“Agreement” means the Agreement between Nijhuis Saur Industries and the Customer for the hire of the Equipment, incorporating the Conditions and the Proposal.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
“Customer” means the Company or person hiring the Equipment from Nijhuis Saur Industries.
“Equipment” means the mobile water equipment listed in the Proposal, all substitutions, replacements or renewals of such equipment and all related accessories, operating services, consumables, manuals and instructions provided for it.
“Intellectual Property” means patents, rights to inventions, copyright and related rights, trademarks 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” means the Customer’s order for the supply of Equipment, as set out in the Customer’s written acceptance of Nijhuis Saur Industries’ Proposal. “Proposal” means the proposal for the hire of Equipment prepared by Nijhuis Saur Industries, which shall include, without limitation, the Rental Period, Rental Payments, treated water specification, feed specification and any services (such as the provision of an engineer) ancillary to the Agreement.
“Rental Payments” means the payments made by or on behalf of the Customer for the hire of the Equipment as stated in the Proposal. “Rental Period” means the period specified in the Proposal.
“Site “means the Customer’s premises specified as specified in the Proposal. “ Nijhuis Saur Industries” shall mean “NSI MWS entity”.
(a) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(b) any phrase introduced by the terms including, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(c) a reference to writing or written includes emails.
2.1 Nijhuis Saur Industries shall hire the Equipment to the Customer for use at the Site subject to the terms of the Agreement.
2.2 The Order shall only be deemed to be accepted when Nijhuis Saur Industries issues written or verbal acceptance of the Order at which point and on which date the Agreement shall come into effect.
2.3 Nijhuis Saur Industries reserves the right to vary the content of the Proposal at any time before acceptance. Unless otherwise stated, the Proposal shall remain valid for acceptance for thirty (30) days after its date, but may be withdrawn by Nijhuis Saur Industries at any time before acceptance.
2.4 The hire of the Equipment shall be subject to the terms of the Agreement to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any quotation, order acknowledgement or any other document issued by the Customer).
2.5 The Customer can only cancel an order (or any part of an order) that
Nijhuis Saur Industries has already accepted, with:
- Nijhuis Saur Industries’ prior agreement in writing; and
- provided that the Customer indemnifies in fu Nijhuis Saur Industries in accordance with Condition 8.4.
2.6 Information provided by Nijhuis Saur Industries concerning colours, specifications, functional descriptions, drawings and photographs and in general every statement about features, measurements, electrical powers and weights of the Equipment are given in good faith but shall not be binding. Any qualities, quantities, weights and consumption values are calculated on a theoretical basis and are therefore indicative.
2.7 Nijhuis Saur Industries shall not, other than in the exercise of its rights under this Agreement or applicable law, interfere with the Customer’s quiet possession of the Equipment
3. PRICE AND PAYMENT
3.1 Unless otherwise stated in the Proposal, Nijhuis Saur Industries makes the pricing offered in the Proposal on an Ex Works basis exclusive of installation, connections, start-up, instructions, training VAT, import duties, other levies or rights, packaging, loading, unloading transport, insurance, company materials, accessories or components, fillings, filters, chemical substances, repair, cleaning and other activities, removal and disposal of residual products.
3.2 Nijhuis Saur Industries reserves the right to apply its annual price adjustment to any Agreement entered into prior to its annual pricing review (unless otherwise stated in the Proposal).
3.3 Unless otherwise stated in the Proposal, Nijhuis Saur Industries shall be entitled to invoice on a monthly basis for the rental of the equipment and the Customer shall pay the full amount due 30 days after the date of the invoice.
3.4 Payment by the Customer shall in the first place be allocated to the oldest outstanding principal sum, subsequently to the oldest interest and finally to the oldest costs.
3.5 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier on the due date, then the Customer shall pay interest on the overdue amount of 2.5% per annum over the base rate of Barclays Bank PLC from time to time. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount whether before or after judgment. The Customer shall pay the interest together with the overdue amount
4. DELIVERY AND PERIOD OF HIRE
4.1 The Rental Period commences on the day on which the Equipment is dispatched by Nijhuis Saur Industries and ceases when the Equipment and all accessories are made available by the Customer for Nijhuis Saur Industries to collect.
4.2 The Rental Period shall be inclusive of Saturdays, Sundays, holidays, and public holidays (in the relevant country).
4.3 Nijhuis Saur Industries shall use all reasonable endeavours to effect delivery by the date and time agreed between the parties. Any delivery dates or times shall be an estimate only and Nijhuis Saur Industries shall have no liability to the Customer in the event of late delivery.
4.4 The Customer shall procure that a duly authorised representative of the Customer shall be present at the delivery of the Equipment. Acceptance of delivery by such representative shall constitute conclusive evidence that the Customer has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended. 4.5 The Rental Period may be extended upon the written agreement of Nijhuis Saur Industries and the Customer. Nijhuis Saur Industries reserves the right to refuse an extension request and to adjust the conditions and the price for any agreed extension period.
4.6 The Customer can terminate the Agreement at any time on giving written notice to Nijhuis Saur Industries, subject to the Customer, on demand, paying a sum equal to the Rental Payments due for the Rental Period.
5. CUSTOMER OBLIGATIONS
5.1 The Customer shall during the term of the Agreement:
- ensure that the Equipment is kept and operated in a suitable environment, which shall as a minimum meet the requirements set out in the Proposal used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions provided by Nijhuis Saur Industries in the Proposal or otherwise;
- Provide all and connect all utilities necessary to ensure the operation of the Equipment during the term hereof in its usual and customary manner and in such way so as to permit Nijhuis Saur Industries to furnish the Equipment;
- take such steps (including compliance with all safety and usage instructions provided by Nijhuis Saur Industries) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
- maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the date of acceptance (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
- make no alteration to the Equipment and shall not remove any existing component(s) from the Equipment without the prior written consent of Nijhuis Saur Industries unless the component(s) is/are replaced immediately (or if removed in the ordinary course of repair and maintenance as soon as practicable) by the same component or by one of a similar make and model or an improved/advanced version of it. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in Nijhuis Saur Industries immediately upon installation;
- keep Nijhuis Saur Industries fully informed of all material matters relating to the Equipment, which shall include, without limitation, any loss, accident or damage caused to the Equipment arising out of or in connection with the Customer’s possession or use of the Equipment;
- keep the Equipment at all times at the Site and shall not move or attempt to move any part of the Equipment to any other location without Nijhuis Saur Industries’ prior written consent;
- permit Nijhuis Saur Industries or its duly authorised representative to inspect or modify the Equipment at all reasonable times and for such purpose to enter upon the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection or modification;
- maintain operating and maintenance records of the Equipment and make copies of such records readily available to Nijhuis Saur Industries, together with such additional information as Nijhuis Saur Industries may reasonably require;
- not, without the prior written consent of Nijhuis Saur Industries, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
- not without the prior written consent of Nijhuis Saur Industries, attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Customer shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify Nijhuis Saur Industries against all losses, costs or expenses incurred as a result of such affixation or removal;
- not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of Nijhuis Saur Industries in the Equipment and, where the Equipment has become affixed to any land or building, the Customer must take all necessary steps to ensure that Nijhuis Saur Industries may enter such land or building and recover the Equipment both during the term of this Agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of Nijhuis Saur Industries of any rights such person may have or acquire in the Equipment and a right for Nijhuis Saur Industries to enter onto such land or building to remove the Equipment;
- not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Customer shall notify Nijhuis Saur Industries and the Customer shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify Nijhuis Saur Industries on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;
- not use the Equipment for any unlawful purpose;
- ensure that at all times the Equipment remains identifiable as being Nijhuis Saur Industries’ property and wherever possible shall ensure that a visible sign to that effect is attached to the Equipment; and
- operate and maintain the Equipment in accordance with Nijhuis Saur Industries’ operating guidelines as specified in the Proposal and comply with any additional obligations stated in the Proposal.
6. OWNERSHIP OF EQUIPMENT
6.1 The Equipment shall at all times remain the property of Nijhuis Saur Industries, and the Customer shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this Agreement. The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on delivery. The Equipment shall remain at the sole risk of the Customer during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Customer until such time as the Equipment is redelivered to Nijhuis Saur Industries.
6.2 The Customer shall deliver up the Equipment at the end of the Rental Period or on earlier termination of this Agreement at such address as Nijhuis Saur Industries requires, or if necessary allow Nijhuis Saur Industries or its representatives on-demand access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment.
6.3 The Customer acknowledges that Nijhuis Saur Industries shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Customer or its officers, employees, agents and contractors, and the Customer undertakes to indemnify Nijhuis Saur Industries on demand against the same.
7.1 Nijhuis Saur Industries warrants that the Equipment shall substantially conform to its specification (as made available by Nijhuis Saur Industries in the Proposal). Nijhuis Saur Industries shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself during the Rental Period, provided that:
- the Customer notifies of a Nijhuis Saur Industries defect in writing within ten (10) Business Days of the defect occurring or of becoming aware of the defect;
- Nijhuis Saur Industries is permitted to make a full examination of the alleged defect;
- the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than Nijhuis Saur Industries’ authorised personnel;
- the defect did not arise as a result of the Customer not operating the Equipment in accordance with any manufacturing or operations guidelines (as provided to the Customer by Nijhuis Saur Industries);
- the defect did not arise out of any information, design or any other assistance supplied or furnished by the Customer or on its behalf; and
- the defect is directly attributable to defective material, workmanship or design.
7.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by Nijhuis Saur Industries, the Customer shall be entitled only to such warranty or other benefits as Nijhuis Saur Industries has received from the manufacturer.
7.3 If Nijhuis Saur Industries fails to remedy any material defect in the Equipment in accordance with Condition 7.1, Nijhuis Saur Industries shall, at the Customer’s request, either
- provide the Customer with replacement Equipment; or
- accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of this Agreement.
7.4 In the event that the Customer requires an emergency call-out (and such call-out is required due to the failure of the Customer to adhere to the terms of this Agreement), then the Customer shall be charged for both on site and travel time to service such an emergency call based upon their published emergency technician rates at the time of this event. 7.5 The remedies set out in this Condition 7.1 and 7.3 are Nijhuis Saur Industries’ sole liability and entire obligation and the Customer’s exclusive remedy for any defect in the Equipment.
8. LIMITATION OF LIABILITY
8.1 Without prejudice to Condition 8.2, Nijhuis Saur Industries’ maximum liability under or in connection with this Agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances;
- (if the Rental Period is equal to or greater than 3 months), exceed the aggregate Rental Payments paid by the Customer to Nijhuis Saur Industries in the three months preceding the date of the cause of action; or
- (if the Rental Period is less than 3 months) exceed the aggregate Rental Payments
8.2 Nothing in this Agreement shall exclude or in any way limit:
- either party’s liability for death or personal injury caused by its own negligence;
- either party’s liability for fraud or fraudulent misrepresentation; or
- any other liability which cannot be excluded by law.
8.3 Without prejudice to Condition 8.2, Nijhuis Saur Industries shall not be liable under this Agreement for any:
- loss of profit;
- loss of revenue
- loss of business; or
- indirect or consequential loss or damage,
in each case, however, caused, even if foreseeable.
8.4 The Customer irrevocably and unconditionally agrees to indemnify Nijhuis Saur Industries, its employees, sub-contractors and agents (who shall have no duty to mitigate their loss) in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all damages, losses, costs and expenses (including without limitation emergency call out charges, legal and other professional advisers’ fees and all consequential and economic loss (including without limitation loss of profit, future revenue, reputation or goodwill and anticipated savings)) whether direct or indirect made against or incurred or suffered by any of them directly or indirectly and whether wholly or in part resulting from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable:
- the cancellation of any order by the Customer after its acceptance by the Customer in accordance with Condition 2.5;
- any breach by the Customer of its obligations under this Agreement; and
- any negligence, wilful act, omission, breach or fraud on the part of the Customer, its employees, contractors or agents.
8.5 The Customer must give Nijhuis Saur Industries such assistance as it may require in resolving or defending:
- any dispute between Nijhuis Saur Industries and any third party; and/or
- any claim made against Nijhuis Saur Industries by any third party;
- which, in either case, concerns or relates to (whether in whole or in part) the Customer (or its employees, agents or contractors), the Agreement, or the supply of the Equipment hereunder.
8.6 This Agreement sets forth the full extent of Nijhuis Saur Industries’ obligations and liabilities in respect of the Equipment and its hiring to the Customer. In particular, there are no conditions, warranties or other terms, express or implied, including as to the quality, fitness for a particular purpose or any other kind whatsoever, that are binding on Nijhuis Saur Industries except as specifically stated in this Agreement. Any condition, warranty or other terms concerning the Equipment which might otherwise be implied into or incorporated within this Agreement, whether by statute, common law or otherwise, is expressly excluded.
9. FORCE MAJEURE
9.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control (a “Force Majeure Event”). If the Force Majeure Event continues for 28 days, the non-affected party may terminate this Agreement by giving 10 days written notice to the affected party.
9.2 If any such event occurs, and Nijhuis Saur Industries is delayed or unable to perform, Nijhuis Saur Industries shall give notice to the Customer, and shall be automatically relieved from performance of the Order for the entire duration of such event.
9.3 If the said event lasts for more than twenty-eight (28) consecutive days, Nijhuis Saur Industries shall have the right to terminate the Order with immediate effect by giving written notice to the Customer.
9.4 If Nijhuis Saur Industries terminates the Agreement due to a Force Majeure event, the Customer shall be liable to pay Nijhuis Saur Industries:
- all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to Condition 3.5;
- any costs and expenses incurred by Nijhuis Saur Industries in recovering the Equipment and/or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
9.5 Should any unforeseen events or circumstances other than those defined in Article 9 “Force Majeure” (including any change of circumstances or occurrence of events not contemplated by the parties and resulting – whether directly or not – from the COVID 19) appearing after the Agreement signing date which alters the economy and the equilibrium of the Agreement for either party and/or impact the performance thereof by placing a significant burden on such party in the performance of its contractual obligations or resulting in any liabilities, costs or losses which represent a variation of the initial amount of the Agreement (including any amendment thereto entered by the Parties), the parties shall do all commercially reasonable efforts to reach an agreement aimed at revising the terms and conditions of the Agreement to adapt them to any such occurrence.
In such a case, either party may in a reasonable delay (which shall in no event exceed five (5) business days after either party exercises the present Hardship clause) notify the other party of its intent to revise the Agreement on an equitable basis and jointly determine whether the Agreement has to be suspended or not.
Should the parties fail to reach an agreement within a reasonable time in compliance with the execution of the Contract from the hereinabove mentioned notification, either party may terminate the Agreement following the expiration of a one-month-period from the date of notification of any such failure (during
which the terms and conditions of the Agreement shall continue to apply unchanged).
In such a case, the parties acknowledge and agree that any party that cannot continue to perform its contractual obligations shall not be responsible for any obligations it would not be able to properly and/or timely perform and no liquidated damages (even where arising from the Agreement) should apply. Each party hereby waives any right to claim for the indemnification of any damages, liabilities and/or losses the present clause may cause whether directly or not.
10.1 Without affecting any other right or remedy available to it, Nijhuis Saur Industries may terminate this Agreement with immediate effect by giving written notice to the Customer if:
- the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
- the Customer commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
- the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (being a company) for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Customer (being a company);
- a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
- a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Customer’s assets and such attachment or process is not discharged within 14 days;
- any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 10.1(d) to Condition 10.1(i) (inclusive); or
- the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
10.2 Upon termination of this Agreement, however, caused:
- Nijhuis Saur Industries’ consent to the Customer’s possession of the Equipment shall terminate and Nijhuis Saur Industries may, by its authorised representatives, without notice and at the Customer’s expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
- without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Nijhuis Saur Industries on demand:
- all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to Condition 3,7; and
- any costs and expenses incurred by Nijhuis Saur Industries in recovering the Equipment and/or in collecting any sums due under this Agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
10.3 Upon termination of this Agreement pursuant to Condition 10.1, without prejudice to any other rights or remedies of Nijhuis Saur Industries, the Customer shall pay to Nijhuis Saur Industries on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if this Agreement had continued from the date of such demand to the end of the Rental Period.
10.4 The sums payable pursuant to Condition 10.3 shall be agreed compensation for Nijhuis Saur Industries’ loss in the event of termination under Condition 10.1 and shall be payable in addition to the sums payable pursuant to Condition 10.2(b).
10.5 Nijhuis Saur Industries reserves the right to terminate this Agreement at any time.
10.6 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
11.1 Nijhuis Saur Industries is entitled to suspend the performance of this Agreement in the event that the Customer has failed to perform its obligations pursuant to the Agreement.
12.1 If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute”) then the parties shall follow the procedure set out in this condition:
- either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Managing Director (or equivalent) of the Customer and General Manager – Mobile Water Services of Nijhuis Saur Industries shall attempt in good faith to resolve the Dispute;
- if they are for any reason unable to resolve the Dispute within 60 days of service of the Dispute Notice, the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure;
- to initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the ADR notice. 12.2 If the Dispute is not resolved within 45 days after service of the ADR notice, the Dispute shall be finally resolved by the courts of England and Wales in accordance with Condition 23.
13.1 No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
14. NO PARTNERSHIP OR AGENCY
14.1 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
14.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person
15. SEVERABILITY AND WAIVER
15.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Condition shall not affect the validity and enforceability of the rest of this Agreement.
15.2 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.1 Any customer service issues should be notified to Nijhuis Saur Industries by calling Mobile Water Services at 01782 590800 or by facsimile transmission to 0203 5677566. Both these numbers are available 24 hours a day, 7 days a week.
16.2 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be:
- delivered by hand or by pre-paid first-class post or next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
- sent by fax to its main fax number.
16.3 Any notice or communication shall be deemed to have been received:
- if delivered by hand, on signature of a delivery receipt;
- if sent by pre-paid first-class post or next working day delivery service, at
9.00 am on the second Business Day after posting:
- if sent by fax, at 9.00 am on the next Business Day after transmission.
17. COMPLIANCE WITH RELEVANT REQUIREMENTS
17.1 The Customer shall comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.
17.2 If the Customer is in breach of clause 17.1, Nijhuis Saur Industries may immediately terminate this Agreement without notice and without incurring any liability.
18. INTELLECTUAL PROPERTY
18.1 As between the Customer and Nijhuis Saur Industries, all Intellectual Property Rights and all other rights in the Equipment shall be owned by Nijhuis Saur Industries.
19. PRIVACY NOTICE
20. CONFIDENTIAL INFORMATION
20.1 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 Condition 19.2
20.2 Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Condition 19; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
20.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
21. ASSIGNMENT AND CONFLICT.
21.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under this Agreement without the consent of Nijhuis Saur Industries.
21.2 The documents comprising this Agreement are intended to be correlative, complementary and mutually explanatory of one another (and are intended to be read as a whole). In the event of any conflict, ambiguity, uncertainty and/or discrepancy existing or arising in or between any provisions of this Agreement, the relevant conflict, ambiguity, uncertainty and/or discrepancy (as the case may be) shall be resolved (and this Agreement shall be interpreted and construed) by applying the following order of precedence (in descending order), with the provision having the highest priority prevailing in each case (unless otherwise specified in writing by Nijhuis Saur Industries):
- these Conditions; and
- the Proposal.
22. ENTIRE AGREEMENT AND LAW
22.1 This Agreement 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.
22.2 Each party acknowledges that in entering into this Agreement 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 this Agreement.
22.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation (or negligent misstatement) based on any statement in this Agreement.
22.4 No one other than a party to this Agreement shall have any right to enforce any of its terms.
22.5 Nothing in this Condition shall limit or exclude any liability for fraud
22.6″This Agreement shall be governed by and construed and enforced in accordance with, the laws of the country, and if applicable, state or province, in
which the address of the Nijhuis Saur Industries’ entity (as set forth in the Purchase Order Section of the proposal) is located without regard to its conflict of laws rules.
22.7 Each party irrevocably agrees the courts of the country in which the address of the Nijhuis Saur Industries’ entity (as set forth in the Purchase Order Section of the proposal) is located shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).