1. INTERPRETATION

1.1  In these conditions the following words have the following meaning:

1.2 References in these conditions to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted, replaced or interpreted.

1.3 References in these conditions to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

1.4 The headings in these conditions are for convenience only and shall not affect their interpretation.

1.5 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. APPLICATION OF TERMS

2.1 These conditions shall apply to and be incorporated into all quotations, offers, orders, acceptances, and Contracts for the sale of any Goods and/or the supply of any Services by Newson Gale and shall prevail over any other term of the Contract unless otherwise agreed by Newson Gale in writing. All terms and conditions of the Buyer are excluded.

2.2 No order placed by the Buyer for Goods and/or Services shall be deemed to be accepted by Newson Gale until Newson Gale confirms its written acceptance via a formal order acknowledgement or (if earlier) Newson Gale delivers the Goods (as per condition 4.1) and/or commences the provision of the Services (whichever is earlier) to the Buyer at which point the Contract shall come into existence.

2.3 Any quotation for the Goods and/or Services is given on the basis that no Contract will come into existence until Newson Gale confirms its written acceptance via a formal order acknowledgement to the Buyer, delivers the Goods and/or commences the provision of the Services pursuant to condition 2.2. Subject to condition 2.2, any quotation for the Goods is valid for a period of 30 days only from its date, unless stated otherwise on the quotation, provided that Newson Gale has not previously withdrawn it.

2.4 The Buyer shall comply with Newson Gale’s due diligence process and promptly provide any information requested by Newson Gale to enable Newson Gale to complete its due diligence process and to undertake security and/or clearance checks of the Buyer.

2.5 The Contract constitutes the entire agreement between Newson Gale and the Buyer in relation to its subject matter. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Newson Gale which is not set out in the Contract.

3. DESCRIPTION

3.1 The description and any specification of the Goods shall be as set out in Newson Gale’s quotation. Newson Gale shall endeavour to keep its hard copy published technical specification sheets and published catalogues up-to-date but Newson Gale shall have no liability for any failure of Goods to conform to any specification other than that available at the time at which the Buyer’s order is accepted in accordance with condition 2.2.

3.2 Subject to condition 3.1, all drawings, descriptive matter, samples, specifications, and advertising issued by Newson Gale and any descriptions or illustrations contained in Newson Gale’s websites, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract and shall not be binding on Newson Gale.

3.3 Newson Gale reserves the right at any time prior to completion of delivery to amend the description of the Goods and/or Services if required by any applicable statutory or regulatory requirements and shall notify the Buyer in writing (which includes email) in any such event.

4. DELIVERY OF GOODS

4.1 Unless otherwise agreed in writing all Goods shall be supplied by Newson Gale on a Carriage Paid To basis (CPT consignee address according to Incoterms 2020). Under these terms delivery of the Goods shall be completed upon the Goods being loaded onto transport at Newson Gale’s place of business as notified to the Buyer from time to time (in each case, the “Delivery Point”). In the case of the Buyer wishing to delay the date of despatch as planned by Newson Gale as CPT terms according to Incoterms 2020, then such a hold should be released by the Buyer within 10 business days of the Goods being ready for delivery.

4.2 Any dates specified by Newson Gale, including the dates for the Goods being made available at the Delivery Point, are an estimate only and the time for delivery is not of the essence. If no dates are specified, delivery will be within a reasonable time.

4.3 Subject to condition 12.3, Newson Gale will not be liable for any direct, indirect or consequential loss (all three of which terms include loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by Newson Gale’s negligence).

4.4 If for any reason the Buyer will not take delivery of, or allow the despatch of, the Goods within the periods specified in conditions 4.1 and 4.2 (as applicable):

(a) risk in the Goods will pass to the Buyer;

(b) delivery of the Goods shall be deemed to have been completed;

(c) Newson Gale may store the Goods until actual delivery takes place, and charge the Buyer for all related costs and expenses (including costs of insurance); and

(d) the purchase price will become due, as will storage and insurance charges. Details of the storage and insurance charges can be found by emailing info-nguk-customers@hoerbiger.com.

4.5 If 20 business days after the day on which the Buyer failed to take delivery of, allow despatch, or arrange the collection (as applicable) of the Goods within the period specified in condition 4.1, Newson Gale may at its option resell or otherwise dispose of part or all of the Goods.

4.6 The Buyer will provide, at its expense, at the Delivery Point, adequate and appropriate equipment and manual labour for loading and off-loading the Goods, which shall remain at all times the responsibility of the Buyer.

4.7 Newson Gale may deliver or make available the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

4.8 For the avoidance of doubt, Newson Gale shall not be liable for any loss or damage to the Goods, howsoever arising, after completion of delivery.

5. NON-DELIVERY AND RETURNS

5.1 The quantity of any consignment of Goods as recorded by Newson Gale upon despatch from the Delivery Point shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.

5.2 The Buyer shall notify Newson Gale of any non-delivery of Goods within 10 business days of the date of Newson Gale’s tax invoice (but not for the avoidance of doubt any Newson Gale proforma invoice). Any liability of Newson Gale for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against the price for such Goods. Newson Gale shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an event of force majeure as set out in condition 14 or the Buyer’s failure to provide Newson Gale with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.3 Any Goods returned to Newson Gale for whatever reason must be covered by a Goods Returned Authorisation (GRA) Number. Goods returned without an accompanying GRA Number may be rejected. A GRA Number can be obtained by contacting Newson Gale at info-nguk-customers@hoerbiger.com and providing information about the reasons for the return.

5.4 In the case of Goods returned to Newson Gale for any reason other than any quality defect which is the subject of a successful warranty claim in accordance with condition 11, a 20% restocking charge based on the original net invoice price of the Goods concerned will apply and in the event that the Goods, once returned to Newson Gale have, in Newson Gale’s sole opinion, been altered or damaged in any way, Newson Gale’s costs of bringing such Goods back to a saleable condition or, at Newson Gale’s sole option, of replacing such Goods shall also be charged to the Buyer.

6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Buyer at the Delivery Point.

6.2 Title to the Goods shall not pass to the Buyer until the earlier of:

(a) Newson Gale receives payment in full (in cash or cleared funds) for all sums due to it in respect of the Goods, in which case title to the Goods shall pass to the Buyer at the time of payment; and
(b) the Buyer resells the Goods, in which case title to the Goods shall pass to the Buyer at the time specified in condition 6.4.

6.3 Until title to the Goods has passed to the Buyer, the Buyer must:

(a) hold the Goods on a fiduciary basis as Newson Gale’s bailee;

(b) store the Goods (at no cost to Newson Gale) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Newson Gale’s property;

(c) not remove, destroy, deface, or obscure any identifying mark or packaging on or relating to the Goods;

(d) maintain the Goods in satisfactory condition; and

(e) keep the Goods insured against all risks for their full price from the date of completion of delivery.

6.4 Subject to condition 6.6, the Buyer may resell or use in the ordinary course of its business (but not otherwise) the Goods before Newson Gale receives payment for the Goods. However, if the Buyer resells the Goods before that time:

(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value;

(b) it does so as principal and not as Newson Gale’s agent; and

(c) title to the Goods shall pass from Newson Gale to the Buyer immediately before the time at which resale by the Buyer occurs.

6.5 Newson Gale shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from Newson Gale.

6.6 At any time before title to the Goods passes to the Buyer, if the Buyer encumbers or in any way charges any of the Goods or the Buyer becomes subject to any of the events listed in condition 10.2, or Newson Gale reasonably believes that any such event is about to happen, then, Newson Gale may:

(a) by notice in writing, terminate the Buyer’s rights to resell the Goods or use them in the ordinary course of its business; and

(b) require the Buyer to deliver all Goods in its possession that have not been resold or irrevocable incorporated into another product to Newson Gale, and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.

7. NEWSON GALE’S OBLIGATIONS

7.1 Newson Gale shall:

(a) use reasonable endeavours to provide the Services to the Buyer in accordance with this Contract in all material respects;

(b) use reasonable endeavours to meet any performance dates specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services;

(c) observe all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Buyer’s premises from time to time and that have been communicated to it under condition 8.1; and

(d) comply with all applicable laws, statutes, regulations and codes in force at the date of the Contract.

7.2 Newson Gale reserve the right to amend the Services if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Newson Gale shall notify the Buyer in any such event.

7.3 Newson Gale warrants to the Buyer that the Services will be provided using reasonable care and skill.

8. BUYER’S OBLIGATIONS

8.1 The Buyer shall:

(a) co-operate with Newson Gale in all matters relating to the Services;

(b) ensure that the Buyer’s manager has authority to bind the Buyer on all matters relating to the Services;

(c) provide Newson Gale, its employees, agents, consultants and subcontractors, with access to the Buyer’s premises and data and other facilities as reasonably requested by Newson Gale;

(d) provide to Newson Gale all documents, information, items and materials as Newson Gale may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(e) inform Newson Gale of all health and safety and security requirements that apply at any of the Buyer’s premises which Newson Gale will require access to;

(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

(g) comply with all relevant licences, consents and legislation as required to enable Newson Gale to provide the Services insofar as such licences, consents and legislation relate to the Buyer’s business, premises, staff and equipment, in all cases before the date on which the Services are to start; and

(h) keep, maintain and ensure the Newson Gale Equipment is in good condition and shall not dispose of or use the Newson Gale Equipment other than in accordance with Newson Gale’s written instructions or authorisation.

8.2 If Newson Gale’s performance of its obligations under this Contract is prevented or delayed by any act or omission of the Buyer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, Newson Gale shall be allowed an extension of time to perform its obligations equal to the delay caused by the Buyer.

9. PRICE AND PAYMENT

9.1 The price for the Goods and/or Services shall be the price set out in the Contract unless otherwise agreed by Newson Gale in writing. If no price is set out in the Contract, the price shall be as set out in Newson Gale’s published price list in force as at the date of completion of delivery of the Goods (as per condition 4.1) and the date of completion of the Services (as applicable).

9.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to carriage and insurance (if carriage is required) all of which amounts the Buyer will pay in addition when it is due to pay for the Goods. Where the value of any Goods ordered is less than Newson Gale’s minimum order value from time to time, Newson Gale may charge a small order handling price, such small order handling price shall be set out in Newson Gale’s acknowledgment of order.

9.3 Payment of the price and all other costs or charges for the Goods and/or Services is due prior to the date of completion of delivery (as per condition 4.1) for Goods and completion of the Services (as applicable) in cleared funds, unless agreed otherwise in writing. Time for payment shall be of the essence.

9.4 Payment shall be in the currency stated on the order acknowledgment form and shall be made by such method as is determined by Newson Gale.

9.5 Any offer of extended payment terms or credit to any Buyer and the continuation of such credit terms shall be at the sole discretion of Newson Gale.

9.6 On termination of the Contract for any reason the Buyer shall immediately pay to Newson Gale all of Newson Gale’s outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has been submitted, Newson Gale shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

9.7 All amounts due by the Buyer under the Contract shall be paid in full without any deduction, set-off, counterclaim, discount, abatement or withholding (other than any deduction or withholding of tax as required by law). Newson Gale may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by Newson Gale to the Buyer.

9.8 If the Buyer fails to pay Newson Gale any sum due under the Contract, interest shall be charged on the sums outstanding at the rate of 4% above the base rate of the Bank of England from time to time, such interest to accrue on a daily basis until payment is made.

9.9 In the event of non-payment, Newson Gale reserves the right to recover the Goods from the Buyer’s premises and the Buyer hereby grants Newson Gale permission to enter the Buyer’s premises for that purpose.

9.9. Newson Gale shall be entitled to charge the Buyer for any expenses reasonably incurred by the individuals whom Newson Gale engages in connection with the performance of the Services, including travel expenses, hotel costs, subsistence and any associated expenses, and for the cost of services by third parties and required by Newson Gale for the performance of the Services.

10. BUYER’S INSOLVENCY OR INCAPACITY

10.1 If the Buyer becomes subject to any of the events listed in condition 10.2, or Newson Gale reasonably believes that the Buyer is about to become subject to any of them, then, without limiting any other right or remedy available to Newson Gale, Newson Gale may cancel or suspend all further deliveries (of Goods and/or Services) under the Contract or under any other Contract between the Buyer and Newson Gale without incurring any liability to the Buyer, and all outstanding sums in respect of Goods and/or Services delivered to the Buyer shall become immediately due.

10.2 For the purposes of condition 10.1, the relevant events are:

(a) the Buyer’s inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;

(b) the Buyer 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 its creditors;

(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;

(d) (being an individual) the Buyer is the subject of a bankruptcy petition or order;

(e) a creditor or encumbrancer of the Buyer 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;

(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;

(g) (being a company) a floating charge holder over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;

(h) a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;

(i) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 10.2(a) to condition 10.2(h) (inclusive);

(j) the Buyer suspends, threatens to suspend, ceases, or threatens to cease to carry on all or substantially the whole of its business;

(k) the Buyer’s financial position deteriorates to such an extent that in Newson Gale’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and

(l) (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.

11. QUALITY
11.1 Subject to condition 11.8, Newson Gale warrants that, for a period of 12 months from the date of delivery for mechanical components and for a period of 84 months from the date of delivery for electronic components, or such other period stated otherwise by Newson Gale in writing, the Goods will:

(a) conform in material respects to their description;

(b) be in line with Newson Gale specifications for that part number; and

(c) be of a generally accepted quality for Goods of this type and market (within the meaning of the Sale of Goods Act 1979).

11.2 For the avoidance of doubt, Newson Gale does not give any technical advice or warrant any advice relating to the suitability of any Goods.

11.3 Newson Gale shall not be liable for any breach of any of the warranties set out in condition 11.1 unless:

(a) the Buyer gives written notice of the defect to Newson Gale, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and

(b) Newson Gale is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by Newson Gale) returns such Goods to Newson Gale’s place of business at Newson Gale’s cost for the examination to take place there.

11.4 Newson Gale shall not be liable for any breach of any of the warranties set out in condition 11.1 if:

(a) the Buyer makes any further use of such Goods after giving such notice pursuant to condition 11.3;

(b) the defect arises because the Buyer failed to follow good trade practice and (where in place) the instructions of Newson Gale as to the storage, installation, commissioning, use or maintenance of the Goods;

(c) the Buyer alters or repairs such Goods without the written consent of Newson Gale;

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

11.5 Subject to conditions 11.3 and 11.4, if any of the Goods do not conform with any of the warranties in condition 11.1, Newson Gale shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if Newson Gale so requests, the Buyer shall, at Newson Gale’s expense, return the Goods or the part of such Goods which is defective to Newson Gale.

11.6 Except as provided in condition 11.5, Newson Gale shall have no liability to the Buyer for a breach of any of the warranties in condition 11.1.

11.7 Where Newson Gale replaces Goods pursuant to condition 11.5, Goods returned by the Customer shall belong to Newson Gale and Newson Gale may use such returned Goods at its discretion. Any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the warranty period.

11.8 Insofar as the Goods comprises or contains equipment or components which were not manufactured or produced by Newson Gale, the Buyer shall be entitled only to such warranty or other benefit as Newson Gale has received from the relevant manufacturer.

12. LIMITATION OF LIABILITY

12.1 Subject to condition 11.5, the following provisions set out the entire liability of Newson Gale whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, (including any liability for the acts or omissions of its employees, agents, and sub-contractors) to the Buyer arising under or in connection with the Contract.

12.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.

No warranties or conditions are given in relation to any opinion or advice given by Newson Gale. The Buyer must satisfy itself as to the suitability of the Goods for any particular purpose.

12.3 Nothing in these conditions excludes or limits the liability of Newson Gale for death or personal injury caused by Newson Gale’s negligence, fraud, or fraudulent misrepresentation.

12.4 Subject to conditions 12.2 and 12.3:

(a) Newson Gale’s total liability whether in Contract, tort (including negligence), breach of statutory duty, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the price paid for the Goods and/or Services (as applicable) under the Contract; and

(b) Newson Gale shall not be liable to the Buyer whether in Contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss or damage (whether for loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.

12.5 Subject to condition 12.3, Newson Gale shall not be liable for the resale or export of Goods by the Buyer.

12.6 Unless the Buyer notifies Newson Gale that it intends to make a claim in respect of an event within the notice period, Newson Gale shall have no liability for that event. The notice period for an event shall start on the day on which the Buyer became, or ought reasonably to have become, aware of the event having occurred and shall expire three (3) months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

13. TERMINATION

13.1 Newson Gale may terminate this Contract immediately by providing notice in writing to Buyer, if the Buyer has, or Newson Gale suspects that the Buyer:

(a) has provided fraudulent or misleading information to Newson Gale;

(b) intends to resell, export or re-export the Goods to any individuals, entities or countries listed on the UN/EU denied persons list;

(c) intends to supply any Goods to potential military or nuclear applications unless approved by Newson Gale; or

(d) intends to use or supply the Goods for a purpose which is outside of their design and/or hazardous area certification.

13.2 Without limiting its other rights or remedies, Newson Gale may terminate this Contract with immediate effect by giving written notice to the Buyer if the Buyer commits a material breach of any term of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of the Buyer being notified in writing to do so.

13.3 Without limiting its other rights or remedies, Newson Gale may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.

13.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

13.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

14. FORCE MAJEURE
Newson Gale reserves the right to defer the date of delivery of the Goods and/or Services or to cancel the Contract or reduce the volume of the Goods and/or Services to be supplied to the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of Newson Gale including acts of God, interference by civil or military authorities, war or national emergency, armed conflict, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, collapse of building structure, storm, earthquake, loss at sea, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), failure of energy sources or transport network, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, or similar events, natural disasters or extreme adverse weather conditions, default of suppliers or subcontractors or inability or delay in obtaining supplies of adequate or suitable materials. If the period of delay or non-performance continues for a continuous period in excess of 180 days, the Buyer shall be entitled to give notice in writing to Newson Gale to terminate the Contract.

15. COMPLIANCE

15.1 The Buyer agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation the Sanctions, those of the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, His Majesty’s Treasury of the United Kingdom, the European Union, or the United Nations Security Council and the jurisdictions in which Newson Gale and the Buyer are established or from which items may be supplied, and the requirements of any licenses, authorisations, general licences or licence exceptions relating thereto will apply to its receipt and use of the Goods.

15.2 In no event shall the Buyer use, transfer, release, export, or re-export any such Goods in violation of the Sanctions or such applicable laws, regulations, orders or requirements or the requirements of any licences, authorisations or licence exceptions relating thereto.

15.3 The Buyer agrees that it shall not engage in any activity that would expose Newson Gale or any of its affiliates to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. The Buyer agrees to comply with all appropriate legal, ethical and compliance requirements. In the event of non-observance, Newson Gale reserves the right to suspend deliveries, terminate the Contract and to take any appropriate action against the Buyer.

15.4 In additions to those countries, entities and persons prohibited under international sanctions, Newson Gale does not offer Goods for end-users in, or final use in, or shipment to, additional countries and territories for compliance reasons. Please email info-nguk-compliance@hoerbiger.com for the latest list of countries that Newson Gale does not offer Goods for end-users in, or final use in, or shipment to.

15.5 The Buyer shall not:

(a) use the Goods (including the resale, export or re-export of the Goods) in contravention of any applicable law and/or the Sanctions;

(b) create or use a false identity or provide Newson Gale with false and misleading information as to the intended use of the Goods;

(c) use, supply or resell the Goods for any purposes prohibited by applicable export controls or sanctions including the design, manufacture or production of missiles, nuclear, chemical or biological weapons or for any other military or nuclear applications, unless the Buyer is adequately qualified and authorised to do so and such use as been approved in advance by Newson Gale in writing;

(d) install or use the Goods in any country subject to Sanctions; and

(e) install or use the Goods outside the agreed territories as stipulated by Newson Gale.

15.6 Any breach by the Buyer of this condition 15 shall, for the purposes of condition 13.2, constitute a material breach that is not capable of remedy.

16. COMMISSIONING, INSPECTION AND SERVICING

16.1 The Buyer agrees that commissioning/inspection/servicing will take place between the hours of 8am to 6pm Monday to Friday at a mutually convenient time to be agreed between the Buyer and Newson Gale. A minimum of 4 weeks’ notice is required.

16.2 The Buyer agrees that date for works to be carried out will be agreed within 6 months of receipt of Buyer’s purchase order. Newson Gale reserves the right to terminate, cancel or re-quote any order for any works exceeding this time.

16.3 The Buyer agrees that for commissioning/inspection/servicing offered within the UK mainland, that cancellation more than 4 weeks ahead of agreed date will incur a charge of 10% of the value of the Buyer’s purchase order. Cancellation between 2 and 4 weeks ahead of agreed date will incur a charge of 50% of the Buyer’s purchase order. Cancellation within 2 weeks will be charged in full.

16.4 The Buyer agrees that for commissioning/inspection/servicing offered outside of the UK mainland that cancellation more than 4 weeks before the agreed date will incur an administration charge of 25% of the value of the Buyer’s purchase order. Cancellation between 2 and 4 weeks ahead of agreed date will incur a charge of 50% of the value of the Buyer’s purchase order. Cancellation within 2 weeks will be charged in full. It should be noted that flights and other travel expense costs may be applied to cancelled commissioning/inspection/servicing charges.

16.5 Prior to Newson Gale attending site, the Buyer shall obtain work permits and isolation permits it is required to allow Newson Gale to supply the Services. The Buyer shall grant Newson Gale uninterrupted access to all the equipment that is to be examined (Newson Gale do not provide or include cost for specialist access equipment needed to access the equipment, if required this is to be provided by the Buyer/site). In the event of access restrictions to site, a delay charge will be made at the current Newson Gale hourly rate, details of which can be found by emailing info-nguk-customers@hoerbiger.com.

16.6 The value of the Contract is based on a single visit to site unless otherwise agreed with the Buyer. Should multiple visits to the site/s of installation be required and not previously agreed, further charges will be incurred to reflect multiple visits. If the equipment is not available, fully installed or correctly installed and further visits are required, this will be charged in addition to the agreed Contract cost.

16.7 The Buyer acknowledges that Newson Gale is not responsible for the installation of Goods.

16.8 Any pricing quoted covers testing and inspection only, and any required parts may be charged separately unless offered within the quotation supplied by Newson Gale.

17. INTELLECTUAL PROPERTY RIGHTS

17.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Buyer) shall be owned by Newson Gale.

17.2 Newson Gale grants to the Buyer, or shall procure the direct grant to the Buyer, a fully paid-up, worldwide, non-exclusive, royalty-free, irrevocable licence during the term of the Contract to copy and modify the deliverables (excluding materials provided by the Buyer) for the purpose of receiving and using the Services and the deliverables in its business.

17.3 The Buyer shall not sub-license, assign or otherwise transfer the rights granted in condition 17.2.

17.4 The Buyer grants Newson Gale a fully paid-up, non-exclusive, royalty-free, non-transferable licence to copy and modify any materials provided by the Buyer to Newson Gale for the term of the Contract for the purpose of providing the Services to the Buyer.

18. CONFIDENTIALITY

18.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party.

18.2 Each party may disclose the other party’s confidential information:

(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this condition 18.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

18.3. Neither party shall use any other party’s confidential information for any purpose other than to perform its obligations under the Contract.

19. GENERAL

19.1 The Contract (together with the documents referred to in it) constitutes the entire agreement between the parties.

19.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

19.3 Each right or remedy of Newson Gale under the Contract is without prejudice to any other right or remedy of Newson Gale whether under the Contract or not.

19.4 Failure or delay by Newson Gale in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. Any waiver by Newson Gale of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.

19.5 Newson Gale may at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Newson Gale.

19.6 The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

19.7 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 of the Contract is deemed deleted under this condition 19.7, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

19.8 The Contract, 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.