STANDARD TERMS AND CONDITIONS FOR SUPPLY OF GOODS AND SERVICES
1. Definitions
1.1 In this Agreement the following expressions have the following meanings unless the context otherwise prescribes:
Agreement means these terms and conditions together with the terms of any applicable Quotation;
Applicable Data Protection Laws means (a) to the extent the UK GDPR applies, the version of the General Data Protection Regulation as implemented by the United Kingdom (UK GDPR) the Data Protection Act 2018; and (b) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which a party is subject, which relates to the protection of personal data, and (c) in either case, the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Business Day means a day (other than a Saturday or Sunday or public holiday in England) when banks in London are open for business.
Confidential Information means all information of a confidential nature concerning the trade secrets or business dealings, methods of business, clients, members, market information, transactions, plans or affairs of a party, pricing, designs, information regarding components, datasheets, technical or commercial know-how, specifications, inventions, processes and any information (whether encrypted, in copy form or in any media) which by its nature the recipient ought to reasonably conclude is confidential information of the other party, but excluding information that is: (a) in the public domain (other than by breach of this Agreement or, so far as
the recipient of the information is aware, a breach by a third party of duty of confidentiality); (b) stock in trade or readily ascertainable by persons in the trade; or (c) received lawfully by the recipient (so far as it is aware) from a third party on a non-confidential basis.
Customer means the organisation or person who purchases goods and services from Solarport as specified in the Quotation.
Customer Personal Data means personal data which Customer transfers to Solarport in connection with this Agreement. This will consist of Customer’s business contact information.
Customer’s Representative means the person appointed by the Customer from time to time as their representative for the purposes of this Agreement, as per the contact name and address and/or email address provided at the time of Order, unless specified otherwise in the Order.
Delivery Address the address for delivery of the Goods and/or Services as set out in the Quotation.
EU GDPR: means the General Data Protection Regulation ((EU) 2016/679)
Force Majeure Event means:
any acts, events or circumstances (to the extent not caused by either party or its agents or employees) which occur and which (A) are (having exercised reasonable skill care and diligence) unforeseeable (or, being foreseeable, unavoidable) and outside the reasonable control of the affected party, (B) are not substantially attributable or connected with any act, omission, fault, or negligence of the affected party, and (C) render said party unable to comply totally or partially with its obligations under this Agreement. Force Majeure Events may include, but are not limited to the following events or circumstances, so long as the conditions in (A), (B) and (C) above are satisfied:
(a) war (whether war be declared or not), hostilities, invasion, act of foreign enemies;
(b) rebellion, terrorism, revolution, insurrection, military or usurped power, or civil war. Acts of theft or vandalism, or any acts committed on or on behalf of a criminal organisation shall not be considered Force Majeure Events to the extent they can be insured;
(c) riot, commotion, disorder, strike, walkout or lockout;
(d) epidemics, pandemics and similar national emergencies;
(e) the effects of munitions of war, explosive materials, ionising radiation or contamination by radioactivity; and
(f) floods, earthquake, hurricane, lightning, typhoon, landslide, fire or volcanic activity (including volcanic activity outside of the country in which the affected party, or in Solarport’s case, the Property is located), objects striking the earth from space (such as
meteorites), quarantine restrictions, epidemics or similar acts of God.
Goods means the products to be supplied by Solarport to the Customer as set out in the Quotation.
Insolvency Event: A party suffers an Insolvency Event if:
(g) it suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court that" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(h) it commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
(i) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with its winding up other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or a solvent reconstruction;
(j) an application is made to court, or an order is made, for the appointment of an administrator, or a notice of intention to appoint an administrator is given or an administrator is appointed, over it;
(k) the holder of a qualifying floating charge over its assets has become entitled to appoint or has appointed an administrative receiver;
(l) a person becomes entitled to appoint a receiver over all or any of its assets or a receiver is appointed over all or any of its assets;
(m) a creditor or encumbrancer of it attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(n) any event occurs, or proceeding is taken, with respect to it in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g) (inclusive); or
(o) it suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
Intellectual Property Rights means patents, rights to inventions, trademarks, service marks, registered designs, copyrights and related rights, database rights, design rights, rights to use and protect confidential information, in each case whether registered or unregistered, including rights to apply for and be granted applications for any of the above and any continuations, continuations in-
part, divisional applications, renewals or extensions of, and rights to claim priority from, those rights, and any similar right recognised from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above.
Price the price for the Goods and/or Services as specified in the Quotation.
Property means the property where the Goods are to be installed, as specified in the Quotation, which may or may not be the same as the Delivery Address.
Quotation means a statement of work, quotation or other similar document describing the Goods and Services to be provided by Solarport.
Services means the design and site investigation services specified in the Quotation.
Solarport means Solarport Systems Limited, Unit 3, The Core, Gore Cross Business Park, Bridport, Dorset, DT6 3FH. Company No. 09377661.
Solarport’s Representative means a registered Director of Solarport.
System Design means, where the Services include system design services, any design for a solar PV system, solar carport or battery energy storage system (BESS) to be installed at the Property prepared by Solarport in accordance with the terms of this Agreement.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018; and the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
1.2 In these terms and conditions, unless the context requires otherwise, the following rules apply:
(a) any reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it;
(b) where the words "include(s)", "including" or "in particular" are used in this Agreement, they are deemed to have the words "without limitation" following them. Where the context permits, the words other/otherwise are illustrative and do not limit the sense of the words
preceding them;
(c) a reference to writing includes emails;
(d) where there is a conflict between these terms and conditions and the Quotation these terms and conditions shall prevail unless expressly stated otherwise in writing;
(e) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(f) a reference to a party is to a party to the Agreement and includes its personal representatives, successors or permitted assigns, and parties shall be construed accordingly.
2. General
2.1 These terms and conditions shall apply to all contracts for the supply of Goods and Services by Solarport to the Customer.
2.2 Before the commencement of the Services and the supply of the Goods, Solarport shall submit to the Customer a Quotation which shall specify the Goods and Services to be supplied and the Price payable. The Customer shall notify Solarport immediately if the Customer does not agree with the contents of the Quotation. All Quotations shall be subject to these terms and conditions.
3. Supply of Services
3.1 Solarport shall:
(a) perform the Services using reasonable skill and care, and of a quality conforming to generally accepted industry standards and practices; and
(b) use reasonable endeavours to complete the Services within estimated time frames but time shall not be of the essence in the performance of any Services.
4 Delivery of Goods
4.1 Solarport will notify the Customer of the date for delivery of the Goods at the Delivery Address ("Delivery Date").
4.2 If the Customer fails to take delivery of the Goods on the Delivery Date and/or fails to provide any access, instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on the Delivery Date, then (except where such failure or delay is caused by a Force Majeure Event or by Solarport’s failure to comply with its obligations under the Agreement in respect of the Goods) Solarport shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Goods until actual delivery takes place. If the Goods are stored in these circumstances, risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall reimburse Solarport for all Solarport's reasonable costs and expenses including storage and insurance charges arising from such failure. If fourteen (14) days after the day on which Solarport notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Solarport may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs charge the Customer for any shortfall below the price of the Goods.
4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. Solarport shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, delays caused by third parties (such as third party hauliers or other transport providers) or the Customer's failure to pay any payments due to Solarport, provide
Solarport with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.4 If Solarport fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available within the EU or United Kingdom, less the price of the Goods.
5 Title and risk
5.1 Solarport warrants that it has the right to use and supply the Goods.
5.2 Subject to clause 3.2, risk in the Goods shall pass to the Customer in accordance with Incoterms 2020 when the Goods are delivered DAP to the Delivery Address.
5.3 Title in the Goods shall pass to the Customer once the Price has been paid in full. The Customer shall notify Solarport if it intends to re-sell the Goods prior to the Price having been paid in full, in which case Solarport reserves the right to require the Customer to pay any amount of the Price that is unpaid prior to the Customer's re-selling the Goods.
6 Goods warranties
6.1 Solarport warrants that as from the later of the date of delivery and the receipt of final payment that the Goods and all their component parts, where applicable, are free from material defects in design, workmanship, construction or materials and shall conform to and perform in accordance with the specification and any guarantee set out in the Quotation.
6.2 No claim shall be made under any warranty if the claim arises from the Customer's (or its assignee's or third party contractor's) failure to properly handle, use or maintain the Goods in accordance with the manufacturer's and/or Solarport's reasonable instructions provided that these instructions have been supplied to the Customer in English in advance.
6.3 For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of Solarport and no representation written or oral, correspondence or statement shall form part of the Agreement.
7 Inspection and claim
7.1 The Customer must file any claims related to defects in the Goods delivered under this Agreement within three (3) Business Days after the arrival of the Goods at the Delivery Address. Every claim shall be sent to Solarport in writing by email with photos and a detailed description of the defect(s) in English.
7.2 The Customer shall notify Solarport of any such claim within the time limit specified in clause 7.1. If no such valid claim is made it shall be deemed that the Goods delivered to the Customer under this Agreement conform in all respects to the specification provided in the Quotation insofar as can be ascertained by visual inspection with the naked eye.
7.3 Solarport shall within ten (10) Business Days of receipt of a claim together with evidentiary documents from the Customer carry out its own internal verification exercise and respond in writing to the Customer if it accepts such a claim. If Solarport does not accept the Customer's claim(s) it shall carry out or commission its own inspection of the Goods at the Delivery Address. Such
inspection shall be at Solarport’s own cost where Solarport accepts the Customer's claim. If after performing such tests or inspection Solarport still does not accept the Customer's claim or if the parties otherwise fail to agree, the matter will be referred to the final determination of an Expert in accordance with clause 12. Where the Expert accepts the Customer’s claim, Solarport will bear the costs of its own inspection of the Goods at the Delivery Address; and where the Expert does not accept the Customer’s claim, the Customer will bear the costs of Solarport’s inspection of the Goods at the Delivery Address.
7.4 If the Customer rejects any Goods as a result of a defect that is identified in accordance with this clause 7, Solarport shall, with the agreement of the Customer, either replace the damaged Goods in a subsequent delivery or, after confirmation by both parties, deduct the price of damaged Goods from the Price.
7.5 For the avoidance of doubt, the terms of this clause 7 shall apply to any claims related to defects in the Goods made prior to the installation of the Goods; and the guarantee set out in the Quotation shall apply to any claims that arise under such guarantee and which are made after the installation of the Goods.
8 Customer's obligations
8.1 To enable Solarport to perform its obligations under this Agreement the Customer will:
(a) co-operate with Solarport;
(b) provide Solarport with any information and materials reasonably required by Solarport within two (2) Business Days from the date of request, or such other period as may be set out by Solarport;
(c) where required for Solarport to perform any part of the Services, provide Solarport with access to the Property;
(d) obtain all necessary permissions and consents which may be required before the commencement of the Services; and
(e) comply with such other requirements as may be set out in the Quotation or otherwise agreed between the parties.
8.2 Where the Customer fails to comply with clause 8.1 or where the Customer or any third party (other than a sub-contractor of Solarport), takes, or fails to take, any actions which prevents or delays Solarport from complying with any of its obligations under this Agreement (“Customer Default”), then without limiting or affecting any other right or remedy available to it:
(a) Solarport shall notify the Customer as soon as reasonably practicable;
(b) Solarport 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 Solarport’s performance of any of its obligations;
(c) Solarport shall have no liability for any costs or losses sustained or incurred by the Customer directly or indirectly in respect of any failure or delay to perform any of its obligations as set out in this clause 8.2; and
(d) the Customer shall indemnify Solarport on written demand for any costs or losses sustained or incurred by Solarport arising directly or indirectly from the Customer Default.
9 Alterations to the Quotation
9.1 The Customer may at any time request alterations to the Quotation by notice in writing to Solarport. On receipt of the request for alterations Solarport shall, within five (5) Business Days, or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the Price and any other terms already agreed between the parties (“Change Acceptance Notice”).
9.2 The Customer shall, within five (5) Business Days of receipt of a Change Acceptance Notice from Solarport, or such other period as may be agreed between the parties, advise Solarport by notice in writing whether or not it wishes the alterations to proceed as per the Change Acceptance Notice.
9.3 Where the Customer confirms in writing that it agrees to the terms of the Change Acceptance Notice, the Quotation shall be deemed to have been amended to reflect such the terms of the Change Acceptance Notice and thereafter Solarport shall perform this Agreement upon the basis of such amended terms.
10 Price and Payment
10.1 The Quotation will set out the Price. Solarport shall invoice the Customer as per terms specified in the Quotation.
10.2 Solarport reserves the right, by giving written notice to the Customer at any time before delivery, to increase the Price and invoice the Customer accordingly to reflect any increase in the cost to Solarport which is due to any factor beyond Solarport's control. This includes, without limitation, alteration of duties, significant increase in the costs of labour, materials, transportation, shipping or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods which are requested by the Customer, or any delay caused by any of the Customer's instructions or the Customer's failure to give Solarport adequate information.
10.3 Invoiced amounts shall be due and payable in full and in cleared funds as per terms specified in the Quotation, or in the absence of such terms being specified in the Quotation within thirty (30) days of the date of the invoice to a bank account nominated in writing by Solarport. Time for payment shall be of the essence of the Agreement.
10.4 If the Customer fails to pay any invoices by the due date for payment, then the Company will charge the customer interest, compensation and recovery charges pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 (as amended). Where the Customer's procedures require that an invoice be submitted against a purchase order to payment, the Customer shall be
responsible for issuing such purchase order before the Goods and Services are supplied.
10.5 All amounts payable by the Customer under the Agreement are exclusive of amounts in respect of value added tax chargeable from time to time.
10.6 All amounts due under this Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
11 Liability
11.1 Nothing in this Agreement shall limit or exclude either party's liability for:
(a) death or personal injury resulting from a party's negligence;
(b) fraud or fraudulent misrepresentation; or
(c) anything for which the parties cannot legally limit or exclude or attempt to limit or exclude their liability.
11.2 Subject to clause 11.1 above Solarport's aggregate liability to the Customer for any damages, costs, claims or expenses arising out of the performance (or non-performance) by Solarport, Solarport's employees, agents, consultants or subcontractors of Solarport's obligations under this Agreement (whether by virtue of negligence, breach of statutory duty or otherwise) shall be limited
to the Price.
11.3 The Customer shall indemnify Solarport against all claims, costs and expenses which Solarport may incur and which arise, directly or indirectly, from the Customer's breach of any of its obligations under this Agreement, including, to the extent that the Goods or Services are to be manufactured or supplied in accordance with a specification (including any relevant plans or
drawings) supplied by the Customer, any claims brought against Solarport alleging that any Goods and/or Services provided by Solarport in accordance with the Quotation infringes a patent, copyright or trade secret or other similar right of a third party.
11.4 Solarport shall not be liable for loss of profits, loss of sales or business, loss of agreements, loss of anticipated savings, loss of reputation, loss of opportunity, loss of use or corruption of software, data or information, loss of or damage to goodwill, or indirect or consequential loss.
11.5 Neither party shall be liable for any delay or failure to perform its obligations under this Agreement to the extent this is caused by a delay or failure by the other party to perform (or procure performance of) its obligations under this Agreement.
11.6 Neither party shall have any liability for any loss, damage, claims, costs or expenses arising from or in relation to its delay or failure to perform its obligations under this Agreement to the extent such failure is the result of Force Majeure.
11.7 The limits and exclusions in this clause 11 reflect the insurance cover Solarport has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
11.8 Solarport has given commitments as to compliance of the Goods and Services with relevant specifications in clause 3 and clause 6. 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 Agreement.
11.9 The provisions of this clause 11 shall survive termination of this Agreement.
12 Expert determination
12.1 An Expert is a person appointed in accordance with this clause to resolve a dispute under clause 7.3.
12.2 The parties shall agree on the appointment of a suitably qualified independent Expert and shall agree with the Expert the terms of their appointment. If the parties are unable to agree on an Expert or the terms of their appointment within seven (7) days of either party serving details of a suggested expert on the other, either party shall then be entitled to appoint TUV Rheinhold as the
Expert and, if TUV Rheinhold is unable or unwilling to so act, then Solarport shall be entitled to appoint as the Expert another person which it reasonably regards is of suitable repute and experience.
12.3 All matters under this clause must be conducted, and the Expert's decision shall be written, in the English language. The Expert must prepare a written decision and give notice (including a copy) of the decision to the parties within a maximum of three (3) months of the matter being referred to the Expert. If the Expert dies or becomes unwilling or incapable of acting, or does not deliver the decision within the time required by this clause then (a) the parties may agree (or, in the absence of agreement within one month, either party may discharge the Expert, and (b) the parties may appoint a replacement Expert in accordance with clause 12.2 which shall apply to the replacement Expert as if they were the first Expert to be appointed.
12.4 The Expert shall act as an expert and not as an arbitrator. The Expert shall determine the dispute under clause 7.3. The Expert may award interest as part of their decision. The Expert's written decision on the matters referred to them shall be final and binding on the parties in the absence of manifest error or fraud.
12.5 Each party shall bear its own costs in relation to the reference to the Expert. The costs of the Expert shall be split equally between the parties.
12.6 All matters concerning the process and result of the determination by the Expert shall be kept confidential among the parties and the Expert.
12.7 Each party shall act reasonably and co-operate to give effect to the provisions of this clause and otherwise do nothing to hinder or prevent the Expert from reaching their determination.
13 Termination
13.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) there has been a material breach or breaches of this Agreement by the other party which is not capable of remedy or, being capable of remedy, has or have not been remedied by the defaulting party within twenty (20) Business Days in each case; or
(b) the other party is subject to an Insolvency Event .
13.2 On termination or expiry of this Agreement each party shall promptly:
(a) subject to clause 13.2(b), return to the other party all equipment, materials and property belonging to the other party that the other party had supplied to it or a member of its group in connection with the supply of the Goods and Services under this Agreement;
(b) erase all the other party's Confidential Information from its computer systems (to the extent possible and subject to any legal or internal record keeping requirements)
13.3 Where this Agreement is terminated early by Solarport in accordance with clause 13.1 or 17.4 or the Customer cancels the Quotation on less than five (5) Business Days' notice the Customer will:
(a) pay the balance of the Price within five (5) Business Days; and
(b) pay the full amount of any reasonably and properly incurred third party costs to which Solarport has committed prior to the effective date of termination. For the avoidance of doubt, the Customer's failure to comply with any obligations under Clause
7.1 shall be deemed to be a cancellation of the Goods and Services and subject to the payments set out in this clause 13.3.
13.4 Termination of the Agreement, however arising, shall not affect any of the Parties' rights that have accrued prior to termination.
13.5 Clauses which expressly or by implication survive termination of the Agreement shall continue in full force and effect.
14 Intellectual Property
14.1 Except as expressly set out in this Agreement no assignment of, or licence under any Intellectual Property Rights is granted by Solarport to the Customer, or by the Customer to Solarport.
14.2 Solarport shall retain all Intellectual Property Rights in all designs and other documents (including any information or data therein) that it prepares in relation to this Agreement. For the avoidance of doubt, no Intellectual Property Rights in the Goods or the System Design shall pass to the Customer.
14.3 The Customer grants Solarport a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify the Customer Materials for the term of the Agreement for the purpose of providing the Goods and/or Services to the Customer. Solarport acknowledges that all rights in the Customer Materials are and shall remain the exclusive property of the Customer. Customer Materials means all materials, equipment and tools, drawings, specifications and data supplied by
the Customer to Solarport.
14.4 No party to this Agreement shall use the trademarks, designs or brand names of another party without that party's prior written consent.
15 Data Protection
15.1 The parties have determined that, for the purposes of Applicable Data Protection Laws:
(a) Solarport shall act as controller in relation to the Customer Personal Data and shall process the Customer Personal Data as set out in Solarport’s privacy notice available at www.solarport.co.uk as updated from time to time (Privacy Policy).
Should the determination in this clause 15.1 change, then each party shall work together in good faith to make any changes which are necessary to this clause 15.1.
15.2 Customer shall ensure that it has all necessary appropriate consents and notices in place to enable lawful collection of personal data and its transfer to Solarport for the duration and purposes of this Agreement; and Solarport shall:
(a) comply with all applicable requirements of Applicable Data Protection Laws. This clause 15.2(a) is in addition to, and does not relieve, remove or replace Solarport’s obligations or rights under Applicable Data Protection Laws;
(b) implement the technical and organisational measures to protect against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, such personal data, which measures shall be appropriate to the harm that might result, having regard to the state of technological development and the cost of implementing any measures;
(c) provide evidence to the Customer , on request, of the technical and organisational measures it has taken to comply with its obligations under clause 15.2(c);
(d) promptly notify the Customer , upon becoming aware of any errors or inaccuracies in such personal data;
(e) ensure that: (i) such personal data is accessible only to personnel who need to have access to it in order to carry out their roles in the performance of the party's obligations under this Agreement; (ii) all such persons are subject to contractual
obligations of confidentiality in respect of such personal data; and (iii) all such persons have been appropriately trained in the requirements of Applicable Data Protection Laws;
(f) assist the Customer (taking into account the nature of the processing and the information available to it) in responding to any request from a data subject and in ensuring its compliance with its obligations under the Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and
(g) notify the Customer , without undue delay, and in any event within twenty-four (24) hours, of becoming aware of, or having reasonable grounds to suspect, any personal data breach.
15.3 Solarport shall:
(a) on request by the Customer or on termination or expiry of this Agreement, deliver to the Customer any personal data in its possession, and destroy any copies of the personal data it has made unless otherwise required by operation of law; and
(b) maintain complete and accurate records and information to demonstrate its compliance with Applicable Data Protection Laws and this clause 15.
15.4 The provisions of clause 15.3(a) take precedence over the provisions of clause 13.2; and this clause15 shall survive termination of this Agreement.
16 Confidential Information
16.1 Each party shall be permitted to use the Confidential Information disclosed to them by the other party only for the purposes and to the extent needed for performance of their respective obligations under this Agreement and will do so strictly in accordance with its terms and conditions.
16.2 Each party shall keep in strict confidence all Confidential Information received from the other, save that each party may disclose the other party’s Confidential Information to the extent required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3 Both parties shall restrict disclosure of any of the other's Confidential Information to their staff and to such other agents, consultants or subcontractors as need to know it for the purpose of discharging their obligations to the other party under this Agreement. Both parties shall also ensure that any such staff and any agents or subcontractors receiving such Confidential Information are subject to obligations of confidentiality corresponding to those which bind them and shall be
responsible for any breach by them of this clause 16 as if they were a party hereto.
16.4 All Confidential Information (along with any records, materials, equipment, software and tools, drawings, specifications and data) supplied by either party, their employees, agents, consultants or subcontractors to the other party shall, at all times be kept securely with appropriate technical and organisational security measures and (unless otherwise agreed in writing) remain the
supplying party's exclusive property or that of their licensors.
16.5 The provisions of this clause 16 shall survive termination of this Agreement.
17 Force Majeure
17.1 Notice of Force Majeure
(a) If either party is or will be prevented from performing any of its obligations under the Agreement by a Force Majeure Event, then it shall give notice to the other party giving the details of the nature of the Force Majeure Event, the expected impact of the Force Majeure Event on its ability to carry out its obligations under the Agreement and the anticipated duration of the Force Majeure Event. Such notice shall be given as soon as practicable, and not later than ten (10) Business Days after the party became aware of the event or circumstance.
17.2 Duty to Minimise Delay
(a) The party seeking to rely on clause 17.1(a) shall at all times use all reasonable endeavours to minimise any delay in the performance of the Agreement as a result of Force Majeure Event and to mitigate the effects of the Force Majeure Event. The relying party shall give notice to the other party when it ceases to be affected by the Force Majeure Event.
(b) The parties shall continue to perform all of their obligations under the Agreement, which are not affected by the Force Majeure Event.
17.3 Consequences of Force Majeure
(a) Provided it has complied with its obligations under clauses 17.1 and 17.2, the party affected by the Force Majeure Event shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations, including the Delivery Date, shall be extended accordingly.
17.4 Optional Termination
(a) If the performance of this Agreement is prevented for a continuous period of ninety (90) days or more by reason of a Force Majeure Event, then either party may give notice to the other party to terminate this Agreement.
18 Severance
If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this
Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
19 Assignment and subcontracting
19.1 The Customer may not assign, transfer, charge, hold on trust for any person or otherwise deal in any other manner with any of its rights or obligations under this Agreement without the prior written consent of Solarport.
19.2 Solarport may, in addition to its own employees, engage sub-contractors to provide all or part of the Services being provided to the Customer and such engagement shall not relieve Solarport of its obligations under this Agreement or any applicable Quotation.
20 No Partnership or Agency
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other.
21 Notices
21.1 Any notice to be given by either party under this Agreement shall be sufficiently served if sent in writing to the other party's registered office address, or by email to Solarport at legalnotices@solarportsystems.com or to the Customer at its email address set out in the Quotation (or such other email address as notified to the other party from time to time), and in each case by
a method listed in clause 21.2; and unless proved otherwise is deemed received as set out in clause 21.2 if prepared and sent in accordance with this clause. Notices shall be marked for the attention of the Customer’s Representative or Solarport’s Representative, as applicable.
21.2 Any notice:
(a) sent by hand, shall be deemed to be received at the time the notice is left at the address;
(b) sent by electronic mail shall be deemed to be received at the time recorded on the electronic mail, provided that an electronic mail shall not be deemed to be received where the sender receives a notice of non-delivery or failed delivery;
(c) sent by pre-paid first-class post or other next working day delivery, shall be deemed to be received on the second business day after posting at the place of receipt; and
(d) sent by pre-paid airmail, shall be deemed to be received on the fifth business day after posting at the place of receipt.
21.3 If deemed receipt under clause 21.2 would occur outside business hours in the place of receipt, it shall be deferred until business hours resume. In this clause 21.3, business hours means 9.00 a.m. to 5.00 p.m. Monday to Friday on a day that is not a public holiday in the place of receipt.
21.4 The provisions of this clause 21 shall not apply to the service of any process in any legal action or proceedings.
22 Miscellaneous
22.1 Each party that has rights under this Agreement agrees it is acting on its own behalf and not for the benefit of another person.
22.2 The parties to the Agreement agree they shall not do anything which brings or might reasonably be expected to bring into disrepute the other, including its representatives or staff.
22.3 The parties shall comply with all reasonable health and safety and security requests arising from time to time made by the other in performing their obligations under this Agreement.
22.4 Each party agrees to do or procure to be done all such further acts and execute or procure the execution of all such documents as the other may from time to time reasonably require for the purpose of giving the other the full benefit of the provisions of this Agreement.
22.5 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22.6 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
22.7 Each party to this Agreement warrants that it shall comply with the UK Bribery Act 2010 and equivalent or similar foreign requirements.
23 Entire Agreement
23.1 This Agreement constitutes the entire agreement between Solarport and the Customer and supersedes and extinguishes all previous drafts, heads of terms, letters, courses of dealing, understandings or agreements between Solarport and the Customer, whether written or oral, relating to the subject matter of this Agreement.
23.2 Each party acknowledges that, in entering into this Agreement, they do not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
23.3 Each party agrees that their only remedies in respect of those representations and warranties that are set out in this Agreement (whether made innocently or negligently) shall be for breach of contract.
23.4 Nothing in this clause 23 shall limit or exclude any liability for fraud.
24 Third party rights
24.1 A person who is not a party to this Agreement (other than the successors in title to any party) shall not have any rights (including under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Agreement.
25 Governing law and jurisdiction
25.1 This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales.
25.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
25.3 Any dispute or difference shall, in the first instance, be referred to senior management of each party for resolution.
25.4 The provisions of this clause 25 shall survive termination of this Agreement.
Form: 08.04.09 Issue 01 Date 08/10/2024