Terms & Conditions- BituChem Highway Solutions Ltd

AGREEMENT FOR THE SUPPLY OF GOODS

THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 8 (LIMITATION OF LIABILITY).

1.         INTERPRETATION

The following definitions and rules of interpretation apply in these Conditions.

1.1       Definitions:

BituChem: BituChem Highway Solutions Limited registered in England and Wales with company number 11759221.

BituChem Materials: has the meaning set out in clause 4.1.7.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Charges: the charges payable by the Customer for the supply of the Services in accordance with clause 5.

Commencement Date: has the meaning given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 11.5.

Contract: the contract between BituChem and the Customer for the supply of Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer: the person or firm who purchases Services from BituChem.

Customer Default: has the meaning set out in clause 4.2.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order: the Customer’s order for Services, as set out in BituChem’s purchase order form for the Customer, or BituChem’s quotation accepted by the Customer where no purchase order form is issued, or overleaf, as the case may be.

Services: the services supplied by BituChem to the Customer as set out in the Specification.

Specification: the description or specification of the Services provided by BituChem to the Customer.

1.2       Interpretation:

1.2.1 Unless expressly provided otherwise in this Contract, a reference to legislation or a legislative provision:

(a) is a reference to it as amended, extended or re-enacted from time to time; and

(b) shall include all subordinate legislation made from time to time under that legislation or legislative provision.

1.2.2 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.2.3       A reference to writing or written excludes fax but not email.

2.         BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2.2       The Order shall only be deemed to be accepted on the earlier of:

2.2.1 BituChem issuing written acceptance of the Order; or 2.2.2 any act by BituChem consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

2.3 Any samples, descriptive matter or advertising issued by BituChem, and any descriptions or illustrations contained on BituChem’s website, are published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.5 Any quotation given by BituChem shall not constitute an offer, and is only valid for a period of 12 months from its date of issue.

3.         SUPPLY OF SERVICES

3.1            BituChem shall supply the Services to the Customer in accordance with the

Specification in all material respects.

3.2 BituChem shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only (particularly as performance of the Services can be weather dependent) and time shall not be of the essence for performance of the Services.

3.3 BituChem reserves the right to amend the Specification 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 BituChem shall notify the Customer in any such event.

3.4 BituChem warrants to the Customer that the Services will be provided using reasonable care and skill.

4.         CUSTOMER’S OBLIGATIONS

4.1       The Customer shall:

4.1.1 ensure that the terms of the Order and any information it provides in the Specification are complete and accurate;

4.1.2       co-operate with BituChem in all matters relating to the Services;

4.1.3 provide BituChem, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, site accommodation and other facilities as reasonably required by BituChem;

4.1.4 provide BituChem with such information and materials as BituChem may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

4.1.5       prepare the Customer’s premises for the supply of the Services;

4.1.6 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; and

4.1.7 keep all materials, tools, machinery, equipment, documents and any other property of BituChem (BituChem Materials) at the Customer’s premises in safe custody at its own risk, maintain BituChem Materials in good condition until returned to BituChem, and not dispose of or use BituChem Materials other than in accordance with BituChem’s written instructions or authorisation.

4.2 If BituChem’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

4.2.1 without limiting or affecting any other right or remedy available to it, BituChem 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 BituChem’s performance of any of its obligations;

4.2.2       BituChem shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from BituChem’s failure or delay to perform any of its obligations as set out in this clause 4.2; and

4.2.3 the Customer shall reimburse BituChem on written demand for any costs or losses sustained or incurred by BituChem arising directly or indirectly from the Customer Default.

5.         CHARGES AND PAYMENT

5.1 The Charges for the Services shall be either calculated by BituChem on a time and materials basis or on an area and materials basis:

5.1.1    If the Charges for the Services are calculated on an area and materials basis, the Charges shall be calculated in accordance with BituChem’s fee rates per square metre, as set out in the Order;

5.1.2      If the Charges for the Services are calculated on a time and materials basis:

(a) the Charges shall be calculated in accordance with BituChem’s daily fee rates as set out in the Order;

(b) BituChem’s daily fee rates are calculated on the basis of the working hours worked on Business Days as set out in the Order; and

(c) BituChem shall be entitled to charge an overtime rate based on a percentage of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Services outside the hours referred to in clause 5.1.2(b). The overtime rate shall be set out in the Order.

5.2 BituChem reserves the right to increase the Charges on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index.

5.3 BituChem shall be entitled to raise interim invoices at any reasonable time in respect of work done on behalf of the Customer as well as raising a final invoice upon completion of the Services.

5.4The Customer shall pay each invoice submitted by BituChem:

5.4.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by BituChem and confirmed in writing to the Customer; and

5.4.2 in full and in cleared funds to a bank account nominated in writing by BituChem, and time for payment shall be of the essence of the Contract.

5.5 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by BituChem to the Customer, the Customer shall, on receipt of a valid VAT invoice from BituChem, pay to BituChem such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

5.6 If the Customer fails to make a payment due to BituChem under the Contract by the due date, then, without limiting BituChem’s remedies under clause 9, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 5.6 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

5.7 All amounts due under the Contract 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).

6.         INTELLECTUAL PROPERTY RIGHTS

6.1 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 Customer) shall be owned by BituChem.

6.2 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 6.1.

6.3 The Customer grants BituChem a fully paid-up, non-exclusive, royalty-free, nontransferable licence to copy and modify any materials provided by the Customer to BituChem for the term of the Contract for the purpose of providing the Services to the Customer.

7.         DATA PROTECTION

7.1         The following definitions shall apply in this clause 7:

7.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

7.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

7.1.3      Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

7.1.4      UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

7.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

7.3       The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and BituChem is the Processor. The Schedule sets out the scope, nature and purpose of processing by BituChem, the duration of the processing and the types of Personal Data and categories of Data Subject.

7.4 Without prejudice to the generality of clause 7.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to BituChem and/or lawful collection of the Personal Data by BituChem on behalf of the Customer for the duration and purposes of the Contract.

7.5 Without prejudice to the generality of clause 7.2, BituChem shall, in relation to any Personal Data processed in connection with the performance by BituChem of its obligations under the Contract:

7.5.1 process that Personal Data only on the documented written instructions of the Customer which are set out in the Schedule unless BituChem is required by Domestic Law to otherwise process that Personal Data. Where BituChem is relying on Domestic Law as the basis for processing Personal Data, BituChem shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits BituChem from so notifying the Customer;

7.5.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a

timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

7.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

7.5.4 not transfer any Personal Data outside of the UK unless the following conditions are fulfilled:

(a) the Customer or BituChem has provided appropriate safeguards in relation to the transfer;

(b) the Data Subject has enforceable rights and effective legal remedies;

(c) BituChem complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and

(d) BituChem complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;

7.5.5 assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

7.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;

7.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data; and

7.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 7.

7.6 The Customer acknowledges and agrees that any Personal Data contained in the Specification or Order may be processed by and on behalf of BituChem in connection with the Supply of the Services. In particular, the Customer consents to BituChem appointing the subcontractor engaged by BituChem to sweep the site of the Customer (if any) as a third-party processor of Personal Data under this Contract.

8. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

8.1 BituChem has obtained insurance cover in respect of certain aspects of its own legal liability for claims. The limits and exclusions in this clause reflect the insurance cover BituChem has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability

8.2 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.3 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

8.4 Nothing in this clause 8 shall limit the Customer’s payment obligations under the Contract.

8.5 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

8.5.1 death or personal injury caused by negligence;

8.5.2 fraud or fraudulent misrepresentation; and

8.5.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

8.6 Subject to clause 8.3 (No limitation in respect of deliberate default), and clause 8.5 (Liabilities which cannot legally be limited), BituChem’s total liability to the Customer shall not exceed the total price paid for the Services.

8.7 Subject to clause 8.3 (No limitation in respect of deliberate default), clause 8.4 (No limitation of customer’s payment obligations) and clause 8.5 (Liabilities which cannot legally be limited), this clause 8.7 sets out the types of loss that are wholly excluded:

8.7.1 loss of profits;

8.7.2 loss of sales or business;

8.7.3 loss of agreements or contracts;

8.7.4 loss of anticipated savings;

8.7.5 loss of use or corruption of software, data or information;

8.7.6 loss of or damage to goodwill; and

8.7.7 indirect or consequential loss.

8.8 BituChem has given commitments as to compliance of the Services with relevant specifications in clause 3. In view of these commitments, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

8.9 Unless the Customer notifies BituChem that it intends to make a claim in respect of an event within the notice period, BituChem shall have no liability for that event. The notice period for an event shall start on the day on which the Customer became, or ought reasonably to have become, aware of the event having occurred and shall expire 24 months from that date. The notice must be in writing and must identify the event and the grounds for the claim in reasonable detail.

8.10 This clause 8 shall survive termination of the Contract.

9.         TERMINATION

9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party two months’ written notice.

9.2 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

9.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;

9.2.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

9.2.3      the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

9.2.4 the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.3 Without affecting any other right or remedy available to it, BituChem may terminate the Contract with immediate effect by giving written notice to the Customer if:

9.3.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or

9.3.2      there is a change of Control of the Customer.

9.4 Without affecting any other right or remedy available to it, BituChem may suspend the supply of Services under the Contract or any other contract between the Customer and BituChem if:

9.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment;

9.4.2 the Customer becomes subject to any of the events listed in clause 9.2.3 or clause 9.2.4, or BituChem reasonably believes that the Customer is about to become subject to any of them; and

9.4.3      BituChem reasonably believes that the Customer is about to become subject to any of the events listed in clause 9.2.2.

10.       CONSEQUENCES OF TERMINATION

10.1     On termination of the Contract:

10.1.1 the Customer shall immediately pay to BituChem all of BituChem’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, BituChem shall submit an invoice, which shall be payable by the Customer immediately on receipt;

10.1.2 the Customer shall return all of BituChem Materials which have not been fully paid for. If the Customer fails to do so, then BituChem may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

10.2 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

10.3 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.

11.       GENERAL

11.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.

11.2     Assignment and other dealings.

11.2.1 BituChem may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

11.2.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of BituChem.

11.3     Confidentiality.

11.3.1 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, except as permitted by clause 11.3.2.

11.3.2     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 clause 11.3; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

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

11.4     Entire agreement.

11.4.1 The Contract constitutes the entire agreement between the parties and supersedes and      extinguishes    all        previous           agreements,    promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

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

11.4.3 Nothing in this clause shall limit or exclude any liability for fraud.

11.5 Variation Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

11.7 Severance If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity

and enforceability of the rest of this Contract. If any provision or part-provision of this Contract deleted under this clause 11.7 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.

11.8 Notices 

11.8.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(b) sent by email to the address specified in the Order (or an address substituted in writing by the party to be served).

11.8.2    Any notice or communication shall be deemed to have been received:

(a) if delivered by hand, at the time the notice is left at the proper address;

(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(c) if sent by email at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 11.8.2(c), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

11.8.3 This clause 11.8 does not apply to the service of any proceedings or other documents in any legal action or any other method of dispute resolution.

11.9     Third party rights.

11.9.1 Unless it expressly states otherwise, 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.

11.9.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

11.10 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the law of England and Wales.

11.11 Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Schedule         

Processing, Personal Data and Data Subjects

Description	Details
Identity of the Controller and the Processor	The Customer is the Data Controller and BituChem is the Data Processor for the purposes of Data Protection Legislation.
Scope of the processing	The processing is necessary to enable BituChem to effectively administer and deliver the Contract and provide Services to the Customer.
Duration         of         the processing	The Personal Data will be processed during the duration of the Contract unless BituChem are required by Domestic Law to store Personal Data.
Nature and purposes of the processing	BituChem will request Personal Data from the Customer to set up the administrative functions required to deliver the Services (e.g. invoicing and contacting Customers).   BituChem may transfer Personal Data of the Customer to the subcontractor it engages to sweep the road (if any) so that BituChem can administer the Services following the subcontractor’s work and to enable the subcontractor to contact the Customer directly.
Type of Personal Data being Processed	In relation to the Customer’s staff: names, contact details (address, email, telephone number) and job roles.
Categories     of      Data Subject	The Customer’s staff (including volunteers, agents and temporary workers of the Customer).
Plan for return or destruction of the data once the processing is complete	At the written direction of the Customer, BituChem will delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by Domestic Law to store the Personal Data.