Terms & Conditions of Sale

Terms & Conditions of Sale

Kirk Key Interlock Terms & Conditions of Sale

 

  1. DEFINITIONS AND INTERPRETATION
  • In these Conditions:
    • all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
    • unless the context otherwise requires:
      • references to the singular include the plural and vice versa and references to any gender include every gender;
      • references to a “person” include any individual, limited liability company, corporation, trustee, unincorporated organizational, association, partnership, limited partnership, firm, trust, organization, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
    • references to any statute or statutory provision include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
    • any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;
    • the meaning of general words introduced by the word “other” or a similar word or expression will not be restricted by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
    • references to “in writing” or “written” include e-mail;
    • any reference to:
      • time of day is to Eastern Standard Time;
      • a day is to a period of 24 hours running from midnight to midnight;
      • an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party; and
      • any obligation on a party not to do or omit to do anything includes an obligation not to allow (whether expressly or by a failure to take reasonable steps to prevent) that thing to be done or omitted to be done by any other person.
  1. CONTRACT FORMATION
    • Any quotation given by the Supplier will be valid for five (5) days from and including its date, and will constitute an invitation to bargain and not an offer.
    • The Order constitutes an offer by the Customer to purchase Goods and Services from the Supplier on these Conditions. A contract for the supply of Goods and Services by the Supplier to the Customer on these Conditions will be formed when the Supplier accepts the Order by issuing an Order Acknowledgement to the Customer. The Supplier is under no obligation to accept the Order.
    • These Conditions are the only terms and conditions on which the Supplier will supply goods and services to the Customer and will apply to the exclusion of all other terms and conditions including any terms and conditions which the Customer purports to apply under any purchase order, confirmation of order or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
    • Delivery or commencement of the performance of the Services will be deemed conclusive evidence of the Customer’s acceptance of these Conditions.
    • The Supplier will be entitled, at its discretion, to deliver Goods by separate installments. The Supplier will be entitled to invoice the Price for each installment separately in accordance with Condition 5. Each installment will be deemed to be a separate contract and no cancellation or termination of any one contract relating to an installment will give the Customer the right to cancel or terminate any other contract.
  2. THE GOODS
    • The Supplier will obtain the Customer’s prior approval in order to:
      • vary the design, finish or Specification of Goods and/or their packaging; and/or
      • substitute any materials or parts which are used in Goods and which are unavailable for any reason with alternative materials or parts,

unless the variation or substitution is necessary to comply with Applicable Law, in which case the Supplier will use reasonable efforts to give the Customer prior written notice of any such variation or substitution.

  • With the exception of the Specification, all samples, drawings, descriptive and illustrative matter and advertising issued or published by the Supplier (or the manufacturer of the Goods) are for the sole purpose of giving an approximate idea of the relevant Goods.
  • The Customer shall be solely responsible removal, collection, recovery and recycling of the Goods once it becomes waste and for any replaced Goods or parts of the Goods provided to the Customer.
  1. DELIVERY
    • Unless otherwise specified in the Order Acknowledgement, the Goods will be Delivered Ex Works (as such term is defined in Incoterms 2010) at the location specified in the Order Acknowledgement. Delivery of the Goods will be deemed to occur when the Supplier completes its Delivery obligations under that Incoterm or as otherwise set out in the Order Acknowledgement. To the extent that the Order Acknowledgement sets out that the Goods will be Delivered pursuant to an Incoterm 2010, and where there is any conflict or inconsistency between Incoterms 2010 and these Conditions, Incoterms 2010 will take precedence.
    • The Supplier will use reasonable efforts to Deliver the Goods on the estimated date set out in the Order Acknowledgement, but time for Delivery of the Goods will not be of the essence of the Contract. Any Delivery dates given by the Supplier are estimates only.
    • If the Goods have not been Delivered under Condition 1 within 10 Business Days from and including the estimated Delivery date set out in the Order Acknowledgement, the Customer will notify the Supplier in writing and, if the Supplier fails to Deliver the Goods within a further 5 Business Days of the Customer’s written notice, the Supplier will refund to the Customer any monies which the Customer has already paid to the Supplier under the Contract for the Goods, which shall be the Supplier’s sole Liability for its failure to Deliver the Goods and/or such delay.
    • If Delivery occurs but the Customer fails to accept delivery of, or to collect, the Goods, the Supplier will be entitled to:
      • store or arrange for storage of the Goods until the Customer accepts delivery of them or they are disposed of under Condition 4.2 (as applicable) and to take such action as it considers necessary to attempt to re-deliver the Goods to the address specified in the Order Acknowledgement;
      • treat the Contract as repudiated by the Customer and dispose of the Goods in any way it sees fit, including by sale to another person. If the Supplier sells any of the Goods under this Condition 4.2 at a price which is less than the relevant Price plus any relevant packaging, insurance, carriage and delivery costs, the Supplier will be entitled to charge the Customer for the shortfall; and
      • charge the Customer for all costs and expenses which the Supplier incurs under Conditions 4.1 and 4.4.2.
    • The Customer will ensure that any Goods and/or Services that the Customer purchases or receives from the Supplier under the Contract will not be received, imported, exported, re-exported, transferred, sold or used except in compliance with (i) all Applicable Laws, regulations, orders and requirements relating to import, export control and sanctions, as they may be amended from time to time, including without limitation those of the United States of America, the European Union, the United Kingdom, and the jurisdictions in which the Customer and the Supplier are established, conduct business or from which the Goods and/or Services may be supplied; and (ii) the requirements of any licenses, authorizations or license exceptions relating to the receipt, import, export, re-export, transfer use or sale of the Goods and/or Services.
  2. INSPECTION AND ACCEPTANCE
    • The Customer will inspect the Goods on Delivery and will within 10 Business Days from and including the date of Delivery give written notice to the Supplier of any breach of the warranty in Condition 1 in relation to those Goods.
    • If the Customer does not give notice to the Supplier under Condition 1 in respect of the Goods, the Customer will be deemed to have accepted the Goods on expiration of the 10 Business Day period from and including the date of Delivery.
  3. PASSING OF RISK AND RETENTION OF TITLE
    • Risk of damage to or loss of the Goods will pass to the Customer on Delivery.
    • Subject to Conditions 3 and 6.4, legal and beneficial ownership of the Goods will not pass to the Customer until the Supplier has received in full in cleared funds:
      • all sums due to it in respect of the Goods; and
      • all other sums which are or which become due to the Supplier from the Customer on any account whatsoever.
    • The Customer may resell the Goods if that is in the ordinary course of its business and, if it does so, legal and beneficial ownership of Goods will pass to the Customer immediately prior to the Customer entering into a binding contract for the sale of those Goods.
    • The Supplier may, by giving written notice to the Customer, pass legal and beneficial ownership of the Goods (or any of them) to the Customer at any time before such ownership would otherwise have passed to the Customer.
    • Until ownership of the Goods has passed to the Customer, the Customer will:
      • hold the Goods on a fiduciary basis as the Supplier’s bailee;
      • store the Goods (at no cost to the Supplier) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
      • not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
      • maintain the Goods in satisfactory condition; and
      • keep the Goods insured for their full price against damage or loss on an “all risks” basis.
    • The Customer’s right to possession, use and resale of the Goods will terminate immediately if, before ownership of the Goods passes to the Customer in accordance with Conditions 2, 6.3 or 6.4:
      • the Customer becomes Insolvent;
      • the Supplier gives the Customer written notice that it has any reasonable concerns regarding the financial standing of the Customer;
      • the Customer fails to pay any sum due to the Supplier under the Contract on or before the due date;
      • the Customer encumbers or in any way charges any of the Goods; or
      • the Contract expires or terminates for any reason.
    • Once the Goods are Delivered to the Customer, the Supplier will be entitled to recover payment for the Goods (including by way of an action for the price) notwithstanding that ownership of any of the Goods has not passed from the Supplier.
    • The Customer grants, and will procure that the owner of any third party premises grants, the Supplier, its agents, employees and subcontractors an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession, use and resale has terminated, to recover them.
    • Where the Supplier is unable to determine whether any goods are the Goods in respect of which the Customer’s right to possession, use and resale has terminated, the Supplier will be deemed to have sold all goods of the kind sold by the Supplier to the Customer in the order in which they were invoiced to the Customer.
    • If the Customer’s right to possession, use and resale of the Goods terminates in accordance with Condition 6, the Supplier will be entitled to issue the Customer with a credit note for all or any part of the price of the Goods together with value added tax thereon (if applicable).
    • The Supplier’s rights contained in this Condition 6 will survive expiration or termination of the Contract however arising.
  4. PRICE AND PAYMENT
    • The Customer will pay the Prices and Charges to the Supplier in accordance with this Condition 7.
    • The Prices and Charges are exclusive of packaging, insurance, carriage and delivery costs and Expenses and are payable by the Customer in addition to the Prices and Charges.
    • Any sum payable under the Contract is exclusive of any sales taxes (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time.
    • The Supplier will be entitled to vary the Prices and/or Charges at any time and for any reason, including, without limitation due to: (i) any change in Applicable Law; (ii) any variation in the Customer’s requirements for the Goods and/or Services; (iii) any information provided by the Customer being inaccurate or incomplete; or (iv) any failure or delay by the Customer in providing information.
    • Unless otherwise notified to the Customer by the Supplier (for example where the Supplier has notified the Customer that the Goods/Services require upfront payment or where the Supplier exercises its discretion to ask for upfront payment where the Supplier has concerns about the Customer’s creditworthiness), the Supplier will invoice the Customer for the Prices for the Goods and any packaging, insurance, carriage and delivery costs payable by the Customer in addition to the Prices and the Charges and any Expenses payable by the Customer in addition to the Charges following Delivery.
    • Each invoice will be payable by the Customer within 30 days following the date of the Supplier’s invoice. All payments will be made in US dollars (or such other currency as may be stated on the Supplier’s invoice) in available cleared funds by electronic transfer to such bank account as the Supplier may nominate from time to time.
    • Notwithstanding any purported contrary appropriation by the Customer, the Supplier will be entitled, by giving written notice to the Customer, to appropriate any payment by the Customer to any invoice issued by the Supplier.
    • If any sum payable under the Contract is not paid on or before the due date for payment, the Supplier will be entitled to charge the Customer interest on that sum at the lesser of (i) twelve percent (12%) per annum or (ii) the maximum interest rate allowed under Applicable Law, until the date of payment (whether before or after judgment), such interest to accrue on a daily basis. Customer shall also reimburse Supplier for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees.
    • If the Customer fails to make any payment due to the Supplier under the Contract or any other contract between the Customer and the Supplier within 10 Business Days after the due date, the Supplier will be entitled to withhold further deliveries of goods and to suspend or terminate provision of the services until that payment has been made (whether the Goods/Services under the Contract or whether the goods/services under any other contract).
    • If the Customer becomes Insolvent all invoices issued by the Supplier will immediately become due and payable.
    • Save as otherwise expressly provided in these Conditions or required by law, all payments to be made by the Customer to the Supplier under the Contract will be made in full and without any set-off or any deduction or withholding including on account of any counter-claim.
    • Following expiration or termination of the Contract:
      • the Supplier will be entitled to invoice all Prices and Charges and any packaging, insurance, carriage and delivery costs and Expenses incurred which have not yet been invoiced; and
      • all invoices (including any invoices issued under Condition 12.1) will become immediately due and payable by the Customer.
  1. WARRANTY
    • The Supplier warrants to the Customer that for a period of the earlier of (i) one (1) year after the date of installation of the item or items which are the subject of the Contract, or (ii) eighteen (18) months from the date of Delivery (the “Warranty Period”), the Goods will, subject to Condition 1, conform to the Specification in all material respects and be free from defects in materials and workmanship in all material respects; and
    • If, at any time during the Warranty Period, the Customer becomes aware of a breach of the warranty in Condition 1, the Customer will:
      • give written notice of the breach to the Supplier, such notice to be given within 5 days after the Customer becomes aware of the breach and prior to expiration of the Warranty Period;
      • at the Supplier’s option either return to the Supplier (at the Customer’s cost) the relevant Goods or permit the Supplier or its agent or subcontractor to inspect it at the Customer’s premises; and
      • provide to the Supplier all information and assistance which the Supplier may reasonably require to investigate the alleged breach.
    • The Supplier’s only Liability and Customer’s sole remedy for breach of the warranty in Condition 1 will be, at the Supplier’s option, to repair or replace the relevant Goods. The Supplier will have no Liability for Customer’s use of the Services.
    • The Supplier will not have any Liability for a breach of the warranty in Condition 1 if:
      • the Customer does not comply with its obligations in Condition 2 in respect of the breach;
      • notice of the breach should have been but was not given to the Supplier under Condition 1;
      • the relevant defect was caused by damage in transit after Delivery;
      • the relevant defect was caused by ordinary wear and tear;
      • the relevant defect was caused or exacerbated by improper use, handling, alteration, installation, repair, maintenance, storage or failure to comply with instructions provided by the Supplier or the manufacturer; or
      • the Customer makes further use of the relevant Goods after discovering the relevant breach.

The warranty under Condition 8.1 will apply to any Goods which are repaired or replaced under Condition 8.3 for the remainder of the original Warranty Period.

  • Components manufactured by a third party (“Third Party Components”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with the Goods or Services. Third Party Components are not covered by the foregoing warranty and Supplier makes no warranty with respect to any Third Party Components.
  • THE WARRANTY SET FORTH IN THIS CONDITION 8 IS STRICTLY LIMITED TO ITS TERMS AND IS IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, SPECIFICALLY EXCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTY SET FORTH IN THIS CONDITION 8 IS MADE SOLELY TO CUSTOMER AND IS NOT TRANSFERRABLE TO ANY OTHER PERSON OR ENTITY.
  1. SERVICES
    • The Supplier warrants to the Customer that it will provide the Services with reasonable care and skill.
    • The Supplier will use reasonable efforts to provide the Services on the estimated performance date set out in the Order Acknowledgement, but time for provision of the Services will not be of the essence of the Contract. Any performance dates given by the Supplier are estimates only.
    • Customer acknowledges that the Services provided by Supplier constitute the advice, and not the directives, of Supplier and any use and implementation of those Services and any associated deliverables are at the sole risk of Customer. The Services are based on the accuracy and sufficiency of the information provided by Customer, and the effectiveness of the Services may be limited by the same.  Customer assumes all responsibility and liability for any damage or claims that may result from its implementation and use of the Services.
  2. EXCLUSIONS AND LIMITATIONS OF LIABILITY

The Customer’s attention is particularly drawn to this Condition.

  • The Supplier’s entire Liability for any non-delivery of Goods or failure to deliver the Goods in accordance with the timescales set out or referred to in the Contract will be as set out in Condition 3 and the Supplier will have no other Liability for any such non-delivery or failure to deliver. Such Liability will be subject to Condition 10.2 and will be taken into account in calculating whether the financial limit in Condition 10.2 has been reached.
  • The Supplier’s maximum aggregate Liability will be limited to a sum that is equal to the one hundred percent (100%) of the Prices actually paid by Customer to Supplier under the Contract.
  • The Supplier will have no Liability to the Customer for any:
    • loss of profit (whether direct, indirect, special, incidental or consequential);
    • loss of use, loss of revenue, loss of production or loss of business (in each case whether direct, indirect, special, incidental or consequential);
    • loss of goodwill, loss of reputation or loss of opportunity (in each case whether direct, indirect, special, incidental or consequential);
    • loss of anticipated savings or loss of margin (in each case whether direct, indirect, special, incidental or consequential);
    • loss of bargain (whether direct, indirect, special, incidental or consequential);
    • liability of the Customer to third parties (whether direct, indirect or consequential);
    • loss of use or value of any data or software (whether direct, indirect, special, incidental or consequential);
    • wasted management, operational or other time (whether direct, indirect, special, incidental or consequential);
    • loss or damage arising out of any failure by the Customer to keep full and up to date security copies of any computer program and data held or used by or on behalf of the Customer (whether direct, indirect, special, incidental or consequential);
    • loss or damage arising out of Customer’s use of the Services or its license to the Services provided in Section 11.1; or
    • indirect, consequential, incidental or special loss.
    • THE FOREGOING LIMITATIONS IN THIS CONDITION 10 SHALL APPLY EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE CLAIM FOR RECOVERY IS BASED ON (i) BREACH OF WARRANTY OR CONTRACT, OR (ii) NEGLIGENCE, STRICT LIABILITY OR OTHER TORT.
  • The exclusions from, and limitations of, liability set out in this Condition 10 will be considered severally. The invalidity or unenforceability of any one sub-clause or clause will not affect the validity or enforceability of any other sub-clause or clause and will be considered severable from each other.
  • Each of the Supplier’s employees, agents and sub-contractors will be entitled to enforce all the terms of this Condition 10 as a third-party beneficiary subject to and in accordance with the terms of the Contract. Accordingly and for the avoidance of doubt the financial limits on liability set out in Condition 10 are the maximum liability of the Supplier, its employees, agents and sub-contractors in aggregate.
  • Without limiting any other limitation of liability set forth herein, Customer acknowledges that KIRK® key interlocks and other Goods are safety devices and not security devices. As such, KIRK® key interlocks and other applicable Goods are intended to be installed on equipment in such a manner as to prevent or allow operation of the equipment only in a prearranged sequence. Supplier will not accept claims for any loss, injury (whether direct, special, indirect or otherwise) resulting from improper engineering, improper application, or circumvention of interlock schemes. Supplier will not accept responsibility for the accuracy of customer schemes, equipment layout, or the integrity of the installation of the Goods. In addition, Supplier is not responsible for the management of spare or duplicate keys. The accuracy of the Supplier key cylinder database is dependent upon ultimate user information supplied by each individual customer at the time the order is placed. Inaccurate jobsite names and addresses, changes in ownership of facilities containing KIRK® key interlocks and interlock systems and other applicable Goods, and the availability of used equipment with KIRK® key interlocks and other applicable Goods already installed can cause duplication of lock cylinders at a given location. Therefore, Supplier will not accept responsibility for the occurrence of duplicate key cylinders.
  1. INTELLECTUAL PROPERTY
    • This is not a work-for-hire agreement. The copyright and all other Intellectual Property Rights in all deliverables created hereunder for Customer shall belong to the Supplier. All Intellectual Property Rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented or reduced to practice in the performance of the Services are and shall remain the sole and absolute property of Supplier, subject to a worldwide, non-exclusive license to Customer for its internal use only. This Agreement does not grant Customer any license to any of the Supplier’s products, which products must be separately licensed or purchased.
    • Nothing in the Contract will operate to transfer to the Customer or to grant to the Customer any license or other right to use any of the Supplier’s Intellectual Property Rights, except that the Customer may use the Supplier’s Intellectual Property Rights in the Goods and Services solely to the extent necessary to use the Goods and Services for the purpose for which they were supplied.
  2. CUSTOMER OBLIGATIONS
    • The Customer will:
      • provide the Supplier with all such information and assistance as the Supplier may reasonably require from time to time to perform its obligations or to exercise any of its rights under the Contract;
      • notify the Supplier within 24 hours of:
        • any discussions, negotiations or proposals with or to any one or more of the Customer’s creditors in relation to any composition, compromise, arrangement or scheme of arrangement of debt or debts owed to any such creditor; or
        • any discussions, negotiations or proposals with any person in relation to the insolvency of the Customer;
      • not re-package the Goods or remove or alter any trademarks, patent numbers, serial numbers or other identifying marks on the Goods or their packaging or add any other trademarks, patent numbers, serial numbers or other identifying marks to the Goods or their packaging;
      • not alter or modify the Goods in any way; and
      • comply with the Supplier’s instructions in connection with any product recall initiated by the Supplier involving the Goods (or any of them).
    • Notwithstanding any other term of the Contract, the Supplier will not be in breach of the Contract to the extent its failure to perform or delay or defect in performance of its obligations under the Contract arises as a result of:
      • any breach by the Customer of its obligations contained in the Contract;
      • the Supplier relying on any incomplete or inaccurate data provided by a third party; or
      • the Supplier complying with any instruction or request by the Customer or one of its employees.
  1. TERMINATION
    • If a party:
      • commits a material breach of the Contract which cannot be remedied; or
      • Customer fails to make any payment within 3 days of when due hereunder
      • commits a material breach of the Contract (other than as set forth in 13.1.2) which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied being given by the other party,

the other party may terminate the Contract immediately by giving written notice to that effect to the party in breach provided that the notice to terminate is given within 1 month from the date of the material breach occurring or the terminating party becoming aware of it, whichever is the later.

  • A material breach can be remedied if the party in breach can comply with the relevant obligation in all respects other than as to time of performance unless time of performance of such obligation is of the essence.
  • Condition 1 will not apply to any failure by the Customer to make any payment due to the Supplier under the Contract on or before the due date. Condition 13.4 will apply instead to any such failure.
  • If the Customer fails to make any payment due under the Contract on or before the due date, the Supplier may terminate the Contract by giving not less than 30 days’ written notice to that effect to the Customer provided the Supplier has given to the Customer written notice of the failure to make payment and the Customer has still failed to make payment within 7 days of that written notice.
  • Either party may terminate the Contract immediately by giving written notice to that effect to the other party if the other party becomes Insolvent.
  • The Supplier may terminate the Contract immediately by giving written notice to the Customer if: (i) the Supplier has reasonable cause to believe that the continued performance of the Contract is or would be in breach of any Applicable Law relating to sanctions or exports imposed or re-imposed by a relevant body; or (ii) the Supplier has reasonable cause to believe that the Customer has breached or is likely to breach Condition 5.
  • Following expiration or termination of the Contract:
    • Conditions 1, 4, 6, 7, 8, 10, 13.7, 13.8, 15, 20, 21 and 22 will continue in force, together with any other Conditions which expressly or impliedly continue to have effect after expiration or termination of the Contract; and
    • all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiration or termination.
  • Within 30 days after the date of expiration or termination of the Contract, on request by the other party, each party will return to the other party or destroy the other party’s Confidential Information.
  1. FORCE MAJEURE
    • The Supplier will not be in breach of the Contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under the Contract to the extent that such failure or delay is due to a Force Majeure Event.
    • If a Force Majeure Event occurs the Supplier will as soon as reasonably practicable after becoming aware of the Force Majeure Event give written notice to the Customer that the Force Majeure Event has occurred; and
    • Subject to Condition 4, the Customer will not be in breach of the Contract or otherwise liable to the Supplier for any failure to perform or delay in performing its obligations under the Contract to the extent that this is due to a Force Majeure Event affecting the Supplier.
    • If the Supplier is affected by a Force Majeure Event the Customer will continue to pay the Supplier’s invoices in accordance with Condition 6 in respect of any Goods and Services which the Supplier continues to supply notwithstanding the occurrence of the Force Majeure Event.
    • If a Force Majeure Event which gives rise to relief from liability under Condition 1 continues for a period of more than 60 days, either party will be entitled to terminate the Contract immediately by giving written notice to that effect to the other party.
  2. CONFIDENTIALITY
    • Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the Group to which the other party belongs (“Confidential Information”) except as permitted by Condition 2.
    • Each party may disclose the other party’s Confidential Information:
      • to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this Condition 15; and
      • as may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority.
    • Neither 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.
  3. DATA PROTECTION
    • Each party will comply with the Data Protection Laws applicable to it.
    • In the event that the supply of Goods and/or Services requires the Supplier to process personal data on the Customer’s behalf as data processor, this will be set out in the Order, the Data Processing Agreement will be applicable to the Contract, and the parties will comply with the Data Processing Agreement.
  4. ANTI-SLAVERY
    • Both parties will comply with all applicable Anti-Slavery Laws.
  5. ANTI-CORRUPTION; ECONOMIC SANCTION
    • Customer will comply with all Applicable Laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including, but not limited to (collectively “Anti-Corruption Laws”):
      • local and national laws in the territories in which it operates;
      • the UK Bribery Act 2010;
      • the US Foreign Corrupt Practices Act of 1977; and
      • the UN Convention Against Corruption;

Customer shall ensure that the Goods and/or Services will not be received, imported, exported, re-exported, transferred, sold or used except in compliance with all Anti-Corruption Laws.

  • Customer will comply with all Applicable Laws, regulations, codes and sanctions relating to import, export control and sanctions, including, but not limited to, all Applicable Laws administered by Office of Foreign Assets Control of the US Treasury Department (“OFAC”) and other similar Applicable Laws of the United States and any other applicable jurisdiction (collectively “Economic Sanctions Laws”). Customer shall not (i) directly or indirectly export, reexport, transship, or otherwise deliver the Goods or any portion of the Goods to any person or country designated in such Economic Sanctions Laws as an embargoed or sanctioned target, or (ii) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
  • Without limiting its other obligations under the Conditions, Customer will:
    • comply with Supplier’s Group’s code of conduct relating to bribery and corruption which may be found on Supplier Group’s website (www.halma.com);
    • have in place its own policies and procedures to ensure compliance with this Condition 18;
    • ensure that all parties with which it is associated or who are providing goods or services in connection with this Agreement (including subcontractors, agents, consultants and other intermediaries) are aware of and comply with the requirements of this Condition 18;
    • conduct proper and adequate checks and screening on any parties with which it is associated or who are providing goods or services in connection with the Products and/or Services (including subcontractors, agents, consultants and other intermediaries) to ensure compliance with this Condition 18.
    • maintain complete and accurate records of all transactions and payments related to the Products and/or Services and, on reasonable request, disclose details of those transactions and payments to Supplier;
    • on reasonable request confirm in writing to Supplier that it has complied with the requirements of this Condition 18 and, if so requested, allow Supplier to verify this compliance by way of an audit of its records;
    • immediately inform Supplier if it suspects or becomes aware of any breach of Condition 18 by one of its employees, subcontractors, agents, consultants or other intermediaries and provide detailed information to Supplier about the breach;
  • Customer hereby indemnifies and holds Supplier harmless from any liability, claims, demands or expenses (including, without limitation, legal or other professional fees) arising from or relating to noncompliance with the provisions of this Condition 18 by Customer.
  • If Customer breaches Condition 18, Supplier will have the right to terminate all Orders and Contracts with immediate effect on serving written notice to Customer and Supplier will have no Liability to Customer in respect of such termination for payment of damages or any other form of compensation.
  1. ASSIGNMENT AND SUB-CONTRACTING
    • The Supplier will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Contract.
    • The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract without the Supplier’s prior written consent.
    • The Supplier will be entitled to sub-contract any of its obligations under the Contract.
    • The Customer will not be entitled to sub-contract any of its obligations under the Contract without the Supplier’s prior written consent.
  2. NOTICE
    • Any notice given under or in connection with the Contract will be in the English language and:
      • sent to the relevant party’s address by pre-paid certified or registered United States mail, or other reliable express delivery service providing guaranteed next Business Day delivery and proof of delivery; or
      • hand delivered to the relevant party at the relevant party’s address (but not by one of the methods set out in Condition 1.1); or
      • sent by e-mail to that party’s e-mail address with delivery receipt.
    • Any notice given in accordance with Condition 1 will be deemed to have been served if given:
      • by pre-paid certified or registered United States mail, or other reliable express delivery service as set out in Condition 1.1, or by hand delivery as set out in Condition 20.1.2, on the date of receipt by the addressee (or, if the date of receipt is not a Business Day, on the first Business Day after the date of receipt), as evidenced by (A) a receipt executed by the addressee (or a responsible person in Executive’s office), the records of the person delivering such communication or a notice to the effect that such addressee refused to claim or accept such communication
      • as set out in Condition 1.3, the date of the email delivery time-stamp (or, if the date is not a Business Day, on the first Business Day thereafter).
  1. GENERAL
    • The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
      • neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person and whether made to the first party or any other person) which is not expressly set out in the Contract;
      • the only remedies available for any misrepresentation or breach of any representation or statement which was made prior to entry into the Contract and which is expressly set out in the Contract will be for breach of contract; and
    • A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
    • If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
    • No variation or amendment to the Contract will be effective unless it is in writing and signed by a duly authorized representative on behalf of the Supplier.
    • Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
    • Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
    • The Supplier’s rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
  2. GOVERNING LAW AND JURISDICTION
    • The Contract is made under, and for all purposes shall be construed and enforced in accordance with and governed by, the laws of the State of Ohio.
    • All actions arising hereunder shall be instituted in Hamilton County, Ohio. Customer hereby consents to the jurisdiction of the state and federal courts sitting in Hamilton County.
    • Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.
  3. DEFINITIONS
    • The following words and expressions have the following meanings in our terms and conditions unless the context requires otherwise:
“Anti-Slavery Laws” any and all laws including statutes, statutory instruments, bye-laws, orders, regulations, directives, treaties, decrees, decisions (as referred to in Article 288 of the Treaty on the Functioning of the European Union) (including any judgment,  order or decision of any court, regulator or tribunal) anywhere in the world which relate to anti-slavery or servitude, anti-forced or compulsory labor and/or anti-human trafficking, including the Modern Slavery Act 2015
“Applicable Law” any: (a) law including any statute, statutory instrument, bye‑law, order, ordinance, regulation, directive, treaty, decree of any governmental, statutory or regulatory body, whether local, state, federal or otherwise; (b) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body, whether local, state, federal or otherwise; and/or (c) legally binding industry code of conduct or guideline, in each case in force from time to time which relates to the Contract and/or the Goods and/or the Services
Business Day” a day that is not a Saturday, Sunday or public or bank holiday in New York, New York.
“Charges” the charges for the Services set out in the Supplier’s quotation as those charges may be varied from time to time in accordance with Condition 7.4
Conditions” our standard terms and conditions of supply, as varied from time to time in accordance with Condition 21.4
“Contract” the contract between the Supplier and the Customer for the supply of the Goods and Services formed in accordance with Condition 2
“Customer” the person named as the customer in the Order
“Data Processing Agreement” the Supplier’s then-current data processing agreement.
“Data Protection laws” means all Applicable Laws relating to data protection and privacy in force from time to time in those parts of the world in which Supplier or Customer operate and/or process personal data (either directly or via a third party), including, but not limited to, the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the GDPR and the Data Protection Act 2018.
“Delivery” the time at which delivery or making available (if that is the case depending of the method of delivery/Incoterm used) of the Goods is deemed to occur in accordance with Condition 4.1
“Expenses” those travel, accommodation and subsistence expenses incurred by the Supplier from time to time in performing the Services
“Force Majeure Event” (a) act of God; (b) war, insurrection, riot, civil commotion, act or threat of terrorism; (c) lightning, earthquake, fire, flood, storm, or extreme weather condition; (d) theft, malicious damage; (e) strike, lockout, industrial dispute (whether affecting the workforce of a party and/or any other person); (f) breakdown or failure of plant or machinery; (g) inability to obtain essential supplies or materials; (h) change in Applicable Law; (i) any failure or default of a supplier or sub-contractor of the Supplier; or (j) any event or circumstance to the extent it is beyond the reasonable control of the Supplier
“Goods” the goods set out in the Order
“Group” in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a “Group” is a “member of the Group”
“Insolvent” a party is insolvent upon the occurrence of any of the following with respect to such party: (a) commencement a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect (b) the filing of a petition initiating an involuntary case under any such bankruptcy, insolvency or similar law, (c) the appointment of a receiver, administrator, trustee, or provisional liquidator; (d) a notice of intention to appoint an administrator, receiver, trustee, or provisional liquidator; (e) passes a resolution for its winding-up; (f) has a winding up order made by a court in respect of it; (g) the making of any general assignment for the benefit of creditors; (h) ceases to carry on business; (i) the failure generally to pay its debts as such debts become due (j) has any steps or actions taken in connection with any of these procedures; or (k) is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction
“Intellectual Property Rights” all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know-how, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions
“Liability” liability arising out of or in connection with the Contract, whether in contract, tort, misrepresentation, restitution, under statute or otherwise, including any liability under an indemnity contained in the Contract and/or arising from a breach of, or a failure to perform or defect or delay in performance of, any of a party’s obligations under the Contract and/or any defect in any of the Goods, in each case howsoever caused including if caused by negligence or if caused by a deliberate and/or repudiatory breach by that party
“Order” the Customer’s order for the supply of goods and services by the Supplier
“Order Acknowledgement” the Supplier’s written acceptance of the Order
“Prices” the prices for the Goods set out in the Supplier’s quotation as those prices may be varied from time to time in accordance with Condition 7.4
“Services” the services set out in the Order
“Specification” the written technical specification for the Goods
“Supplier” Kirk Key Interlock Company, LLC, an Ohio limited liability company