ASM General Terms and Condition of Purchase
These Terms and Conditions of Purchase apply to all Orders that ASM places with the Supplier and sets out all the terms in relation to the Supplier supplying Products and/or Services to ASM. By signing these Conditions or accepting an Order, the Supplier acknowledges and agrees that it shall be bound by them.
1. INTERPRETATION
1.1 In these Conditions:
ASM means ASM Technologies Limited, a company incorporated in England and Wales (registered number: 02753443);
Conditions means the terms and conditions of purchase set out in this document;
Contract means a contract for the purchase of Products and/or Services by ASM from the Supplier that incorporates the Order and these Conditions;
Contract Price means the price of the Products and/or Services as stated in the Order (or Quotation, if applicable) or if no such price is stated in the Order then the price of the Products and/or
Services shall be the lowest price currently quoted or charged at the date of the Order by the Supplier for those Products and/or Services but in no event higher than the price most recently charged to ASM by the Supplier for those Products and/or Services;
Customer means ASM’s customer and/or the end user for the Products and/or Services;
Delivery Address means the address for delivery of the Products or performance of the Services, as set out on the Order (which may be the Customer’s address);
Licence has the meaning given in Condition 5.1;
Order means a purchase order in respect of Products and/or Services issued by ASM to the Supplier on ASM’s purchase order form, together with all other documents referred to therein;
Products means the Products to be supplied by the Supplier to ASM as set out in the Order and/or the Quotation (and may include media on which the Software is supplied);
Quotation means a quotation provided by the Supplier to ASM which sets out the specification of the Products and/or Services, the price of the Products and/or Services and any other specific terms relevant to the Products and/or Services and their supply by the Supplier to ASM;
Services means the Services to be supplied by the Supplier to ASM as set out in the Order and/or the Quotation (which shall include, where applicable, installation of Products by the Supplier);
Software means the Software to be supplied by the Supplier to ASM as set out in the Order and/or the Quotation, which shall for the purpose of these Conditions comprise either Products and/or
Services (as applicable);
Supplier means the person, to whom the Order is addressed;
VAT means value added tax at the rate prevailing at the time of the relevant supply charged in accordance with the provision of the Value Added Tax Act 1994; and ASM General Terms and Condition of Purchase 2
Warranty Period means the period of [12 months] from the date of delivery, performance or installation of the Products and/or Services (whichever is applicable and is the later).
1.2 In these Conditions:
1.2.1 headings are for identification and indexing purposes only and they shall not affect the construction or interpretation of these Conditions;
1.2.2 words importing the singular meaning shall include the plural meaning and vice versa;
1.2.3 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 Supplier as the context requires and parties shall mean both of them;
1.2.4 the words including, includes, included or similar will be construed without limitation unless inconsistent with the context, working days are all days other than Saturdays, Sundays or English public holidays and month means a calendar month; and
1.2.5 tax shall be construed so as to include any tax, levy, impost, duty, deduction, withholding or other charge of whatever nature (present or future) levied by or on behalf of any local, municipal, governmental, state, federal or other fiscal, revenue, customs or excise agency, authority, body or official anywhere in the world including HM Revenue & Customs (including any penalty or interest payable in connection therewith or with respect thereto).
2. GENERAL
2.1 ASM and the Supplier agree that these Conditions alone shall govern and be incorporated in every Contract for the purchase of Products and/or Services by ASM from the Supplier. They shall prevail over and apply in place of any terms or conditions contained in or referred to in the Supplier’s quotation, acceptance of order, correspondence or elsewhere, or implied by trade custom, practice or course of dealing (including any oral arrangements). The Supplier waives any right which it otherwise might have to rely on any terms or conditions contained or referred to in any documentation of any nature whatsoever submitted by the Supplier to ASM at any time.
2.2 No variation or addition to, or exclusion or attempted exclusion of, of the Order and/or these Conditions or any of them shall be binding upon ASM unless agreed in writing by an authorised representative of ASM.
3. ORDERS
3.1 Orders shall only be valid if they are made in writing by ASM.
3.2 Each Order or acceptance of a Quotation for Products and/or Services by ASM shall be deemed to be an offer by ASM to buy Products and/or Services subject to these Conditions. The acceptance of the Order is limited to and conditional upon acceptance by the Supplier of these Conditions.
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3.3 The Supplier shall, upon receipt from ASM of an Order, or a variation to an Order, promptly and within [two] working days confirming the Order or variation to an Order in writing.
3.4 ASM shall have the right to rescind any Order or variation to an Order without liability to the Supplier at any time prior to delivery by the Supplier of the Products and/or Services which are the subject of the Order.
3.5 The Supplier may not sub-contract the supply of Products and/or Services or assign its obligations under any Contract to a third party without the prior written consent of ASM.
3.6 Any Quotation given by the Supplier shall only form part of the Order if expressly accepted by ASM. Any Quotation given by the Supplier shall be valid for a period of no less than [30 days] from its date.
3.7 The Supplier acknowledges and agrees that ASM places Orders for Products and/or Services on behalf of its Customers and that the Products and/or Services may be for the use by (or onward sale by) the Customer rather than ASM.
3.8 The Supplier appoints ASM as its non-exclusive distributor to market, distribute and sell the Products in Europe in accordance with, and subject to, these Conditions and/or the Order.
4. DELIVERY OF PRODUCTS AND PERFORMANCE OF SERVICES
4.1 Products shall be delivered Ex Works (Incoterms 2010) and Services shall be performed at the dates and times stated in the Order or otherwise agreed between ASM and the Supplier. Dates and times for delivery and/or performance specified by ASM shall be of the essence of the Contract. ASM reserves the right to adjust the specified rate or date of delivery at any time.
4.2 Before ASM places an Order for Products and/or Services the Supplier shall notify ASM of any and all specific requirements for the connection, installation, access or performance of such Products and/or Services.
4.3 ASM may by notice in writing cancel the Order without any liability to the Supplier if the Supplier fails to deliver any or all of the Products, or perform any or all of the Services, by the specified dates. The right of cancellation is without prejudice to any other remedy which ASM may have, and on exercising the right of cancellation, ASM may as its option, in respect of Products already delivered, or Services already performed:
4.3.1 choose to make payment in full or part;
4.3.2 return such Products at the Suppliers’ expense or require the Supplier to collect such Products at its own expense without ASM having any liability to make any payment either in respect of such Products or in respect of further instalments of the Order; and/or
4.3.3 suspend such further performance of the Services.
4.4 If ASM exercises its right of cancellation ASM may recover from the Supplier any expenditure incurred by it (whether directly or indirectly) in obtaining Products and/or Services in substitution for Products and/or Services which have not been delivered or performed.
4.5 Where Products are contracted to be delivered in instalments ASM shall have the right to treat any breach by the Supplier of its obligations as regards one or more instalments as
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a repudiation entitling ASM itself to repudiate further performance and to recover damages for breach.
4.6 The Services will be deemed to have been completed upon the completion of the Services in accordance with the Order. The Supplier will notify ASM when the Services are completed. ASM or the Customer will have a reasonable time to inspect the Services and notify the Supplier of any problem, after which time the Services will be deemed to have been accepted.
4.7 The Supplier shall provide to ASM, at no additional charge, sufficient training, documentation, and available maintenance aids and manuals, relating to the support and maintenance of the Products to allow ASM to perform diagnostics and trouble-shooting with respect to malfunctioning Products.
4.8 Without prejudice to the provisions of clause 9, all supply of the Products shall be on a sale or return basis, except where agreed otherwise between the parties in advance in writing. ASM shall be entitled to return to the Suppplier all Products which are unsold after 6 months from the date of delivery of the Products (or such other time period that is agreed between the parties in writing) for credit or refund, provided that such Products are returned undamaged and are in a saleable condition, at ASM’s cost. Any and all refunds due to ASM under this clause shall be made by the Supplier within thirty (30) days of receipt of the Products returned in accordance with this clause. Risk in the Products shall pass back to the Supplier on delivery to the Supplier and title shall pass to the Supplier when ASM receives payment in full of the credit or refund.
5. SOFTWARE
5.1 The Supplier shall deliver and if stated on the Order, install, on ASM or the Customer’s equipment (as applicable) the Software in the form set out on the Order along with a licence for the Customer to use or sell the same (as applicable) (Licence).
5.2 For a period of [30] days commencing on installation of the Software, ASM or the Customer may discontinue the Licence of the Software if it does not perform to ASM’s or the Customer’s satisfaction. If the Customer does so, the Supplier shall immediately refund all monies paid by ASM or under the Licence and, on receipt of that refund, the Licence shall terminate.
5.3 Under the Licence, the Supplier shall make available at no additional cost any maintenance release or new version of the Software to ASM or the Customer.
5.4 Where appropriate the Supplier also grants to ASM and/or the Customer a perpetual, non-revocable, non-exclusive licence to use any software necessary to use the Products for the purpose for which it was produced.
6. RISK AND TITLE
6.1 The risk in the Products shall pass to ASM or the Customer (as applicable) when delivery of the Products in accordance with the Order is complete (including offloading and stacking) without prejudice to any right of rejection which may accrue to ASM and/or the Customer under a Contract or otherwise.
6.2 The property in the Products shall pass to ASM and/or the Customer upon the earlier of: (a) delivery as described in Condition 4; or (b) payment of the price by ASM, provided that where the Supplier is responsible for installation of the Products, the risk shall not pass until installation is accepted by ASM or the Customer (as applicable).
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7. PRICES AND PAYMENT
7.1 All prices quoted by the Supplier are to be fixed and inclusive of all costs and charges including those relating to carriage and delivery of the Products to, and off-loading and installation of them, at the Delivery Address, and packaging, insurance and any tax other than VAT.
7.2 The price payable for the Products and/or Services shall be the Contract Price. ASM shall pay, in addition to the Contract Price, any applicable VAT (subject to receipt of a satisfactory VAT invoice). The Supplier will, if required by ASM, provide evidence of the amount paid or to be paid by the Supplier in respect of VAT. No variation in the Contract Price nor extra charges shall be accepted by ASM, save as expressly agreed in writing.
7.3 The Supplier shall invoice ASM on or after delivery of the Products (and their installation, if applicable) or performance of the Services as set out in Condition 4, unless otherwise stated on the Order.
7.4 Unless otherwise stated in the Order, payment for Products and/or Services will be made by ASM by the end of the month following the month in which a correct invoice (clearly stating the relevant purchase order number) is received.
7.5 In the event that ASM fails to pay any amount due to the Supplier under the Contract the Supplier reserves the right to give written notice to ASM that such amount is outstanding and if payment is not received within ten working days then it may claim interest at the rate of 2% 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 the Supplier of the full amount. The parties agree that this constitutes a substantial remedy in terms of the Late Payment of Commercial Debt (Interest) Act 1998.
8. ACCEPTANCE OF PRODUCTS AND/OR SERVICES
8.1 ASM (or the Customer, if applicable) shall accept the Products and/or Services on the date when all necessary documentation has been received, the Products perform in accordance with the applicable specification and the Services have been checked and accepted by ASM or the Customer (the Acceptance Date). In the event that the Products do not so perform, and for so long as that is the case, ASM may (in addition to all or any other rights it may have under the Contract or otherwise):
8.1.1 continue to test the Products with the assistance of the Supplier; and/or
8.1.2 permit the Supplier to repair or replace the Products at no additional expense to ASM; and/or
8.1.3 return the Products to the Supplier, at the Supplier’s expense, and any amounts paid by ASM for the Products and documentation shall be refunded by the Supplier to ASM. Acceptance of Products shall not be deemed to be a waiver of any rights available to ASM in respect of such Products, whether under these conditions or otherwise.
8.2 No payment from ASM of or on account of the Contract Price shall constitute any admission by ASM as to the performance of the Supplier of its obligations, and ASM shall be entitled to set-off against the Contract Price or any other sums due to the Supplier any monies due to ASM from the Supplier or the amount of any claim which ASM has against the Supplier.
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9. WARRANTY
9.1 The Supplier shall ensure that at the time of delivery of the Products or performance for the Services, and for the Warranty Period, Products and/or Services supplied, or performed, by it:
9.1.1 shall conform in every respect to the specifications, designs, drawings, samples, instructions or descriptions furnished to it or adopted by ASM and to any relevant British Standard specifications;
9.1.2 ensure that the design, construction, quality, packaging and labelling of the Products complies in all respects with all relevant United Kingdom and European legal requirements including (without prejudice to the generality of the foregoing) any relevant industry standards or Codes of Practice or British Standards;
9.1.3 are of satisfactory quality and are fit for their purpose, where such purpose was expressly drawn to the attention of the Supplier or was apparent by implication from the nature of the Products;
9.1.4 are free from defect in performance, safety, materials and workmanship;
9.1.5 will be and have been performed expertly by appropriately qualified and experienced (and insured and registered (where appropriate) personnel in accordance with any specification with using all due care and skill and in a good, proper and workmanlike manner; and
9.1.6 the Software and the media on which the Software is delivered are (i) free from defects, viruses and other malicious code, and (ii) does not include or use any Open-Source Software or any libraries or code licensed from time to time under the General Public Licence (as those terms are defined by the Open Source Initiative or the Free Software Foundation) or anything similar in, or in the development of, the Software, nor does the Software operate in such a way that it is compiled with or linked to any of the foregoing.
9.2 The Supplier warrants and represents that necessary and appropriate support and maintenance, spare parts and engineering changes shall be available for each model, type or release of the Products for a period of [10 years] from the date the Supplier discontinues manufacturing, selling, marketing or providing support services for such model, type or release. ASM shall be entitled to purchase such support, maintenance, and spare parts at the Supplier’s commercially reasonable rates.
9.3 The Supplier also warrants, and it is a condition of the Contract that:
9.3.1 it has all necessary licences, consents and authorisations to supply the Products and/or Services to ASM pursuant to a Contract;9.3.2 it shall deliver the Products and perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
9.3.3 it shall use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
9.3.4 it shall co-operate with ASM and the Customer in all matters relating to the supply of Products and/or Services, and comply with all reasonable instructions of ASM and the Customer the Supplier will supply ASM with such information ASM General Terms and Condition of Purchase 7 as ASM shall reasonably require enabling it to satisfy itself that the Supplier has complied with its obligations under these Conditions and under general law.
9.3.5 the Products and/or Services conform with all descriptions and specifications set out in the Order, are safe to use for their intended purposes and they and the Supplier comply with all applicable laws, statutes, regulations and codes and best practice guidance from time to time in force;
9.3.6 it follows reasonable and proper procedures for quality control testing to ensure that the Products and/or Services comply with all applicable laws and best practice guidance;
9.3.7 it has an effective and responsible product recall procedure in place to ensure that any Products may be recalled safely and effectively, if required; and
9.3.8 it shall give ASM prompt notice of receipt of any claim filed or made with respect to any Products and/or Services, or any investigation, directive, or notice from any national or international consumer product safety commission, or other governmental safety agency with respect to Products and/or Services;
9.3.9 it shall observe all health and safety rules and regulations and any security requirements that apply at the Delivery Address.
9.4 If ASM or the Customer undertakes modifications to Products supplied to it with the consent of the Supplier, the Warranty Period in respect of such Products shall be unaffected by such modification. If ASM or the Customer makes modifications to Products without the Supplier’s consent then any warranty given by the Supplier in respect of those Products shall be void, unless a deficiency or defect in the Products is not attributable to the modifications made by ASM or the Customer. If ASM or the Customer connects devices of other manufacturers to Products delivered by the Supplier, then the Supplier’s warranty in respect of those Products shall only apply up to the interface of the Products delivered by it.
9.5 Upon termination of a Warranty Period in respect of any Products supplied by the Supplier the Supplier shall upon request by ASM or the Customer enter into an agreement with ASM or the Customer in ASM or the Customer’s standard form for such agreements, for the maintenance of such Products for such period or periods as ASM or the Customer may require.
9.6 The Supplier shall assign to ASM (including the right to pass on to Customers) the full benefit of the warranties in this Condition 9 and any other manufacturer’s warranties or any other guarantee which may apply to the Products and/or Services (including in relation to proprietary items incorporated into the Products and which are not of the Supplier’s manufacture).
9.7 Nothing contained in this Condition shall in any way detract from the Supplier’s obligations under common law or statute, or any express warranty or condition contained in the Contract.
10. SUPPLIER’S BREACH
10.1 If the Supplier has failed to comply with the terms of any Contract or Order (including any breach of the warranties set out in Condition 9 and whether as to the whole or any part of the Products and/or Services) or with any other Contract with ASM, ASM shall be entitled (whether or not it or the Customer has accepted the Products and/or Services or any part thereof) to any one or more of the following remedies at ASM’s discretion:
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10.1.1 to treat such breach by the Supplier of its obligations as a repudiation entitling ASM to elect to accept the repudiation, in which case ASM shall be absolved from further performance under the Contract and ASM shall be entitled to recover damages for the breach without any liability to the Supplier;
10.1.2 to reject or return the Products or require the Supplier to collect them or any part thereof with any costs incurred to be paid by the Supplier. ASM shall be entitled to be repaid in full for any Products it returns;
10.1.3 to give the Supplier the opportunity to replace or repair the Products or re-perform the Services or reinstate them at the Supplier’s expense so that they comply with the terms of the Order;
10.1.4 to refuse to accept any further deliveries or instalments of the Products or performance of the Services or any part thereof without any liability to the Supplier;
10.1.5 to carry out at the Supplier’s expense such work as may be necessary to make the Products and/or Services or any part thereof comply with the Order;
10.1.6 to claim such damages as ASM may have suffered in consequence of any breach of contract including the expenses of (i) obtaining Products and/or Services to replace those Products which have been rejected or have not been delivered or performed; and (ii) carrying out any further work on such Products and/or Services.
10.2 All costs and expenses incurred by the Supplier in providing any of the remedies set out in Condition 10.1, shall be borne by the Supplier. Where Products are repaired or replaced by the Supplier or Services re-performed by the Supplier then the Warranty Period shall run for 12 months from the date of such repair, replacement or pre-performance.
10.3 In respect of any rejected Products and/or Services not remedied by the Supplier within [seven days] of a written request by ASM, the Supplier shall upon demand refund ASM the Contract Price for such Products and/or Services and indemnify ASM against additional expenditure over and above the price of the rejected Products and/or Services incurred by ASM in obtaining other products or services in replacement.
10.4 The warranties in Condition 9 and the remedies in this Condition 10 shall be in addition to those in favour of ASM implied by or available at law or in equity and shall continue in force notwithstanding the acceptance by ASM of all or part of the Products and/or Services in respect of which such warranties and remedies are applicable.
11. INTELLECTUAL PROPERTY RIGHTS
The Supplier grants to ASM (and the Customer), or shall procure the direct grant to ASM (and the Customer)of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use, copy, modify, sell and otherwise deal with the Products and/or any output from the Services for the purpose of receiving and using the Products and/or Services.
12. CONFIDENTIALITY
12.1 The Supplier shall maintain secret and confidential all information concerning the business affairs of ASM and any Customer received or otherwise acquired from ASM and shall use it only for the purposes of performing a Contract and shall take all reasonable precautions to prevent access to such information by third parties.
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12.2 The obligation contained in this Condition 12 will survive the expiry, performance or cancellation of any Contract.
13. FORCE MAJEURE
Neither the Supplier nor ASM shall be liable to the other for any failure to fulfil its obligations under an Order or a Contract to the extent that such failure is occasioned by any circumstance or event, which is beyond its reasonable control. A party suffering from such circumstance or event shall immediately notify the other party of the same and in the event that the circumstance or event continues for 30 days or more, the other party may terminate the Contract or cancel the Order forthwith by written notice.
14. LIMITATION OF LIABILITY [AND LIQUIDATED DAMAGES]
14.1 Subject to Conditions 14.2 and 14.3, ASM’s aggregate liability to the Supplier under a Contract whether for negligence, breach of contract, breach of statutory duty, misrepresentation, restitution or otherwise shall in no circumstance exceed the Contract Price under the relevant Contract.
14.2 Subject to Condition 14.3, 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
14.3 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.
14.4 [Where it is an exclusive arrangement, the Supplier shall refrain from making any sales of the Products to Customers [in the Territory] and shall pass all enquiries for sales of Products [in the Territory] to ASM within two (2) business days of receipt. In the event of a breach of this provision by the Supplier, the Supplier shall pay on demand, as liquidated damages, 5% of the value of the relevant purchase order (or quote) for the relevant Products. The parties confirm that these liquidated damages are reasonable and proportionate to protect ASM’s legitimate interest in performance of the Contract.]
15. INDEMNITY
15.1 The Supplier agrees to fully indemnify and at all times to hold ASM, its Customers, its agents, employees, officers, subsidiaries, associated companies and assigns fully indemnified from and against any and all direct, indirect, special or consequential liabilities, losses, charges, damages, costs and expenses including loss of profit, loss of business, loss of revenue, depletion of goodwill, loss of anticipated savings, loss of management time or legal and other professional costs awarded against or incurred or paid by ASM as a result of or in connection with:
15.1.1 any breach of the warranties in Condition 9;
15.1.2 any act, neglect, default or omission on the part of the Supplier or any of its personnel, whether negligent or otherwise;
15.1.3 any claim for death or personal injury caused by the Products and/or Services;
15.1.4 any liability under the Consumer Protection Act 1987 or any other applicable law;
15.1.5 any product recall of Products supplied by the Supplier; and ASM General Terms and Condition of Purchase 10
15.1.6 any breach of Condition 12; and
15.1.7 any breach by the Supplier or its employees, agents or subcontractors to comply with any of its obligations under Condition 19.
16. INSURANCE
16.1 The Supplier shall at all times insure and keep itself insured with a reputable insurance company against all insurable liabilities. Without prejudice to the foregoing, the Supplier shall maintain insurance cover against (i) public and product liability for an amount not less than £5,000,000 (five million pounds) in respect of any one incident or series of related incidents; and (ii) (where relevant) professional indemnity insurance [to an adequate level]. The Supplier will provide, at ASM‘s request, evidence satisfactory to ASM that it has and is maintaining such insurance policies and paying the premiums therefor.
16.2 ASM contracts with the Supplier on the basis that the Supplier will bear the costs of insuring against the liabilities specified above. The Supplier will provide all facilities, advice and assistance required by ASM and the Supplier’s insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Supplier’s performance under any Contract.
17. TERMINATION
17.1 ASM shall have the right at any time and for any reason to cancel a Contract in whole or in part by giving the Supplier written notice (including by e-mail) whereupon all work on the Contract shall be discontinued and, only to the extent that such Products and/or Services are bespoke and the Supplier cannot reasonably dispose of them to another customer, ASM shall pay to the Supplier fair and reasonable compensation for work in progress at the time of termination but such compensation shall not include loss of anticipated profits or any indirect or consequential loss.
17.2 Without prejudice to any other rights or remedies of ASM, ASM shall have the right at any time, by giving notice in writing to the Supplier, to terminate a Contract immediately if:
17.2.1 the Supplier refuses or fails to make deliveries of the Products and/or perform the Services within the time specified in the Order or refuses or fails to perform any other provisions of the Contract and fails to remedy such breach within [10 days] after receipt of written notice from ASM requiring remedy thereof;
17.2.2 any distress, execution or other process is levied upon any of the assets of the Supplier, the Supplier passes a resolution for its winding up or a court of competent jurisdiction makes an order for the Supplier’s winding up or dissolution, an administration order is made in relation to the Supplier or a receiver is appointed over an asset of the Supplier or an encumbrancer takes possession of or sells an asset of the Supplier, the Supplier makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally or any similar circumstances occur in any jurisdiction; or
17.2.3 the Supplier ceases or threatens to cease to carry on its business or the financial position of the Supplier deteriorates to such an extent that in the opinion of ASM the capability of the Supplier adequately to fulfil its obligations under the Contract has been placed in jeopardy.
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17.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of ASM accrued prior to termination. Those Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
17.4 This Contract will not be subject to any implied or automatic renewals, and any relationship between the parties after the term hereof will be the subject of a new Contract. The parties may extend the term or any subsequent term of this Agreement by executing a separate written agreement of extension through the issuing of a new Order.
18. GENERAL PROVISIONS
18.1 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 Supplier. 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 clause “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).
18.2 Should any provision of these Conditions or part thereof be held by any competent court to be, or have become invalid or unenforceable, this should not affect the validity of the remaining provisions or part provisions. 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.
18.3 Each of the parties confirms that it shall fully co-operate with the other if requested to do so in any negotiations, investigations, enforcement actions or dealings with any competition authority in respect of any Contract and the parties shall bear their own costs in relation to all and any such dealings.
18.4 Any notices to be given by one party to the other shall be in writing and shall be addressed to the relevant party at its registered office or such other address as may have been notified in writing. Notices shall be delivered by hand or sent by first class mail. Correctly addressed notices shall be deemed served within one hour of delivery (in the case of hand delivery) or within 48 hours of posting (if sent by first class mail).
18.5 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.
18.6 Save as set out expressly in these Conditions, 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 Customer 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
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exclusions and limitations of liability benefiting ASM in these Conditions provided that any enforcement by a Customer of such rights, benefits, warranties, representations, covenants, exclusions and/or limitations shall be subject to the terms of these Conditions
18.7 Each right or remedy of the Supplier under a Contract is without prejudice to any other right or remedy of ASM whether under the Contract or not.
18.8 Failure by either party to exercise or enforce any rights available to that party, or the giving of any forbearance, delay or indulgence shall not be construed as a waiver of that party’s rights whether under a Contract or otherwise.
18.9 The Supplier shall not at any time without the prior written consent of ASM, assign or transfer or purport to assign or transfer the benefit or the burden of a Contract or an Order, nor sub-contract any of its obligations thereunder, without the prior written consent of ASM.
18.10 These Conditions and each Contract shall be governed by and shall be construed in accordance with English law. The parties agree to submit to the exclusive jurisdiction of the courts of England and Wales in respect of any suit, action or proceedings which may arise out of or in connection with a Contract or these Conditions.
19. DATA PROTECTION AND DATA PROCESSING
19.1 In this Condition, “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.
19.2 The Supplier and ASM acknowledge that for the purposes of the Data Protection Legislation, ASM is the Data Controller and the Supplier is the data processor in respect of any Personal Data.
19.3 The Supplier shall process the Personal Data only in accordance with ASM’s (or the Customer’s (as applicable)) instructions from time to time and shall not process the Personal Data for any purposes other than the Contract or as expressly authorised by ASM or the Customer (as applicable)from time to time.
19.4 The Supplier shall take reasonable steps to ensure the reliability of all its employees who have access to the Personal Data.
19.5 The Supplier warrants that, having regard to the state of technological development and the cost of implementing any measures, it will:
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19.5.1 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:
19.5.1.1 the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage; and
19.5.1.2 the nature of the data to be protected;
19.5.2 take reasonable steps to ensure compliance with those measures.
19.6 ASM acknowledges and agrees that the Supplier may be required to transfer Personal Data to a country or territory outside the European Economic Area in order to provide the Services or otherwise in connection with the Contract, but the Supplier 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.
19.7 The Supplier may authorise a third party (subcontractor) to process the Personal Data provided that the subcontractors’ contract:
19.7.1 is on terms which are substantially the same as those set out in these Terms and Conditions; and
19.7.2 terminates automatically on termination of the Contact for any reason; and
19.7.3 the Supplier shall remain liable for any breach of these terms by its subcontractor.
