The following definitions and rules of interpretation apply in these Conditions:
Acceptance Tests: such tests, data and criteria as Wayland Additive determines are reasonably necessary to demonstrate that the Product complies with the Technical Specification.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
General Sales Conditions: these terms and conditions as amended from time to time in accordance with clause 15.1.
Goods: the Products and Consumables manufactured and/or provided to a Customer by Wayland Additive.
Confidential Information: means all items of proprietary, technical and business information disclosed by either Party to the other pursuant to this Contract which can be regarded as confidential by a reasonable business person including, but not limited to, documents, drawings, diagrams, models, trade secrets, know-how, patent applications, future or proposed products or services, business plans, forecasts and trading information and programs whether in human-readable or machine-readable form, on any storage medium (including those stored electronically).
Consumables: any and all consumables supplied by Wayland Additive to a Customer including without limitation metal powders, machine consumables and user-replaceable parts involved in the printing process and for the avoidance of doubt excluding the Products.
Contract: the contract between Wayland Additive and the Customer for the Supply of Goods and/or Services in accordance with these General Sales Conditions.
Customer: the person who purchases Goods and Services from Wayland Additive.
Delivery: completion of delivery of the Goods in accordance with 5.1 and 5.3.
Disclosing Party: a party who discloses Confidential Information.
EULA: a licence to use software in order to operate the Product in Wayland Additive’s standard form.
Final Acceptance Tests: the tests to be undertaken by Wayland Additive (in line with the data and criteria determined by Wayland Additive) to demonstrate that following installation the Product complies with the Technical Specification as set out in Annex 1.
Force Majeure Event: means any circumstance not within a party’s reasonable control including, without limitation:
a) Acts of God, flood, drought, earthquake or other natural disaster;
b) Epidemic or pandemic;
c) Terrorist attack, civil war, civil commotion or riots, war, treat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off diplomatic relations;
d) Nuclear, chemical or biological contamination or sonic boom;
e) Any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition or failing to grant a necessary licence or consent;
f) Collapse of buildings, fire, explosion or accident; and
g) Any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer’s order for the supply of Goods and/or Services as set out in the Customer’s purchase order form(s). Maintenance Agreement: an agreement for the maintenance and support of the Product in Wayland Additive’s standard form.
Product: the equipment manufactured and/or provided to a Customer by Wayland Additive as detailed on the Order and, if more than one piece of equipment “Product” shall refer to all items of equipment to be supplied. For the avoidance of doubt Consumables are specifically excluded from this definition.
Quotation: a quotation provided by Wayland Additive to the Customer in respect of Goods and/or Services.
Receiving Party: a party to whom Confidential Information is disclosed.
Services: the installation of a Product by Wayland Additive at the Customer’s premises as detailed in the Order, including in particular the unpacking of the Product from its shipping encasements and any services provided under a Maintenance Agreement.
Technical Specification: Wayland Additive’s standard specification for the Product referred to in the Order or agreed in writing by the Customer and Wayland Additive.
Wayland Additive: Wayland Additive Limited a company registered in England and Wales with company number 11978407.
2. General Sales Conditions
2.1. These General Sales Conditions shall apply to any Goods and Services manufactured and/or provided to a Customer by Wayland Additive.
2.2. The Contract constitutes the entire agreement between Wayland Additive and the Customer with respect to its subject matter and supersedes all prior agreements and understandings between them (whether oral, in writing or any other form). No specific conditions set down by the Customer or implied by law, unless formally accepted in writing by Wayland Additive, shall form part of the Agreement between the parties.
3. Terms of Sale
3.1. Any Quotation given by Wayland Additive shall not constitute an offer and is only valid for 1 (one) calendar month from its date of issue.
3.2. The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these General Sales Conditions.
3.3. Orders shall only be deemed accepted when Wayland Additive issues written acceptance of the Order (Order Acceptance) at which point, and on which date, the Contract shall come into existence.
3.4. These General Sales Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice, or course of dealing.
3.5. Cancellation of Orders.
Consumables: The Customer shall not be entitled to cancel orders for Consumables once Wayland Additive has issued an Order Acceptance.
Products and Services: All customer orders are binding once Wayland Additive has issued an Order Acceptance. However, the Customer may by written notice cancel an Order in respect of Products within 30 (thirty) days of Wayland Additive issuing the Order Acceptance and Wayland Additive shall be entitled to retain the amount of any advance payment paid by the Customer.
In the event of any other cancellation by the Customer, the Customer is committed to payment of the total Order price.
4.1. Unless otherwise agreed between the parties, the prices applicable to all orders and contracts are quoted in (£) Pounds Sterling, which will be the invoicing and payment currency. The price for the Goods and/or Services shall be the price set out in the Order. VAT is not included in the price. If VAT is applicable, it will appear on the invoice separately at the rate applicable on the date of the invoice. All prices are exclusive of all taxes, customs duties, levies and other charges whatsoever which the Customer shall pay in addition when it is due to pay for the Goods and/or Services.
4.2. The terms and conditions of payment are as follows:
Full payment with Order, unless a credit account has been agreed in writing by Wayland Additive prior to the Order.
Product and associated Services
• 30% of the total amount of the Order to be invoiced by Wayland Additive on the Order Acceptance date.
• 60% of the total amount of the Order on completion by Wayland Additive of the Acceptance Tests.
• 10% of the total amount of the Order on Acceptance of the Product per clause 6.2.
Services under Maintenance Agreement
Full maintenance fee payable annually in advance.
Maintenance Services outside scope of Maintenance Agreement
Services charged at Wayland Additive’s standard day rates including travel time and Wayland Additive is entitled to payment of all outs of pocket disbursements including in relation to travel and subsistence and spare parts.
Each of the above shall be paid within 14 days following the receipt of Wayland Additive’s invoice. Payment will only be recognised as received when the funds have cleared into Wayland Additive’s bank account.
If the Customer fails to make a payment due to Wayland Additive under the Contract by the due date then, without prejudice to Wayland Additive’s other remedies, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement at 8% a year above the Bank of England’s base rate from time to time, but at 8% a year for any period when that base rate is 0% or below.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.
5.1. All Products to be delivered by Wayland Additive under the Contract shall be supplied “Ex-Works”, as such term is defined in the INCOTERMS 2020 of the international Chamber of commerce. Wayland Additive’s liability shall end when it makes the Goods available to the Customer for collection at Wayland Additive’s premises set out or referred to in the Order Acceptance. While Wayland Additive may make arrangements for the onward carriage of the Product to the delivery address, Wayland Additive will not be responsible for any loss or damage to Product during shipment. It is the responsibility of the Customer to ensure that it has adequate insurance in respect of the shipment.
5.2. All Consumables supplied by Wayland Additive shall be supplied “Carriage Paid To”, as such term is defined in the INCOTERMS 2020 of the international Chamber of commerce. Wayland Additive will not be responsible for any loss or damage to Consumables during shipment. It is the responsibility of the Customer to ensure that it has adequate insurance in respect of the shipment.
5.3. Delivery or performance dates in relation to the supply by Wayland Additive of Goods and Services are approximate only and time shall not be of the essence. Late deliveries on the scheduled date shall not give rise to any compensation, discount or cancellation of Orders in progress.
5.4. Wayland Additive shall give the Customer not less than 30 (thirty) days’ notice of its proposed delivery date of the Product to enable the Acceptance Tests to be completed prior to delivery. The Customer shall act reasonably in agreeing the delivery date. Delivery of the Product shall be deemed to have completed at 9.00am on the agreed delivery date and if the Customer fails to take delivery of the Product on the agreed delivery date Wayland Additive shall store the Product until delivery takes place and charge the Customer for all related costs including insurance costs.
5.5. Risk in and responsibility for the Product shall pass to the Customer on completion of delivery (as defined by EXW under Incoterms 2020), or deemed Delivery as described in clause 5.4 above.
5.6. The Customer is responsible for obtaining at its own cost, such import licences and other consents in relation to the Goods as are required from time to time.
5.7. The Customer shall not unpack any Product. The Customer shall notify Wayland Additive once a Product has been delivered to its premises and i) the Customer shall inspect the packaging and notify Wayland Additive in writing of any material damage to it and ii) arrange a date on which the Product shall be unpacked and installed by Wayland Additive (or its representative).
5.8. The Product supplied to the Customer by Wayland Additive shall:-
a) conform in all material respects with the Technical Specification; and
b) be free from material defects in design, material and workmanship and remain so for 12 (twelve) months after delivery according to the state of the art known at that time.
This warranty is limited to the supply by Wayland Additive of the Products. For the avoidance of doubt Wayland Additive does not provide any warranties in respect of the Consumables and the Customer acknowledges that the Consumables are provided “as is” provided that Wayland Additive shall use its reasonable endeavours to enforce any rights it may have against third party suppliers of Consumables.
5.9. The Customer may reject any Products delivered to it that do not comply with clause 5.8 provided that:
a) written notice of rejection is given to Wayland Additive:
i) in the case of a defect that is apparent on normal visual inspection, within 5 (five) Business Days of installation;
ii) in the case of a latent defect, within a reasonable time of the defect having become apparent but in any event within the 12 (twelve) month period referred to in clause 5.8; and
b) none of the events listed in clause 5.12 apply.
5.10. If the Customer fails to give notice of rejection in accordance with clause 5.9 it shall be deemed to have accepted the Products.
5.11. The Customer shall supply evidence to support any alleged defects. The Customer shall allow Wayland Additive (or its representative) to access its premises during normal business hours to allow it to examine and remedy such defects. The Customer shall refrain from taking any action itself, or through any third party, to remedy any defect.
5.12. Wayland Additive shall not be liable for the failure of a Product to comply with the warranty in clause 5.8 if:
a) the Customer makes any further use of the Product after giving a notice in accordance with clause 5.9 a);
b) the defect arises because the Customer failed to follow Wayland Additive’s written instructions as to the storage, installation, commission, use or maintenance of the Product or (if there are none) good trade practice;
c) the defect arises as a result of Wayland Additive following any drawing, design or specification supplied by the Customer;
d) the Customer alters, modifies or repairs any part of the Product without Wayland Additive’s written consent;
e) The defect arises as a result of wilful damage, negligence or abnormal working conditions;
f) the Product differs from its description or Technical Specification as a result of changes made to ensure it complies with applicable statutory or regulatory standards or the Customer’s requirements;
g) any use of the Product in combination with consumables, equipment, material, products or systems not supplied by, approved by or specifically recommended by Wayland Additive;
h) any modification, adaptation, alteration, translation, incorporation, recompilation, reverse engineering, or creation of derivative works from any software embedded in or provided by Wayland Additive with the Products; or
i) after the expire of 5 Business Days after installation, it is a defect that ought reasonably to have been apparent on reasonable inspection in accordance with clause 5.9.
5.13. If the Customer rejects any delivery of the Product in accordance with this clause, Wayland Additive shall at its option within a reasonable time of it accepting that the Product is defective repair or replace the Product in which event Wayland Additive shall not be in breach of the Contract or have any liability to the Customer for the rejected Product.
5.14. Wayland Additive’s decision (acting reasonably) as to whether a Product complies with the Technical Specification shall be final.
5.15. Wayland Additive shall have no obligation to maintain or service a Product unless otherwise expressly provided in the Order and in which case the parties shall enter into a Wayland Additive Maintenance Agreement.
6. Product Acceptance Procedure
6.1. Technical Acceptance
Wayland Additive shall carry out the Acceptance Tests at its premises in the presence of Wayland Additive’s quality control inspector prior to shipment. Following this procedure, a copy of the results of the Acceptance Tests shall be signed off by Wayland Additive. This will accompany the shipment and be emailed in advance to the Customer.
6.2. Installation and Final Acceptance
Prior to shipment of the Product to the Customer, the parties shall agree on scheduled dates for installation and Final Acceptance Tests of the Product by Wayland Additive (and references to Wayland Additive in the remainder of this clause shall include its authorised representative) at the Customer’s premises.
In the event of failure to agree dates for installation and Final Acceptance Tests, Wayland Additive shall be entitled to give the Customer 10 (ten) Business Days’ prior written notice of installation and an estimated date for Final Acceptance Tests of the Product.
The Customer shall, at its own expense, prepare the site on which the Product is to be installed in accordance with the information provided by Wayland Additive, in advance of installation of the Product. Immediately prior to installation of the Product, Wayland Additive shall inspect the Customer’s site and specify within a reasonable time any corrections or modifications required.
The Final Acceptance Tests for the Product shall be completed by Wayland Additive as soon as reasonably practicable following installation of the Products and, once complete, a representative on behalf of each party shall confirm in writing that the Final Acceptance Tests have been completed.
If the Product fails to pass the Final Acceptance Tests, Wayland Additive shall remedy the defect and the relevant tests shall be repeated within a reasonable time.
In the event that the Customer and Wayland Additive do not agree on whether the Product has met the Final Acceptance Tests either party shall be entitled to refer the matter to an expert (Expert) within 10 (ten) Business Days of the Final Acceptance Tests in accordance with Wayland Additive’s dispute resolution procedure at www.waylandadditive.com/dispres
6.4. Satisfaction of Final Acceptance Tests
Satisfaction of the Final Acceptance Tests of the Product shall be deemed to have occurred on the earlier of:
a) The signing by the Customer of a certificate confirming that the Product has passed the Final Acceptance Tests;
b) The expiry of 5 (five) Business Days after completion of the Final Acceptance Tests to the satisfaction of Wayland Additive unless the Customer has notified Wayland Additive within this period that the Product has failed to meet the Final Acceptance Tests;
c) The expiry of 5 (five) Business Days after the date provided by Wayland Additive for the carrying out of the Final Acceptance Tests if the Customer has not permitted Final Acceptance Tests to be undertaken within that period;
d) In the event that the parties disagree on whether or not the Final Acceptance Tests have been met, upon the Expert’s final determination that the Final Acceptance Tests have been met; and
e) The use by the Customer of the Product.
Wayland Additive shall supply the Services with reasonable care and skill.
6.6. Transfer of Title and Reservation of Title:
Title in the Goods shall pass to the Customer only when all sums due from the Customer to Wayland Additive have been received in full in cash or cleared funds by Wayland Additive.
Until title to the Goods has passed to the Customer, the Customer shall:
a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Wayland Additive’s property;
b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on Wayland Additive’s behalf.
In case of non-payment for the Goods by the due date and upon written demand by Wayland Additive, the Customer shall permit the servants or agents of Wayland Additive to enter the Customer’s premises and repossess the Goods at the Customer’s cost and expense at any time.
In case of non-payment for the Services by the due date, Wayland Additive may suspend provision of the Services until payment of all outstanding invoices in full.
7. Customer Obligations and Acknowledgements
7.1. The Customer shall:
a) comply with all technical instructions provided by Wayland Additive, including, without limitation, installation requirements and the creation of the appropriate procedures for the operation of the Product;
b) only use the Product with the Consumables approved by Wayland Additive;
c) arrange shipping and insurance of the Product;
d) provide such access to Product as Wayland Additive shall require to comply with its obligations under this Agreement; and
e) ensure that its use of the Product does not infringe any patent registered in the name of Wayland Additive or any third party.
7.2. The Customer acknowledges that it is a specialist and is fully aware of the functionalities of the Product and has obtained all the information it required or deemed necessary to enter into the Contract.
8.1. Nothing in the Contract limits any liability which cannot legally be limited including liability for:
a) death or personal injury cased by that party’s negligence;
b) fraud or fraudulent misrepresentation; and
c) breach of the terms as to title and quiet possession insofar as they are implied by law.
8.2. Subject to clause 8.1 and 8.3 Wayland Additive’s total liability to the Customer in contract, tort (including negligence), breach of statutory duty or otherwise, arising under or in connection with the Contract shall not exceed the total contract price as set out in the Order to which the claim relates.
8.3. Subject to clause 8.3 Wayland Additive shall not be liable to the Customer for:
a) any indirect or consequential loss or damage:
b) loss of data or other equipment or property;
c) economic loss or damage;
d) any loss of actual or anticipated profit, interest, revenue, anticipated savings or business or damage to goodwill even if Wayland Additive was advised of the possibility of such damages.
The Customer waives any recourse against Wayland Additive and its insurers for any claim in relation with these types of loss or damage and holds harmless and indemnifies Wayland Additive and its insurers from and against any claim by a third party(ies) in relation to such loss or damage.
8.4. Wayland Additive shall not be liable for any losses arising from the Customer’s, any third party or end user’s use or misuse of the Goods.
8.5. Wayland Additive shall not be in default if the performance of any of its obligations under the Contract which is partly or wholly delayed or prevented by reason of Force Majeure.
8.6. Wayland Additive has given commitments as to the compliance of the Products with the Technical Specification at clause 5.8 and in relation to the Services at clause 6.5. In view of these commitments the express undertakings and warranties given by Wayland Additive in this Contract are in lieu of all other warranties, conditions, terms, undertakings and obligations, whether express or implied by statute, common law, custom, trade usage, course of dealing or in any other way in respect of the Goods including those implied by sections 13 -15 of the Sale of Goods Act 1979.
All of these are excluded to the fullest extent permitted by law. In particular Wayland Additive does not give any warranty that the Goods will be fit for any particular purpose, even if the Customer has made known a particular purpose to Wayland Additive and accordingly the Customer must satisfy itself that the Goods will be fit for their intended purpose.
9. Intellectual Property
9.1. All Intellectual Property Rights in the Product, the Services and/or arising out of or in connection with supply of the Product shall be owned by Wayland Additive (subject to the intellectual property rights of any third party supplier to Wayland Additive).
9.2. Except as expressly agreed by the parties in writing, the Customer shall not have any right to use the Intellectual Property Rights of Wayland Additive whether or not relating to the Product.
9.3. Wayland Additive does not by way of these General Sales Conditions grant the Customer any right or licence to use any software required to operate the Product. The Customer shall enter into a separate EULA with Wayland Additive if Wayland Additive has agreed in its Order Acceptance to provide operating software for the Product.
9.4. The Customer warrants that no design or instructions furnished or given by it will cause Wayland Additive to infringe any patent, registered design, trademark or copyright in the performance of the Contract.
9.5. Except to the extent that by law such reverse engineering and disassembling may not be prohibited, the Customer shall not be permitted to reverse engineer or disassemble the Product.
9.6. The Customer shall be entitled to provide suggestions or improvements to Wayland Additive in connection with the Product (Improvements) and in such event the Customer:
a) shall own all data and intellectual property rights in connection with such Improvements but shall only use such Improvements for its own internal business and shall not sub-license or otherwise commercially exploit such Improvements; and
b) hereby grants to Wayland Additive a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual exclusive licence for Wayland Additive to use or incorporate any such Improvements into any equipment it may manufacture in the future; and
c) acknowledges that if it makes any Improvements to the Product without Wayland’s prior written consent this shall invalidate Wayland Additive’s warranty in accordance with clause 5.12.d).
9.7. Without prejudice to Wayland Additive’s obligations under clauses 9.8 and 9.9, the Customer shall indemnify Wayland Additive against all claims, demands, actions, costs, expenses, losses and damages including legal costs made against Wayland Additive for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with:
a) any information supplied by the Customer under clause 9.4 and;
b) the Customer’s exercise of the rights granted to it under this Contract and its use of the Product.
9.8. If a claim is made or action brought against the Customer that the Product and/or Services infringe the Intellectual Property Rights of a third party, the Customer shall immediately notify Wayland Additive. Wayland Additive shall be entitled at its own expense and with the Customer’s assistance, if requested, to conduct with Wayland Additive’s own lawyers and experts all negotiations for settlement of, and/or any litigation arising from, any claim or action. No admission of liability shall be made by the Customer nor shall it incur any expense without Wayland Additive’s written consent. The Customer acknowledges that Wayland Additive provides no such indemnity in respect of Consumables.
9.9. If at any time it is alleged that the Product and/or Services infringe the Intellectual Property Rights of a third party or if, in Wayland Additive’s reasonable opinion, such allegation is likely to be made, Wayland Additive may at its own cost:
a) modify or replace the Product (or any part thereof) in order to avoid the infringement; or
b) procure for the Customer the right to continue using the Product and/or Services.
10.1. The Receiving Party undertakes for a period of 10 (ten) years from the date of disclosure:
a) to receive and hold the Confidential Information in the strictest confidence, using the same degree of care as it uses to protect its own information, and to use all reasonable endeavours to safeguard the Confidential Information and to prevent its unauthorised disclose to any unauthorised third party;
b) to use the Confidential Information only for the purpose of the performance of its obligations under this Contract;
c) to ensure it only discloses Confidential Information to its officers and employees that need to know the Confidential Information to enable the Disclosing Party to perform its obligations under this Contract and that such persons are informed of the confidential nature of such information;
d) to ensure the Confidential Information is not disclosed or caused to be disclosed to any third party or person other than those referred to above without the prior written consent of the Disclosing Party and only then after obtaining from the third party a written undertaking equivalent in all respects to those contained in this Contract; and
e) forthwith notify the Disclosing Party of all (suspected or actual) unauthorised disclosures of the Confidential Information and thereafter take all such steps to protect the confidentiality of the Confidential Information as the Disclosing Party may reasonably require.
10.2. The obligations of confidence set out in Clause 10.1 above shall not apply to such part (but only to such part) of the Confidential Information as the Receiving Party can demonstrate to the reasonable satisfaction of the Disclosing Party:
a) was already known to or in the possession of the Receiving Party prior to its receipt from the Disclosing Party or which was publicly available at the time of disclosure;
b) is or becomes known to the public through no wrongful act of the Receiving Party;
c) is received by the Receiving Party from a third party who is not in breach of any obligation of confidentiality;
d) is disclosed by the Receiving Party in compliance with the legal requirement of a governmental or regulatory agency or otherwise where disclosure is required by operation of law;
e) has been independently developed by or on behalf of the Receiving Party by persons who did not have access to the Confidential Information; or
f) is approved for release by written authorisation of the Disclosing Party.
10.3. It is expressly agreed and understood by the parties that the disclosure and provision of Confidential Information under this Contract by either Party shall not be construed as granting to the Receiving Party any rights, whether express or implied, by licence or otherwise, on the matters, inventions, or discoveries to which the Confidential Information pertains or any copyright, trade-mark or trade secret rights. The property in all Confidential Information disclosed by either Party to the other pursuant to this Contract shall rest with the Disclosing Party.
10.4. To the extent that the parties have entered into a confidentiality agreement prior to entering into this Contract, such confidentiality agreement shall continue to apply in respect of information disclosed prior to the date on which the parties enter into this Contract and for Confidential Information disclosed on or after the date of this Contract, the confidentiality provisions in this clause 10 shall apply.
10.5. Confidential Information shall only be exchanged by and between each party’s nominated representatives as agreed in writing.
11.1. Without affecting any other right or remedy available to it including payment under clause 4.2, Wayland Additive may terminate the Contract with immediate effect by giving written notice to the Customer if:
a) the Customer commits a material breach, including failing to pay amounts on the due date, of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 5 (five) Business Days after receipt of notice in writing to do so; or
b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
c) the Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
d) the Customer’s financial position deteriorates to such an extent that in Wayland Additive’s opinion, acting reasonably, the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.2. Cancellation by the Customer of an Order or termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination and any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
Should the Product be subject to export restrictions, the Customer hereby undertakes not to sell, lend or deliver to any third party under any conditions whatsoever, with or without compensation, temporarily or permanently, the Product (including supplies and spares delivered in connection with the after sales support), documentation, operating manuals and information in any way whatsoever related to the Product, without the prior written consent of Wayland Additive and/or the relevant competent authorities. In case of breach of this undertaking by the Customer, Customer shall indemnify, defend and hold Wayland Additive harmless from and against any and all liability, claims, suits, losses, damages, fines, or judgments including costs, attorneys’ and witnesses’ fees and any and all expenses incident arising thereto.
13. Force Majeure
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure results from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equal to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for 12 (twelve) weeks, the party not affected may terminate this agreement by giving 10 (ten) Business Days’ written notice to the affected party.
14. Applicable law and Settlement of disputes
The Contract and any dispute or claim shall be construed and governed according to English law and the parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract provided that either party may enforce any judgement of the courts of England and Wales in the courts of any jurisdiction. The application of the United Nations Convention on Contracts for the International Sales of Goods shall be expressly excluded.
15.1. Variation: No variation to the Contract shall be effective unless it is in writing and signed by the Customer and Wayland Additive.
15.2. Waiver: Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
15.3. Severance: If any provision of the Contract is found to be invalid or unenforceable in whole or in part, the validity of the other provisions and the remainder of the provision in question shall not be affected by that invalidity or unenforceability.
15.4. Assignment: Wayland Additive may at any time assign, charge, subcontract or otherwise deal in any other manner with any or all of its rights and obligations under the Contract. The Customer shall not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under the Contract.
15.5. Third Party Rights: Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.