STANDARD CONDITIONS OF PURCHASE
The definitions and rules of interpretation in this clause apply in these Terms:
“Agreement” means the agreement, verbal or written, between the Company and the Supplier for the purchase of the Goods and/or Services, incorporating these Terms, including the contents of any Purchase Order and any Specification;
“Business Day” a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
“Company” means Lamasatech Limited (registered in England and Wales with company number 07079886);
“Company Materials” all materials, equipment and tools, drawings, specifications and data supplied by the Company to the Supplier (including any branding, logos, artwork assets or other materials of any customer of the Customer) that are supplied by the Company to the Supplier;
“Confidential Information” means (a) any information disclosed by or on behalf of the Company to the Supplier at any time before the termination of the Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked or described as “confidential” or should have been understood by the Supplier (acting reasonably) to be confidential (b) the details of any customer or subcontractor of the Company and (c) the terms of the Contract;
“Deliverables” means all documents, products and materials developed by the Supplier or its agents, subcontractors, consultants and employees in relation to the Goods and Services in any form, including model moulds made in connection with the manufacture of Goods, data, reports and specifications (including drafts).
“Delivery Note” means a note fully and properly itemising the Goods delivered which shall be provided by the Supplier at the place and time of delivery in accordance with clause 5.6;
“Endemic Defect” shall mean a defect in any part of the Goods or Deliverables which by its nature is likely to occur in all of the Goods or Deliverables or in the whole of such part of the Works which are of a similar type;
“Epidemic Defect” shall mean a defect in any part of the Goods or Deliverables which has occurred in at least five (5) % of the delivered Goods or Deliverables which are of a similar type and at least three (3) pieces, or as otherwise agreed in the Purchase Order;
“Delivery Receipt” means a copy of the Delivery Note signed by a duly authorised signatory of the Company which shall be delivered by the Supplier in accordance with clause 5.6;
“Goods” means (if any) the goods and material, works and services described in the Purchase Order (including any part of it);
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world;
“International Supply Contract” means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977;
“Mandatory Policies means the Company’s mandatory policies notified to the Supplier in writing as amended by notification to the Supplier from time to time.
“Normal Business Hours” means the hours of 8am to 5pm Monday to Friday (excluding public and bank holidays in England and Wales);
“Purchase Order” means purchase order issued by the Company, to which these terms and conditions shall apply exclusively;
“Services” means (if any) the services to be provided by the Supplier under the Agreement, as set out in the Company’s Purchase Order.
“Specification” the description or specification of the Goods and any Services provided in writing by the Company to the Supplier.
“Supplier” means the person(s), firm or company from whom the Company purchases the Goods and/or Services;
“Supplier Relief Event” means the specific events or circumstances upon which the Supplier will be granted relief from any failure to comply with clause 5.3 being any failure by the Company to perform or procure the performance of any of its obligations under this Agreement or any other breach by Company of its obligations under the Agreement.
“Terms” means these standard conditions of purchase.
“Warranty Period” a period of twelve (12) months from the date the Goods are delivered or the Services rendered or such other period as may be stated in the Purchase Order.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule
- APPLICATION OF TERMS
2.1 These Terms apply to all sales and quotations of any Supplier to the exclusion of any other terms and conditions (including any terms or conditions which the Supplier purports to apply under any purchase order, confirmation, response to tender, specification or other document even when referred to in the Agreement).
2.2 Any contract made between any Supplier and the Company shall be subject to these Terms and save as set out in these Terms, no representative or agent of the Company has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them. Any such term or representation will bind the Company only if in writing and signed by a duly authorised representative of the Company.
2.3 Any enquiry for Goods or Services made by the Company with the Supplier shall not be deemed to be an offer by the Company to purchase Goods or Services. Only a Purchase Order signed by a duly authorised representative of the Company shall constitute an offer by the Company to purchase the Goods and/or Services subject to these Terms.
2.4 The execution and return of the acknowledgement copy of the Purchase Order form by the Supplier, or the Supplier’s execution, commencement of work or commencement of delivery pursuant to the Purchase Order constitutes acceptance of the Purchase Order on these Terms.
2.5 All representations, statements or warranties made or given by the Supplier, its servants and agents (whether orally in writing or in any of the Supplier’s brochures, catalogues and advertisements) regarding the quality and fitness for purpose of any goods or services shall be deemed to be express conditions of the Agreement.
2.6 The Company reserves the right to correct any clerical or typographical error made by its employees at any time.
2.7 If there is any conflict between the provisions of the Purchase Order and these Terms, the provisions of the Purchase Order shall take precedence.
3 SUPPLIER’S WARRANTY
3.1 The Supplier warrants to the Company in respect of any Goods provided pursuant to the Agreement, that the Goods shall:
(a) conform in every respect with the provisions of the Agreement;
(b) be capable of all standards of performance specified in the Agreement;
(c) be of satisfactory quality and be fit for any purpose made known to the Supplier expressly or by implication and in this respect the Company shall rely on the Supplier’s skill and judgement;
(d) be new (unless otherwise specified on the Purchase Order) and be of sound materials and skilled and careful workmanship;
(e) correspond with their description or any samples, patterns, drawings, plans and specifications referred to in the Agreement (including in relation to branding, livery and get-up);
(f) be free from all defects in materials and workmanship for the Warranty Period; and
(g) comply with any current legislation and all applicable British Standards, health and safety standards, CE Marking, ISOs, electrical and mechanical standard and legal requirements concerning the design, manufacture, processing, storage and testing of Goods.
3.2 The Supplier warrants to the Company in respect of any Services provided pursuant to the Agreement, that:
(a) the Supplier shall perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards;
(b) the Services shall conform with all descriptions and specifications agreed between the Company and the Supplier (including, where applicable, in any Specification);
(c) the Services and Deliverables shall be provided in accordance with all applicable legislation from time to time in force.
3.3 The Supplier warrants that the Goods and Services and the Deliverables will meet the Supplier’s representations and will conform to any and all of the provisions of the Agreement for the Warranty Period
3.4 If at any time during the Warranty Period, the Supplier breaches the warranties set out in this Agreement in respect of the Goods, Services and Deliverables (or any part thereof) or if any weakness, deficiency (including cosmetic damage which does not affect the functionality of the Goods), failure, breakdown or deterioration (beyond normal wear and tear for the intended service) appears or is discovered within the Warranty Period shall be at the Company’s option, be repaired or replaced or otherwise made good by the Supplier at the Supplier’s expense within the time designated by the Company. Without limiting the generality of the foregoing, and without prejudice to any rights of the Company under the Agreement or otherwise:
(a) if requested by the Company, the Supplier shall collect any defective Goods and/or Deliverables and shall either, at the Company’s option:
(i) deliver any repaired and/or replacement Goods and Deliverables or any part thereof:
(ii) issue a full refund of such defective Goods and Deliverables
and shall bear all freight, courier costs, customs duties and all other expenses in respect of such collection and re-delivery up to the point of final destination;
(b) if requested by the Company, the Supplier shall dispatch, at the Supplier’s cost and expense, its field engineer(s) and/or technical advisor(s) for engineering and technical assistance for repair and/or installing and/or commissioning thereof. The Supplier shall reimburse the Company all damages, cost and expenses arising out of or resulting from the Supplier’s breach of any of the foregoing warranties including, without limitation, costs of removal, inspection, transportation, installation and/or warehousing;
(c) when the Company determines in its sole discretion that the Supplier cannot repair or replace within the time designated by the Company, the Company may request the Supplier to deliver any components and spare parts required by the Company to undertake its own repairs and the Supplier shall all freight, courier costs, customs duties and all other expenses in respect of such delivery of components and spare parts;
(d) the Company may, at its option, elect to accept the defective Goods or Deliverables, whereupon an equitable adjustment in the price of the Agreement shall be made.
3.3 In the event of any Endemic Defect or Epidemic Defect arising during the Warranty Period, the Supplier shall, at its risk and costs rectify all Goods or Deliverables (whether delivered or not) including spare parts whether or not the Endemic or Epidemic Defect shall have manifested itself in all such Goods in the manner elected by the Company pursuant to clause 3.2.
3.4 All rectification work related to any Endemic Defect or Epidemic Defect, including without limitation the submission of appropriate failure reports, shall be done in a timely manner, as determined by the Company. The Supplier will keep the Company informed as to the progress of the work or failure report preparation and the reasons for delays if any.
3.4 The Supplier warrants that all maintenance, spare and operation parts for the Goods shall be available to the Company at commercially reasonable costs for a period of seven (7) years from the delivery of the Goods.
3.5 The Company’s rights under the Agreement are in addition to the statutory terms implied in favour of the Company by the Sales of Goods Act 1979, the Supply of Goods and Services Act 1982 and any other statute.
3.6 The provisions of this clause 3 shall survive any delivery, inspection, acceptance, payment or performance pursuant to the Contract and shall extend to any replacement, repaired, substitute or remedial goods or services provided by the Supplier. Without prejudice to the foregoing, the warranty period for the Goods and/or Deliverables shall be extended by the length of each period of time during which the Goods and/or Deliverables cannot be used, or fully used, as intended in the Agreement and a further Warranty Period with the same terms and conditions as the original shall apply to the part(s) of the Goods and Deliverables repaired or replaced.
- QUANTITIES & ADHERENCE TO SPECIFICATION IN RESPECT OF GOODS
4.1 Unless the Company has agreed otherwise in writing, the Supplier shall deliver the exact specification specified in the Agreement and the specified quantities of Goods as specified in the Purchase Order. The specification specified in the Agreement and the quantity of Goods specified in the Purchase Order is deemed to be of the essence. The Supplier shall ensure that the terms of any specification in a Purchase Order are fulfilled accurately and in full. A failure on the part of the Supplier to fulfil the correct specification or to deliver the exact specified quantity of Goods shall entitle the Company, at its sole discretion and without affecting its other rights and remedies, being entitled to either reject incomplete deliveries or terminate or rescind the Agreement.
4.2 Prior to manufacturing any Goods, the Supplier shall submit to the Company for approval pre-production samples of the Goods. Unless otherwise agreed in a Purchase Order, the samples the Supplier shall provide shall include (i) a 2D and 3D full-colour visualisation (in such form as the Company shall from time to time require) of concept art work or technical designs, (ii) if required by the Company (and, if the concept art work or technical designs are approved), a prototype or prototypes of the Goods and its packaging in the form, finish and quality equal to those Goods in production stage. The Supplier shall not commence manufacture of Goods until the Company has communicated its approval of all such samples to the Supplier in writing (such approval not to be unreasonably withheld or delayed).
4.3 The Company and those persons authorised by it (including external and internal auditors, contractors, licensors and agents (“Permitted Persons”)) shall have the right to monitor, inspect, interview and audit any finished or unfinished Goods or other work in progress, the, facilities, data, documentation, systems, records, internal policies, controls and materials of the Supplier applicable to the Services and activities relating to this Agreement for the purpose of reviewing the Supplier’s compliance and ability to supply the Goods and Services in accordance with the Agreement and ability to comply with this Agreement, The Supplier shall co-operate with the Permitted Persons and give all information and explanations to the Company and the Permitted Persons in relation to the Services and activities in connection with this Agreement as the Company or any such person shall reasonably request. If any of the foregoing demonstrates that the Supplier has not complied with this Agreement, the Company may, without prejudice to its other rights and remedies, require the Supplier promptly to take remedial action to ensure that the Supplier meets and is able to meet the terms of this Agreement.
4.4 If specified in the Purchase Order or otherwise requested by the Company, the Supplier shall carefully test and inspect the Goods before delivery to ensure that they comply with the requirements of the Agreement and shall report to the Company of the outcome of such tests by such methods as the Company shall specify (including reporting in writing, submission of photos or videos). If requested by the Company, any tests (whether special tests, Quality Assurance tests or the Company’s other standard tests) to be undertaken by the Supplier pursuant to this clause shall be carried out in the presence of the Company or its representative. The Company shall notify the Supplier of the date from which it is or will be ready to carry out such tests and the location of the tests. The Supplier undertakes that it or its representative will, by prior appointment, attend at the premises where the Goods are situate within 14 days after such date for the purpose of witnessing such tests and agrees that in default of such attendance the Company may proceed with the tests in its absence and it shall be bound by the results thereof.
4.5 The Company reserves the right to call for certificates or test certificates for the Goods at any stage of manufacture or assembly. Such certificates shall clearly state the Company’s order numbers and any item numbers. If, as a result of any inspection or test, the Company finds that the Goods or any items comprised within them do not comply with the Agreement, or are unlikely to comply with it on completion of manufacture, processing or performance, the Company may inform the Supplier, and the Supplier shall take such steps as are necessary to ensure compliance.
- DELIVERY OF GOODS
5.1 The Supplier shall deliver the Goods on the date (if any) and location specified in the Purchase Order or, if no such delivery date time frame or completion date is specified, within four (4) weeks of the date of the Purchase Order. If no delivery location, time frame or completion date is specified in the Purchase order, the Goods shall be delivered to the Company’s registered office. Time is of the essence as to the delivery of the Goods under the Agreement and if the Supplier does not comply with its obligations in the preceding sentence, the Company may, at its sole discretion and without affecting its other rights or remedies and without incurring any liability to the Supplier:
(a) terminate or rescind the Agreement in whole or in part;
(b) cancel any undelivered balance of the Goods;
(c) return the Goods for full credit; and/or
(d) purchase substitute goods or services elsewhere.
5.2 Without prejudice to any other right which the Company may have against the Supplier (including but not limited to those listed at clause 5.1), the Supplier shall be liable to the Company for any loss (including loss of profit), costs, damages or expenses caused directly or indirectly by any delay in the supply of the Goods to the Company.
5.3 Without prejudice to any other right which the Company may have against the Supplier (including but not limited to those listed at clause 5.1), if the Supplier fails to deliver the Goods to the Supplier in accordance with clause 5.1 and such failure to deliver is not the result of Supplier Relief Event (“Delayed Goods”) the Supplier shall pay to the Company on demand or the Company may deduct from its payments to the Supplier, a rate of ten (10) % of the total value of the Delayed Goods per each consecutive 7 day weekly period that elapses after the Delayed Goods become overdue. The parties confirm that this sum represents a genuine pre-estimate of the Company’s loss.
5.4 Unless otherwise specified in a Purchaser Order, all carriage charges are deemed to have been incorporated into the price quoted in the Purchase Order for the Goods. Any additional or unforeseen expenses incurred in delivery are the sole responsibility of the Supplier.
5.5 The Goods shall be properly packed (and, unless otherwise specified in a Purchaser Order, in non-returnable packaging), secured, despatched and delivered at the Supplier’s expense in good condition at the time or times and except in the case of International Supply Contracts where Incoterms are expressed to apply, at the place or places specified in the Agreement (or as otherwise specified in writing by the Company). The Goods shall be received at the place of delivery, subject to the Company’s inspection and approval. Any failure on the part of the Company to notify the Supplier of any defect in the Goods shall not be deemed to be an admission of satisfaction and/or acceptance of the Goods. Any Goods which the Company rejects as not conforming with the Agreement shall be returned at the Supplier’s risk and expense. If requested by the Company, packing and loading to be undertaken by the Supplier pursuant to this clause shall be carried out in the presence of the Company or its representative.
5.6 Unless otherwise specified in the Purchase Order, the Supplier shall supply the Goods with a Delivery Note which shall be signed by an officer or employee of the Company. The Supplier shall provide a Delivery Receipt to the address specified in the Purchase Order (or in the absence of an address there, the registered office of the Company) within 3 days of delivery.
5.7 Goods supplied in connection with International Supply Contracts where Incoterms are expressed to apply shall be delivered in accordance with the Incoterms specified in the Purchase Order and the Agreement shall be deemed to incorporate the latest edition of Incoterms current at the date of the Agreement save that in the event of any inconsistency between the Incoterms and any express term of the Agreement (including these Terms) the latter shall prevail.
5.8 If the Supplier or the Supplier’s carrier delivers any Goods at the wrong time or to the wrong place then the Supplier shall pay to the Company on demand, or the Company may deduct from the price, any resulting costs of insurance, storage or transport.
5.8 The Supplier shall, at its own expense, provide all vehicles and equipment necessary for the accommodation and off loading of the Goods from the vehicles.
6.1 The Company shall have the right, without prejudice to any other right which the Company may have against the Supplier, to reject the Goods (or any of them) within a reasonable time of their delivery and to cancel this Purchase Order if the Goods (or any of them) are not in conformity with the Agreement (including for the avoidance of doubt clause 3.1 of these Terms) or the terms and conditions of the Purchase Order. The making of payment shall not prejudice the Company’s right of rejection, nor shall the acceptance of part of the Goods prejudice the Company’s right to reject the remainder of the Goods.
6.2 Unless within a reasonable time of following receipt of notice of rejection the Supplier collects the relevant Goods the Company may dispose of them as the Company shall think fit (provided that if the Company sells such Goods the Company shall account to the Supplier for the net proceeds of such sale).
The Supplier shall observe all legal requirements of the United Kingdom, European Union and relevant international agreements in relation to health, safety and environment, and in particular to the marking of hazardous goods and the provision of data sheets for hazardous materials.
- HEALTH & SAFETY
8.1 Whilst on the Company premises, the Supplier’s personnel, agents and subcontractors shall at all times conduct themselves in full compliance with the Company site, safety and security regulations.
8.2 The Supplier is aware of obligations imposed upon it by the Health & Safety at Work Act 1974 (as amended) and subsequent regulations and codes of practice to ensure, as far as practicable, that Goods are safe and without any risk to health when properly used. The Supplier hereby undertakes to ensure that its employees, agents and subcontractors are informed of the protective clothing, protections, handling requirements and conditions necessary to ensure that the Goods are properly used and handled safely and without risks to health.
- RISK AND PROPERTY IN THE GOODS
9.1 Risk of damage or loss of the Goods shall be at the risk of the Supplier until delivery to the Company at the place of delivery as specified in the Purchase Order, or as otherwise specified by the Company in accordance with clause 5.5. The Supplier shall off-load the Goods at its own risk as directed by the Company.
9.2 Ownership of the Goods shall pass to the Company on completion of delivery (including off-loading) in accordance with the Purchase Order, except that if the Goods are paid for before delivery, ownership shall pass to the Company once payment has been made. The passing of ownership in the Goods is without prejudice to any right of rejection to which the Company may be entitled under the Agreement or otherwise.
9.3 All Company Materials are the exclusive property of the Company, and nothing in this Contract shall operate to pass or transfer title and ownership in them. The Supplier shall hold all Company Materials in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation
- LOSS OR DAMAGE OF GOODS IN TRANSIT
10.1 Without prejudice to any other right which the Company may have against the Supplier, the Supplier shall be solely and irrevocably liable for any loss or damage or partial loss or damage to Goods in transit, provided that the Company notifies the Supplier in writing as soon as is reasonably practicable following discovery of the relevant loss or damage.
10.2 The Supplier shall make good and free of charge to the Company any loss of or damage to or defect in the Goods where the Company gives notice in compliance with clause 10.1.
10.3 The Supplier shall uplift any faulty, incorrect or surplus Goods received within 7 days of the Company reporting same (“the Collection Period”). Uncollected Goods will be disposed of at the Supplier’s expense on the expiration of the Collection Period.
- SUPPLIER’S RESPONSIBILITIES IN RESPECT OF SERVICES
11.1 The Supplier shall provide the Services, and deliver the Deliverables to the Company, in accordance with the Purchase Order and any Specification, and shall allocate sufficient resources to the Services to enable it to comply with this obligation.
11.2 The Supplier shall meet, and time is of the essence as to, any performance dates specified in the Purchase Order and any Specification (or as otherwise agreed in writing). If the Supplier fails to do so, the Company may (without prejudice to any other rights it may have):
(a) terminate this agreement in whole or in part without liability to the Supplier;
(b) refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
(c) purchase substitute services from elsewhere;
(d) hold the Supplier accountable for any loss and additional costs incurred; and
(e) have all sums previously paid by the Company to the Supplier under this agreement refunded by the Supplier.
11.3 The Supplier shall:
(a) co-operate with the Company in all matters relating to the Services;
(b) obtain and maintain in force for the term all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Goods in accordance with the terms of this Agreement
(c) observe, and ensure that any employees, consultants, agents and subcontractors it engages in relation to the Services observe, all health and safety rules and regulations and any other security requirements that apply at any of the Company’s premises or any other premises at which the Services are carried out; and
(d) notify the Company as soon as it becomes aware of any health and safety hazards or issues which arise in relation to the Services.
Unless otherwise specified in the Purchase Order, all prices are fixed and inclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and dues, and are not subject to adjustment save as specifically provided in the Agreement.
- PAYMENT TERMS
13.1 Unless otherwise specified in writing and subject to clause 13.2, payment shall be made by the Company in the currency specified in the Purchase Order (or in the absence of a currency there in Pounds Sterling) by the end of the calendar month following the calendar month in which the Goods are received by the Company or the Services are delivered in accordance with the Purchase Order.
13.2 For the avoidance of doubt, the Company shall not be obliged to make any payment pursuant to clause 13.1 unless it has received (in a form satisfactory to it) an undisputed invoice quoting the purchase order reference for the Goods and/or Services and in respect of the provision of Goods only:
(a) a Delivery Note in accordance with clause 5.6;
(b) a Delivery Receipt in accordance with clause 5.6;
(c) a completed Quality Control checklist (in a form satisfactory to the Company) together with supporting photographs and other supporting information reasonably required by the Company;
(d) any relevant testing certificates;
(e) all relevant shipping documents including signed freight document such as a bill of lading or air waybill showing the Goods have been shipped; and
(f) any other documentation reasonably requested by the company.
13.3. If a party fails to make any payment due to the other party under this agreement by the due date for payment, then, the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above the base rate of Barclays Bank plc from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount.
13.4. In relation to payments disputed in good faith, interest under clause 13.4 is payable only after the dispute is resolved, on sums found or agreed to be due, from 3 days after the dispute is resolved until payment.
13.5. The Company may at any time, without notice to the Supplier, set off any liability of the Supplier to the Company against any liability of the Company to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement or any other agreement or contractual arrangement between the Company and the Supplier. Any exercise by the Company of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
14.1 The Supplier shall not alter or vary the Goods or the scope or execution of the Services, except as agreed in writing by the Company. The Company shall have the right, from time to time during the execution of the Agreement, by notice in writing, to direct the Supplier to add to or to omit, or otherwise vary, the Goods or the scope or execution of the Services. Where the Supplier receives any such direction from the Company which would occasion an amendment to the Agreement, the Supplier shall, without delay, advise the Company in writing of the alteration in price, provided that such price alteration is determined at the same level of pricing as that contained in the Purchase Order, and any other impact of the change on the Agreement.
14.2 Provided the Company accepts in writing any variation to the Agreement in price or otherwise given in accordance with clause 14.1 or any alteration to the delivery or performance schedule, the Supplier shall carry out such variations and be bound by the same conditions, so far as applicable, as though the said variations were stated in the previous Purchase Order.
15.1 For the purposes of this clause 15 “an Intervening Event” shall be any of the following:
the ability of the Company to accept delivery of the Goods is delayed, hindered or prevented by circumstances beyond its reasonable control;
the Supplier commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
the Supplier repeatedly breaches any of the terms of the Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Agreement;
the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier;
an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Supplier;
the holder of a qualifying floating charge over the assets of the Supplier has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the Supplier;
a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Supplier’s assets and such attachment or process is not discharged within 14 days;
any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 14.1(b) to condition 13.2(k) (inclusive);
the Supplier suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
there is a change of control of the Supplier (within the meaning of section 1124 of the Corporation Tax Act 2010).
15.2 In addition to the Company’s other rights of cancellation under this Agreement, the Company may cancel the Purchase Order and any amendment thereto (in each case, in whole or in part) at any time by sending the Supplier a notice of termination up to and including 7 days after receipt of the Goods or such later period as agreed between the Supplier and the Company. The Company shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods and Services at the time of such termination in accordance with this clause, but such compensation shall not include loss of profits, loss of anticipated profits, loss of opportunity or any indirect or consequential loss.
15.3 Subject to clause 15.4, where the Agreement involves the provision of Services, the Agreement shall terminate automatically on completion of the Services.
15.4 Subject to clause 15.5, if there is an Intervening Event, the Company may defer or cancel any further deliveries or services, stop any goods in transit and terminate the Agreement without liability to the Supplier.
15.5 Termination of this agreement by the Company pursuant to clause 15.4 shall not affect any rights, remedies, obligations or liabilities of the Company that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination.
15.6 Cancellation by the Supplier will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company up to the date of cancellation and all loss or damage resulting in the Company by reason of such cancellation will be paid by the Supplier to the Company forthwith. Acceptance of such cancellation will only be binding on the Company if in writing and signed by a director of the Company.
15.7 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination of the Agreement shall remain in full force and effect.
- INTELLECTUAL PROPERTY RIGHTS
16.1 Subject to clause 16.2 below, nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Supplier to the Company or from the Company to the Supplier.
16.2 If Goods and/or Services are specifically designed in accordance with a specification, instruction or design supplied by the Company or any third party on behalf of the Company then the ownership of the Intellectual Property Rights in such Goods and the Deliverables shall vest in the Company on creation of such rights and the Supplier assigns to the Company (by way of present and, where appropriate, future assignment), with full title guarantee and free from all liens, charges and encumbrances and other third party rights, all such right and title as it may have in such the Intellectual Property Rights and all other rights in the Goods and any product of the Services (including the Deliverables).
16.2 At its own expense, the Supplier shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may be required for the purpose of giving full effect to the Agreement, including securing for the Company all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Company in accordance with clause 16.2.
16.3 To the extent that any Intellectual Property Rights necessary (or, in the opinion of the Company, desirable) for the Company’s use of the Goods and/or Services are not transferred pursuant to clause 16.2, the Supplier hereby grants to Company a non-exclusive, irrevocable, perpetual, royalty free license (with the right to grant sub-licenses and to be transferable) to use any Intellectual Property Rights owned by the Supplier and shall procure such grant of any Intellectual Property Rights owned by a third party, and including the rights to use, copy, modify, translate, adapt and disclose such Intellectual Property Rights for the said purposes
16.4 The Supplier shall obtain waivers of any moral rights in the Goods or any product of the Services (including the Deliverables) to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
16.5 In relation to the Company Materials (a) the Company and its licensors shall retain ownership of all Intellectual Property Rights in the Company Materials; (b) the Supplier only use the Company Materials insofar is as necessary for it to perform its obligations under the Agreement and shall make no other use of the Company Materials; and (c) the Company grants to the Supplier a fully paid-up, revocable, non-exclusive, royalty-free, non-transferable licence solely for the purpose of providing the Services and the Goods to the Company.
- INDEMNITY & INSURANCE
17.1 The Supplier shall indemnify and hold the Company harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Company as a result or in connection with:
(a) any alleged or actual infringement, whether or not under English law, of any third party’s Intellectual Property Rights or other rights arising out of the use, manufacture or supply of the Goods and/or the products of the Services (including the Deliverables); or
(b) defective workmanship, quality or materials in or in relation to the Goods or any product of the Services (including the Deliverables); or
(b) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods or the provision of the Services or the Deliverables as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the Agreement by the Supplier howsoever arising.
17.2 The Supplier shall, at its expense, hold satisfactory insurance cover with a reputable insurer to fulfil the Supplier’s insurance obligations for the duration of this Agreement, and for seven years after its termination or expiration, including public liability and product liability insurance cover of (in each case) at such cover levels that would maintained by a prudent businessman (supplying similar goods and services to the Goods and Services as the Supplier as the Supplier’s business is carried on during the term of this Agreement). The Supplier shall effect insurance against all those risks arising from the Supplier’s indemnity. Satisfactory evidence of such insurance and payment of current premiums shall be provided to the Company upon request.
17.3 The Supplier shall as soon as reasonably practicable repair or replace all Goods without additional cost to the Company which are or become defective and, where such defects occur under proper usage. Repairs and replacements shall themselves be subject to the foregoing obligations including after reinstallation or passing of tests (if any) whichever is appropriate. Neither the above nor anything contained in these Terms shall limit or impair any statutory or any other rights that the Company may have.
- CONFIDENTIALITY & THE COMPANY’S PROPERTY
18.1 The Supplier must:
(a) keep the Confidential Information strictly confidential;
(b) not disclose the Confidential Information to any person without the Company’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in this Agreement;
(c) use the same degree of care to protect the confidentiality of the Confidential Information as the Supplier uses to protect the Supplier’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Confidential Information; and
(e) not use any of the Confidential Information for any purpose other than to the extent necessary to perform its obligations under the Agreement.
18.2 Notwithstanding Clause 18.1, the Company’s Confidential Information may be disclosed by the Supplier to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Supplier performing its obligations under the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information that is disclosed.
18.3 The restrictions in this Clause 18 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
18.4 Upon the termination of the Agreement, the Supplier must immediately cease to use the Company’s Confidential Information. Within 5 Business Days following the date of termination of Agreement, the Supplier must destroy or return to the Company (at the Company’s option) all media containing the Company’s Confidential Information, and must irrevocably delete the other Company’s Confidential Information from its computer systems.
18.5 The provisions of this Clause 18 shall continue in force for a period of 5 years following the termination of the Agreement, at the end of which period they will cease to have effect.
18.6 All materials, equipment, tools, copyright, rights in designs and any other Intellectual Property Rights in all drawings, specifications and data supplied by the Company to the Supplier shall at all times be and remain the exclusive property of the Company, and shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Company, and shall not be disposed or used other than in accordance with the Company’s written instructions or authorisation. The Supplier shall return all copies of any such material to the Company immediately on the Company’s first written request.
18.3 If the Supplier shall in any way acquire any rights or title in respect of the Intellectual Property Rights of the Company, it shall forthwith take such steps as may be required by the Company to assign such rights or vest such title in the Company.
18.4 The Supplier shall promptly and fully notify the Company of any actual, threatened or suspected infringement of any of the Company’s Intellectual Property Rights which comes to the Supplier’s notice.
18.5 The Supplier must not make any public disclosures relating to the Agreement or the subject matter of the Agreement (including disclosures in press releases, public announcements and marketing materials) without the prior written consent of the Company.
18.6 The Supplier will not directly or indirectly and whether alone or in conjunction with or on behalf of any other person and whether as a principal, shareholder, director, employee, agent, consultant, partner or otherwise during the period of the Agreement and for a period of six months from the date of termination of the Agreement interfere with or try to entice away from the Company (for the Suppliers own account or for anyone else) any person, firm or company who during one (1) year before or at the date of termination of the Agreement was a
customer of a the Company. The Supplier agrees that the restrictions contained in this clause re reasonable in order to protect the legitimate business interests of the Company. The Supplier agrees that failure to adhere to the restrictions contained in those clauses will constitute unfair competition to the Company.
18.7 The provisions of this clause 18 shall survive termination of the Agreement, howsoever arising.
- COMPLIANCE WITH LAWS AND ANTI-BRIBERY COMPLIANCE
19.1 The Supplier shall:
(a) In performing its obligations under the agreement, the Supplier shall comply with (i) all applicable laws, statutes, regulations and codes from time to time in force (ii) the Mandatory Policies.
(b) comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(c) not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(d) have and shall maintain in place throughout the term of this agreement its own policies and to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and
(e) promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this agreement.
19.2 For the purpose of this clause 19, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), section 6(5) and (6) and section 8 of that Act respectively. For the purpose of this clause 20, a person associated with the Supplier includes but is not limited to any subcontractor of the Supplier.
19.3 The undertakings specified in clause 19.1 constitute minimum and not maximum standards for the Supplier. Where the provisions of law or the requirements of such undertakings address the same matters, the Supplier shall apply the provision or fulfil the undertaking that affords the greater protection.
19.4 The Company may terminate the Agreement with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of clause 19.1.
- FORCE MAJEURE
The Company may defer the date of delivery or payment, or cancel the Agreement or reduce the amount of Goods ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunication network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
- ASSIGNMENT AND SUB-CONTRACTING
21.1 The Supplier shall not, without the prior written consent of the Company and subject to any conditions which the Company may (at its sole discretion) impose, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
21.2 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
- THIRD PARTY RIGHTS
No one other than a party to the Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
- NO PARTNERSHIP OR AGENCY
23.1 Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
23.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person
- NO WAIVER
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
25.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.
25.2 If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
26.1 Any notice or other communication given to a party under or in connection with this framework agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the address specified in the Purchase Order (copying in email@example.com) or otherwise notified in writing by one party to the other.
26.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post, airmail, or other next Business Day delivery service, at 9.00 am on the second Business Day after posting (fifth Business Day after posting for airmail) or at the time recorded by the delivery service.
(c) if sent by email, on the earlier of (i) the time a return receipt is generated automatically by the recipient’s email server or (ii) the time the recipient acknowledges receipt or (iii) twenty four (24) hours after transmission unless the sender receives notification that the email has not been successfully delivered, except that if deemed receipt would occur before 9.00 am GMT on a Business Day, it shall instead be deemed to occur at 9.00 am on that day and if deemed receipt would occur after 5.00 pm GMT on a Business Day, or on a day which is not a Business Day, it shall instead be deemed to occur at 9.00 am GMT on the next Business Day.
27.3 Clauses 26.1(b) and 26.2(c) do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
- GOVERNING LAW & JURISDICTION
27.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
27.2 Each party irrevocably submits to the exclusive jurisdiction of the courts of England and Wales and waives any objection which it may have now or in the future to the courts of England and Wales being nominated for the purpose of this clause 27 on the ground of venue or otherwise and agrees not to claim that any such court is not a convenient or appropriate forum.
33.3 Each party submits to the non-exclusive jurisdiction of the courts of England and Wales for the purposes of:
(a) enforcing any judgment or award made by the courts of England and Wales; or
(b) seeking emergency injunctive relief in any territory where the other party has disclosed or threatens or is likely to disclose any Confidential Information in breach of this agreement, in order to prevent, restrain or curtail such disclosure, or to prevent, restrain or curtail the infringement or unauthorised use of any of its Intellectual Property Rights.