (as appliable) but for which no invoice has been submitted, FTL shall
submit an invoice, that shall be payable by the Customer immediately on receipt;
and
27.1.2 to the extent that the Equipment and Services (as applicable) have not been fully
paid for, then FTL may enter the Customer’s Site and take possession of the
Equipment.
27.2 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 that existed at or before
the date of termination or expiry.
27.3 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.
28 General
28.1 Bribery Act 2010, Modern Slavery Act 2015 and Criminal Finances Act 2017. The Customer
shall comply with the Bribery Act 2010, Modern Slavery Act 2015 and the Criminal Finances
Act 2017 and not do, or omit to do, any act that will or may cause FTL to be in breach of the
Bribery Act 2010, Modern Slavery Act 2015 or the Criminal Finances Act 2017.
28.2 Data Protection. It is anticipated that the parties will each collect personal data covering
business to business contact details in their capacity as data controllers. In so far as a party
collects and processes personal data of the other party it will comply with its respective
obligations in relation to the Data Protection Act 2018 (“DPA”). If a party acts as a data
processor (as defined in the DPA) the parties shall enter into a data processing agreement
that meets the requirements of the DPA.
28.3 Force Majeure. Neither party shall 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 (a “Force Majeure Event”).
The time for performance of such obligations shall be extended accordingly.
28.4 Assignment and Other Dealings. FTL 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. 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 FTL.
28.5 Notices. Any notice given to a party under or in connection with the Contract shall be in
writing and shall be:
15173861_11 Page 2528.5.1delivered 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
28.5.2 sent by email to the addresses set out in the Order Confirmation. Any notice shall
be deemed to have been received:
28.5.2.1 if delivered by hand, at the time the notice is left at the proper
address;
28.5.2.2 if sent by pre-paid first-class post or other next working day delivery
service, at 9.00am on the second Business Day after posting; or
28.5.2.3 if 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.
This clause 28 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.
28.6 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 28.6 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.
28.7 Costs. The Customer shall reimburse FTL, pursuant to Part 44.5 of the Civil Procedure Rules,
against all Costs incurred by FTL in connection with FTL’s preservation, exercise or enforcement
of any of its rights, or the attempted preservation, exercise or enforcement of any of its rights,
under or in connection with the Contract. For the avoidance of doubt, the parties agree that
FTL’s Costs will be the subject of detailed assessment (time spent/hourly rate) if not agreed,
and that Part 45 of the Civil Procedure Rules shall not apply.
28.8 Waiver. 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. 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.
28.9 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.
28.10 Entire agreement. These Conditions apply to the Contract to the exclusion of any other terms
that the Customer seeks to impose or incorporate, or that are implied by law, trade custom,
practice or course of dealing. The Contract constitutes the entire agreement between the
parties. 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.
28.11 Third party rights. 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. The rights of the parties to
rescind or vary the Contract are not subject to the consent of any other person.
28.12 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).
28.13 Conflict. In the event of any conflict or inconsistency between the documents that make up
the Contract: the order of precedence shall be: Order Confirmation, Order, these Conditions
and quote.
15173861_11 Page 2629 Dispute Resolution
29.1 In the event of a dispute arising out of or relating to the Contract, including any question
regarding its existence, validity or termination, the parties may first seek settlement of that
dispute by following the escalation procedure below.
Dispute stages Customer FTL
Stage 1 Manager Director
Stage 2 Strategic Director Director
If the Stage 1 Representatives are unable to reach an agreement within five (5) Business
Days of the referral to them, then the dispute shall be referred, in writing on the next
Business Day to the Stage 2 Representatives to consider and resolve.
29.2 If any dispute arises in connection with the Contract that cannot be resolved in accordance
with clause 29.1, the parties may attempt to settle it by mediation in accordance with the
Centre for Effective Dispute Resolution (CEDR) model mediation procedure. Unless otherwise
agreed between the parties within 14 calendar days of notice of the dispute, the mediator
will be appointed by CEDR.
29.3 This clause shall not prevent or delay either party from raising a dispute in accordance with
clause 30.
30 Governing Law and Jurisdiction.
30.1 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 English law.
30.2 Save that claims may be brought in any competent jurisdiction for (i) injunctive relief and
(ii) claims relating to intellectual property or for breach of confidence, 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.28
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