Marlink Ltd - Terms & Conditions For The Supply Of Goods And Services

Terms & Conditions For The Supply Of Goods And Services

The Customer’s attention is particularly drawn to the Limitation of Liability at condition 13. 

1. PRELIMINARY

Marlink Ltd ("Marlink") contracts are subject to the terms and conditions set out below (“the Conditions”).
Marlink’s Quotation for the Equipment and/or Services, both as defined below, shall set out Marlink’s prices, any estimated timeframe and the payment schedule. 
In order to accept Marlink’s Quotation, the Customer must sign the Quotation and return it to Marlink, by recorded delivery post, fax or email.   
No binding contract shall exist between Marlink and the Customer until Marlink has confirmed its acceptance of the order to the Customer, by counter signing the Quotation that has been signed by the Customer or emailing the Customer to confirm its acceptance of the order. 
 Equipment means any goods supplied by Marlink to the Customer including but not limited to any equipment, hardware, machinery, parts, spares or software.
Services means any services supplied by Marlink​​​​​​​ to the Customer including but not limited to any design, project management, handover testing or installation. 

2. TIME

a) Time is not of the essence of the contract and any period or times stated for delivery of Equipment or provision of Services  in the Quotation are estimates only and Marlink​​​​​​​ shall not be liable for any loss or damage resulting from the delay or failure to notify the Customer of any such delay.

b) Changes in specification or additional work or revised instructions relating to any aspect of the contract must be confirmed by a Change Order and will entitle Marlink to vary any estimates of price and/or time for completion of the contract.

3. PRICES

a) Unless otherwise specified in the Quotation, prices quoted are for delivery ex-Marlink’s offices and are exclusive of VAT. 

b) Any prices quoted are subject to Marlink’s right to increase the price to take account of delivery charges, insurance costs, special handling charges (if any) and/or packaging charges (if any), if these have not been included in the Quotation.   

c) Any prices quoted are subject to Marlink’s right to increase the price to take account of agreed changes in the specifications or changes in any taxes, duties or levies charged on or in relation to the Equipment or goods, materials or services used on or in relation to this contract and/or any extra costs or expenses incurred by Marlink as a result of site conditions, delays, interruptions, lack of information, changes in exchange rates and/or without limitation any other factors beyond Marlink’s control.

d) The Customer shall reimburse Marlink for any expenses reasonably incurred in delivering the Equipment and/or providing the Services if these have not been included in the Quotation. 

4. EQUIPMENT

Marlink will, subject to the Conditions, supply the Equipment specified in the Quotation. 

5.WARRANTY

a) Marlink warrants that on delivery and for a period of 12 months (or such other time as is agreed in writing between Marlink and the Customer) from the date of delivery, the Equipment shall: 

(i) conform in all material respects with their description;

(ii) be free from material defects in design, material and workmanship;

(iiI) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and

(iv) be fit for any purpose held out by Marlink​​​​​​​. 

b)  The customer must notify Marlink in writing immediately (but in any event within 24 hours of becoming aware of such defect or breach) of any defect or breach of warranty under 5 a) above.

c) Upon such notification, Marlink will, on the basis indicated below, make good by repair or (at Marlink’s option) replacement of the Equipment or parts thereof which are shown to Marlink’s reasonable satisfaction to have proved defective in materials or workmanship under proper use and maintenance within the period of 12 months (or such other time as is agreed pursuant to condition 5 a) above) after delivery.

b) Marlink shall decide whether such making good shall be affected at the offices of the Customer or at Marlink’s offices. Defective Equipment or parts which are returned to Marlink’s offices must be carriage paid by the Customer both to and from Marlink’s offices unless otherwise agreed in writing.

c) All defective Equipment must be returned in its entirety to Marlink’s offices and any defective parts or components must not be extracted from the Equipment.

d) If the defective Equipment has been incorporated by the Customer into other equipment the Customer shall be responsible for extracting the faulty Equipment and subsequently installing any repaired or replacement Equipment.   Any labour costs and expenses incurred by Marlink​​​​​​​ in extracting defective Equipment or installing repaired/replacement Equipment in such circumstances shall be reimbursed on demand by the Customer at Marlink’s then standard applicable rate.

e) The warranty given by Marlink above shall not apply if:-

(i) the repair or replacement of the part or parts is required because of fair wear and tear or abnormal operational conditions (unless expressly warranted for use in such conditions by Marlink in writing in advance), accident, neglect or misuse of the Equipment or interference with the Equipment by persons other than Marlink’s engineers;

(ii) supplies from sources which have not been authorised by Marlink are used in the Equipment;

 (iii) the defect in the Equipment arises from any drawing, design or specification supplied by the Customer;

(iv) the Customer alters or repairs the Equipment without the written consent of Marlink​​​​​​​; or

(v) the Equipment differs from its description as a result of changes made to comply with applicable statutory or regulatory standards. 

6. DESPATCH DELIVERY AND STORAGE

a) Unless otherwise agreed in writing delivery of the Equipment will be ex-works. 

b) Where despatch is delayed through the Customer's unwillingness or inability to arrange carriage or to make any payment, including payments related to other goods or services, due prior to despatch, Marlink may effect delivery of the Equipment by giving written notice that it is ready for despatch.

c) If the Equipment is stored by Marlink at the Customer's request or after notice has been given that the Equipment is ready for despatch the Customer shall reimburse Marlink upon demand for all costs and expenses of storage (including any necessary transit costs and insurance).

d)  Where the Equipment is to be delivered in instalments, each delivery shall constitute a separate contract and failure by Marlink to deliver any one or more of the instalments in accordance with these terms and conditions shall not entitle the Customer to treat the contract as a whole as repudiated.

e) The Customer will provide Marlink​​​​​​​, its employees, agents, consultants and subcontractors with access to its premises and provide Marlink with such information and materials as it may reasonably require to supply the Services and provide Marlink​​​​​​​, its employees, agents, consultants and subcontractors with any storage required. 

7. SHIPMENT

a) The Customer shall be responsible for inspecting the Equipment on arrival and immediately (but not later than 24 hours after arrival) shall notify Marlink if there is any damage, discrepancy or shortage or within 7 days after receipt of notice of despatch in the event of non-arrival.

b) The Customer specifically authorises Marlink to make any such contract of carriage and/or insurance on behalf of the Customer as Marlink considers necessary. The Customer shall be responsible for complying with all conditions and requirements of the carriers.

8. TITLE RISK AND INSURANCE

a) The risk in the Equipment shall pass to the Customer on despatch, or in the event that the Customer wrongfully fails to take delivery of the Equipment (in the circumstances contemplated in condition 5(b), then the risk shall pass to the Customer at the time when Marlink has notified the Customer that the Equipment is ready for despatch.  Once risk has passed the Customer shall be responsible for the satisfactory care and protection of the Equipment and shall take out at its own expense adequate and comprehensive all risks insurance cover on the Equipment (with a note of Marlink’s interest endorsed thereon until Marlink has received payment of the price in full).

b) Title to the Equipment shall remain with Marlink until Marlink has received the full amount of the price invoiced in cash or cleared funds or until prior re-sale by the Customer in which later event any proceeds of re-sale shall be held by the customer as trustee for Marlink until all monies owing to Marlink have been paid in full and Marlink shall be entitled to the proceeds of re-sale or to claim for such proceeds. So long as title in the Equipment remains with Marlink and the Customer is in default of any obligation under this Agreement Marlink shall have the right with or without prior notice to the Customer to re-take possession of the Equipment and for that purpose to go upon any premises occupied by the Customer and on such re-taking of possession this Agreement shall be terminated but without prejudice to the rights of Marlink to enforce any other or additional remedy existing at the time of termination in respect of such default.

9.  SERVICES

a) Marlink will, subject to the Condition, supply the Services specified in the Quotation. 

b) Marlink will have the right to make any changes to the Services which are necessary to comply with any applicable law of safety requirement, or which do not materially affect the nature or quality of the Services, and Marlink shall notify the Customer in any such event. 

c) Marlink warrants to the Customer that the Services will be provided using reasonable care and skill. 

10. PRICES AND PAYMENT

a)   Prices will be in the currency stipulated in the Quotation.  

b) The Customer will make payment in accordance with the Payment Schedule set out in the Quotation. 

c) No dispute concerning any item or separate part of the Equipment or work or any further contractual obligation of Marlink to the Customer shall affect the Customer’s obligation in respect of payments for other parts. If any part or instalment of the price is not paid when due, or work on the Equipment is held up for any reason attributable to the Customer,  or the Customer fails to take delivery of the Equipment in the manner and time prescribed, or the Customer incurs bankruptcy, insolvency, liquidation or the appointment of a Receiver, the full price of the Equipment less any sums already paid in respect of the Equipment and/or work done by Marlink shall immediately become due and payable by the Customer and Marlink may at its option terminate the contract or cancel or suspend despatch or further despatch.

d) Without prejudice to any other right of Marlink​​​​​​​, all overdue payments shall carry compound interest at the rate of two per cent per month or part month on the amount or amounts for the time being outstanding.

d) In the event that the Customer does not take delivery of the whole quantity of the goods which are subject of any contract to which these conditions apply on the date or within the time laid down by such contract then, without prejudice to any other remedy available to Marlink​​​​​​​, any discount or other allowance in respect of quantities of goods ordered which is or would be otherwise allowed to the Customer shall be recalculated to the level of goods or services actually accepted by the Customer.

11. INTELLECTUAL PROPERTY RIGHTS

a) All intellectual property rights in or arising out of or in connection with the Services shall be owned by Marlink​​​​​​​.

b) Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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

12.  CONFIDENTIALITY

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This condition 12 shall survive termination of the contract.

13.  LIMITATION OF LIABILITY

The Customer’s attention is particularly drawn to this condition. 

a) Nothing in these Conditions shall limit or exclude the Marlink’s liability for (i) death or personal injury caused by its negligence or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 or section 12 of the Sale of Goods Act 1979; or (iv) defective products under the Consumer Protection Act 1987.   

b) Subject to condition 13 a):

(i)  Marlink shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract ;

(ii) Marlink’s total liability for damage to property caused by the negligence of its employees in connection with the contract shall be limited to £5 million for any one event or series of connected events; and

(iii) Marlink’s total liability to the Customer in respect of all other losses arising under or in connection with the contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total amount payable by the Customer for the Equipment and Services, as set out in the Quotation. 

14.  PERFORMANCE DATA

Any performance figures quoted or referred to in any specification or other document used in concluding a contract are estimates only, based on averaged data under assumed conditions in a well managed environment with experienced, adequate and efficient operators and appropriate services, and proper use of satisfactory materials.

15. SPECIFICATION

a) Marlink reserves the right to make before delivery any alteration to or departure from the specification or design of the Equipment provided that it shall not to a material extent adversely affect the performance of the Equipment or the quality of the workmanship or the materials used.  This includes the replacement of any Equipment that has become obsolete.

b) All specifications, drawings and technical documents issued by Marlink​​​​​​​ either before or after conclusion of the contract are issued solely for the Customer’s use in connection with the Equipment and shall not be copied, reproduced or communicated to any third party without Marlink’s express consent in writing.

16. TELECOMMUNICATIONS EQUIPMENT

When the Equipment supplied by Marlink is to be used in conjunction with Public Telecommunications Operator lines or apparatus or requires licencing or similar permits for operation then the following additional conditions shall apply:-

(i) The Customer shall be solely responsible for ensuring that the use of the Equipment is permitted.

(ii) The Public Telecommunications Operator shall have the right to require modifications to be carried out to Equipment which is already installed and in use. Any modifications required will be carried out at the Customers expense.

(iii) In no event shall Marlink be liable for damage, loss or injury to Public Telecommunications Operator equipment or personnel in connection or arising out of the Customer's act of neglect.

17. RESALE OF EQUIPMENT

Where any Equipment is supplied by Marlink to the Customer (“Reseller”) for the purpose of resale to third parties, in consideration of Marlink (a) permitting such resale; and/or (b) extending the provisions of the warranty in condition 5 above to such third parties; and/or (c) granting discounted prices to the Reseller, the following additional conditions shall apply:

(i) The Reseller shall be solely responsible for providing support directly to any third party to whom it sells the Equipment unless otherwise agreed in writing.

(ii) The Reseller shall be solely responsible for ensuring compliance by any third party to whom the Equipment is resold with the obligations of the Customer pursuant to condition 8 above.

(iii) The Reseller shall pay to Marlink upon demand, any costs and expenses incurred by Marlink as a result of failure by the Reseller or any third party to whom the Reseller has resold the Equipment to comply with any of the Customer/Reseller obligations outlined in these conditions of sale.

(iv) The Reseller shall be solely responsible for carrying out all acceptance tests required by any third party

(v) The Reseller shall not without the written permission of Marlink remove any identifying marks from the Equipment, re-badge or represent the Equipment as being of any other source or type.

(vi) Notwithstanding the provisions of clause 7(a) above unless otherwise agreed in writing the price of such Equipment must be paid by the Reseller prior to delivery and time shall be of the essence.

18. FORCE MAJEURE

Marlink shall:-

 (i) in any event not be liable for loss or damage and

 (ii) be entitled to cancel or rescind the contract,

if the performance of its obligations under the contract is in any way adversely affected by any cause whatsoever beyond Marlink’s control including but not limited to the delays or defaults of suppliers or the default of any sub-contractor, war, strike, lock-out, trade dispute, flood, accident to plant or machinery, shortage of materials or labour.

19. CANCELLATION

Once an order has been accepted, it may not be cancelled without Marlink’s prior written consent and in the event of cancellation for whatever reason the Customer shall indemnify Marlink in full against all costs, claims, loss and expenses incurred thereby including any consequential loss and loss of profits.

20. GENERAL

a) No variation of the contract, including the introduction of any additional terms and conditions shall be effective unless the Customer signs the Change Order submitted by Marlink​​​​​​​.   . 

b) The contract, comprising the Quotation and the Conditions, 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 Marlink​​​​​​​ which is not in the contract. 

c) The Customer shall not rely upon any representations as to the Equipment or its fitness for any particular purpose unless made by Marlink in writing.

d) If any provision of these conditions is held by any competent authority to be illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it legal and enforceable.  Any modification of a provision or in whole or in part shall not affect the validity and enforceability of the original provision. 

21. GOVERNING LAW AND JURISDICTION

This contract shall be subject to and construed in accordance with the laws of England in all respects and shall be subject to the non-exclusive jurisdiction of the English Courts. The uniform laws on international sales shall not apply. The statutory rights of any customer contracting as a consumer are not affected by these conditions.

GDPR Policy

1. DEFINITIONS

• ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person

In order to carry on the services ordered by the Client under this Contract, MARLINK LTD processes some communication data records which can be eventually considered as personal data, such as IP addresses (“MARLINK LTD’s PD”).

• ‘controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.

Under this Contract the Client acts as a controller when making MARLINK LTD’s communication services available to end-users.

• ‘processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.

Under this Contract MARLINK LTD acts as a processor.  MARLINK LTD neither has a direct link with any end user of the services nor has the possibility to (i) obtain end-user’s consent for the processing or (ii) inform end-users of their rights under GDPR, which remain under the sole responsibility of the Client.

2. GENERAL OBLIGATIONS

Each party undertakes to comply with applicable data protection regulation, including REGULATION (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 (“GDPR”).

In particular, the Client undertakes that end user’s personal data processed in relation with this Contract, including MARLINK LTD’s personal data when made available to the Client under the services or upon specific request of the Client, is:

a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness and transparency’);

b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes (‘purpose limitation’); 

c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed (‘storage limitation’) ; 

f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).

MARLINK LTD undertakes to assist the Client as may be necessary, upon request of the Client, in order to enable the Client to meet its obligation concerning end user’s personal data under GDPR, to the extent that MARLINK LTD’s services are involved in the performance of such obligation.

3. MARLINK LTD’S OBLIGATIONS

For the performance of its obligations under the Contract, MARLINK LTD undertakes to:

a) process MARLINK LTD’s PD only on documented instructions from the Client and only as agreed upon in this Contract.

b) ensure that persons authorized to process MARLINK LTD’s PD have committed themselves to confidentiality.

c) implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.

d) delete all MARLINK LTD’s PD after the end of the provision of services, and delete existing copies unless Union or Member State law requires storage of such data.

e) make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this Article and allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client, under terms and conditions to be agreed upon between the Parties.

f) notify the Client without undue delay after becoming aware of a security breach affecting MARLINK LTD’s PD and cooperate with the Client in order to allow the Client to comply with its obligations under article 33 GDPR.

The Client understands and agrees that MARLINK LTD is currently engaging different communication carriers/service providers in order to perform the services under this Contract and that such providers may vary from time to time during the performance of the Contract.  MARLINK LTD remains sole liable for its sub-processor’s compliance with GDPR insofar processing of MARLINK LTD’s PD under this Contract is concerned.