T-T PUMPS STANDARD TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES
1. DEFINITIONS AND INTERPRETATION
In these Conditions:
1.1 the following words and expressions have the following meanings unless the context otherwise requires:
“Applicable Law” any:
(a)statute, statutory instrument, bye law, order, directive, treaty, decree or law (including any common law, judgment, demand, order or decision of any court, regulator or tribunal);
(b)legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or
(c)legally binding industry code of conduct or guideline
which relates to the Contract and/or the Goods and/or their manufacture, packaging, packing and/or delivery and/or the Services and/or the activities which are comprised in all or some of the Services or the use or application of the output from the Services
“Business Day” a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales
“Business Hours” 9:00 am to 5:00 pm on a Business Day
“Charges” the charges for the Services set out in the Order
“Conditions” these standard terms and conditions of purchase, as varied from time to time in accordance with Condition 16.4
“Confidential Information” will have the meaning set out in Condition 13.1
“Contract” the contract between the Supplier and the Customer for the supply of the Goods and Services formed in accordance with Condition 2.22.1
“Control” shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression ‘Change of Control’ shall be construed accordingly.
“Customer” T-T Pumps Limited (registered number 02320012) whose registered office is at Onneley Works, Newcastle Road, Woore, Crewe, Cheshire, CW3 9RU
“Delivery” the time at which delivery of the Goods occurs in accordance with Condition 4.1
“Disputed Sum” that part of an amount invoiced by the Supplier which is the subject of a bona fide dispute, as notified by the Customer to the Supplier under Condition 8.12
“Goods” the goods set out in the Order
“Insolvent” the Supplier is Insolvent where it:
(a) proposes or passes a resolution for, its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up;
(b) has a winding up petition presented against it which is not dismissed in 10 business days of being presented;
(c) has a winding-up order or a notice of striking off made in respect of it;
(d) has a notice of appointment of an administrator or a notice of intention to appoint an administrator filed in respect of it at any court which is not dismissed within 10 business days of being made;
(e) proposes, makes or is subject to any composition with its creditors generally or an application to a court of competent jurisdiction for protection from its creditors generally;
(f) has a receiver, an administrator or a provisional liquidator appointed over any of its assets, undertaking or income;
(g) ceases to trade or appears, in the reasonable opinion of the other party, to be likely to cease to trade;
(h) is unable to pay its debts as they fall due;
or is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction
“Intellectual Property Rights” all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in know-how, registered trade marks, registered designs, models, unregistered design rights, unregistered trade marks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United Kingdom and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions
“Order” the Customer’s written acceptance of the Supplier’s quotation for the supply of goods and services to the Customer, set out in the Customer’s order form
“Order Acknowledgement the Supplier’s written acceptance of the Order set out in the Customer’s standard order acknowledgement form
“Prices” the prices for the Goods set out in the Order
“Services” the services set out in the Supplier’s Order
“Specification” the written technical specifications for the Goods set out or referred to in the Order
“Supplier” the person named as the supplier in the Order
1.2 references to Conditions are to conditions of these Conditions;
1.3 all headings are for ease of reference only and will not affect the construction or interpretation of these Conditions;
1.4 unless the context otherwise requires:
1.4.1 references to the singular include the plural and vice versa and references to any gender include every gender;
1.4.2 references to a “person” include any individual, body corporate, association, partnership, firm, trust, organisation, joint venture, government, local or municipal authority, governmental or supra-governmental agency or department, state or agency of state or any other entity (in each case whether or not having separate legal personality);
1.5 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.6 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them;
1.7 the rule known as the ejusdem generis rule will not apply and accordingly the meaning of general words introduced by the word “other” or a similar word or expression will not be restricted by reason of the fact that they are preceded by words indicating a particular class of acts, matters or things;
1.8 any reference to any English or Welsh legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing will, in respect of any jurisdiction other than that of England and Wales, be deemed to include a reference to what most nearly approximates to the English or Welsh legal term in that jurisdiction;
1.9 any reference to:
1.9.1 time of day is to London time;
1.9.2 a day is to a period of 24 hours running from midnight to midnight;
1.10 an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party; and
1.11 any obligation on a party not to do or omit to do anything includes an obligation not to allow (whether expressly or by a failure to take reasonable steps to prevent) that thing to be done or omitted to be done by any other person.
2. CONTRACT FORMATION
2.1 The Supplier’s quotation constitutes an offer by the Supplier to supply the Goods and Services to the Customer on these Conditions and will remain open for acceptance by the Customer for a period of 30 days from and including its date, unless the Supplier specifically requires a longer period. A contract for the supply of Goods and Services by the Supplier to the Customer on these Conditions will be formed when the Customer accepts the quotation by issuing the Order to the Supplier. For the avoidance of doubt the Customer is under no obligation to accept the quotation. The Order will contain a unique Order number and will be signed by an authorised representative of the Customer.
2.2 The Supplier will issue an Order Acknowledgement on receipt of the Order.
2.3 These Conditions are the only terms and conditions on which the Customer will purchase goods and services from the Supplier and will apply to the exclusion of all other terms and conditions including any terms and conditions which the Supplier purports to apply under any quotation, acknowledgement, acceptance or confirmation of order, delivery note, invoice or similar document (whether or not such document is referred to in the Contract) and any terms and conditions which may otherwise be implied by trade, custom, practice or course of dealing.
2.4 Delivery or commencement of performance of the Services will be deemed conclusive evidence of the Supplier’s acceptance of these Conditions.
2.5 The Supplier may not cancel the Contract. The Customer may cancel the Contract in whole or in part immediately by giving written notice to that effect to the Supplier at any time before delivery of the Goods in accordance with Condition 4.1. If the Customer exercises its right of cancellation under this Condition 2.5 the Customer’s sole liability will be to pay to the Supplier fair and reasonable compensation for work-in-progress at the time of cancellation but such compensation will not include loss of profits (whether direct or indirect and whether actual or anticipated) or any indirect or consequential loss.
2.6 The Customer may, by giving written notice to that effect to the Supplier at least 3 Business Days before the delivery date set out in the Supplier’s Order vary the quantity or type of the Goods ordered, the delivery date or address, or the Specification. If any such variation results in an increase in the Supplier’s costs of performing, or the time required for performance of, the Contract the parties will agree an equitable adjustment to the price, delivery schedule or both.
2.7 The Supplier may not deliver the Goods by separate instalments unless the Customer gives its prior written consent to this. If the Customer gives such consent, the Supplier will invoice the Price for each instalment separately in accordance with Condition 8.5 and the Customer will be entitled, at its sole discretion, to exercise its rights and remedies (whether under these Conditions or otherwise) in respect of the relevant instalment or the whole Contract.
2.8 The Supplier will comply with all Applicable Laws in performing its obligations under the Contract.
3. THE GOODS
3.1 The quantity and description of the Goods will be as set out in the Supplier’s Order.
3.2 The Contract is a sale by sample.
3.3 The Customer will have the right to inspect and test the Goods at any time prior to Delivery. The Supplier will permit the Customer, its officers, employees, agents and sub-contractors to enter upon the Supplier’s premises, and will procure permission for such persons to enter upon any relevant third party premises, to carry out such inspection and testing and will provide the Customer with all facilities reasonably required.
3.4 If, following inspection or testing under Condition 3.3, the Customer gives written notice to the Supplier that it is not satisfied that the Goods will comply with Condition 5.1, the Supplier will take all steps necessary to ensure compliance. Any breach of this obligation by the Supplier will be deemed to be a material breach which cannot be remedied entitling the Customer to terminate the Contract under Condition 12.1.1.
3.5 No inspection or testing under Condition 3.3 will reduce or otherwise affect the Supplier’s obligations under the Contract.
3.6 The Supplier will maintain and observe quality control and supplier quality assurance standards in respect of the Goods and Services in accordance with the requirements of the Customer, relevant British, European & International Standards and the requirements of any relevant statutory and regulatory bodies.
3.7 The Supplier will maintain detailed quality control and manufacturing records for a period of at least 12 years from the date of Delivery and will permit the Customer, its officers, employees, agents and sub-contractors to inspect and take copies of these records on demand.
4.1 The Supplier will deliver the Goods (allowing sufficient time for unloading) to the address specified in the Supplier’s Order during Business Hours on the date specified in the Supplier’s Order or, if no date is specified in the Order, on the date which is the following Business Day from and including the date of the Order. The Supplier will be responsible for off-loading the Goods from the delivery vehicle. Delivery of the Goods will occur when they arrive at the delivery address.
4.2 The Supplier will ensure that:
4.2.1 the Goods are marked in accordance with the Customer’s instructions and any Applicable Laws and any applicable requirements of any carrier and are properly packed and secured so as to reach their destination in an undamaged condition;
4.2.2 the delivery is accompanied by a prominently displayed delivery note which shows the unique Order number, identification of the Customer and the Supplier, date of Order, type and quantity of Goods, code numbers of Goods (if applicable), any special storage instructions and, where delivery by instalments is permitted under Condition 2.7, the outstanding balance of Goods remaining to be delivered;
4.2.3 if the Supplier requires the Customer to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note and invoice. Any such packaging material will only be returned to the Supplier at the cost of the Supplier;
4.2.4 on or before Delivery the Customer is provided in writing with a list by name and description of any harmful or potentially harmful properties, substances and ingredients in the Goods supplied whether in use or otherwise and thereafter information concerning any changes in such properties or ingredients. The Customer will rely on the supply of such information from the Supplier in order to satisfy its own obligations under the Health and Safety at Work Act 1974 and any relevant Applicable Laws; and
4.2.5 on or before Delivery the Customer is supplied with all operating and safety instructions, clearly displayed warning notices and such other information as may be necessary for the proper use, maintenance and repair of the Goods meeting all European and International standards;
4.3 The Customer reserves the right to mark the Goods immediately on Delivery. This is undertaken for the purposes of security and the Customer will not be deemed to have accepted the Goods by reason of this nor will the Supplier be entitled to raise an objection on this ground to any subsequent rejection of the Goods.
4.4 If the Supplier fails to deliver the Goods on the date specified in Condition 4.1, without prejudice to any other rights or remedies of the Customer (whether express or implied), the Customer may:
4.4.1 terminate the Contract immediately by giving written notice to that effect to the Supplier, in which case:
184.108.40.206 the Supplier will refund any monies already paid by the Customer under the Contract in relation to the Goods that have not been delivered; and
220.127.116.11 the Customer will be entitled to recover from the Supplier any and all liabilities, losses, damages, costs and expenses incurred by the Customer as a result of the Supplier’s failure to supply Goods and Services, including in obtaining substitute goods and/or services from another supplier; or
4.4.2 require the Supplier to pay to the Customer on demand as liquidated damages a sum equal to 2% of the Price of the Goods for each day (pro rata for any part day) by which making the Goods available for delivery of the Goods is delayed. The parties agree that the liquidated damages are a genuine negotiated pre-estimate of the Customer’s loss resulting from delay in delivery of the Goods and will not be regarded as penalty provisions. The Supplier waives any right to question or challenge the validity of the obligation to pay the liquidated damages.
4.5 If the Supplier delivers a quantity of Goods, unless agreed and confirmed in writing, which is more than 100% or less than 100% of the quantity set out in the Contract, the Customer will be entitled to reject the Goods delivered or (where applicable) the excess Goods and the rejected Goods will be returnable at the Supplier’s risk and expense. If the Customer accepts delivery of a quantity of Goods which is more or less than the quantity set out in the Contract (including a quantity which does not trigger the Customer’s right of rejection under this Condition 4.5) the sum invoiced by the Supplier under Condition 8.5 will be adjusted on a pro rata basis to take account of the over or under delivery.
4.6 Risk in and ownership of the Goods will pass to the Customer on Delivery unless the Supplier is contracted to install the Goods, in such case risk in and ownership of the Goods will not pass until completion of the installation and acceptance by the Customer.
5. DEFECTIVE GOODS
5.1 The Supplier will ensure that the Goods will:
5.1.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
5.1.2 be fit for any purpose held out by the Supplier or made known to the Supplier expressly or by implication and in this respect the Customer relies on the Supplier’s skill and judgement;
5.1.3 correspond with their description;
5.1.4 conform to the Specification;
5.1.5 be free from defects in design, materials and workmanship;
5.1.6 comply with all relevant Applicable Laws;
5.1.7 be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health;
5.1.8 comply with the Customer’s ‘Supplier Quality Policy’ and “Ethics Policy” which are set out on the Customer’s website
5.2 If the Supplier operates a quality system ISO 9000 approved by a recognised body, they are to supply the Goods in accordance with this approved system. If the Supplier operates any other quality system they should advise the Customer of the system in use and any approvals held. The Customer shall have the right to audit the Supplier’s quality system and processes on the provision of 1 Business Day’s notice.
5.3 Without prejudice to any other rights or remedies of the Customer (whether express or implied), if any Goods do not conform with any of the terms of Condition 5.1 the Customer may (whether or not the Goods have been accepted):
5.3.1 terminate the Contract immediately by giving written notice to that effect to the Supplier; or
5.3.2 require the Supplier, at the Customer’s option, within 5 Business Days of request, repair or replace the relevant Goods free of charge or to refund the Price for the relevant Goods,
and, in either case, the Customer will be entitled to recover from the Supplier any and all liabilities, losses, damages, costs and expenses incurred by the Customer as a result of the non-conformity of the Goods, including in obtaining substitute goods from another supplier.
5.4 Condition 5.3 will apply to any repaired or replacement Goods supplied under Condition 5.3.2.
6.1 The Supplier will indemnify, keep indemnified and hold harmless the Customer in full and on demand from and against all liabilities (including any tax liability) direct, indirect and consequential losses, damages, claims, proceedings and legal costs (on an indemnity basis), judgments and costs (including costs of enforcement) and expenses which the Customer incurs or suffers directly or indirectly in any way whatsoever as a result of or in connection with a breach of, or a failure to perform or defect or delay in performance or negligent performance of, any of the Supplier’s obligations under the Contract (by the Supplier, its employees, agents or contractors).
6.2 Without prejudice to Condition 6.1, if any person claims that the possession and/or use and/or sale of the Goods by the Customer and/or its customers, officers, employees, agents or sub-contractors infringes the Intellectual Property Rights of that or any other person (“IPR Claim”), the Supplier will indemnify, keep indemnified and hold harmless the Customer, its customers, officers, employees, agents and sub-contractors in full and on demand from and against all liabilities (including any tax liability) direct, indirect and consequential losses, damages, claims, proceedings and legal costs (on an indemnity basis), judgments and costs (including costs of enforcement) and expenses which the Customer, its customers, officers, employees, agents or sub-contractors incurs or suffers directly or indirectly in any way whosoever as a result of or in connection with that IPR Claim (including the defence and any settlement of such claim). This indemnity will not apply to the extent that the infringement is caused by any specification for the Goods which is created by the Customer.
6.3 The Supplier will at all times maintain insurance with a reputable insurance company against all liability under this Contract and shall provide reasonable evidence of such insurance to the Customer on request.
7.1 The Supplier will, in performing the Services:
7.1.1 use the degree of skill, care, prudence, supervision, diligence, foresight, quality control and quality management which would be adopted by a leading professional provider of the Services;
7.1.2 use appropriately qualified, trained and experienced personnel (with proof of qualifications to be provided at the request of the Customer);
7.1.3 fulfil all requirements set out in the Order;
7.1.4 conduct itself in a safe manner which is free from any unreasonable or avoidable risk to any person’s health and well-being and in an economic and efficient manner;
7.1.5 fully co-operate with the Customer’s agents, representatives and contractors;
7.1.6 ensure that it has and maintains all licences, permissions and consents required from time to time;
7.1.7 comply with all health and safety and security policies that apply at the Customer’s premises and all lawful and reasonable directions of the Customer; and
7.1.8 not do or omit to do anything which may cause the Customer to lose any licence, permission or consent or to be in breach of any Applicable Law.
7.2 The Supplier will perform the Services on the performance dates set out in the Order. Time for provision of the Services will be of the essence of the Contract.
8. PRICE AND PAYMENT
8.1 Subject to the Supplier performing its obligations in accordance with the terms of the Contract, the Customer will pay the Prices and Charges to the Supplier in accordance with this Condition 8.
8.2 The only monies to be paid by the Customer in connection with the supply of the Goods and the performance of the Services are the Prices and the Charges which will be inclusive of all costs and expenses incurred by the Supplier including all royalties, licence fees or other similar expenses arising from the use of any Intellectual Property Rights for the purpose of performing any obligations under the Contract and any packaging, insurance, carriage, delivery, off-loading and where applicable installation costs.
8.3 The unit of currency will be Pounds Sterling unless agreed otherwise by both parties in writing.
8.4 Any sum payable under the Contract is exclusive of value added tax (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time, subject to receipt by the paying party of a valid value added tax invoice.
8.5 The Supplier will be entitled to invoice the Customer for the Prices for the Goods and the Charges following Delivery.
8.6 The Supplier will be entitled to invoice the Customer for the Charges for the Services following completion of performance of the Services.
8.7 Each invoice will be a valid value added tax invoice and will contain the following information: unique Order number and any other particulars described in the Contract and will be sent to the Customer in accordance with Condition 15.
8.8 The Customer reserves the right to refuse payment of any invoice which is not submitted in accordance with clause 8.7.
8.9 Subject to Conditions 8.10, 8.11, 8.12 and 8.13, each invoice will be payable by the Customer within 45 Business Days following the date on which the invoice is received by the Customer, unless alternative dates are agreed in writing by the Customer.
8.10 Notwithstanding any purported contrary appropriation by the Supplier, the Customer will be entitled, by giving written notice to the Supplier, to appropriate any payment by the Customer to any invoice issued by the Supplier.
8.11 No payment made by the Customer will constitute acceptance or approval by the Customer of the Goods or Services or otherwise prejudice any rights or remedies which the Customer may have against the Supplier including the right to recover any amount overpaid or wrongfully paid to the Supplier.
8.12 If the Customer, on bona fide grounds, disputes any part of an amount invoiced by the Supplier, the Customer will, within 30 days of the date of receipt of the relevant invoice, notify the Supplier in writing of such dispute giving details of the nature of the dispute and the amount that it claims should have been invoiced and:
8.12.1 the Customer will pay that part of the invoice which is not the Disputed Sum in accordance with Condition 8.8;
8.12.2 the Customer will be entitled to withhold payment of the Disputed Sum;
8.12.3 the parties will negotiate in good faith to resolve the dispute, but if a resolution cannot be reached within 90 days of the Customer giving notice under this Condition 8.12, Condition 17.2 will apply to the dispute;
8.12.4 the Supplier will provide all such information and evidence as may be reasonably necessary to verify the Disputed Sum; and
8.12.5following resolution of the dispute the Customer will, within 5 Business Days pay to the Supplier that part of the Disputed Sum (if any) as it is resolved is payable by the Customer.
For the avoidance of doubt, if the Customer fails to notify any dispute about the amount of an invoice to the Supplier in accordance with this Condition 8.12, this will not constitute a waiver of the Customer’s right to dispute the amount of that invoice.
8.13 If any sum payable under the Contract is not paid on or before the due date for payment the Supplier will be entitled to charge the Customer interest on that sum at 5% per annum above the base interest rate set from time to time of Bank of England from the due date until the date of payment (whether before or after judgment), such interest to accrue on a daily basis. Such interest will not be chargeable on any Disputed Sum, provided that if it is agreed or determined under Condition 17.2 that part or all of the Disputed Sum is payable, interest will be chargeable on the relevant part of the Disputed Sum in accordance with this Condition 8.12 but from the date on which payment of that sum is due in accordance with Condition 8.12.5 rather than from the date on which payment of the original invoice which included that sum was originally due. The parties agree that this Condition 8.12 is a substantial remedy for late payment of any sum payable under the Contract, for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998. The Customer will be entitled to set-off any liability which the Supplier has to it against any liability which it has to the Supplier, whether such liability is present or future, liquidated or unliquidated, under the Contract or any other contract between the parties or other cause of action and irrespective of the currency of its denomination.
9. THE CUSTOMER’S PROPERTY
All materials, equipment, tools, dies and moulds supplied by the Customer to the Supplier will at all times:
9.1 be and remain the exclusive property of the Customer;
9.2 be held by the Supplier in safe custody at its own risk and fully insured against fire, theft, damage and loss to the full value of replacement;
9.3 be maintained and kept in good condition by the Supplier until returned to the Customer;
9.4 not be disposed of other than in accordance with the Customer’s written instructions;
9.5 not be used otherwise than as authorised by the Customer in writing; and
9.6 be returned to the Customer on demand.
10. INTELLECTUAL PROPERTY
10.1 The Supplier warrants that they hold full, clear and unencumbered title to all Intellectual Property Rights in the Goods and Services and that the Goods and Services do not infringe any Intellectual Property Rights or any other proprietary rights of any third party.
10.2 The Supplier grants the Customer, its affiliates and its and their customers and end users a non-exclusive, worldwide, irrevocable, royalty-free, transferable, assignable and perpetual licence to use the Goods and Services (including all Intellectual Property Rights therein) for any purpose whatsoever, including the use and resale of the Goods and Services to third parties.
11.1 The Supplier will, and will procure that its officers, employees, agents and any other persons who perform services for or on behalf of it in connection with the Contract will:
11.1.1 not commit any act or omission which causes or could cause it or the Customer to breach, or commit an offence under, any laws relating to anti-bribery and/or anti-corruption;
11.1.2 comply with the Customer’s anti-corruption policy as updated from time to time;
11.1.3 keep accurate and up to date records showing all payments made and received and all other advantages given and received by it in connection with the Contract and the steps it takes to comply with this Condition 11.1, and permit the Customer to inspect those records as reasonably required;
11.1.4 promptly notify the Customer of:
18.104.22.168 any request or demand for any financial or other advantage received by it; and
22.214.171.124 any financial or other advantage it gives or intends to give
whether directly or indirectly in connection with the Contract; and
11.1.5 promptly notify the Customer of any breach of this Condition 11.1.
11.2 The Customer may terminate the Contract immediately by giving written notice to that effect to the Supplier if the Supplier is in breach of Condition 11.1.
11.3 The Supplier will indemnify, keep indemnified and hold harmless the Customer in full and on demand from and against all liabilities (including any tax liability), direct, indirect and consequential losses, damages, claims, proceedings and legal costs (on an indemnity basis), judgments and costs (including costs of enforcement) and expenses which the Customer incurs or suffers directly or indirectly in any way whatsoever as a result of any breach by the Supplier of any of its obligations under Condition 11.1, including the costs of procuring the Goods and Services from a person other than the Supplier (including the costs of interim service provision, the costs of any re-tender and the amount by which any new service provider’s prices exceed the Prices and Charges payable to the Supplier under the Contract), but this indemnity will not apply to any liabilities, losses, damages, claims, proceedings and legal costs, judgments or costs and expenses to the extent incurred or suffered as a result of the Customer’s criminal liability.
11.4 The Supplier will indemnify, keep indemnified and hold harmless the Customer in full and on demand from and against all liabilities (including any tax liability), direct, indirect and consequential losses, damages, claims, proceedings and legal costs (on an indemnity basis), judgments and costs (including costs of enforcement) and expenses which the Customer incurs or suffers directly or indirectly in any way whatsoever as a result of any proceedings under section 7 Bribery Act 2010 being brought against the Customer as a result of the conduct of the Supplier or any of its officers, employees, agents or any other persons who perform services for or on behalf of it in connection with the Contract, where such proceedings do not result in a conviction against the Customer, including the costs of procuring the Goods and Services from a person other than the Supplier (including the costs of interim service provision, the costs of any re-tender and the amount by which any new service provider’s prices exceed the Prices and Charges payable to the Supplier under the Contract).
12.1 If the Supplier:
12.1.1 commits a material breach of the Contract which cannot be remedied; or
12.1.2 commits a material breach of the Contract which can be remedied but fails to remedy that breach within 5 Business Days of a written notice setting out the breach and requiring it to be remedied being given by the Customer,
the Customer may terminate the Contract immediately by giving written notice to that effect to the Supplier. For the avoidance of doubt this Condition 12.1 will not apply to breaches of Condition 10, to which Condition 11.2 will apply.
12.2 The Customer may terminate the Contract immediately by giving written notice to that effect to the Supplier if:
12.2.1 the Supplier becomes Insolvent;
12.2.2 the Suppler ceases, or threatens to cease to carry out its business; or
12.2.3 there is a Change in Control of the Supplier.
12.3 The Supplier will notify the Customer immediately upon becoming Insolvent.
12.4 Following expiry or termination of the Contract:
12.4.1 Conditions 1, 3.7, 126.96.36.199, 188.8.131.52, 5, 6, 10, 12.5, 12.6, 12.7, 12.8, 13, 15, 16 and 17 will continue in force, together with any other Conditions which expressly or impliedly continue to have effect after expiry or termination of the Contract; and
12.4.2 all other rights and obligations will immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach) and liabilities which have accrued prior to the date of expiry or termination.
12.5 Within 5 Business Days after the date of expiry or termination of the Contract each party will, subject to the exception set out in Condition 12.6,
12.5.1 return to the other party all Confidential Information (including all copies and extracts) and all other property (whether tangible or intangible) of the other party in its possession or control;
12.5.2 destroy or permanently erase (if technically feasible) all documents and all records (in any media) created by it or on its behalf that use, concern or are based on any Confidential Information of the other party (“Records”); and
12.5.3 cease to use the Confidential Information of the other party.
12.6 Each party may retain any Confidential Information of the other party and/or Records which it has to keep to comply with any Applicable Law or which it is required to retain for insurance, accounting or taxation purposes. Condition 13 will continue to apply to retained Confidential Information and Records, which may only be used for the purposes for which they have been retained.
12.7 Each party will, upon request, confirm to the other party in writing that it has complied with Conditions 12.5 and 12.6.
12.8 If either party fails to comply with Condition 12.5 the other party will, subject to Condition 12.6, be entitled to enter upon the first party’s property for the purpose of removing its Confidential Information and/or its property and/or any Records.
13.1 Confidential Information” means any information (whether written, oral, in electronic form or in any other media) that:
13.1.1 is disclosed by or on behalf of a party (the “Discloser”) to the other party (the “Recipient”) in connection with the Contract and that relates (in whole or in part) to the Discloser or its business; and/or
13.1.2 relates to the existence or terms of the Contract,
but excluding any information that falls within the exclusions set out in Condition 13.4.
13.2 The Recipient will:
13.2.1 keep the Confidential Information secret and will only disclose it in the manner and to the extent expressly permitted by the Contract or otherwise as permitted by the terms of the disclosure;
13.2.2 use the Confidential Information only to the extent necessary for the performance of its obligations under the Contract;
13.2.3 only make such copies, notes, reports, analyses and recordings (in whatever media) that contain or are based on Confidential Information as are reasonably necessary for the purpose of complying with its obligations under the Contract; and
13.2.4 keep the Confidential Information safe and secure and apply to it documentary and electronic security measures that match or exceed those the Recipient operates in relation to its own information which is by its nature confidential.
13.3 The Recipient may disclose Confidential Information:
13.3.1 to such of its officers and employees and, in the case of the Customer, agents and sub-contractors, who need access to that Confidential Information for the purpose of complying with its obligations under the Contract and will make each such person aware of the confidentiality obligations contained in the Contract. The Recipient will take reasonable steps to procure that any person to whom the Recipient discloses Confidential Information pursuant to this Condition 13.3.1 will not do or omit to do anything which if done or omitted to be done by the Recipient would constitute a breach of this Condition 13;
13.3.2 to the extent necessary in order to be able to refer a dispute for resolution in accordance with Condition 17.2;
13.3.3 to the extent required by Applicable Law or a court of competent jurisdiction or the rules of any listing authority, stock exchange, the Panel on Takeovers and Mergers or a regulatory authority. Where reasonably practicable and lawful the Recipient will give notice to the Discloser in advance of such disclosure, will consult with the Discloser as to the content, purpose and means of disclosure and will seek to make such disclosure subject to obligations of confidence consistent, so far as possible, with the terms of this Condition 13.
13.4 The Recipient’s obligations under this Condition 13 will not extend to Confidential Information which the Recipient can prove to the reasonable satisfaction of the Discloser from written records or other substantive evidence:
13.4.1 has ceased to be secret without default on the Recipient’s part;
13.4.2 was already in the Recipient’s possession prior to disclosure by or on behalf of the Discloser;
13.4.3 has been received from a third party who did not acquire it in confidence and who is free to make it available to the Recipient without limitation;
13.4.4 was independently developed by the Recipient without any breach of the Contract; or
13.4.5 at the time of disclosure was in the public domain or subsequently enters into the public domain without default of the Recipient.
13.5 The Recipient acknowledges and agrees that damages alone would not be an adequate remedy for breach of this Condition 13 by the Recipient. Accordingly, the Discloser will be entitled, without having to prove special damages, to equitable relief (including injunction and specific performance) for any breach or threatened breach of this Condition 13 by the Recipient.
14. ASSIGNMENT AND SUB-CONTRACTING
14.1 The Supplier will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract without the consent of the Customer.
14.2 The Customer will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Contract.
14.3 The Supplier will not be entitled to sub-contract any of its obligations under the Contract, without the consent of the Customer.
14.4 The Customer will be entitled to sub-contract any of its obligations under the Contract.
15.1 Subject to Condition 15.4, any notice or other communication given under or in connection with the Contract will be in writing, in the English language and:
15.1.1 Sent by email to the relevant party’s email address, requesting confirmation of receipt;
15.1.2 sent by pre-paid first class post to the relevant party’s address;
15.1.3 delivered to or left at (but not, in either case, by post) the relevant party’s address; or
15.1.4 sent by facsimile to the relevant party’s facsimile number
and, in the case of any notice or other communication to be given to the Customer, marked for the attention of the specified representative of the Customer. The address, facsimile number and representative for the Customer are set out below and the address and facsimile number for the Supplier are those detailed in the Order Acknowledgement, acknowledgement of order or other document received by the Customer from the Supplier, and may be changed by the relevant party giving at least 14 Business Days notice in accordance with this Condition 15.
Address: Onneley Works, Newcastle Road, Woore, Crewe, Cheshire, CW3 9RU
01630 642 100
For the attention of: the Manager or Director Responsible
15.2 Any notice or communication given in accordance with Condition 15.1 will be deemed to have been served:
15.2.1 if given as set out in Condition 15.1.1, at the time of confirmation of completion of transmission of the email by way of a transmission report;
15.2.2 if given as set out in Condition 15.1.2, at 9.00 a.m. on the second Business Day after the date of posting; and
15.2.3 if given as set out in Condition 15.1.3, at the time the notice or communication is delivered to or left at that party’s address; and
15.2.4 if given as set out in Condition 15.1.4, at the time of confirmation of completion of transmission of the facsimile by way of a transmission report;
provided that if a notice or communication is deemed to be served before 9.00am on a Business Day it will be deemed to be served at 9.00am on that Business Day and if it is deemed to be served on a day which is not a Business Day or after 5.00pm on a Business Day it will be deemed to be served at 9.00am on the immediately following Business Day.
15.3 To prove service of a notice or communication it will be sufficient to prove that the provisions of Condition 15.1 were complied with.
15.4 This Condition 15 will not apply to the service of any proceedings or other documents in a legal action to which the Civil Procedure Rules apply.
16.1 The Contract constitutes the entire agreement between the parties and supersedes any prior agreement or arrangement in respect of its subject matter and:
16.1.1 neither party has entered into the Contract in reliance upon, and it will have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other party or any other person) which is not expressly set out in the Contract; and
16.1.2 nothing in this Condition 16.1 will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
16.2 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
16.3 If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
16.4 Save as otherwise expressly provided in these Conditions, no variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
16.5 Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture or relationship of employer and employee between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
16.6 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
16.7 The Customer’s customers, officers, employees, agents and sub-contractors will be entitled to enforce Condition 6.2 subject to and in accordance with the Contracts (Rights of Third Parties) Act 1999 and the terms of the Contract.
16.8 The parties may vary or rescind the Contract without the consent of the Customer’s customers, officers, employees, agents and sub-contractors.
16.9 Save as provided in Condition 16.7, the parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
16.10 The Customer’s rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by law.
17. GOVERNING LAW AND JURISDICTION
17.1 The Contract and any non-contractual obligations arising out of or in connection with it will be governed by the law of England and Wales.
17.2 Subject to Condition 17.3, each party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to any non-contractual obligations).
17.3 Either party may seek specific performance, interim or final injunctive relief or any other relief of similar nature or effect in any court of competent jurisdiction.