Terms & Conditions of Sale

TERMS AND CONDITIONS OF SALE     Issue date:         2019

 

THE CUSTOMER’S ATTENTION IS DRAWN TO CLAUSES 2.9, 5.2, 5.3 AND 7 WHICH SET OUT LIMITATIONS ON THE SUPPLIER’S LIABILITY TO THE CUSTOMER.

 

  1. INTERPRETATION

 

1.1 In these Conditions, the following definitions apply:

 

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

 

Conditions: means the terms and conditions set out in this document as amended from time to time.

 

Consumer: an individual who, in entering into a Contract, is purchasing Goods and/or Services wholly or mainly for their personal use (and not for use in connection with their trade or business).

 

Contract: means the contract between the Supplier and the Customer for the sale and purchase of Goods and/or Services.

 

Customer: means the person who purchases Goods and/or Services from the Supplier.

 

Customer Representative: means any employee, officer, agent, sub-contractor or representative of the Customer or any person who the Supplier, acting reasonably, believes has the authority to issue Instructions on behalf of the Customer.

 

Data Protection Legislation: means the UK Data Protection Legislation and any other legislation relating to personal data and all other legislation and regulatory requirements in force from time to time, which is binding in the UK and applies to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

 

Force Majeure Event: has the meaning given in clause 8.

 

Goods: means the goods and parts (or any part of them) supplied or to be supplied by the Supplier to the Customer pursuant to an Instruction, such goods being more particularly described on the Invoice.

 

Invoice: the invoice raised by the Supplier detailing the Goods and/or Services provided by the Supplier to the Customer and the cost of such Goods and/or Services. 

Instruction: means the instruction issued to the Supplier by or on behalf of the Customer (including but not limited to a Customer Representative) to supply Goods and/or perform Services to the Customer, whether such instruction is submitted orally, in writing or otherwise, as the case may be.

 

Services: means the services (or any part of them) performed or to be performed by the Supplier to the Customer pursuant to an Instruction as more particularly described on the Invoice, including but not limited to call out and recovery services, inspections, fault diagnosis and maintenance, installation and/or repairs services in relation to a Vehicle or part of a Vehicle.

 

Specially Ordered Goods: means any Goods which are ordered in by the Supplier from a Third Party Supplier specifically for the Customer and which do not constitute goods that the Supplier usually stocks in the ordinary course of its business.

 

Supplier: means Ferndown Commercials Limited, a private company limited by shares, registered in England and Wales with company number 04532104, whose registered office is at 18-20 Haviland Road, Ferndown Industrial Estate, Wimborne, Dorset, BH21 7RG.

 

Third Party Supplier: means the third party supplier from whom the Supplier has purchased Goods for onward sale to the Customer. 

 

UK Data Protection Legislation: means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

 

Vehicle: the car, lorry, van, trailer, caravan, motorhome, motorcycle or other vehicle belonging to or in the possession of the Customer (or the Customer’s Representative as the case may be) which is to be the subject of the Services to be provided by the Supplier under the Contract.

 

1.2 In these Conditions, the following rules apply:

 

(a) A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).

(b) A reference to a party shall be with reference to the Supplier and/or the Customer as appropriate and shall also include the Supplier and/or Customer’s personal representatives, successors or permitted assigns.

(c) 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 statue or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(e) A reference to writing or written includes emails but excludes faxes. 

 

1.3 Where the Customer is a Consumer:

(a) nothing in these Conditions shall operate to limit the legal rights which shall apply at all times to the Contract; and

(b) in the event of any inconsistency between the Conditions and a Consumer’s legal rights, the legal rights shall prevail.

 

  1. ACCEPTANCE OF INSTRUCTIONS 

 

2.1 A quotation issued by the Supplier, either verbally or in writing, for the supply of Goods and/or Services to the Customer shall not constitute an offer to purchase. A quotation shall only be valid for a period of 30 calendar days from the date that it is communicated by the Supplier to the Customer or the Customer’s Representative (as applicable).

2.2 An Instruction constitutes an offer by the Customer to purchase Goods and/or Services in accordance with these Conditions.  The Company shall be entitled to accept Instructions from any Customer Representative and any Contract arising from such Instructions shall be treated as if the Instructions were issued by the Customer directly.

2.3  An Instruction shall be deemed to be accepted by the Supplier on the earlier of:

(a) the Supplier confirming to the Customer or Customer Representative (as applicable) either orally or in writing that the Supplier has accepted the Instruction; and

(b) the Supplier acting in such a way as to demonstrate acceptance of the Instruction, including but not limited to ordering the required Goods from a Third Party Supplier and/or beginning to perform the Services,

at which point the Contract shall come into force.

2.4 Each Instruction that is accepted by the Supplier shall constitute a separate Contract.

2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in catalogues, brochures or other marketing material in relation to Goods and/or Services are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract or have any contractual force.

2.6 The Customer or the Customer’s Representative (as applicable) is responsible for ensuring that the terms of each Instruction are complete and accurate in all respects.

2.7 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract. 

2.8 These Conditions apply to all Instructions and form part of all Contracts and apply to the exclusion of all other terms and conditions notified by the Customer to the Supplier.  No amendment to these Conditions will be accepted by the Supplier, unless specifically agreed to in writing, and silence on the part of the Supplier shall not constitute a valid acceptance of any variations or amendments to these Conditions or to the Contract.  

2.9 The Supplier reserves the right to refuse to accept Instructions for any reason whatsoever and shall have no liability to the Customer in respect of the Supplier exercising its rights under this clause.

 

  1. CHARGES

 

3.1 Subject to clause 3.2, Goods and/or Services shall be charged at the price confirmed to the Customer or Customer’s Representative (as applicable) by the Supplier in the quotation relating to the Instruction or, where no quotation was provided but an Instruction has been accepted by the Supplier, at the Supplier’s then standard call out and labour rates, such rates being available for inspection at 18-20 Haviland Road, Ferndown Industrial Estate, Wimborne, Dorset, BH21 7RG.

3.2 The Supplier may, by giving notice to the Customer or Customer’s Representative (as applicable), at any time increase the price of the Goods and/or Services to reflect any increase in the cost of Goods and/or Services that is due to:

(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour or materials costs);

(b) any request by the Customer to change delivery or performance date(s), quantities or types of Goods or Services ordered; or

(c) any delay caused by any instruction of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.

3.3 Where a Vehicle is made available for collection by the Supplier and the Customer fails to collect such Vehicle 

(a) within 3 Business Days of its availability for collection being communicated to the Customer or 

(b) within 3 Business Days of a quotation being submitted to the Customer for the performance of Services which does not lead to an Instruction;

the Supplier shall be entitled to charge the Customer for storage of the Vehicle from the date the Vehicle was made available for collection or the date of the relevant quotation (as applicable) to the date the Vehicle is collected by the Customer.

3.4 All prices communicated by the Supplier to the Customer or the Customer’s Representative (as applicable) are exclusive of VAT and VAT will be added to the prices at the rate then applicable from time to time.

 

  1. TERMS OF PAYMENT

 

4.1 The Supplier reserves the right to take a deposit from the Supplier on account of the estimated price of Goods and/or Services to be performed under the Contract, the amount of such deposit to be decided by the Supplier in its absolute discretion.  The Supplier shall not be bound to order Goods and/or begin to perform services until the Customer has paid the deposit requested by the Supplier.

4.2 Unless otherwise agreed with the Supplier in writing, the Customer shall pay for the balance of all Goods and/or Services supplied or performed (such amount taking into account the payment of any deposit pursuant to clause 4.1 above) immediately prior to collection of the relevant Goods and/or Vehicle on which the Services were performed (as applicable).

4.3 The Supplier will have, in addition to any other right or remedy available to it, a lien and power of sale over any Vehicle on which Services have been performed but amounts in respect of such Services are outstanding for payment from the Customer to the Supplier.  For the duration that such amounts remain outstanding and where such sums are not satisfied in full by the Customer within 2 months of the Vehicle being made available for collection by the Supplier, the Supplier shall be entitled to:

(a) retain the Vehicle in its possession until full payment is made; and

(b) dispose of the Vehicle in such manner and at such price as the Supplier thinks fit on the expiry of 21 days’ notice given to the Customer by the Supplier. Such notice must:

(i) be given in writing

(ii) be given in person or sent by first-class post to the Customer’s last known address and shall be deemed received on the second Business Day after posting;

(iii) state the amount that is outstanding and due for payment to the Supplier; and

(iv) state the Supplier’s intention to dispose of the Vehicle unless the amounts due to the Supplier are paid in full before the expiry of the notice

4.4 The Supplier shall apply the proceeds of any disposal pursuant to clause 4.3 in the following order:

(a) payment of any disposal costs;

(b) payment of outstanding amounts due to the Supplier from the Customer, whether in respect of that Vehicle or any other Contract in place between the Supplier and the Customer; and

(c) payment of any other costs and expenses, including costs of storage of the Vehicle; and

(d) payment of the remainder of the disposal proceeds to the Customer.

4.5 All payments made by the Customer to the Supplier pursuant to these Conditions shall be in English Pounds Sterling.

4.6 If the Customer fails to make any payment due to the Supplier by the due date for payment or within 3 Business Days of the date a Vehicle is made available for collection by the Supplier, the Customer shall be liable to pay interest on the overdue amount at the rate of (a) 5% per annum above the base rate of the Bank of England from time to time in force where the Customer is not a Consumer or (b) 4% per annum above the base rate of the Bank of England from time to time in force where the Customer is a Consumer. This clause shall not prejudice any right that the Supplier may have to demand immediate payment of the full amount owed from the Customer.  The Supplier shall, in addition to the interest set out in this clause, be entitled to recover from the Customer any costs incurred by the Supplier in relation to recovering such late payment from the Customer. 

4.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

 

  1. PERFORMANCE AND DELAYS

 

5.1 It is the Supplier’s desire to attempt to accommodate the requirements of its customers.  Therefore when Instructions are issued, the Customer or the Customer’s Representative (as applicable) should specify the approximate date upon which it would like the Goods delivered and/or Services performed (as applicable) and the Supplier will use its reasonable endeavours to comply with the Customer’s request.  

5.2 Any dates quoted by the Supplier for delivery of Goods and/or performance of Services (as applicable) are approximate only, and the date of actual delivery of Goods and/or performance of Services (as applicable) is not of the essence. The Supplier shall not be liable for any delay and/or failure in delivery of Goods or performance of Services (as applicable) that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with instructions that are relevant to the delivery of Goods and/or performance of Services (as applicable). 

5.3 The Customer must provide the Supplier with all required technical information, data and all documentation that the Supplier reasonably requests. If delivery of Goods and/or performance of the Services (as applicable) are delayed due to outstanding information as detailed in this clause 5, the Supplier shall not be liable.

5.4 If the Supplier suffers delay in performance due to a Force Majeure Event, the date of delivery of Goods and/or performance of Services shall be extended by a period of time equal to the period of the delay. The Supplier will give written notice to the Customer as soon as practicable after becoming aware of any such delay.

5.5 The Supplier warrants to the Customer that all Services shall be performed using reasonable skill and care.

5.6 The Customer acknowledges that, in the course of performance of the Services, it may be necessary to test the Vehicle or take the Vehicle to another location, including but not limited to a specialist, and therefore, the Customer consents to the Supplier (and any of the Supplier’s employee, agents or subcontractors who are suitably insured) driving the Vehicle on the road or elsewhere as is necessary for the Supplier to fully discharge its duties in connection with the performance of the Services.

5.7 If any parts are replaced in a Vehicle in the course of performance of the Services the original parts shall, unless claimed by the Customer within 2 Business Days of the performance of the Services, belong to the Company absolutely and the Company shall be entitled to deal with such parts as they so wish and the Customer shall have no rights to exercise any rights in relation to such parts.

5.8 Where the Customer is a Consumer and not a business, the Customer has a legal right to change their mind and cancel the Contract in respect of any Services to be provided.  These rights are contained under the Consumer Contracts Regulations 2013, and must be exercised within 14 days of the acceptance of an Instruction in accordance with clause 2.3 above.   To exercise the right to cancel, the Customer must inform the Supplier of its decision to cancel by a clear statement (e.g. a letter sent by post, fax or email).

5.9 Where a Customer who is a Consumer cancels the Contract in respect of the Services within the cancellation period referred to in clause 5.8 above and the Customer has not asked the Supplier to start work during the cancellation period, the Supplier will reimburse to the Customer all payments received from them in respect of the Services, without undue delay, and not later than 14 days after the day on which the Supplier is informed about the Customer’s decision to cancel the Contract in respect of the Services.

5.10 Where the Customer makes a request  for the Supplier to start work during the cancellation period, the Customer will not lose its right to cancel. If, however, the Customer subsequently cancels the Contract in respect of the Services during the cancellation period, the Customer shall pay to the Supplier such amounts in respect of the work that has already been undertaken by the Supplier in accordance with the Supplier’s then standard labour rates, such rates being available for inspection at 18-20 Haviland Road, Ferndown Industrial Estate, Wimborne, Dorset, BH21 7RG. The Supplier shall be entitled to deduct any amounts payable to it in these circumstances from any deposit received from the Customer which would otherwise be reimbursed to Customer in accordance with clause 5.9. The Customer will, however, lose the right to cancel the Contract in respect of Services and will have to pay in full once the Services to be provided under Contract have been fully performed even if this happens within the cancellation period. 

 

  1. GOODS

 

6.1 All Goods which are not the subject of Services to be performed by the Supplier shall be collected by the Customer from the Supplier’s premises.  Risk in the Goods shall transfer to the Customer at the point the Goods are collected by the Customer.

6.2 Unless otherwise agreed in writing by the Supplier, the Customer shall collect the Goods within 5 Business Days from the date that the Customer is notified that the Goods are ready for collection.  If the Goods are not collected by the Customer within the specified period, the Supplier may, at its option:

(a) charge the Customer for storage of the Goods from the date the Customer was notified that the Goods were available for collection to the date the Goods were actually collected by the Customer; or

(b) return the Goods to the relevant Third Party Supplier and charge the Customer for any handling fee, postage and packaging or other charges levied upon the Supplier by the Third Party Supplier relating to the return of those Goods.

6.3 The Customer shall check the Goods as soon as reasonably practicable following collection and shall notify the Supplier in writing of any incorrect items, damages to or shortages of Goods within 2 Business Days of the date the Goods are collected by the Customer.  Where the Customer fails to give notice pursuant to this clause 6.3, the Customer shall be deemed to have inspected and accepted the Goods.

6.4 Notwithstanding collection of the Goods by the Customer, title to the Goods shall not pass to the Customer until the Supplier has received payment in full in cash or cleared funds for the Goods and any other goods and/or services that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.

6.5 The Supplier shall use its reasonable endeavours to pass the benefit of any manufacturer’s warranty applicable to Goods onto the Customer.  The Customer acknowledges that the availability of any manufacturer’s warranty applicable to Goods shall be subject, in all cases, to any warranty conditions applicable to those Goods set by the relevant manufacturer from time to time.

6.6 Where the Customer is not a Consumer and is acting in the course of a business, the Customer may cancel a Contract for the provision of Goods at any time prior to the Goods being collected by the Customer or return Goods within 14 days after collection of the Goods by the Customer, save, in either case, in relation to:

(a) Specially Ordered Goods which, once ordered and/or collected, cannot be returned or cancelled in accordance with this clause; and

(b) any Goods which are electrical or have electrical applications where the packaging for such Goods has been opened, such Goods being incapable of being returned in accordance with this clause.

6.7 Where the Customer is a Consumer, the Customer has a legal right to change their mind and receive a refund in respect of Goods bought off-premises. These rights are contained under the Consumer Contracts Regulations 2013, and must be exercised within 14 days of collection of the Goods.  To exercise the right to change their mind and cancel the Contract in respect of the Goods, the Customer must inform the Supplier of its decision to cancel by a clear statement (e.g. a letter sent by post or email). Where such cancellation takes place after Goods have been collected by the Customer, the Customer must arrange for the Goods to be returned to the Supplier.  For the avoidance of doubt, where the Contract is entered into between the Supplier and a Customer who is a business and not a Consumer, the Consumer Contracts Regulations 2013 do not apply.

6.8 Where the Customer exercises its rights to cancel a Contract or return Goods in accordance with clauses 6.7 or 6.8 (as applicable) above, whether or not the Customer is a Consumer:

(a) any refund to be provided by the Supplier is subject to the Goods which are the subject of a return being in their original packaging, not having been used in any way and in a re-sellable condition; and

(b) the Supplier shall be entitled to charge the Customer, or withhold from the refund due to the Customer, reasonable compensation (to be decided in the absolute discretion of the Supplier) and/or any charges that will be levied on the Supplier by a Third Party Supplier relating to a return of those Goods by the Supplier to that Third Party Supplier.

 

  1. LIMITATION OF LIABILITY 

 

7.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for: 

(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b) fraud or fraudulent misrepresentation;

(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(d) any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

7.2 Subject to clause 7.1, the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of legal duty, or otherwise, for any loss of profits, loss of sales or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill and indirect or consequential loss.

7.3 In addition to the heads of loss set out in clause 7.2, the Supplier shall have no liability to the Customer for any loss or damage to possessions and/or items left inside a Vehicle whilst Services are being performed and therefore the Customer shall ensure that any possessions and/or items of value are removed prior to control of the Vehicle being provided to the Supplier.

7.4 Save in respect of those heads of loss excluded in clause 7.2, the Supplier’s total liability to the Customer in respect of:

(a) damage to property caused by the negligence of the Supplier’s employees, agents or representatives in connection with the Contract shall be limited to £1,000,000 for any one event or series of connected events; and

(b) all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of legal duty, or otherwise, shall be limited to 100% of the value of Goods supplied and/or Services performed by the Supplier under the Contract under which the liability arises.

7.5 Where the Customer is a Consumer, the Supplier only supplies Goods and/or Services for domestic and private use.  The Supplier will have no liability to a Customer who is a Consumer for any loss of profit or loss of business if the Goods and/or Services are used for any commercial, business or resale purposes.

7.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications.  In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

 

  1. FORCE MAJEURE

 

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

 

  1. ASSIGNMENT AND SUBCONTRACTING

 

9.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

9.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.

 

  1. VARIATION

 

Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.

 

  1. SEVERANCE

 

11.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

11.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.  

 

  1. NOTICES

 

12.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or by email.

12.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.1; if sent by pre-paid first class post or recorded delivery, at 09:00 on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.

12.3 The provisions of this clause 12 shall not apply to the service of any proceedings or other documents in any legal action.

 

  1. WAIVER

 

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

 

  1. THIRD PARTY RIGHTS

 

Unless otherwise expressly stated or agreed between the Supplier and the Customer in writing, 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.

 

  1. USE OF CONSUMER INFORMATION

 

The Supplier will only use a Consumer Customer’s personal information as set out in the Supplier’s privacy policy, a copy of which is available from https://ferndowncommercials.co.uk/privacy-policy/.

 

  1. DATA PROTECTION

 

16.1 The Supplier and the Customer will comply with all applicable requirements of the Data Protection Legislation, including maintaining their respective internal Data Protection policies. This clause 16 is in addition to, and does not relieve, remove or replace, either the Supplier or the Customer’s obligations or rights under the Data Protection Legislation. The provisions of clauses 16.2 to 16.5 shall only apply to Customers who are not Consumers.

16.2 The Supplier and the Customer acknowledge that where a Contract is in respect of Services in which the Supplier is processing personal data on behalf of the Customer, for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor.

16.3 Without prejudice to the generality of clause 16.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Contract, including but not limited to data relating to an individual for the purposes of analysing tachograph data.

16.4 Without prejudice to the generality of clause 16.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

(a) process that personal data only on the instructions of the Customer unless the Supplier is required by the Data Protection Legislation to otherwise process that personal data. Where the Supplier is relying on the Data Protection Legislation as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Data Protection Legislation unless the Data Protection Legislation prohibits the Supplier from so notifying the Customer; 

(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c) ensure that all employees, agents, subcontractors or other third parties who have access to and/or process personal data on behalf of the Supplier are obliged to keep the personal data confidential; and

(d) not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i) the Customer and/or the Supplier has provided appropriate safeguards in relation to the transfer;

(ii) the data subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies;

(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

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

(f) notify the Customer without undue delay on becoming aware of a personal data breach;

(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by the Data Protection Legislation or any other applicable law to store the personal data; and

(h) maintain complete and accurate records and information to demonstrate the Supplier’s compliance with this clause 16 and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.

16.5 Where a Contract does not involve the Supplier acting as a processor, both parties shall be data controllers and shall comply with clause 16.1 accordingly.

 

  1. CONFIDENTIALITY

 

17.1 Each of the Supplier and the Customer undertakes to the other that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other, except as permitted by clause 17.2.

17.2 The Supplier and the Customer may disclose the other’s confidential information:

(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out their respective obligations under the Contract. Each of the Supplier and the Customer shall ensure that their respective employees, officers, representatives, subcontractors or advisers to whom the other’ confidential information is disclosed comply with this clause 17; and

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

17.3 Neither the Supplier nor the Customer shall use the other’s confidential information for any purpose other than to perform its obligations under the Contract.

 

  1. GOVERNING LAW AND JURISDICTION

 

The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual dispute or claims), shall be governed by, and construed in accordance with, the laws of England and Wales, and the Supplier and the Customer irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

  • "With Ferndown Commercials it is good to know that our fleet of tipper lorries and grab trucks are in good hands."

    Avon Material Supplies Ltd

  • "We find that the Isuzu trucks are excellent workhorses for our type of business, giving us everything we need. In addition, we also receive excellent support from the local dealer Ferndown Commercials, which is not only close at hand, but also gives us first-class service."

    Cumberland Reinforcements

  • "We have been using Ferndown Commercials to service our fleet of Recycling & Waste Management vehicles for over 5 years. We have purchased several new and used vehicles and have been more than happy with the sales service received, and attention to detail."

    Commercial Recycling

  • "We believe that the reliability of the Isuzu Lorries combined with the 100% commitment of the Ferndown Commercials team are a formidable asset to our company."

    D J Wright Dairies Ltd

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