1 DEFINITIONS AND INTERPRETATION
1.1 Definitions: In these Conditions, the following definitions apply:
Adverse Event: has the meaning set out in Clause 21.3.
Anti-Slavery Laws: has the meaning set out in Clause 16.1(a).
Buyer: means Colloids Limited (registered in England and Wales with company number 05058123) or the Buyer group member identified in the Order.
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Buyer Premises: has the meaning given to it in Clause 12.1.
Conditions: means the terms and conditions of purchase set out in this document, as amended from time to time by the Buyer.
Confidential Information: means any information that is directly or indirectly disclosed (however conveyed), by or on behalf of a party to the other party whether before or after the date of the Contract which would appear to a reasonable person to be confidential, or is marked confidential, or is accompanied by a written or oral statement saying that it is confidential or proprietary and which relates to the business affairs of the disclosing party, including products, product information, operations, processes, plans or intentions, developments, trade secrets, know how, design rights, market opportunities, personnel, customers and suppliers of the disclosing party, and all information derived from the above.
Contract: means the contract between the Vendor and the Buyer for the sale and purchase of the Goods and/or the Services comprising these Conditions and the Order.
Dispute: has the meaning set out in Clause 23.1.
Dispute Notice: has the meaning set out in Clause 23.1(a).
Force Majeure Event: has the meaning set out in Clause 22.1.
Good Industry Practice: means exercising the same skill, expertise and judgement and using facilities and resources of a similar or superior quality as might be expected from a person who is skilled and experienced in providing the obligations in question and takes all proper and reasonable care and is diligent in performing its obligations.
Goods: means the goods (or any part of them as the context requires) referred to in the Order.
Guarantee Period: has the meaning set out in Clause 11.
Insolvency Event: means the occurrence of any of the following events (or any event analogous to any of the following in a jurisdiction other than England and Wales) in relation to the Vendor:
(a) the Vendor passing a resolution for its winding up or a court of competent jurisdiction making an order for the Vendor to be wound up or dissolved or the entity being otherwise dissolved;
(b) the appointment of an administrator of or, the making of an administration order in relation to, the Vendor or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or part of the Vendor’s undertaking, assets, rights or revenue;
(c) the Vendor entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them or the Vendor taking steps to obtain a moratorium or making an application to a court of competent jurisdiction for protection from its creditors; or
(d) the Vendor being unable to pay its debts or being capable of being deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, however, a resolution by the Vendor or a court order that the Vendor be wound up for the purpose of a bona fide reconstruction or amalgamation shall not amount to an Insolvency Event;
Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, tools, plans and equipment as detailed in Clause 0 or otherwise, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Latent Defect: has the meaning set out in Clause 4.5.
Mediation Notice: has the meaning set out in Clause 23.1(c).
New IPR: means all Intellectual Property Rights generated as a consequence of the performance of the Contract.
Non Compliance: has the meaning given to it in Clause 9.1.
Order: means an agreement to purchase and supply of Goods and/or Services as set out in the Buyer’s purchase order and incorporating these Conditions.
Order Acceptance: has the meaning given to it in Clause 2.3.
Price: means the price shown on the Order.
Relevant Requirements: has the meaning given to it in Clause 17.1(a).
Required Personnel: means any Vendor personnel identified as “Required Personnel” or “Key Personnel” or similar in the Order.
Services: means any and all of the services provided or to be provided (as the context requires) by the Vendor under the Contract as further described in the Order.
Short Delivery: has the meaning given to it in Clause 5.4(b).
Specification: means the technical specification (if any) for the Goods and/or Services as referred to in the Order.
Vendor: means the person, firm or company to whom the Order is addressed.
1.2 Construction: In these Conditions, the following rules apply:
(e) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(f) a reference to the singular includes the plural and vice versa;
(g) a reference to a party means a party to the Contract and includes (where applicable) its personal representatives, successors or permitted assigns;
(h) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(i) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(j) a reference to writing or written includes e-mails.
1.3 Where these Conditions indicate that the Buyer’s agreement is required, such agreement must be in writing and signed by an authorised representative of the Buyer.
1.4 If there is an inconsistency between any provisions in these Conditions and the Order then the provisions in the Order shall take precedence unless the Order expressly states that a provision within it shall take precedence in which case that specific provision shall take precedence.
2 BASIS OF CONTRACT
2.1 The Order is an offer by the Buyer to purchase the Goods and/or Services from the Vendor on and subject to these Conditions. Accordingly, the Buyer shall not be bound to the Vendor unless the Vendor unconditionally accepts the Order in accordance with Clause 2.3.
2.2 No Order for the Goods and/or Services shall be binding on the Buyer unless it is submitted by an authorised representative of the Buyer.
2.3 The Order is deemed to be accepted by the Vendor on the earlier of:
(a) a duly authorised representative of the Vendor signing the duplicate Order, enclosed with it; or
(b) any act by the Vendor consistent with fulfilling the Order,
at which point this shall constitute “Order Acceptance” and on which date the contract between the Buyer and the Vendor for the supply of the Goods and/or Services in accordance with the relevant Order and subject to these Conditions shall come into existence.
2.4 In the event that the Buyer, after Order Acceptance, requires any alteration to the Specification, design or quantity of the Goods within the general scope of the Order, the Vendor shall agree to a written request for such alteration and shall thereafter diligently process the Order as altered. If such an alteration materially increases or decreases the cost of, or the time required for performance, an equitable agreement shall be made between the parties for adjustment of the price and/or the delivery schedule for the Order.
2.5 The Buyer may, without liability and notwithstanding any Order Acceptance, cancel an Order (in whole or in part) and the associated Contract (if a Contract has come into existence at that time) at any time prior to the applicable Goods and/or Services being delivered.
2.6 The Vendor acknowledges that it has conducted all necessary due diligence in relation to its obligations under the Contract prior to Order Acceptance.
2.7 The Buyer shall not be liable to the Vendor in respect of any inaccuracy in any documents or information made available to the Vendor or for any failure to disclose or make available to the Vendor (whether before, on or after Order Acceptance) any information or documents.
2.8 The Vendor represents and warrants that the Vendor has made available to the Buyer adequate health and safety information about the Goods and about any conditions necessary to ensure that when put into use the Goods will be safe and without risk to health.
3 PROVISION OF GOODS
3.1 The Vendor shall ensure that the Goods:
(a) conform as to quantity, quality and description with the particulars stated in the Order, any applicable Specification, reference drawings and documents. The Vendor shall be deemed to have studied and understood any such Specifications and drawings and shall be responsible for any discrepancies within or between the documents;
(b) are free from defects in design, materials and workmanship (and where called for are manufactured from the materials and to the specific standards as required by the Buyer) and remain so for at least the Guarantee Period;
(c) correspond in all respects to any samples, patterns or Specifications provided or given by either party;
(d) are of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Vendor or made known to the Vendor by the Buyer, either expressly or by implication and in this respect the Buyer relies on the Vendor’s skill and judgement;
(e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
(f) are supplied with adequate information and instructions as to the use for which they are designed; and
(g) are capable of having all manufacturer warranties (where applicable) covering the same assigned to the Buyer on request without additional charge.
4 INSPECTION AND TESTING
4.1 The Vendor shall obtain such certificates which, in the opinion of the Buyer, are necessary to demonstrate that the materials and labour used in producing the Goods are of the requisite standard and make them available for inspection by the Buyer.
4.2 The Buyer reserves the right, on giving at least five (5) Business Days’ notice to the Vendor to inspect the materials being used and/or Goods, observe the work in progress, and test the materials used and/or Goods whether in the course of manufacture or in their finished state, at any reasonable time prior to despatch from the Vendor’s premises. In addition, the Buyer may request from the Vendor a sample of the Goods and/or materials being used before the manufacturer of the Goods so that the Buyer can inspect the same.
4.3 Where the Order specifically calls for certain tests to be carried out on the materials used or on the Goods, the Vendor shall give the Buyer at least seventy two (72) hours’ notice of such tests, and permit the Buyer or its nominated representatives to observe such tests. At the Buyer’s request, the Vendor shall obtain and supply to the Buyer the certificates of such tests which demonstrate that the materials used in producing the Goods are of the requisite standard and that, in any event, the Goods comply with the requirements of the Contract.
4.4 If as a result of any inspection and/or any testing, the Buyer is of the reasonable opinion that the Goods do not comply or are likely on completion to not comply with the Contract, the Buyer shall inform the Vendor accordingly in writing and may include details of the necessary remedial actions to be taken by the Vendor to ensure compliance. The Vendor shall perform the remedial actions required by the Buyer or if none are specified, such remedial actions as are necessary to ensure compliance with the Contract. The Buyer may conduct further inspections and tests after the Vendor has carried out the remedial actions.
4.5 It is understood that the Goods may have defects which may not be discoverable upon reasonable physical inspection or testing at the time of delivery or acceptance (Latent Defect). As soon as a party becomes aware of a Latent Defect in any Goods supplied by the Vendor, it shall notify the other party and, at the Buyer’s election, such Goods shall be deemed nonconforming to the applicable Contract (including, where applicable, the Specifications) and may be rejected by the Buyer in accordance with Clause 11 below as of the date of notification of the Latent Defect.
4.6 Any failure by the Buyer to reject unsuitable Goods under this Clause 4 shall in no way prejudice the Buyer’s right to reject the Goods under Clause 9 or the Buyer’s rights and remedies under Clause 11.
4.7 Notwithstanding any such inspection or any of the tests provided for above:
(a) Clause 3 shall remain in full force and effect whether or not such inspection or tests reveal or should have revealed any defects in the Goods; and
(b) the Vendor shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Vendor’s obligations under the Contract.
5 PACKAGING AND DELIVERY OF THE GOODS
5.1 The Vendor shall ensure that the Goods:
(a) are delivered in full to the Buyer’s warehouse or other place specified by the Buyer in the Order; and
(b) are delivered in full by no later than the delivery date specified in the Order, and for such purpose, the Vendor shall deliver the Goods during the Buyer’s normal operating hours;
(c) are properly packaged and secured by the Vendor in such a way to protect against damage in transit so as to ensure their delivery to the Buyer’s delivery location in good condition; and
(d) are accompanied by a delivery note which shows the applicable Order number.
5.2 Time is of the essence in respect of any delivery date set out in the Order.
5.3 The Vendor has the responsibility for unloading the Goods at the Buyer’s required delivery location at its own risk, and upon completion of the unloading the Goods shall be deemed delivered. Where the Goods are of such a nature that lifting or other special equipment and/or labour are required for unloading the Goods, a mutually agreed arrangement for the method, timing and responsibility of such unloading of the Goods shall be made between the parties on a case by case basis (each party acting reasonably) in advance of delivery. Any failure by the Vendor to observe the terms of this Clause 5.3 shall entitle the Buyer, without liability to the Vendor, to reject all or any part of the Goods which are the subject of the relevant Order and to refuse delivery of such Goods and any such attempted delivery will not be construed as delivery under the terms of the Order.
5.4 If the Goods:
(a) are delivered in quantities in excess of the quantities ordered, the Buyer may reject all or any part of the delivery; or
(b) delivered in quantities less than the quantities ordered (Short Delivery), the Buyer may without prejudice to clause 5.7 or any other rights or remedies: (i) take the quantities actually supplied; or (ii) reject any or all of the quantity actually supplied, and in each case the Buyer may reject any other Goods already delivered which cannot be effectively and commercially used by the reason of the non-delivery.
5.5 Where Clause 5.4 applies any rejected Goods must be collected by the Vendor as required by the Buyer, at the Vendor’s risk and expense and the Vendor shall, at the Buyer’s discretion, promptly repay the Price of the rejected Goods in full where such Price has been paid or issue a credit note in respect of the applicable invoice (or applicable part thereof) where the price of the rejected Goods has been paid.
5.6 Should the Vendor fail to collect any rejected Goods as required by the Buyer, the Buyer shall have the right at its discretion to arrange for the return of the Goods to the Vendor and the Vendor shall be responsible for all costs of return. The Buyer shall be entitled to dispose of any Goods (in such manner and on such terms as it sees fit) that the Vendor fails to collect, provided that the Buyer shall have previously notified the Vendor of its intent do so should the Vendor fail to collect them with the period specified in the Buyer’s notice.
5.7 Should there be a Short Delivery, the Vendor shall, at the request of the Buyer, and without prejudice to any other rights or remedies of the Buyer, make up the shortfall (in whole or in part) within such period as the Buyer shall reasonably require.
5.8 Without prejudice to any other rights or remedies of the Buyer, the Buyer shall be entitled to recover from the Vendor on an indemnity basis any and all:
(a) expenses reasonably incurred by the Buyer in obtaining other replacement goods due to the Vendor’s failure to deliver the Goods in accordance with the delivery time;
(b) costs of storage (internal and third party) of any Goods rejected by the Buyer in accordance with these Conditions until collection where the Vendor fails to collect any rejected in accordance with Clause 5.5; and
(c) expenses reasonably incurred by the Buyer in returning the Goods to the Vendor under Clause 5.6.
5.9 Where the Order specifies that delivery of the Goods will be in instalments, the failure by the Vendor to deliver or satisfy any of its other obligations in respect of any one (1) instalment on time or at all, shall entitle the Buyer to terminate the Order for breach in respect of all future instalments.
5.10 In the event of any delay in delivering the Goods in accordance with the delivery date specified within the Order, in addition and without prejudice to any other remedies set out under the Contract available to the Buyer, the Vendor shall pay the Buyer, as liquidated damages, £900 for each day’s delay or default from the delivery date set out in the Order up to and including the agreed revised date of delivery or termination of the Contract (whichever is earlier). Where the parties are unable to agree a revised delivery date, the Contract shall be deemed terminated and for the avoidance of doubt, the liquidated damages shall be paid by the Vendor up to and including such date of termination.
5.11 All packages must be clearly marked or labelled with the Order number overleaf. All packaging will be regarded by the Buyer as non-returnable unless the contrary is clearly stated on the relevant invoice and advice note. Charges for the return of cases, pallets and other packaging materials shall only be accepted by the Buyer subject to the full amount paid by the Buyer to return such packaging being promptly refunded by the Vendor. Returnable packaging will be returned by the Buyer at the Vendor’s risk, cost and expense.
5.12 All packaging shall comply with all appropriate regulations governing the packaging and labelling of goods (if any) in force on the date of delivery of the Goods and the Vendor shall indemnify on demand, defend and hold harmless the Buyer, its employees, sub-contractors and agents against, and keep them so indemnified against, all actions, costs, claims, demands, expenses and liabilities of whatever nature incurred or suffered by them as a result of such non-compliance.
5.13 The signature of the Buyer, given on any delivery note, or other documentation, presented for signature in connection with the delivery of the Goods, is evidence only of the number of packages received. In particular, it is not evidence that the correct quantity or number of Goods has been delivered or that the Goods delivered satisfy the requirements of the Contract, including as to the required condition or quality.
5.14 Subject to Clause 9.1(b), If, other than due to the occurrence of a Force Majeure Event pursuant to Clause 22 (unless otherwise agreed in writing by the Buyer), the Buyer is unable or unwilling to accept delivery of the Goods at the time when the Goods were agreed to be delivered, the Vendor shall store the Goods, safeguard them, and take all reasonable steps to prevent their deterioration until delivery of the Goods to the Buyer. The Buyer shall be liable to the Vendor for the reasonable cost, including insurance, of its storing the Goods in accordance with this Clause 5.14.
6 TITLE AND RISK IN THE GOODS
6.1 Without prejudice to any right of rejection which may accrue to the Buyer under these Conditions and subject to Clause 6.2, title to the Goods shall transfer to the Buyer on delivery or payment for those Goods in full, whichever is earlier.
6.2 Unless otherwise agreed in writing by the parties, if the Vendor postpones delivery at the request of the Buyer pursuant to Clause 22.1, the property in the Goods shall pass to the Buyer seven (7) days after the date of receipt of notification from the Vendor that the Goods are due and ready for delivery (or on any such other date as may be agreed in writing by the parties).
6.3 The Goods shall remain at the Vendor’s risk until they have been delivered and unloaded at the place of delivery stipulated by the Buyer in the Order, at which point risk in the Goods shall transfer to the Buyer.
6.4 The parties hereto agree that there is no fiduciary relationship of any nature whatsoever between them.
7 PROVISION OF SERVICES
7.1 The Vendor shall:
(a) ensure the Services correspond with their description and with any Specification;
(b) provide the Services at the times specified in the Order or if none are specified, in a prompt and timely manner;
(c) provide the Services in accordance with Good Industry Practice using appropriately qualified, trained and supervised Vendor personnel; and
(d) provide any and all associated services and activities that are not specifically referred to in the Specification or the Order but which are required for the proper and efficient provision of the Services.
7.2 Time is of the essence in respect of any time for performance of the Services set out in the Order.
7.3 The Vendor acknowledges that the Services may be provided in combination with the Buyer’s other third party suppliers. Accordingly, the Vendor must provide all reasonable co‑operation to the Buyer and its other suppliers.
7.4 The Vendor shall ensure that the Required Personnel undertake the relevant roles and responsibilities set out in the Order for the period set out in the Order.
7.5 The Vendor shall only remove Required Personnel from the performance of Services with the Buyer’s prior written consent, unless they leave employment with the Vendor or become unfit for reasons of disability or incapacity (and in such case, the Vendor will promptly replace them at the Vendor’s own cost with a suitable alternative).
7.6 The Buyer may at any time require the removal of any Vendor personnel from the provision of Services on providing not less than five (5) Business Days’ written notice.
7.7 Provision of the Services is deemed complete on performance of the Services in accordance with the acceptance criteria specified in the Order, or if none are specified, to the Buyer’s satisfaction.
8 VENDOR’S DUTIES TO THE BUYER
8.1 The Vendor shall:
(a) co‑operate with the Buyer in all matters relating to the Contract, and comply with all lawful and reasonable instructions of the Buyer;
(b) maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract and for the Buyer to receive, use and resell (as applicable) the Goods and the Services;
(c) notify the Buyer of any changes in any applicable laws which could affect the performance of the Contract and/or receipt and/or use of the Goods and/or of the Services;
(d) not do anything which may or will harm the reputation, goodwill or legitimate interests of the Customer;
(e) during and after the date of expiry or termination of the Contract permit or procure permission for the Customer and its duly authorised representatives at all reasonable times to enter upon any premises of the Supplier for the purpose of:
(i) verifying the manner and performance of the Vendor’s obligations under the Contract and ascertaining whether the provisions of the Contract have been and are being complied with; and/or
(ii) in order to take possession of any items which the Vendor has failed to return to the Buyer as required by the Contract; and
(f) not do anything or omit to do anything which may or will cause the Buyer or any other member of its group to lose any licences, permissions, authorisations, consents and permits on which it relies for the purposes of conducting its business.
9 NON COMPLIANT SUPPLIES
9.1 Without prejudice to any other right or remedy of the Buyer, if the Vendor fails to provide the Goods and/or perform the Services in accordance with the Contract (Non Compliance), the Buyer may exercise any one (1) or more of the following rights:
(a) terminate the Contract in whole or in part with immediate effect by giving written notice to the Vendor;
(b) refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Vendor attempts to make;
(c) where the Non Compliance relates to Goods, reject the Goods and require the Vendor to repair or replace (provided that such Goods can be supplied by the original date agreed for delivery or by a subsequent date agreed between the Buyer and the Vendor in writing) the rejected Goods or provide a full refund of the Price of the rejected Goods or a credit against invoice if the Price has not been paid, in each such case within such period as the Vendor shall specify;
(d) where the Non Compliance relates to the Services, reject the Services and require the Vendor at the Vendor’s own cost to re‑perform the Services or provide a full refund of the price of the Services or a credit against the invoice if the Price has not been paid, in each such case within such period as the Buyer shall specify;
(e) make good or procure the making good of the Services in which event it shall be entitled to recover all associated costs and expenses; and/or
(f) acquire substitute goods or services from third parties in which case the Vendor shall also be liable for any additional expenditure over and above the Price that is reasonably incurred by the Buyer in obtaining other Goods and/or Services in replacement. In such circumstances the Buyer will have no further obligation to purchase the relevant Goods or Services from the Vendor.
9.2 For the avoidance of doubt:
(a) the Vendor shall bear all risks in relation to any rejected Goods after receiving notice of such rejection from the Buyer;
(b) the Contract shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Vendor; and
(c) payment for the Goods and/or the Services shall not prejudice the Buyer’s right to reject any of the Goods and/or the Services.
10 PRICE, INVOICE AND PAYMENT
10.1 The Buyer shall only be liable for the Price and any other charges expressly stated in the Order. The Price shall not be capable of increase unless expressly agreed in writing by the Buyer and the Buyer has issued a purchase order to the Vendor.
10.2 Unless otherwise specified in the Order, the Price is:
(a) exclusive of applicable VAT which the Buyer shall additionally be liable to pay to the Vendor at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) inclusive of the costs of packaging, insurance, carriage, export and import (including customs duties). Where any such items are specified in the Order as being for the account of the Buyer, such items must be shown separately on the Vendor’s invoice for the applicable Goods and/or Services and shall be payable by the Buyer.
10.3 The Vendor shall invoice the Buyer:
(a) in respect of the Goods, on or after delivery of the Goods; and
(b) in respect of the Services, in accordance with the Order or if no such invoicing frequency is specified, upon completion of the Services in accordance with Clause 7.7.
10.4 Each invoice for the Goods and the Services must quote the Order number overleaf, the place of delivery and all discount terms (as applicable) and, where Goods are to be delivered by instalments, each instalment must be separately invoiced. The Buyer shall not be liable for (and no discount terms will be affected by) any delay in payment where and to the extent such delay is due to a failure by the Vendor to provide any information required in this Clause 10.4.
10.5 Unless otherwise specified in the Order, payment for all valid and undisputed invoices shall be paid in £ (sterling) and shall be due within seven (7) days of the month end which is three (3) months following date of receipt of the invoice. The Buyer shall be entitled to withhold payment of an invoice where it is disputed.
10.6 If either party fails to make any payment due to other party under the Contract by the due date for payment, then the defaulting party will pay interest on the overdue sum at 2% per annum above the Bank of England base rate from time to time or 2% per year for any period when that base rate is below 0%. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment and shall be compounded weekly on the last Business Day of each week. The defaulting shall pay the interest together with the overdue amount.
10.7 Without prejudice to its other rights and remedies, the Buyer is entitled to withhold payment in respect of any Goods and/or Services that are not provided in accordance with the Contract.
10.8 The statutory and any express or implied right of the Vendor to a lien over the Goods and to any rights of stoppage in transit are hereby, to the fullest extent permitted by law, expressly excluded.
If within the period of one (1) year following delivery of the Goods, or if longer, within the period after delivery named in the Order, or at any time in the case of a Latent Defect (Guarantee Period), the Buyer gives notice in writing to the Vendor of any defect in the Goods, including any deficiency in the performance which was either specified in the Order either expressly or by implication, which shall arise from faulty design, materials and/or workmanship and/or failure by the Vendor to manufacture the Goods from the materials and to the specific standards as required by the Buyer, then the Vendor shall promptly replace or repair the Goods so as to remedy the defects without cost to the Buyer.
12 BUYER PREMISES
12.1 Where the Order requires the Goods to be executed and/or the Services to be performed at premises of the Buyer and/or any member of its group (Buyer Premises), the Vendor shall:
(a) perform the Services during the Buyer’s normal business hours (unless otherwise instructed by the Buyer) and by or on any date or time specified for the same in the Order;
(b) observe all health and safety rules and regulations and any other security requirements notified to the Vendor by the Buyer from time to time that apply at any of the Buyer Premises; and
(c) ensure that the execution of the Goods and/or performance of the Services does not disrupt operations at the Buyer Premises.
12.2 The Vendor shall ensure that on completion of the Services and/or execution of the Goods, the Buyer Premises are left in a clean, safe and tidy condition and any damage that the Vendor has caused to the Buyer’s Premises or property is made good.
13 CARE AND RETURN OF PATTERNS, DIES, DRAWINGS ETC
13.1 If any jigs, tools, dies, patterns, moulds, gauges, components, materials or any other items of whatever nature are supplied to the Vendor by the Buyer for use in connection with the Contract, the same shall be held at the risk and expense of the Vendor from the time they leave the premises of the Buyer until they are returned thereto, but shall remain the property of the Buyer. The Vendor shall insure the aforesaid items against all risks and if required by the Buyer, shall note the interest of the Buyer on its policy.
13.2 The Buyer shall have the right of reasonable access (upon reasonable notice) to the premises of the Vendor to inspect such items. The Vendor shall not use any of the foregoing except in connection with the Contract and shall maintain the same in good condition and return them to the Buyer at any time on demand or otherwise automatically on completion of the relevant Order.
Gauges are issued as reference standards only. All jigs, tools, dies, patterns, moulds and gauges manufactured or supplied by the Vendor for the Buyer in connection with an Order shall become the property of the Buyer and shall be retained by the Vendor until disposal instructions are given by the Buyer and such instructions shall be complied with by the Vendor.
13.3 The Buyer provides no warranty and makes no representation (express or implied, statutory or otherwise) as to the condition, quality, performance or fitness for purpose of any item that the Buyer makes available to the Vendor for the purposes of the Contract save for those which are implied by applicable law and cannot lawfully be excluded.
13.4 The Vendor shall indemnify on demand, defend and hold harmless the Buyer, its employees, sub-contractors and agents against, and keep them so indemnified against any loss or damage to the items mentioned in Clause 13.1, arising while such items are in the Vendor’s possession, including during in delivery to the Buyer when such items are being returned.
14 INTELLECTUAL PROPERTY RIGHTS
14.1 Each party reserves all rights in its Intellectual Property Rights. No rights or obligations in respect of a party’s Intellectual Property Rights other than those expressly stated in the Contract shall be granted to the other party or be implied to be granted to the other party. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other Intellectual Property Right held, made, obtained or licensable by either party now or in the future.
14.2 Should any New IPR be generated during the performance of the Contract it shall vest in the Buyer immediately upon creation. The Vendor assigns to the Buyer with full title guarantee (including by way of assignment of future Intellectual Property) any New IPR. The Vendor shall, at the request of the Buyer, execute (and procure that third parties execute) all documents requested by the Buyer so as to confirm the title of the Buyer to the New IPR. The Vendor grants to the Buyer, during and after the Contract, a perpetual, non-exclusive, sub licensable, transferable, royalty free and global licence to use (which shall include the right to copy, modify and adapt) any Intellectual Property Rights vested in or licensed to the Vendor and which are embedded or incorporated into the New IPR for the purposes of use of the IPR and so as to assure to the Buyer the benefit of the New IPR.
14.3 The Buyer hereby grants to the Vendor on an “as is“, royalty free, non‑exclusive, personal and non‑transferable licence to use the Intellectual Property Rights vested in or licensed to the Buyer and the New IPR solely for, and only to the extent necessary for, the performance of the Contract.
15.1 The Vendor shall, during and after the Contract, indemnify on demand, defend (where required by the Buyer) and hold harmless the Buyer, its employees, contractors and agents against, and keep them so indemnified against, any and all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) incurred or suffered by any of them arising out of, or in connection with:
(a) any claim by any person that the provision, use, sale or exploitation of any Goods and/or Services infringes the Intellectual Property Rights of any third party;
(b) any failure by the Vendor to comply with customs and excise regulations and requirements relating to the Goods;
(c) any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of or in connection with defects in the Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Vendor, its employees, agents and/or subcontractors;
(d) any breach of applicable laws by the Vendor or any act or omission of Vendor, its employees, agents and/or subcontractors that results in a breach of applicable Laws by the Buyer and/or any member of its group;
(e) loss and/or damage to the Buyer’s and/or a third party’s physical or tangible property or equipment to the extent caused by the acts or omissions of the Vendor, its employees, agents and/or subcontractors; or
(f) any claim made against the Buyer by a third party arising out of or in connection with the provision, use, sale or exploitation of any Goods and/or Services, to the extent that such claim arises out of the breach, negligent performance and/or failure or delay in performance of the Contract by the Vendor, its employees, agents and/or subcontractors.
15.2 In the event of any claim being made against the Buyer under this Clause 15, the Buyer shall notify the Vendor thereof and if so requested by the Buyer, the Vendor shall, at its own expense, defend or assist in the defence of any suit or action which is brought against the Buyer in respect of any such claim.
15.3 The Buyer agrees that the indemnity in Clause 15.1(a) shall not apply to the extent such claim was caused by any design or written instruction furnished or given by the Buyer to the Vendor for use in connection with the Order for the provision of Goods, provided that such use by the Vendor is in accordance with the Contract and the Buyer’s instructions.
16 MODERN SLAVERY ACT
16.1 The Vendor shall procure that all personnel (including subcontractors), shall:
(a) comply with all applicable laws relating to slavery, servitude, forced or compulsory labour or human trafficking (Anti‑Slavery Laws);
(b) not do or omit to do any act or thing which constitutes or may constitute an offence under any Anti‑Slavery Law;
(c) not knowingly employ or engage in any practices which constitute or may constitute an offence under any Anti‑Slavery Law and not knowingly appoint or contract with any person who has been convicted of or prosecuted in any jurisdiction in relation to an offence or alleged offence under any Anti‑Slavery Law; and
(d) not commit any act or omission which causes or could cause the other party to breach, or commit an offence under, any Anti‑Slavery Law.
17 ANTI BRIBERY
17.1 The Vendor shall:
(a) comply with all applicable laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, the Foreign Corrupt Practices Act 1977 and laws enacted in accordance with the Organisation for Economic Co-operation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Relevant Requirements); and
(b) have and maintain in place throughout the duration of the Contract, its own policies and procedures, to ensure compliance with the Relevant Requirements, and shall enforce them where appropriate.
18.1 The Vendor shall maintain any insurances specified in the Order, or if no such policies are specified, shall maintain insurances in accordance with good industry practice to cover the liabilities that may arise under or in connection with the Contract and which shall cover as a minimum:
(a) those insurances that are required by an applicable law to be maintained;
(b) professional indemnity insurance (where Services are being provided); and
(c) product liability insurance (where Goods are being supplied).
18.2 The insurances shall be maintained in force by the Vendor during the Contract and for a period of not less that six (6) years thereafter with a reputable insurance company.
19 HAZARDOUS GOODS
The Vendor shall mark all hazardous goods with international danger symbols where they exist, and display the name of the material in English. Transport and other documents must include a declaration of the hazard and the name of the material in English. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings. The Vendor shall observe the requirements of UK legislation and any relevant international agreement relating to the packing, labelling and carriage of hazardous goods. All information held by or reasonably available to the Vendor regarding any potential hazards known or believed to exist in the transport, handling or use of the goods supplied shall be promptly communicated to the Buyer prior to delivery.
20.1 The rights set out in this Clause 20 are in addition to the Buyer’s rights of rejection, cancellation and termination set out elsewhere in the Contract.
20.2 The Buyer may terminate the Contract (in whole or in part) at any time with immediate effect by giving written notice to the Vendor if:
(a) the Vendor commits a material breach of the Contract (being a single event or a series of events which together constitute a material breach), which:
(i) is incapable of remedy; or
(ii) is capable of remedy but has not been remedied within fourteen (14) days (or such longer period as may be agreed by the Buyer in writing), of receipt of a written notice identifying the material breach and requiring it to be remedied; or
(b) the Vendor becomes subject to an Insolvency Event.
20.3 The right of the Buyer to terminate the Contract pursuant to this Clause 20 or any other provision of the Contract is in addition to and without prejudice to the Buyer’s other rights and remedies (whether arising under law (including equitable remedies) or otherwise).
20.4 Upon giving written notice of such termination, the Contract shall be deemed to have been terminated from the date specified by the Buyer in such notice.
20.5 Upon termination or expiry of the Contract, howsoever arising:
(a) each party shall immediately return to the other party or destroy (as directed by the other party) all Confidential Information which it or any member of its group holds;
(b) each party shall delete all Confidential Information from the electronic files, computers or other recording media of the other party and all other members of its group;
(c) the Vendor shall immediately return to the Buyer all documents and other materials provided by the Buyer; and
(d) each party shall, on request, certify in writing to the party that it has complied with its individual requirements of this Clause 20.5.
20.6 Termination or expiry of the Contract, howsoever arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
20.7 Conditions which expressly or by implication survive termination or expiry of the Contract shall continue in full force and effect.
21.1 Each party agrees that it shall not during or after the Contract disclose to any person any Confidential Information of the other party.
21.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information to carry out the party’s obligations under the Contract. Each party shall ensure that such employees, officers, representatives, subcontractors or advisers comply with this Clause 21; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
21.3 Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
22 FORCE MAJEURE
22.1 In the event of a party’s business being stopped, interrupted, restricted or hindered either temporarily or permanently and/or a party fails to perform or is delayed in performing any of its obligations under the Contract by war, civil commotion, riot, lock-out, strike, fire, explosion or from any cause beyond the that party’s reasonable control (Force Majeure Event), the party shall not be in breach of the Contract and shall not be liable for any delay in performing or failure to perform any of its obligations under the Contract, if such delay or failure results from a Force Majeure Event.
22.2 In the event of a Force Majeure Event affects either party, the Buyer may, without incurring any liability to the Vendor:
(a) suspend the delivery dates of any Goods due for delivery until the Force Majeure Event has ceased; and/or
(b) if the Force Majeure event continues for a period of seven (7) days or more, the Buyer may terminate the Contract by providing written notice to the Vendor.
For the avoidance of doubt, if delivery of the Goods and/or provision of the Services is suspended due to a Force Majeure Event, the Buyer shall not be required to make payment for the Goods until delivery is actually made and/or Services until those Services are actually provided.
22.3 Without prejudice to Clause 22.2, in the event of the Vendor experiencing a Force Majeure Event or a shortage in the supply of raw materials (Adverse Event), the Vendor shall use reasonable endeavours to ensure that the Buyer’s outstanding Orders are given the highest priority for supply over and above the Vendor’s other customers.
23 DISPUTE RESOLUTION
23.1 If a dispute arises out of or in connection with the Contract or the performance, validity or enforceability of it (Dispute), then, except as expressly provided in the Contract, the parties shall follow the procedure set out below:
(a) either party shall give to the other written notice setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a duly authorised representative of the Buyer and a duly authorised representative of the Vendor shall attempt in good faith to resolve the Dispute;
(b) if the duly authorised representatives of both parties are for any reason unable to resolve the Dispute within thirty (30) days of service of the Dispute Notice, the Dispute shall be referred to the Director of the Buyer and the Director of the Vendor who shall attempt in good faith to resolve it; and
(c) if the Directors of both parties are for any reason unable to resolve the Dispute within thirty (30) days of it being referred to them, the Buyer may give notice to the Vendor that it requires a mediation of the Dispute to take place within thirty (30) days (Mediation Notice). Upon the Buyer serving on the Vendor a Mediation Notice, the parties shall be obliged to participate in mediation within thirty (30) days and in good faith.
23.2 A mediation, unless otherwise agreed in writing by the parties, shall be subject to the CEDR Model Mediation Procedure and if the parties are unable to agree on the appointment of a mediator within fourteen (14) days of service of a Mediation Notice, the mediator shall be nominated by the CEDR.
23.3 The commencement of the dispute resolution procedures detailed in this Clause 23 up to and including mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under Clause 32 which shall apply at all times.
23.4 If the Dispute is not resolved within thirty (30) days after service of a Mediation Notice, or either party fails to participate or ceases to participate in the mediation process before the expiry of that thirty (30) day period, or the mediation terminates before the expiry of that thirty (30) day period without the Dispute being resolved, either party may refer the Dispute to be finally resolved by the courts of England in accordance with Clause 32.
23.5 Nothing in this Clause 23 shall prevent or delay either party from seeking any interim injunctions, interdicts or orders in connection with any matter under the Contract, including the issue of proceedings at any time.
24 ASSIGNMENT AND SUBCONTRACTING
24.1 The Vendor shall not without the prior written consent of the Buyer:
(a) assign, transfer, novate or otherwise transfer or deal in any way with any of its rights, obligations or liabilities under or in connection with the Contract except as part of a bona fide company amalgamation or reconstruction; or
(b) subcontract all or any part of the performance of any of its obligations under the Contract except in so far as is necessary to obtain materials for the execution of the Order in accordance with the Contract.
24.2 The Vendor shall be responsible for all acts and omissions of all of its subcontractors as if they were its own.
24.3 The Buyer may assign, or deal with the benefit of the Contract, or novate or otherwise transfer all or any part of its rights, obligations and/or liabilities under or in connection with the Contract without the consent of the Vendor.
25.1 Any notice given to a party under or in connection with the Contract shall be in writing in the English language, addressed to the relevant party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this condition, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier or e-mail.
25.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time of delivery;
(b) if sent by pre-paid first class post or other next day recorded delivery or commercial courier, at 09:00am on the second Business Day after the date of posting; and
(c) if served by e-mail, on the day of sending if served on a Business Day between 09:00 and 17:00 or shall be deemed to have been received on the next following Business Day should the notice have been served on a day other than a Business Day or have been served after 17:00 on a Business Day.
25.3 Notices served by e-mail pursuant to Clause 25.2(c) shall be sent to the addresses set out below for the relevant party:
(b) to the Vendor at: the email address set out or referred to in the Order or such other email provided by the Vendor to the Buyer for the purpose of communications under the Contract.
25.4 This Clause 25 does not apply to the service of any proceedings or other documents in any legal action.
If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall not affect the validity and enforceability of the other provisions of the Contract and, to the extent required, the parties shall negotiate in good faith to amend such provision (or part provision) such that as amended it is legal, valid and enforceable and to the greatest extent possible achieves the intended original commercial intention of the original provision.
A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
28 THIRD PARTY RIGHTS
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 for any third party or person not a party to the Contract to enforce any term of the Contract.
29 RIGHTS AND REMEDIES
The rights and remedies under the Contract are cumulative and in addition to and, except where otherwise expressly provided in the Contract, do not exclude, any rights and remedies provided by law (including equitable remedies) or otherwise.
30 ENTIRE AGREEMENT
30.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Accordingly, these Conditions apply to the Contract to the exclusion of any other terms that the Vendor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
30.2 The Vendor acknowledges that it has not relied upon (and shall have no remedy in respect of) any statement, promise, warranty or representation or given by or on behalf of the Buyer which is not set out in the Contract.
- Except as expressly set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by an authorised representative of the Vendor and the Buyer.
32 GOVERNING LAW AND JURISDICTION
32.1 The Contract and any Dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes, mediation or claims), shall be governed by, and construed, in accordance with English law.
32.2 The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any Dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. All proceedings are to be conducted in the English language.
33 GOVERNING LANGUAGE
33.1 The Contract is drafted in the English language and all business arising out of or in connection with the Contract or its subject matter or formation (including contractual and non-contractual disputes, mediation and claims) and notices given under the Contract shall be exclusively in the English language unless expressly prohibited by law.
33.2 Where exclusive use of the English language is expressly prohibited by law, the parties agree that any document in a language other than English shall be accompanied by a certified English translation. In the event of a conflict, the English language version of these Conditions and any other document or notice shall prevail.