General conditions governing assembly, maintenance and repair (‘Services’)
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3.6
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GeneralAll assemblies, maintenance works and repairs (‘Services’)
undertaken by INFICON Ltd (INFICON) are subject to these terms
and conditions. Putting a facility into operation and giving instruction
as to its use are not part of the assembly process. Should the facility
be put into operation by INFICON, the following relevant conditionsapply.
These terms and conditions and any document referred to hereinconstitutes the entire agreement between the parties. The Buyer
acknowledges that it has not relied on any statement, promise,representation, assurance or warranty made or given by or on behalfof INFICON which is not set out in the Contract.
Any samples, drawings, descriptive matter or advertising issued byINFICON, and any descriptions or illustrations contained in
INFICON’s catalogues or brochures, are issued or published for thesole purpose of giving an approximate idea of the Services
described in them. They shall not form part of the Contract or haveany contractual force.
These terms and 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 trade, custom, practice or course of dealing.
Offers / Confirmation of order
Quotes and estimates from INFICON are not offers and are notbinding.
An offer is made by the Customer to INFICON in writing. The offer isaccepted when the written request is acknowledged in writing byINFICON.
Any modification to an offer constitutes a new offer which shall only
be deemed to be accepted when INFICON issues writtenacceptance.
The date of acknowledgment by INFICON is the Commencement
Date.
Supply of Services, Personnel requirement, Deadlines, Risk
INFICON shall supply the Services to the Customer in accordancewith the technical requirements in all material respects.
INFICON shall use all reasonable endeavors to meet any
performance dates, estimated by INFICON on the basis of previous
experience, but any such dates shall be estimates only and timeshall not be of the essence for performance of the Services.
Should Services be delayed or be required to be recommenced due
to a Force Majeure Event, as defined in clause 13.1 below, thedeadline shall be appropriately extended or adapted as required,even if INFICON finds itself behind schedule at the time the Force
Majeure Event occurs. The customer is liable for unavoidable costs
including for any waiting period or further journeys undertaken by
INFICON personnel, arising as a result of the delay. Should waiting
periods occur, INFICON has the right to recall its personnel.
In the event of Force Majeure, INFICON has the right to demand theagreed price less the value of the work not performed. The parties
may agree that the work be recommenced in so far as it isreasonable and convenient to do so. To recommence the work will
incur new remuneration based on the current prices charged by
INFICON.
INFICON shall have the right to make any changes to the Services
which are necessary to comply with any applicable law or safety
requirement, or which do not materially affect the nature or quality ofthe Services, and INFICON shall notify the Customer in any such
event.
INFICON warrants to the Customer that the Services will be
provided using reasonable care and skill.
PricesPrices for Services are charged in accordance with the prices inforce at the time the work is carried out and is confirmed in theacknowledgment from INFICON. Charges include travel costs withincidental expenses, remuneration for Services, daily allowances,remuneration for set-up and disassembly times. INFICON reserves
the right to apply additional charges where there are unforeseen
additional technical issues or difficult working conditions e.g. wherework is injurious to health, particularly dirty, dangerous or subject toparticular heat, and in the case of repairs the price of exchanged or
newly installed parts, the costs of their transport and other incidental
costs will also be charged.
The prices for replacement parts, newly installed parts and othermaterial costs are quoted according to INCOTERMS 2010 including
packing but excluding erection and start-up. If the customer does
not expressly request otherwise, INFICON insures the replacement
parts etc. required by INFICON for Services outside its works at theexpense of the customer against the usual transport risks including
damage by breakage.
Terms of Payment
Unless otherwise provided for in the offer/contract confirmation fromINFICON, payments are due on receipt of invoice.
Payments are to be made in full, and clear funds to the payments
office of INFICON as set out on the Invoice. Fees, charges or othercosts which may be accrued by INFICON through a separately
agreed discounting of bills or checks shall be borne by thecustomer. In the event of replacement parts being used in theServices, title will not pass until payment has been made.
The retention of or deduction from payments because of complaints,
disputes or claims on the part of the customer which have not been
expressly agreed by INFICON is prohibited. The customer may only
set off possible counterclaims against payments due under thiscontract where INFICON has expressly agreed to the same inwriting.
Customer’s Obligations
The customer shall ensure that the terms of the Order and any
information it provides in the Specification are complete andaccurate.
At its own expense, the customer will support the personnel fromINFICON in the implementation of the work, including providing
INFICON and its personnel such information and materials as
reasonably required to supply the Services and ensure that suchinformation is accurate in all material respects, and providing any
required technical assistance. The technical assistance provided by
the customer must guarantee that the Services can commence
promptly and can be carried out without delay until completion of theServices. In as far as particular plans and instructions are required
from INFICON; it will make these available to the customer in goodtime.
Prior to the commencement of the work, the customer shall obtainand maintain all necessary licenses, permissions and consents
which may be required and make available the necessary materials
at the site to the extent that the work can be carried out promptly. If
requested and required, the customer will provide assistance toINFICON personnel in finding appropriate accommodation and

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6.9

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assist with regard to obtaining necessary documentation from thelocal public authorities.
The Customer shall keep and maintain all materials, equipment,
documents and other property of INFICON (INFICON Materials) at
the Customer's premises in safe custody at its own risk, maintain
INFICON Materials in good condition until returned to INFICON, andnot dispose of or use INFICON Materials other than in accordancewith INFICON’s written instructions or authorisation.
The customer will inform INFICON immediately of any sickness,
accident or death of INFICON personnel. The customer will arrange
medical treatment, transport to hospital, etc., and initially cover theresultant costs - If necessary also of transport to the place ofresidence. Such costs may subsequently be reimbursed by
INFICON. If the workplace is located outside the United Kingdom
the customer also assumes responsibility in regard to publicauthorities and the discharge of necessary formalities.
The Customer shall also provide access to the Customer's
premises, office accommodation, other facilities and qualified
service personnel as reasonably required by INFICON.
The customer provides INFICON with appropriate support for thetransport and return transport of the assembly, repair and testing
tools as well as spare and replacement parts provided by INFICON.
If INFICON’s performance of any of its obligations under theContract is prevented or delayed by any act or omission by theCustomer or failure by the Customer to perform any relevant
obligation (Customer Default):(a) INFICON shall without limiting its other rights or remedies
have the right to suspend performance of the Services until
the Customer remedies the Customer Default, and to rely on
the Customer Default to relieve it from the performance of anyof its obligations to the extent the Customer Default preventsor delays INFICON’s performance of any of its obligations;(b) INFICON shall not be liable for any costs or losses sustained
or incurred by the Customer arising directly or indirectly fromINFICON’s failure or delay to perform any of its obligations as
set out in this clause 6.9; and(c) the Customer shall reimburse INFICON on written demand forany costs or losses sustained or incurred by the Supplierarising directly or indirectly from the Customer Default.
Services of facilities from other suppliers
If facilities receive components from other suppliers, for which
special personnel is required by the production firm, INFICON isprepared, if desired by the customer, to arrange the assembly of thecomponents according to the conditions stipulated by the production
firm.
The supply of Services of facilities or parts thereof not belonging toINFICON's scope of delivery and the maintenance, repair andalteration of components delivered by other suppliers require ineach case a separate agreement.
Completion of Services
Where the Services are provided at the Customer’s place ofbusiness, INFICON will complete a work report to be signed by theCustomer once the Services have been completed. If the work
report is not signed by the Customer within 2 weeks of it being
presented and no issues are raised by the Customer, the Services
are thereafter deemed to be accepted.
Where the Services are provided at an INFICON factory theServices are deemed to be accepted as in good order on delivery tothe Customer. The Customer is obliged to inspect the repair work assoon as practicable after delivery and inform INFICON immediatelyof any defects.
Should the performance of the Services not conform to the agreed
technical requirements, INFICON is obliged to correct any defects.
This does not apply if the defect is due to circumstances attributable
to the customer. If the defect is not material, the customer cannot
refuse receipt or reject completion.
Once the Services are complete and/or accepted, INFICON is nolonger liable for any discernible defects in so far as the customer
has not reserved the right of redress in relation to a specific defect.
Any defects in relation to Services which have been carried out at
an INFICON factory must be notified to the courier immediately ondelivery save for where the defect is not discernible until a later time.
Warranties
INFICON warrants correcting defects in the Services. The customer
is obliged to report any defect to INFICON immediately.
The customer’s statutory rights in case of any failed correction ofdefects are unaffected.
The customer will grant INFICON reasonable time and authorization
required for the improvements deemed necessary by INFICON;
otherwise INFICON is released from liability for defects. Thecustomer is precluded from correcting any defect itself or to engage
any third party to do so save for in an emergency. For the purposesof this clause, emergency means circumstances where the safety ofoperation is jeopardized, where there is a risk of excessive damages
being incurred or where INFICON are unreasonably delayed in
remedying the damage. In such circumstances and in order torecover the direct costs of such correction the customer must inform
INFICON immediately. All other cases costs are borne by thecustomer.
The warranty period for claims regarding defects of the Services istwelve months following completion of the Services.
Warranty claims will only be accepted if the required maintenanceand care procedures were carried out and documented.
Limitation of Liability
Nothing in these Conditions shall limit or exclude liability for:(a) death or personal injury caused by its negligence, or thenegligence of its employees, agents or subcontractors;(b) fraud or fraudulent misrepresentation; or(c) breach of the terms implied by section 2 of the Supply ofGoods and Services Act 1982 (title and quiet possession).
Subject to clause 10.1:(a) INFICON shall under no circumstances whatever be liable
to the Customer, whether in contract, tort (includingnegligence), breach of statutory duty, or otherwise, for any
loss of profit, or any indirect or consequential loss arisingunder or in connection with the Contract; and(b) INFICON’s total liability to the Customer in respect of allother losses arising under or in connection with theContract, whether in contract, tort (including negligence),
breach of statutory duty, or otherwise, shall not exceed theamount agreed to be paid for the Services and asconfirmed in the acknowledgment of order.
The terms implied by sections 3 to 5 of the Supply of Goods andServices Act 1982 are, to the fullest extent permitted by law,excluded from the Contract.
This clause 10 shall survive termination of the Contract.

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09/2014

Termination
The customer can terminate the contract in the event that INFICON
is unable to complete all work prior to receipt by the customer.
Remuneration payable to INFICON may be reduced if theperformance of part of the work proves impossible; if the customer
has a justified interest in the rejection of a part performance of work,sentence 1 applies. If a reduction is agreed for part-performance,
payments already may be refunded.
Should performance not be possible at the fault of the customer, thecustomer remains obliged to pay remuneration and charges toINFICON as if the contract had been performed in full including,where applicable, any expenses incurred as a result of the contract
being terminated early. The same applies in the case of default intaking delivery, in so far as INFICON is not responsible for suchdefault.
Should performance not be possible at the fault of INFICON, taking
into account any agreed extension of time the customer is entitled toterminate the contract.
On termination of the Contract for any reason:(a) the Customer shall immediately pay to INFICON all ofINFICON's outstanding unpaid invoices and interest and, inrespect of Services supplied but for which no invoice has been
submitted, INFICON shall submit an invoice, which shall bepayable by the Customer immediately on receipt;(b) the Customer shall return all of the Supplier Materials and any
Deliverables which have not been fully paid for. If theCustomer fails to do so, then INFICON may enter theCustomer's premises and take possession of them. Until they
have been returned, the Customer shall be solely responsible
for their safe keeping and will not use them for any purpose
not connected with this Contract;(c) the accrued rights, remedies, obligations and liabilities of theparties as at expiry or termination shall be unaffected,including the right to claim damages in respect of any breachof the Contract which existed at or before the date oftermination or expiry; and(d) clauses which expressly or by implication survive termination
shall continue in full force and effect.
Insurance
Each Party shall maintain such policies of insurance as it is required
to hold by English law including public liability insurance in the sumof £1,000,000.
Each party shall (if requested in writing by the other) provide theother with evidence of its public liability insurance policy and any
additions or restrictions thereto which may be made from time totime, and (if requested in writing) with sufficient evidence of thepayment of premiums as they become due.
Force Majeure
For the purposes of this Contract, a Force Majeure event means anevent beyond the reasonable control of INFICON including but notlimited to strikes, lock-outs or other industrial disputes (whether
involving the workforce of INFICON or any other party), failure of autility service or transport network, act of God, war, riot, civilcommotion, malicious damage, compliance with any law orgovernmental order, rule, regulation or direction, accident,
breakdown of plant or machinery, fire, flood, storm, default of
suppliers or subcontractors, sabotage, non-culpable breakdowns,
non-culpable malfunction of important work pieces, non-issue or lateissue of official permits and all other unforeseen events.
INFICON shall not be liable to the Customer as a result of any delay
or failure to perform its obligations under this Contract as a result ofa Force Majeure Event.
Other
Place of fulfillment shall be The United Kingdom. INFICON shallalso be entitled to take legal action at the domicile of the customer's
head office.
Supplementary to all contractual provisions this agreement shall begoverned by and construed in all respects in accordance withEnglish law. For the avoidance of doubt, the United Nations
Convention on the International Sale of Goods (CISG) shall not
apply to this agreement. To contracts with relations to foreigncountries the International and United Kingdom Conflict Rules shallalso not apply. The international rules for the interpretation of tradeterms prepared by the International Chamber of Commerce(Incoterms) shall apply but where they conflict with this agreement,
this agreement shall prevail.
Additional provisions in the case of repairs at an INFICON
factory
The following terms apply to repair work carried out at an INFICON
factory. They have priority in regard to the above conditions in so far
as they exclude, revise or amend them.
The customer must deliver the object to be repaired at thecustomer's own expense and risk at the time arranged.
The object to be repaired is to be delivered in a form of packaging
that allows for easy and secure handling and that can be re-used forreturn transport. Risk and costs resulting for noncompliance withthese instructions are borne by the customer.
INFICON will exercise reasonable care and skill in ensuring the safe
keeping of the object to be repaired. The risk of incidental worseningof the defect or of incidental destruction is borne by the customer.
INFICON dispatches the repaired object at the expense and risk of
the customer. In so far as the customer does not expressly indicate
otherwise, INFICON insures the repaired object at the customer's
expense against the usual transport risks including breakage.
INFICON has the right to retain the repaired object until all financial
demands linked with the business relationship, including subsidiarydemands, have been met.

16. Data Protection
16.1 We comply with the requirements of the Data Protection Act 1998
and the Electronic Communications Act 2000 and any statutory
modification or re-enactment thereof. To this end any information
provided to INFICON will be regarded as purely business information
and as such does not come under the requirement of dataprotection.

INFICON LTD
Unit 1 Centurion Park
Davyfield Road
BlackburnLancs BB1 2QY