1
Definitions
1.1 Unless
varied by agreement between the parties, the following definitions shall apply:
Business Day: a day
other than a Saturday or Sunday, public holiday or bank holiday in England.
Buyer: the
entity so described in the Contract, or in the absence of a Contract, in the
Order.
Buyer Facilities: the
Buyer’s premises, or any other location as agreed between the parties.
Conditions: the
terms and conditions contained within this document.
Confidential Information: any
and all information of a confidential nature relating to the performance of
obligations under the Contract including without limitation intellectual
property rights, know-how, business information including without limitation
technical, customer or personal data.
Contract: the
agreement entered into between the Buyer and Supplier for the supply of
Services, for the avoidance of any doubt, the Buyer’s purchase order backed by
or referencing these Conditions and Specification may constitute the Contract.
Control: the
ability to direct the decisions or affairs, directly or indirectly, of another
whether by ownership of voting securities or otherwise.
Data Protection Legislation: (a)
the EC Data Protection Directive 95/46/EC or any implementing or related
legislation in any member state of the European Economic Area; (b) the EC
Directive on Privacy and Electronic Communications (Directive 2002/58/EC) or
any implementing or related legislation in any member state in the European
Economic Area; and (c) all other applicable laws and regulations in any
jurisdiction relating to or impacting on the processing of personal data, all
as may be amended and supplemented from time to time.
Deliverables: all
documents, products or materials developed by the Supplier or its agents,
contractors and Supplier Personnel as part of or in relation to the Services in
any form or media, including without limitation, drawings, maps, plans,
diagrams, designs, pictures, manuals, computer programs, data, specifications
and reports and any drafts thereof.
Delivery: where
applicable, the delivery of the Services or any Deliverable to the Buyer
Facilities.
Delivery Date: the
date on which the Services are to be completed or delivered to the Buyer
Facilities, if the Services are delivered in instalments, this shall be the
date on which the final instalment of the Services is delivered.
Force Majeure Event: any
cause beyond the reasonable control of the party affected (after exercise of
reasonable care to put in place disaster recovery arrangements) which prevents
or delays the party from performing its obligations under the Contract,
including without limitation act of God, flood, fire, earthquake or other natural disaster,
explosion, war, terrorism; and strike, lock-out, industrial action except
involving the Supplier’s or its suppliers’ workforce.
Insolvent: bankruptcy,
suspension or threatened suspension of debts or inability to pay debts as they
fall due, entering negotiations with any creditors to reschedule debts, passing
of resolution for winding up or
a court ordered winding up order is given, a step is taken to appoint a
receiver or administrator, or anything analogous to the foregoing in any
jurisdiction.
Intellectual Property: any
patent, copyright, trade mark, brand name, trade name, know-how, rights in
Confidential Information or otherwise, in each case whether registered or not
and in whichever part of the world such rights exist.
Order: the
document requesting the supply of the Services, where applicable, by way of purchase order with these
Conditions attached or referenced.
Price: the
agreed monies to be paid by the Buyer to the Supplier for the Services, as set
out in the Order.
Services: the
specific works and or services to be provided by the Supplier, including any
Deliverables, technical support and ancillary work, as set out in the Order and
Specification.
Specification: the
agreed scope of the Services as agreed between the Buyer and the Supplier.
Supplier: the
entity supplying the Services, where applicable.
Supplier Personnel: the employees, agents, contractors or other persons acting under the
instruction of the Supplier in performance of the Services.
1.2 Unless the context otherwise requires;
(a) each gender includes the other, (b) the singular includes the plural and
vice versa, (c) general words are
not limited by example, (d) references to clauses are to the clauses in
these Conditions, and (e) references
to any legislation will be construed as a reference to that provision as
amended, re-enacted or extended at the relevant time.
2
Orders
2.2 For the avoidance of any doubt, should
the Buyer send any documentation to the Supplier containing or referring to the
Supplier’s general conditions or similar terms, in whole or part, they shall
have no effect of the Contract and / or the Conditions and are expressly
excluded and shall not be binding on the Buyer.
2.3 An Order shall be accepted when the
Supplier expressly accepts as at clause 2.1 or when the Buyer reasonably
considers that the conduct of the Supplier is consistent with acceptance.
2.5 The Supplier shall be able to amend
the Order with the prior written consent of the Buyer where such amendment does
not materially affect the performance of the Services nor its conformity to the
Specification.
3
Customs
3.1 Notwithstanding anything in the agreed
Incoterm to the contrary, the Supplier shall be responsible for ensuring all
documentation, approvals / permits and obligations are fulfilled to ensure that
the Services shall be cleared for both export and import, where applicable. The
Buyer shall assist where necessary to give effect to the above.
4
Specification
4.1 The parties shall agree the
Specification in advance, and conformity with this Specification shall be a
condition of the Contract, except in the circumstances where compliance with
such Specification may be unlawful, in such circumstances only the part deemed
unlawful shall be excepted from this obligation.
4.2 By agreeing the Specification for the
Services, the Supplier represents that it is capable of supplying the Services
to good industry standards expected of a supplier of the same or analogous
types of services.
4.3 The Intellectual Property rights
relating to the Services, including, without limitation, the designs, drawings,
presentations, final products, software given to the Buyer by the Supplier
shall remain the property of the Buyer, except where agreed between the
parties.
4.4 Where relevant, the Supplier grants to
the Buyer, a free, unlimited, non-exclusive licence to use the Services and any
product derived therefrom.
5
Price & Payment
5.1 Price shall be as stated in the Order,
or in default of such provision, the price shall be calculated in accordance
with the scale of charges as advised by the Supplier prior to the Order being
placed. No increase in price may be made after the Order is placed.
5.2 The Supplier shall not be entitled to
increase the Price should their costs to carry out the Services increase.
5.3 The Price shall be exclusive of any
applicable Value Added Tax, which shall be charged to the Buyer at the then
applicable rate.
5.4 Notwithstanding anything from the
Supplier to the contrary, the currency for the payment shall be Euros (€).
5.6 Time
shall not be of the essence with regard to payment of monies due to the
Supplier. Where any payments are not paid in full according to clause 5.5, by way of compensation to the
Supplier, the Buyer shall pay interest on the overdue sum on a daily basis until the payment is made
in full at a rate of 2% per annum above the Bank of England base rate. The Supplier
acknowledges that this is a substantial remedy for the purposes of the Late
Payment of Commercial Debts (Interest) Act 1998.
5.7 In the event that payment has not been
made within the agreed timeframe, the Supplier shall not be entitled to delay
performance of the Services under this or any other contract.
5.8 The Buyer may set off any liabilities
which it has to the Supplier against any other liabilities under the Contract or any Order or which it has
to the Supplier howsoever arising.
6
Delivery
6.1 Taking
delivery of any or all Deliverables shall not constitute acceptance, such
Deliverables will not be deemed to be accepted until the Services are completed
and the Buyer has expressly confirmed to the Supplier that the Services adhere
to the Specification. The Buyer may reject any of the Deliverables which are
not in compliance with the Specification. Any acceptance of defective, late or
incomplete Deliverables or payment made in respect thereof shall not constitute
a waiver of any of the Buyer’s rights and remedies including its right to
reject. Any rejected Deliverables may be returned to the Supplier at the
Supplier’s sole cost and risk.
7
Title
7.1 Notwithstanding
anything to the contrary, upon Delivery, title to the Deliverables and any
Intellectual Property rights associated with the Services shall pass to the
Buyer free from all third party rights. The passing of title shall not
prejudice any of the Buyer’s rights and remedies, including the right to
reject.
8
Services
8.1 The Supplier shall supply all
equipment, tools, or otherwise to enable the carrying out and completion of the
Services.
8.3 Time shall be of the essence with
regard to completion of the Services, if the Supplier notifies the Buyer in
accordance with clause 8.2 the Buyer shall be entitled, in its sole discretion
and without prejudice to any other rights and remedies, to (a) terminate the
Contract (in whole or part), (b) refuse the subsequent performance of the
Services, (c) recover from the Supplier all costs and losses resulting to the
Buyer, including where applicable any difference in price should the Buyer have
to source the Services from another supplier and (d) where any payment has been
made in advance for the Services that have not been provided, to have such
monies refunded.
8.4 The Supplier shall ensure that all
Supplier Personnel are suitably trained and comply with all applicable
legislation or regulations, the Buyer’s site safety rules, and all policies
notified to the Supplier. Buyer shall not be liable to the Supplier for any
failure of the Supplier or Supplier Personnel to observe the provisions of this
Condition.
8.5 The Buyer shall provide reasonable
access to the Buyer Facilities to the Supplier upon reasonable notice, for the
provision of the Services.
9
Quality
and Warranties
9.3 If
the Services fail to comply with the warranty give at 9.1 and 9.2, the Supplier shall: (a) redo
any of the Services which fails to comply with the warranty or (b) refund the
Buyer as agreed between the parties.
9.4 The
Supplier agrees that the approval of the Specification or acceptance of the
Services shall not relieve the Supplier of any of its obligations under this
Condition.
9.5 The
Supplier shall indemnify the Buyer for any injury or death to any person, or
damage to property caused by any negligent act or omission or wilful misconduct
of the Supplier or Supplier Personnel carrying out the Services.
9.6 The
Supplier warrants that it owns the Intellectual Property rights to the
Services, including, without limitation, the Deliverables, the designs,
drawings, calculations, formulae, software; or is otherwise able to perform its
obligations herein under a licence, or similar.
9.7 Should
the Supplier fail to perform its obligations under clause 9.3, the Buyer may procure such repair,
replacement, or similar from a third party, and the Buyer may recover any and
all costs involved from the Supplier.
10
Liability and Indemnity
10.1
The
Supplier shall indemnify and keep the Buyer indemnified against all claims,
costs and expenses which the Buyer may suffer or incur directly or indirectly
as a result of Supplier’s breach of any of the Supplier’s obligations under the
Contract.
10.2
Notwithstanding
anything contained in these Conditions to the contrary, the Supplier shall have
in place or obtain insurance against all risks to the performance of the Services
to the full value of the Services, and to cover all other obligations and / or
liabilities under the Contract. At the reasonable request of the Buyer, the
Supplier shall provide evidence of the insurance policy.
10.3
The
Buyer’s total liability howsoever arising in respect of its performance under
the Contract, whether in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise shall be limited
to the Order value.
10.4
The
Buyer excludes all liability to the fullest extent permissible by law, however
nothing in these Conditions shall seek to limit the liability for (a) death or
personal injury caused to the Supplier’s Personnel, should this be solely
attributable to the Buyer’s negligence or wilful misconduct, (b) fraudulent
misrepresentation, or (c) in a manner or to an extent not permissible by law.
10.5
The
rights and remedies provided for the Buyer within the Contract are cumulative
and not exclusive of any rights and / or remedies provided by law.
10.6
Neither
party shall be liable to the other for any indirect or consequential loss or
damage, including without limitation, loss of profit, loss of business or
depletion of goodwill.
10.7
The
Supplier shall fully indemnify and hold the Buyer harmless against any and all claims,
disputes, and actions or threatened claims, disputes or actions relating to the
actual or potential infringement of any third party Intellectual Property
rights relating to the Services.
11.1
The
parties may disclose certain Confidential Information to the other, the parties
shall only use the Confidential Information as required to perform the Contract
and, subject to clause 11.3, shall not, without the prior written
consent of the party disclosing such Confidential Information, disclose such
information to any third party whatsoever except where (a) the information was
already in the public domain or known by party at the time of disclosure, (b)
the information is subsequently in the public domain other than by breach of
these Conditions or (c) the party lawfully comes into the possession of the
information from a third party.
11.2
The
Supplier acknowledges that performance of the Services at the Buyer Facilities
may involve access to certain information which may be confidential, whether
this is in writing, oral or visual. The Seller acknowledges that all
information received during a visit to the Buyer’s Facilities, whether written,
oral or visual, is confidential to the Buyer and the Supplier is obligated to
keep such information confidential.
11.4 This clause shall remain in effect for
a period of 10 years from the Order date.
11.5 Subject only to clause 11.3, the Supplier shall not make any
public announcement or disclose any information relating to the Contract.
12
Force Majeure
12.1
A
party shall not be in breach of these conditions or otherwise liable to the
other party for any failure or delay in performing its obligations under these
Conditions to the extent that such delay is due to a Force Majeure Event and
steps are taken by the affected party to mitigate the impact of the Force
Majeure Event. The party claiming such Force Majeure Event shall immediately
notify the other party and shall use best endeavours to keep the other party
informed and provide a date upon which the party reasonably believes it shall
be able to continue to perform the obligations. Should the Force Majeure Event
last more than 30 Business Days, the other party may at its sole discretion (a)
terminate the agreement with immediate effect or (b) renegotiate the Contract
to achieve, as far as practicable, the original commercial intent of the
parties. Costs arising from a Force Majeure Event shall be borne by the party
incurring such costs.
13
Termination
13.1
Without
prejudice to any other provision of these Conditions, the Buyer shall be
entitled to terminate the Contract with immediate effect on written notice and
without any liability to the Supplier if the Supplier:
13.1.1
Commits
a material breach of the Contract which is either incapable of remedy or
capable of remedy and Supplier has failed to remedy within 20 Business Days
13.1.2
Repeatedly
breaches any of the terms of the contract in such a manner that the Buyer may
reasonable conclude that it is not the Supplier’s intention or ability to give
effect to the contract
13.1.3
Becomes
Insolvent
13.1.4
Declares
a Force Majeure Event which is to last more than 30 Business Days
13.1.5
Suspends
trading, ceases to carry on business, or threatens to do either or there is a
material change in ownership or Control of the Supplier
13.2
The
Supplier may terminate the Contract by giving not less than three months
written notice to the Buyer.
13.3
Upon
termination, any clause which expressly or by implication is to survive
termination shall do so.
13.4
Termination
shall be without prejudice to any rights or liabilities accrued at the date of
termination, however following termination, subject to clause 11, neither party shall have any further
obligations to the other.
13.5
Upon
termination, the Supplier shall deliver all Deliverables to the Buyer, whether
complete or not, and issue a refund to the Buyer for any payment made in
advance for the Services that have not been provided.
14
Notices
14.1
Any
notices required to be given by one party to another, shall be in writing and
sent to the relevant address specified in the Contract or if no address is
specified, the registered office of that party, or such address which may have
been notified to the party from time to time in accordance with these
Conditions.
14.2
Notices
sent by pre-paid first class post or international courier shall be deemed to
be served three Business Days after posting; notices sent by email shall be
deemed to be served when confirmation is posted, those delivered by hand will
be deemed served at the time of delivery.
15
Relationship of the Parties
15.1
Nothing
in these Conditions shall have the effect of creating any relationship of
employee / employer, agent, representative or other relationship or authority
to carry out acts on behalf of the other. At all times, the Supplier shall be
responsible for the acts and omissions of the Supplier Personnel.
15.2
Subject
to clause 17.3 and 17.5, nothing within these Conditions
shall entitle third parties to enforce any of the Conditions contained herein
and the parties do not intend any of the provisions of the Contracts (Rights of
Third parties) Act 1999 or similar to apply or be enforceable by any party who
is not a party to the Contract.
16
Disputes and Jurisdiction
16.1
The
Contract shall be governed by and construed in accordance with English law, and
the parties agree to submit to the exclusive jurisdiction of the English
Courts.
16.2
The
parties agree to use their respective reasonable endeavours to promptly resolve
any issues or disputes which may arise in connection with the Contract.
16.3
If
any dispute is not resolved between the parties within 30 Business Days, either
party may refer the matter to be finally resolved by arbitration under the
UNCITRAL Rules in force at the date of this agreement. The tribunal shall
consist of a sole arbitrator to be agreed between the parties, in default of
the parties’ agreement, the appointing authority shall be LCIA. The seat of the
arbitration shall be London, the law governing the agreement is English and the
language of arbitration shall be English.
17
General
17.1
No
variation to these Conditions may be made except in writing and signed by a
duly authorised representative of each party.
17.2
Should
any condition or part thereof be held to be void, illegal or unenforceable by a
court of competent jurisdiction, that provision or part thereof shall not
affect the validity of the remainder of the Conditions, and all remaining
Conditions shall continue in full force and effect. At the discretion of the Buyer,
the Condition or part thereof which is deemed to be invalid shall be replaced
with a similar condition giving effect to the original intention of the
parties.
17.4
Each
right or remedy under these Conditions is without prejudice to any other right
or remedy the Buyer has under the Contract or otherwise. No failure by the
Buyer to enforce any of its rights under the Conditions shall constitute a
waiver of those rights now or in the future for the same or any future event.
17.6
Each
party shall, at all times, comply with their respective obligations with regard
to applicable Data Protection Legislation and except where unavoidable, neither
party shall provide any personal data to the other in connection with this
Contract.
17.7
These
Conditions have been drafted in English and the English version shall prevail
in the event of a differing translation thereof. Where any Contract
documentation is provided in English and one or more other languages, the
English version shall prevail in the event of a differing translation thereof.
17.8
The
headings in the Conditions are for guidance only and will have no effect on the
interpretation of these Conditions.
17.9
The
parties agree that the Contract constitutes the entire agreement between them
in respect of this subject matter. Each party acknowledges that it has not
entered into this agreement in reliance on any representation or warranty that is
not set out herein.
17.10
Should
there be any conflict between the provisions of the relevant documents
comprising the Contract, the order of precedence shall be (1) the Order, (2)
the Specification, and (3) these Conditions.