Please find our official Terms & Conditions for the Sale of Goods and Services.
It is important that these are read, understood and accepted before proceeding.
On issuing an ASM sales order – the client acknowledges their approval.
ASM Technologies Limited
TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND/OR SERVICES
These Terms and Conditions apply to all Orders for the provision of Goods and/or Services that the Customer places with ASM Technologies Limited and sets out all the terms in relation to ASM supplying Goods and/or Services to the Customer. By signing these Conditions, agreeing a Quotation and/or allowing ASM to commence supply of the Goods and/or Services, the Customer acknowledges and agrees that it shall be bound by these Conditions.
- DEFINITIONS AND INTERPRETATION
ASM means ASM Technologies Limited, a company incorporated in England and Wales (registered number: 02753443);
Commencement Date means the commencement date of a Contract in accordance with Condition 3.3;
Conditions means the terms and conditions set out in this document;
Confidential Information has the meaning given in Condition 19;
Contract means any agreement between ASM and the Customer, for the provision of Goods and/or Services incorporating these Conditions and the relevant Quotation or Order Confirmation (as applicable);
Customer means the person to whom ASM is to provide the Goods and/or Services pursuant to a Contract;
Goods means the Goods which ASM is to supply to the Customer as detailed in the Quotation or Order Confirmation (as applicable) and as may be amended in accordance with Condition 11;
Intellectual Property Rights means patents, trade marks, service marks, registered designs, applications for any of those rights, trade and business names, unregistered trade marks and service marks, copyrights, know-how, rights in designs and inventions, rights in databases and any other rights of the same or similar effect or nature, in each case in any jurisdiction;
Order means the Customer’s order for the Goods and/or Services as set out on ASM’s standard purchase order form or if no order is issued, the Customer’s acceptance of the Quotation;
Order Confirmation means ASM’s written acceptance of the Customer’s Order, including the description of the Goods and/or Services to be provided by ASM, which shall comprise the final and agreed proposal or Quotation submitted by ASM, (if applicable);
Price has the meaning given in Condition 12.1;
Quotation means a quotation provided by ASM to the Customer setting out the Goods and/or Services requested by the Customer and the Price;
Services means the services which ASM is to supply to the Customer as detailed in the Quotation or Order Confirmation (as applicable) and as may be amended in accordance with Condition 11;
Software means the Software to be supplied by the Supplier to ASM as set out in the Quotation or Order Confirmation (as applicable), which shall for the purpose of these Conditions comprise either Goods and/or Services (as applicable);
Third Party Supplier(s) means any sub-contractors, consultants or other third parties engaged by ASM to provide the Goods and/or Services; and
VAT means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provisions of the Value Added Tax Act 1994.
- In these Conditions:
- headings are for identification and indexing purposes only and they shall not affect the construction or interpretation of these Conditions;
- words importing the singular meaning shall include the plural meaning and vice versa;
- references to a person shall include natural persons, corporate or unincorporated bodies (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns and references to a party shall mean either ASM or the Customer as the context requires and parties shall mean both of them; and
- the word including will be construed without limitation unless inconsistent with the context and working days are all days other than Saturdays, Sundays or English public holidays.
- These Conditions alone shall govern and be incorporated in every Contract for the provision of Goods and/or Services made by or on behalf of ASM. They shall apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Customer, in correspondence or elsewhere, or implied by trade custom, practice or course of dealing. If the parties enter into a separate Master Services Agreement in relation to the Services being provided under the Contract, in the event of any conflict between these Conditions and the terms of the Master Services Agreement, the terms of the Master Services Agreement shall prevail.
- Acceptance by the Customer of the provision of the Goods and/or Services shall be deemed to constitute unqualified acceptance of these Conditions.
- A variation of these Conditions is valid only if it is in writing and signed by a director or authorised representative of ASM.
- QUOTATIONS AND ACCEPTANCE
- A Quotation issued by ASM does not constitute an offer. ASM reserves the right to withdraw or revise a Quotation at any time prior to ASM’s acceptance of the Order. Unless expressly stated otherwise on the Quotation, any Quotation is valid for a period of thirty (30) days only from its date, provided that ASM or the Third Party Supplier has not previously revised or withdrawn it.
- Each Order or acceptance of a Quotation by the Customer shall be deemed to be an offer by the Customer to buy Goods and/or Services subject to these Conditions.
- ASM’s acceptance of the Customer’s Order shall be effective on the earlier of:
(a) ASM issuing the Order Confirmation, which may be issued by email; or
(b) any act by ASM consistent with fulfilling the Order,
at which point and on which date the Contract shall come into existence (Commencement Date)
- ASM reserves the right to reject an Order at any time, and for any reason, up until the Commencement Date. Confirmation of rejection of an Order will be sent to the Customer by email, along with the reason for the rejection.
- The Customer shall ensure that the terms of its Order and any applicable Quotation and/or Order Confirmation (as applicable) are complete and accurate.
- THIRD PARTY SUPPLIERS
- The Customer acknowledges and agrees that ASM shall use Third Party Supplier(s) to supply the Goods and/or Services to the Customer and that the Goods and/or Services being supplied to the Customer under a Contract are manufactured, supplied and/or provided by a third party independent of ASM.
- Any reference in these Conditions to ASM shall be construed as a reference to “ASM and/or the Third Party Supplier(s)”.
- From time to time the Customer may request that the Goods and/or Services are supplied by a particular person or sourced from a particular place, in which case ASM will use reasonable endeavours to procure the supply of the Goods and/or Services by that person or from that source, provided however that the Customer accepts full responsibility for the selection or suitability of such person, or source.
- The Customer also agrees to be bound by any terms and conditions of supply of the Third Party Supplier, which ASM specifically brings to the attention of the Customer.
- The quantity and description of the Goods and/or Services shall be as set out in the Quotation and/or Order Confirmation (as applicable).
- Any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by a director or authorised representative of ASM. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of ASM which is not set out in the Contract.
- All samples, drawings, designs, descriptive matter, specifications, particulars of weight and dimensions and advertising issued by ASM are issued to give an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract and this is not a sale by sample. ASM accepts no responsibility for any errors, omissions or other defects in any drawings, designs or specifications not prepared by ASM.
- It is the Customer’s sole responsibility to ensure that the Goods and/or Services are fit for its intended purpose.
- DELIVERY OF GOODS AND PROVISION OF SERVICES
- Delivery, despatch dates or start dates mentioned in any Quotation, Order Confirmation (if applicable) or elsewhere are approximate only and not of any contractual effect. ASM is not liable to the Customer for failure to deliver Goods or commence the Services on a particular date(s). Time for delivery or performance is not of the essence of a Contract and shall not be made so by service of any notice. If no delivery, despatch or start dates are specified, delivery of the Goods or commencement of the Services shall be within a reasonable time.
- Delivery of the Goods or performance of the Services shall be ex-works (Incoterms 2010) ASM’s premises unless otherwise specified on the Quotation or agreed by ASM in writing in advance.
- The Customer shall provide at the point of delivery and at its expense adequate and appropriate equipment and manual labour for loading or unloading the Goods (as applicable). The Customer is solely responsible for loading or unloading the Goods at the point of delivery. To avoid doubt, if the Customer is collecting the Goods from ASM’s premises or the Third Party Supplier’s premises (either itself or using a third party carrier), delivery shall take place when the Goods are made available by ASM or the Third Party Supplier for collection by the Customer or its nominated carrier. The Customer shall indemnify ASM against each loss, liability and cost arising as a result of ASM or its subcontractors assisting the Customer in the loading, unloading or other removal of the Goods from the point of delivery.
- The Services will be deemed to have completed upon the completion of the Services in accordance with the Quotation or Order Confirmation (as applicable), in each case as amended in accordance with Condition 11.
- If for any reason the Customer refuses or fails to take delivery of any of the Goods or allow access for the performance of the Services or fails to take any action necessary on its part for delivery of the Goods or performance of the Services, ASM is entitled to terminate the Contract with immediate effect, to dispose of any Goods or cancel the Services as ASM may determine and to recover from the Customer any loss or additional costs incurred as a result of such refusal or failure (including storage costs from the due date of delivery or wasted costs of the Third Party Supplier).
- ASM may effect delivery of the Goods in one or more instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract. Each instalment shall be treated as a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
- The Customer shall meet the cost of any special packaging or delivery requested by the Customer or any packaging rendered necessary by delivery by any means other than ASM’s normal means of delivery. Any such additional costs shall be as stated on the Quotation or agreed by the Customer in writing in advance. The Customer shall, unless otherwise agreed, be solely responsible for the disposal of all packaging in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.
- The Customer shall inspect and test the Goods and/or Services immediately upon receipt or completion and in any event prior to applying any process to, using, amending, treating or otherwise changing the Goods and must notify ASM of any problem within seven (7) days. In the event that the Customer fails to inspect and test the Goods and/or Services in accordance with this Condition 8 then, notwithstanding any other terms in these Conditions, ASM shall be under no liability to the Customer in respect of any defect whatsoever in the Goods and/or Services.
- The Goods are at the risk of the Customer from the time of delivery.
- Any property of the Customer in ASM’s possession or under its control and all property supplied to ASM by or on behalf of the Customer is held by ASM at the Customer’s risk.
- From the time of delivery until ownership of the Goods passes to the Customer in accordance with Condition 8, the Customer shall insure the Goods against all risks for their full value with a reputable insurance office to the reasonable satisfaction of ASM. Upon request, the Customer shall use reasonable endeavours to have ASM’s interest in the Goods noted on the insurance policy and shall produce the policy of insurance to ASM. The Customer shall hold the proceeds of any claim on the insurance policy on trust for ASM and shall immediately account to ASM with the proceeds. This is only a “reasonable endeavours” requirement. In circumstances in which it would be difficult for the Customer to meet this requirement, ASM could waive the requirement.
- Notwithstanding delivery and passing of risk, ownership of the Goods shall not pass to the Customer until ASM has received in full (in cash or cleared funds):
- the agreed price for the Goods (together with any accrued interest); and
- all other amounts owed by the Customer to ASM under any Contract.
- Until ownership of the Goods has passed to the Customer, the Customer is in possession of the Goods in a fiduciary capacity and shall:
- not part with possession of the Goods (otherwise than in accordance with Condition 5);
- keep the Goods free from any charge, lien or encumbrance and (where practicable and except where the Goods are to be integrated into another product by the Customer or where Condition 8.5 applies) store the Goods (at no cost to ASM) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as ASM’s property;
- (except where the Goods are to be integrated into another product by the Customer or where Condition 8.5 applies) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition;
- give ASM such information about the Goods as ASM may from time to time require; and
- notify ASM immediately upon the happening of any of the termination events set out in Condition 1.
- ASM reserves the right to repossess and resell any of the Goods to which it has retained title. ASM’s consent to the Customer’s possession of the Goods and any right the Customer may have to possession of the Goods shall in any event cease upon the happening of any of the events set out in Condition 1.
- The Customer grants to ASM, its agents and employees an irrevocable right and licence to enter the Customer’s premises with or without vehicles during normal business hours for the purpose of inspecting and/or repossessing Goods to which it has retained title. This right and licence shall continue to subsist notwithstanding the termination for any reason of a Contract and is without prejudice to any accrued rights of ASM under a Contract or otherwise.
- Whilst the Customer is in possession of the Goods with ASM’s consent (but not otherwise) the Customer may in the ordinary course of business sell the Goods before ownership of the Goods has passed to the Customer provided that:
- as between the Customer and its customer the Customer sells the Goods as principal and the Customer is not and shall not be empowered to commit ASM to any contractual relationship with or liability to the Customer’s customer or any other person;
- as between ASM and the Customer, the Customer sells the Goods in a fiduciary capacity as agent for ASM;
- the Customer holds such part of the proceeds of sale as represent the amount owed by the Customer to ASM on trust for ASM and does not mingle such proceeds with any other monies or pay them into an overdrawn bank account; and
- notwithstanding any agreed period of credit for payment of the Price of the Goods, the Customer shall pay such proceeds of sale to ASM forthwith upon receipt.
- Notwithstanding the provisions of this Condition 8, ASM may:
- bring an action against the Customer for the price of the Goods in the event of non-payment by the Customer by the due date even though ownership of the Goods has not passed to the Customer; and
- by notice to the Customer at any time after delivery pass ownership in the Goods to the Customer with effect from the date of the notice.
- On termination of a Contract for any reason, ASM’s rights contained in this Condition 8 shall remain in effect.
Where the supply of Goods and/or Services under a Contract comprises the supply of Software, ASM will procure the grant of a licence of such Software to the Customer from the Third Party Supplier (or its licensor) to use such Software (End User Licence Agreement or EULA), subject to the terms and conditions of the EULA as provided by the Third Party Supplier. ASM will either provide a copy of the EULA to the Customer or the Customer will be asked to accept the EULA when they install the Software.
- CUSTOMER’S OBLIGATIONS
- To enable ASM to perform its obligations under the Contract, the Customer shall:
- co-operate fully with ASM and provide ASM with any information that it reasonably requires;
- provide ASM and the Third Party Supplier with access to the Customer’s premises and equipment (including such facilities on its premises as are reasonably required by ASM and the Third Party Supplier) on ASM and/or the Third Party Supplier giving at least five (5) working days’ notice in advance, unless otherwise agreed;
- provide ASM and the Third Party Supplier with copies of any health and safety, security or other policies and procedures with which ASM and the Third Party Supplier are required to comply with whilst on the Customer’s premises;
- obtain all necessary licences, permissions and consents which may be required before commencement of the Goods and/or Services; and
- keep all documents, equipment, materials and other ASM property (including any loaned or rental kit and/or any other equipment not owned by, or being resold to, the Customer) at the Customer’s premises safely and at its own risk and in the same condition as they were in when supplied and not dispose of or use any of the same without ASM’s prior written agreement.
- If ASM’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer (including any breach of its obligations under this Condition 10) ASM shall not be liable for any costs, charges or losses sustained or incurred by the Customer arising directly or indirectly from such prevention or delay.
- CHANGES TO THE GOODS AND/OR SERVICES
- During the provision of the Goods and/or Services, ASM may recommend and/or the Customer may request changes or additions to the Goods and/or Services. In these circumstances, any changes or additions to the Goods and/or Services will be agreed in writing between the parties, such agreement not to be unreasonably withheld or delayed.
- ASM shall advise the Customer of any change to the Price and the timescale for the provision of the Goods and/or Services that apply to such changed or additional Goods and/or Services, and any other terms and conditions particular to the provision of such changed or additional Goods and/or Services. If these are agreed, the additional Goods and/or Services shall be deemed to be included in the definition of Goods and/or Services and provided in all other respects on these Conditions.
- ASM may make or allow the Third Party Supplier to make any changes to the Goods and/or Services: (i) needed to comply with applicable law or safety requirements; or (ii) which do not materially affect the nature or quality of the Goods and/or Services; and will (if practicable) notify the Customer in advance of such changes.
- The price for the provision of Goods and/or Services shall be the price set out in the Quotation or Order Confirmation (as applicable) and shall be subject to adjustment in accordance with Condition 11 (the Price). The Price for Goods shall reflect the landed cost of the Goods into ASM, including any inbound duty and shipping costs (Landed Costs)
- At any time prior to the provision of the Goods and/or Services, the Price may be revised to take account of inflation, increases in costs including costs of any goods, materials, carriage, labour or overheads and the increase or imposition of any tax, duty or other levy, or other charge by the Third Party Supplier.
- Unless otherwise specified, VAT and any other tax, duty or levy shall be payable by the Customer in addition to the Price.
- The Customer shall be liable for the travel, accommodation, sustenance and other reasonable expenses of the Third Party Supplier in the provision of Services as set out in the Quotation or Order Confirmation (as applicable).
- TERMS OF PAYMENT
- ASM shall be entitled to invoice the Customer for all amounts due under the Contract on or at any time after supply of the Goods and/or Services or at such intervals as set out in the Quotation or Order Confirmation (as applicable).
- Payment of the Price for the Goods and/or Services and reimbursement of expenses shall be made in pounds sterling in full within thirty (30) days of the date of ASM’s invoice or as otherwise set out in the Quotation or Order Confirmation (as applicable). Time of payment is of the essence of a Contract.
- No payment shall be deemed to have been received until ASM has received cleared funds.
- The Customer shall make all payments due under a Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by ASM to the Customer.
- ASM is entitled to offset any amount owing to it from the Customer against any amount owed to the Customer by ASM, under any Contract.
- All payments payable to ASM under a Contract shall become due immediately on its termination despite any other provision.
- In the event that the Customer fails to pay any amount due to ASM under the Contract by the due date for payment ASM reserves the right to:
- suspend provision of the Goods and/or Services to the Customer; and/or
- to claim interest at the rate of five per cent. (5%) above the base lending rate from time to time of The Bank of England accruing on a daily basis to run from the due date for payment until receipt by ASM of the full amount (including any accrued interest) whether before or after any judgment.
- Any extension of credit allowed to the Customer may be changed or withdrawn at any time.
- If, in the opinion of ASM, the credit-worthiness of the Customer deteriorates before the provision of the Goods and/or Services, ASM may require full or partial payment of the Price prior to delivery of the Goods or commencement of the Services or the provision of security for payment by the Customer in a form acceptable to ASM.
- CANCELLATION, DELAYS AND RETURNS
- Once the Customer’s order has been accepted in accordance with Condition 3.3, the Customer may only seek to cancel, delay or reschedule the Order in ASM’s total discretion and subject to payment by the Customer of any reasonable administration of ASM and the Customer indemnifying ASM from and against all losses, costs, damages, expenses arising out of such cancellation, delay or rescheduling.
- Any request to return Goods once received must be made within seven (7) days of the date of the invoice and will be accepted at ASM’s total discretion (except in respect of any defective Goods which shall be treated in accordance with Condition 15). If a request is accepted by ASM in accordance with this Condition 14.2, the Goods must be returned within seven (7) days of the authority to return.
- Any Goods returned to ASM will not be accepted by ASM unless a RMA Number (Return Material Authorisation Number) is obtained from ASM. All Goods must be returned in their original undamaged packaging with the returns number clearly displayed on the outside of the box. The Goods returned must be in good condition and together with all parts and instruction manuals or other documentation pertaining to such Goods being returned.
- WARRANTY AND LIABILITY
- Subject to Condition 2, ASM warrants that the Goods will be free from major defects in material and workmanship at the date of delivery and for a period of ninety (90) days from that date, and the Services will be performed by appropriately qualified and experienced personnel with reasonable care and skill and in accordance with the Quotation or Order Confirmation ( as applicable and/or as amended in accordance with Condition 11) provided that:
- ASM shall be under no liability in respect of any defects or defective workmanship in any drawing, design, Quotation or Order Confirmation (as applicable) supplied by the Customer;
- ASM shall be under no liability in respect of any defects or defective workmanship arising from fair wear and tear, wilful damage or negligence caused by the Customer or persons using the Goods, abnormal working conditions, failure to follow ASM’s instructions (whether oral or in writing), failure to comply with the operating instructions of the Goods, misuse or alteration or repair of the Goods without ASM’s approval;
- ASM shall be under no liability if the total Price of the Goods and/or Services has not been paid by the due date for payment; and
- the Customer notifies ASM of any defect within [three (3) days] or if the defect would not have been apparent on reasonable inspection, within [three (3) days] of discovering the defect;
- In respect of defects in Goods and/or Services not manufactured or performed by ASM the Customer will have the benefit of the ninety (90) days warranty in Condition 15.1 and after that period the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the Third Party Supplier to ASM and which ASM hereby assigns to the Customer so far as it is able.
- In the event of a valid claim by the Customer under Conditions 1 or 15.2, the Customer shall (if applicable) return, at its own cost, the defective Goods to ASM for ASM to test and inspect them and ASM shall investigate the claim and if liability is accepted by ASM under Condition 15.1 the Customer’s only remedy and ASM’s only obligation is to:
- to make good any shortage or non-delivery; or
- to replace or repair any Goods found to be damaged or defective; or
- re-perform the Services free of charge;
and the Customer will be liable to pay a 25% re-stocking fee for Goods that are returned and found to be NFF (non-faulty found).
- Subject to Condition 6, ASM’s aggregate liability to the Customer under a Contract whether for negligence, breach of contract, breach of statutory duty, misrepresentation, restitution or otherwise shall in no circumstance exceed the cost of the defective, damaged, undelivered or unperformed Goods and/or Services which give rise to such liability as determined by the net Price invoiced to the Customer in respect of any occurrence or series of occurrences to be provided under the relevant Contract.
- All conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods and/or Services (save for the conditions implied by Section 12 of the Sale of Goods Act 1979 and Section 2 of the Supply of Goods and Services Act 1982) are excluded from the Contract to the fullest extent permitted by law.
- Nothing in these Conditions excludes or limits ASM’s liability: (i) for death or personal injury caused by ASM’s negligence; (ii) for fraud or fraudulent misrepresentation; or (iii) for any matter which it would be illegal for ASM to exclude or attempt to exclude its liability.
- Subject to Condition 6, ASM is not liable for: (i) any indirect, special or consequential liabilities; (ii) any pure economic loss; (iii) any loss of anticipated profits, revenue or anticipated savings (iv) any loss of goodwill or reputation; or (v) any loss of management time, howsoever caused.
- ASM is not liable to the Customer for:
- non-delivery or non-performance unless the Customer notifies ASM of a claim within seven (7) days of the date of ASM’s invoice;
- shortages in quantity delivered unless the Customer notifies ASM of a claim within seven (7) days of receipt of the Goods; and
- damage to or loss of the Goods or any part of them in transit (where the Goods are carried by ASM’s own transport or by a carrier on behalf of ASM) unless the Customer notifies ASM of a claim within [three (3) days] of receipt of the Goods or their anticipated delivery date.
- FORCE MAJEURE
- If ASM or any Third Party Supplier is prevented, hindered or delayed from or in providing the Goods and/or Services in accordance with these Conditions by an event which is beyond ASM’s reasonable control including acts of terrorism, insurrection, riots, civil unrest and military action, the exercise of emergency powers by any local, regional or national governmental authority, fire, flood, earthquake, storm and other natural disasters, industrial action, strikes and lock-outs, blockage or embargo or the failure or delay of supplies of power, fuel, transport, equipment, telecommunications systems, Internet or other goods and/or Goods and/or Services (including any third party materials) (a Force Majeure Event) ASM may, at its option:
- suspend the provision of the Goods and/or Services while the Force Majeure Event continues;
- if ASM has insufficient capacity and/or resources to meet its commitments, apportion available capacity and/or resources between its customers as it decides; or
- terminate any Contract so affected with immediate effect by written notice to the Customer,
and ASM will not be liable for any loss or damage suffered by the Customer as a result.
- ASM may terminate a Contract with immediate effect by notice to the Customer if:
- the Customer is in material breach of an obligation under a Contract and, if the breach is capable of remedy, the Customer has failed to remedy such breach within a period of thirty (30) days after being given notice by ASM to remedy the breach;
- it has the right to terminate a Contract in accordance with the provisions of Condition 1.3;
- the Customer is unable to pay its debts when they fall due, ceases or threatens to cease to carry on business, suffers any event which could be reasonably considered to indicate that it is insolvent or may become so including, insolvent liquidation, declaration of bankruptcy, presentation of a bankruptcy or a winding up petition, appointment of or notice of intent to appoint an administrator, receiver or similar over any of its assets or undertaking, or the Customer suffers any analogous event in any jurisdiction in which it is incorporated or resident.
- Without prejudice to Condition 1, ASM may terminate a Contract with immediate effect by notice to the Customer if the Customer has failed to pay by the due date any sum due and payable by it to ASM under a Contract and such non-payment continues unremedied at the expiry of a period of ten (10) working days following notification by ASM of such non-payment by the Customer.
- CONSEQUENCES OF TERMINATION
- Upon the termination of this Agreement for any reason:
- the Customer shall pay to ASM all sums due to ASM under this Agreement immediately after the date of termination; and
- each party shall within five (5) working days from receipt of a request by the other party return to the other party all original and copy documentation containing Confidential Information of the other party.
- Termination of this Agreement shall be without prejudice to the accrued rights and liabilities of the parties and shall not affect any continuing obligations of the parties under this Agreement. Without prejudice to that generality, the provisions of Conditions 12, 13, 14, 15, 18, 19, 20, 21, and 23 shall survive the termination of this Agreement for any reason.
- CONFIDENTIAL INFORMATION
Each party (the Receiving Party) shall treat any Confidential Information relating to the other party (the Disclosing Party) as strictly confidential except to the extent that such Confidential Information can be proved to be within the public domain at the time of disclosure other than as a result of any breach of these Conditions. The Receiving Party shall not disclose such Confidential Information to any third party nor use it for any purpose except as is strictly necessary for the performance of its obligations under the Contract. For the purpose of these Conditions, Confidential Information means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by the Disclosing Party to the Receiving Party or otherwise acquired by the Receiving Party in connection with these Conditions or its subject matter whether before or after the commencement of the Contract including information relating to the Disclosing Party’s products, operations, processes, plans or intentions, product information, know-how, trade secrets and other Intellectual Property Rights, market opportunities, business affairs, financial information and other confidential information.
- INTELLECTUAL PROPERTY RIGHTS
- All right, title and interest in and to any Intellectual Property Rights owned by or licensed to a party prior to the Contract is and shall remain the exclusive property of the party owning it (or, where applicable, the third party from whom it’s right to use such Intellectual Property Rights has derived).
- DATA PROTECTION AND DATA PROCESSING
- In this clause, “Data Protection Legislation” means the Data Protection Act 1998 and, from the date on which it comes into force and for so long as it remains in force, the General Data Protection Regulation (Regulation (EU) 2016/679), along with all other applicable laws and regulations relating to the processing of the personal data and privacy, including where applicable the guidance and codes of practice issued by the UK Information Commissioner. The terms “Personal Data”, “Data Controller”, “Data Processor”, “process”, “processing” and “Data Subject” shall have the meanings set out in the Data Protection Legislation.
- The Customer and ASM acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and ASM is the data processor in respect of any Personal Data.
- ASM shall process the Personal Data only in accordance with the Customer’s instructions from time to time and shall not process the Personal Data for any purposes other than the Contract or as expressly authorised by the Customer from time to time.
- ASM shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
- ASM warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
- take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and against the accidental loss or destruction of, or damage to, Personal Data to ensure a level of security appropriate to:
- the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
- the nature of the data to be protected;
- take reasonable steps to ensure compliance with those measures.
- The Customer acknowledges and agrees that ASM may be required to transfer Personal Data to a country or territory outside the European Economic Area in order to provide the Services, but ASM shall only be permitted to do so provided that it take steps to ensure an adequate level of protection of such Personal Data in accordance with the Data Protection Legislation.
- The Customer acknowledges that ASM is reliant on the Customer for direction as to the extent to which ASM is entitled to use and process the Personal Data. Consequently, ASM will not be liable for any claim brought by a Data Subject arising from any action or omission by ASM, to the extent that such action or omission resulted directly from the Customer’s instructions.
- ASM may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractors’ contract:
- is on terms which are substantially the same as those set out in these Terms and Conditions; and
- terminates automatically on termination of the Contract for any reason.
- A notice under or in connection with a Contract shall be in writing and shall be delivered personally or sent by recorded or registered delivery post to the other party at its last known address.
- In the absence of evidence of earlier receipt, service of a notice is deemed to have been effected as follows:
- if delivered personally, when left at the address referred to in Condition 1; or
- if sent by recorded or registered delivery post, two (2) working days after posting it (excluding the day of posting).
- ASM may at its discretion sub-contract any of its obligations under a Contract to any member of its Group without the need to consult with or obtain approval from the Customer. ASM warrants that it has the authority to enter into the Contract for the benefit of itself and on behalf of its Group. Each of the terms, conditions and warranties for the benefit of ASM contained in these Conditions shall benefit each such Group member and shall be enforceable by them. The limitations and exclusions of liability contained in these Conditions shall apply to any claims brought by or on behalf of ASM and/or any Group member and the involvement of one or more Group member shall not give rise to any increase in or multiplication of any limitation placed upon ASM’s liability. For the purposes of this Condition, “Group” shall mean ASM’s parent undertakings and each of its subsidiary undertakings and each of its parent undertakings’ subsidiary undertakings from time to time (and for the purposes of this definition “parent undertaking” and “subsidiary undertaking” shall take the meanings set out in section 1162 of the Companies Act 2006, and “Group member” shall be construed accordingly).
- Unless otherwise stated in these Conditions, a Contract (and any documents referred to in it) constitutes the entire understanding between the parties in relation to its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of the Contract. No party has relied on any warranty or representation except as expressly set out in the Contract.
- The Customer may not assign or transfer or purport to assign or transfer any of its rights or obligations under a Contract without first having obtained ASM’s written consent. ASM may assign a Contract or any part of it to any person.
- If any Condition of a Contract, (or part of a Condition), is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other Conditions shall remain in force.
- If any invalid, unenforceable or illegal Condition of a Contract would be valid, enforceable or legal if some part of it were deleted, the Condition shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- Save as set out in this Condition, nothing in a Contract is intended to confer on any person any right to enforce any Condition of a Contract which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999. Notwithstanding the foregoing, a Third Party Supplier may: (i) enforce ASM’s rights under these Conditions; (ii) take advantage of the benefits conferred upon ASM by these Conditions; (iii) rely on the representations, warranties and covenants given by the Supplier; and (iv) rely on the exclusions and limitations of liability benefiting ASM in these Conditions provided that any enforcement by a Third Party Supplier of such rights, benefits, warranties, representations, covenants, exclusions and/or limitations shall be subject to the terms of these Conditions
- The failure by ASM to exercise or delay by ASM in exercising any right, power or remedy provided by a Contract or by law does not constitute a waiver of such right, power or remedy or a waiver of any other rights, powers or remedies. No single or partial exercise of a right, power or remedy provided by a Contract shall prevent any further exercise of the right, power or remedy or the exercise of another right, power or remedy.
- Each right or remedy of ASM under a Contract is without prejudice to any other right or remedy of ASM whether under the Contract or not.
- A Contract is governed by, and shall be construed in accordance with, the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with a Contract.
ASM Technologies Limited
Date: 17th may 2018