Terms and Conditions
1.1 In these Conditions the following definitions apply:
|Affiliate||means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;|
|Applicable Law||means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;|
|Bribery Laws||means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti- corruption and associated guidance published by the Secretary of State for Justice under the Bribery Act 2010;|
|Business Day||means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;|
|Conditions||means the Supplier’s terms and conditions of sale set out in this document;|
|Confidential Information||means any commercial, financial or technical information, information relating to the Deliverables, plans, designs, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;|
|Contract||means this agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Purchase Order, and including all its schedules, attachments, annexures and statements of work;|
|Control||has the meaning given to it in section 1124 of the Corporation Tax Act 2010 OR means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls, Controlled and under common Control shall be construed accordingly;|
|Controller||shall have the meaning given in applicable Data Protection Laws from time to time;|
|Customer||means the named party in the Contract which has agreed to purchase the Deliverables from the Supplier and whose details are set out in the Purchase Order;|
|Data Protection Laws||
means, as binding on either party or the Deliverables:
|Data Protection Supervisory Authority||means any regulator, authority or body responsible for administering Data Protection Laws;|
|Data Subject||shall have the meaning in applicable Data Protection Laws from time to time;|
|Deliverables||means the Goods or Services or both as the case may be;|
|Documentation||means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster, war, riot or civil unrest, interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service, or material required for performance of the Contract, strike, lockout or boycott or other industrial action including those involving the Supplier’s or its suppliers’ workforce, but excluding the Customer’s inability to pay or circumstances resulting in the Customer’s inability to pay;|
|GDPR||means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);|
|Goods||means the goods and related accessories, spare parts and Documentation and other physical material set out in the Purchase Order or understood by the parties to be included in the Goods and to be supplied by the Supplier to the Customer in accordance with the Contract;|
|Intellectual Property Rights||
means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
|International Organisation||has the meaning given in the applicable Data Protection Laws from time to time;|
|IPR Claim||has the meaning given in clause 14.1;|
|Location||means the address or addresses for delivery of the Goods and performance of the Services as set out in the Purchase Order or such other address or addresses as notified by the Supplier to the Customer at least 10 Business Days prior to delivery.|
|Modern Slavery Policy||means the Supplier’s anti-slavery and human trafficking policy in force and notified to the Customer from time to;|
|MSA Offence||has the meaning given in clause 11.2.1;|
|Moulds||means the prototype and production moulds designed and manufactured by the Supplier and its partners to produce the Goods required by the Customer|
|Purchase Order||means the Customer’s Purchase Order for the Deliverables in substantially the same form as set out in the Purchase Order from the Customer.|
|Personal Data||has the meaning given in the applicable Data Protection Laws from time to time;|
|Personal Data Breach||has the meaning given in the applicable Data Protection Laws from time to time;|
|Price||has the meaning given in clause 3.1;|
|Processing||has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);|
|Processor||has the meaning given to it in applicable Data Protection Laws from time to time;|
|Protected Data||means Personal Data received from or on behalf of the Customer in connection with the performance of the Supplier’s obligations under the Contract;|
|Services||means the services set out in the Purchase Order and to be supplied by the Supplier to the Customer in accordance with the Contract;|
|Specification||means the description or Documentation provided for the Deliverables set out or referred to in the Contract;|
|Sub-Processor||means any agent, subcontractor or other third party (excluding its employees) engaged by the Supplier for carrying out any processing activities on behalf of the Customer in respect of the Protected Data;|
|Supplier||means TCT-Europe Ltd. Company No. SC627134, Castleblair Works, Inglis lane, Dunfermline, Fife, KY129DP, Scotland VAT 333967134;|
|Supplier Personnel||all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;|
|VAT||means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables; and|
|Warranty Period||has the meaning given in clause 9.1.|
1.2 In these Conditions, unless the context otherwise requires:
1.2.1 a reference to the Contract includes these Conditions, the Purchase Order, and their respective schedules, appendices and annexes (if any);
1.2.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
1.2.3 a reference to a ‘party’ means either the Supplier or the Customer and includes that party’s personal representatives, successors and permitted assigns;
1.2.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
1.2.5 a reference to a ‘company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.2.6 a reference to a gender includes each other gender;
1.2.7 words in the singular include the plural and vice versa;
1.2.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (excluding email);
1.2.10 without prejudice to the provisions of clause 16, a reference to legislation is a reference to that legislation as in force at the date of the Contract OR amended, extended, re- enacted or consolidated from time to time except to the extent that any such
amendment, extension or re-enactment would increase or alter the liability of a party under the Contract;
1.2.11 without prejudice to the provisions of clause 16, a reference to legislation includes all subordinate legislation made as at the date of the Contract OR from time to time under that legislation; and
1.2.12 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2 Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, Purchase Order, confirmation of Purchase Order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to a Purchase Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.
2.4 Each Purchase Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to the Contract including these Conditions. If the Supplier is unable to accept a Purchase Order, it shall notify the Customer as soon as reasonably practicable.
2.5 The offer constituted by a Purchase Order shall remain in effect and capable of being accepted by the Supplier for 5 Business Days from the date on which the Customer submitted the, after which time it shall automatically lapse and be withdrawn.
2.6 The Supplier may accept or reject a Purchase Order at its discretion. A Purchase Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.6.1 the Supplier’s written acceptance of the Purchase Order; or11.3 The Customer shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 11.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
2.6.2 the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.7 Rejection by the Supplier of an Purchase Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
2.9 Marketing and other promotional material relating to the Deliverables are illustrative only and do not form part of the Contract.
3.1 The price for the Deliverables shall be as set out in the Purchase Order or, where no such provision is set out, shall be as advised by the Supplier from time to time before the date the Purchase Order is placed (the Price)
3.2 The Prices are exclusive of:
3.2.1 delivery, insurance, shipping carriage, and all other related charges or taxes or describe relevant elements of the goods and services which are not included in the standard price which shall be charged in addition at the Supplier’s standard rates, and
3.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
3.4 The Supplier may increase the Prices at any time by giving the Customer not less than 15 Business Days’ notice provided that the increase does not exceed 5 % of the Prices in effect immediately prior to the increase.
3.5 Notwithstanding clause 3.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Deliverables which exceeds 5 % and which is due to any factor beyond the control of the Supplier.
4.1 The Supplier shall invoice the Customer for the Deliverables, partially or in full, at any time following acceptance of an Purchase Order.
4.2 The Customer shall pay all invoices:
4.2.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
4.2.2 to the bank account nominated by the Supplier.
4.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:>
4.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at 6 % a year above the base rate of Barclays Bank from time to time in force, and
4.3.2 interest shall accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
5 Credit limit
The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.
6 Delivery and performance
6.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the date(s) specified in the Purchase Order.
6.2 The Goods shall be deemed delivered on arrival only of the Goods at the Location by the Supplier or its nominated carrier (as the case may be).
6.3 The Services shall be performed by the Supplier at the Location on the date(s) specified in the Purchase Order.
6.4 The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services at the Location.
6.5 The Customer shall not be entitled to reject a delivery of the Goods on the basis that an incorrect volume of the Goods has been supplied. OR The Customer shall be entitled to reject a delivery of the Goods where an incorrect volume of the Goods has been supplied where such delivery is outside the tolerances set out in the Purchase Order.
6.6 The Supplier may deliver the Goods or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.7 Each delivery or performance of the Deliverables shall be accompanied by a delivery note stating:
6.7.1 the date of the Purchase Order;
6.7.2 the relevant Customer and Supplier details;
6.7.3 if Goods, the product numbers and type and quantity of Goods in the consignment;
6.7.4 if Services, the category, type and quantity of Services performed;
6.7.5 any special instructions, handling and other requests; and
6.7.6 in the case of Goods, whether any packaging material is to be returned, in which case the Customer shall, after the Goods are unpacked, make them available for collection by the Supplier at the Supplier’s expense.
6.8 Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only.
6.9 The Supplier shall not be liable for any delay in or failure of performance caused by:
6.9.1 the Customer’s failure to make the Location available;
6.9.2 the Customer’s failure to prepare the Location in accordance with the Supplier’s instructions OR as required for the Deliverables;
6.9.3 the Customer’s failure to provide the Supplier with adequate instructions for performance or delivery or otherwise relating to the Deliverables;
6.9.4 Force Majeure.
6.10 If the Customer fails to accept delivery of the Goods the Supplier shall store and insure the Goods pending delivery, and the Customer shall pay all reasonable storage and insurance charges OR storage and insurance charges at the Supplier’s then-applicable rates OR costs and expenses incurred by the Supplier in doing so.
6.11 If 3 Business Days following the due date for delivery or collection of the Goods, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods without any obligation or liability to the Customer, except as provided for in clauses 6.11.1 and 6.11.2. The Supplier shall:
6.11.1 deduct all reasonable storage charges and costs of resale OR storage charges at the Supplier’s then-applicable rates and reasonable costs of resale; and
6.11.2 account to the Customer for any excess of the resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.
Risk in the Goods shall pass to the Customer on delivery.
8 Title / Right to Use the Suppliers Goods / Property
8.1 Subject always to clause 8.1.4 the title/right to use the prototype, production moulds and any mould (herein referred to as the “Moulds”) shall only pass to the Customer for proper usage in the market only once the Supplier has received payment in full and cleared funds. Furthermore, always:
8.1.1 The care of the Moulds will remain with the Supplier. The Supplier will be responsible for all standard maintenance and repair of the moulds due to general operation of the Moulds.
8.1.2 ALL changes to the mould required by the Customer in order to alter the Goods manufacutured on the Moulds, will be paid in full by the Customer.
8.1.3 In the case that the Customer wants to care of the moulds at a facility not owned or operated by the Supplier, the Customer will be responsible for the full cost of the shut down, disassembly and transport of the moulds.
8.1.4 All Mould designs contain key intellectual property unique to the Supplier offered to the Customer under License and will at all times remain the wholly owned property of the Supplier even after Title passes after payment to the individual Mould.
8.2 Subject to clause 8.1.4 (Above) until title to the Goods has passed to the Customer, the Customer shall:
8.2.1 hold the Goods as bailee for the Supplier;
8.2.2 store the Goods separately from all other material in the Customer’s possession;
8.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;
8.2.4 insure the Goods from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier’s interest on the policy;
8.2.5 ensure that the Goods are clearly identifiable as belonging to the Supplier;
8.2.6 not remove or alter any mark on or packaging of the Goods;
8.2.7 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.148; and
8.2.8 on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.
8.3 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.14, the Supplier may:
8.3.1 require the Customer at the Customer’s expense to re-deliver the Goods to the Supplier; and
8.3.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
9.1 The Supplier warrants that, for a period of one year from delivery (the Warranty Period), the Deliverables shall:
9.1.1 conform in all material respects to any sample, their description and to the Specification;
9.1.2 be free from material defects in design, material and workmanship;
9.1.3 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and
9.1.5 any media on which the results of the Services are supplied shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.2 The Customer warrants that it has provided the Supplier with all relevant, full and accurate information as to the Customer’s business and needs.
9.3 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option, correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 9, provided that the Customer:
9.3.1 serves a written notice on Supplier not later than 5 Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;
9.3.2 such notice specifies that some or all of the Deliverables do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and
9.3.3 gives the Supplier a reasonable opportunity to examine the claim of the defective Deliverables.
9.4 The provisions of these Conditions shall apply to any Deliverables that are corrected, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.
9.5 The Supplier shall not be liable for any failure of the Goods to comply with clause 9.1:
9.5.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Goods;
9.5.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Goods, including any instructions on installation, operation, storage or maintenance;
9.5.3 to the extent caused by the Supplier following any specification, instruction or requirement of or given by the Customer in relation to the Goods;
9.5.4 where the Customer modifies any Goods without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or
9.5.5 where the Customer uses any of the Goods after notifying the Supplier that they do not comply with clause 9.1.
9.6 Except as set out in this clause 9:
9.6.1 the Supplier gives no warranty and makes no representations in relation to the Deliverables; and
9.6.2 shall have no liability for their failure to comply with the warranty in clause 9.1,
and all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Goods and Services Act 1982 and ss 13–15 of the Sale of Goods Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:
10.2.1 all of that party’s personnel;
10.2.2 all others associated with that party; and
10.2.3 all of that party’s subcontractors; involved in performing the Contract so comply.
10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
10.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach by the Customer of any of the requirements in this clause 10.
10.5 Any breach of this clause 10 by the Customer shall be deemed a material breach of the Contract that is not remediable and shall entitle the Supplier to immediately terminate the Contract by notice under clause 18.1.1.
11.1 The Supplier shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy.
11.2 The Customer undertakes, warrants and represents OR confirms and agrees that:
11.2.1 neither the Customer nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (an MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
11.2.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
11.2.3 it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Supplier on request at any time throughout the Contract;
11.2.4 its responses to the Supplier’s modern slavery and human trafficking due diligence questionnaire are complete and accurate; and
11.3 The Customer shall notify the Supplier immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Customer’s obligations under clause 11.2. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Customer’s obligations.
11.4 Any breach of clause 11.2 by the Customer shall be deemed a material breach of the Contract and shall entitle the Supplier to terminate the Contract with immediate effect.
12 Indemnity and insurance
12.1 The Customer shall indemnify, and keep indemnified, the Supplier from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Supplier as a result of or in connection with the Customer’s breach of any of the Customer’s obligations under the Contract.
12.2 The Customer shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom or such other country by agreement in writing with the Supplier to cover its obligations under the Contract. On request, the Customer shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable.
13 Limitation of liability
13.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.
13.2 Subject to clauses 13.5 and 13.6, the Supplier’s total liability shall not exceed the sum of the value of the Purchase Order.
13.3 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for consequential, indirect or special losses.
13.4 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for any of the following (whether direct or indirect):
13.4.1 loss of profit;
13.4.2 loss or corruption of data;
13.4.3 loss of use;
13.4.4 loss of production;
13.4.5 loss of contract;
13.4.6 loss of opportunity;
13.4.7 loss of savings, discount or rebate (whether actual or anticipated);
13.4.8 harm to reputation or loss of goodwill.
13.5 The limitations of liability set out in clauses 13.2 to 13.4 shall not apply in respect of any indemnities given by either party under the Contract.
13.6 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
13.6.1 death or personal injury caused by negligence;
13.6.2 fraud or fraudulent misrepresentation;
13.6.3 any other losses which cannot be excluded or limited by Applicable Law.
14 Intellectual property
14.1 The Supplier shall indemnify the Customer from and against any losses, damages, liability, costs and expenses (including reasonable professional fees) incurred by it as a result of any action, demand or claim that use of the Deliverables infringes the Intellectual Property Rights of any third party (IPR Claim), provided that the Supplier shall have no such liability if the Customer:
14.1.1 does not notify the Supplier in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
14.1.2 makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Supplier;
14.1.3 does not let the Supplier at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim at its sole discretion;
14.1.4 does not take all reasonable steps to minimise the losses that may be incurred by it or by any third party as a result of the IPR Claim;
14.1.5 does not, at the Supplier’s request, provide the Supplier with all reasonable assistance in relation to the IPR Claim (at the Customer’s expense) including the provision of prompt access to any relevant premises, officers, employees, contractors or agents of the Customer;
14.1.6 uses the Deliverables in combination with any other goods or services, which without such combination, no IPR Claim could or would have been made.
14.2 If any IPR Claim is made or is reasonably likely to be made, the Supplier may at its option:
14.2.1 procure for the Customer the right to continue receiving the benefit of the relevant Deliverables; or
14.2.2 modify or replace the infringing part of the Deliverables so as to avoid the infringement or alleged infringement, provided the Deliverables remain in material conformance to their Specification.
14.3 The Supplier’s obligations under clause 14.1 shall not apply to Deliverables modified or used by the Customer other than in accordance with the Contract or the Supplier’s instructions. The Customer shall indemnify the Supplier against all losses, damages, liability, costs and expenses (including reasonable legal fees) incurred by the Supplier in connection with any claim arising from such modification or use.
15 Confidentiality and announcements
15.1 The Customer shall keep confidential all Confidential Information of the Supplier and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
15.1.1 any information which was in the public domain at the date of the Contract;
15.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
15.1.3 any information which is independently developed by the Customer without using information supplied by the Supplier; or
15.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
except that the provisions of clauses 15.1.1 to 15.1.3 shall not apply to information to which clause 15.4 relates.
15.2 This clause shall remain in force in perpetuity from the date of the Contract and, if longer, three
years after termination of the Contract.
15.3 The Customer shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
15.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use is in compliance with and does not conflict with any provisions of clause 16.
16 Processing of personal data
16.1 The parties agree that the Customer is a Controller and that the Supplier is a Processor for the purposes of processing Protected Data pursuant to the Contract. The Customer shall at all times comply with all Data Protection Laws in connection with the processing of Protected Data. The Customer shall ensure all instructions given by it to the Supplier in respect of Protected Data (including the terms of the Contract) shall at all times be in accordance with Data Protection Laws. Nothing in the Contract relieves the Customer of any responsibilities or liabilities under any Data Protection Laws.
16.2 The Supplier shall process Protected Data in compliance with the obligations placed on it under Data Protection Laws and the terms of the Contract.
16.3 The Customer shall indemnify and keep indemnified the Supplier against all losses, claims, damages, liabilities, fines, sanctions, interest, penalties, costs, charges, expenses, compensation paid to Data Subjects, demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Customer of its obligations under this clause 16.
16.4 The Supplier shall:
16.4.1 only process (and shall ensure Supplier Personnel only process) the Protected Data in accordance with the schedule and the Contract (including when making any transfer to which clause 16.10 relates), except to the extent:
(a) that alternative processing instructions are agreed between the parties in writing; or
(b) otherwise required by applicable law (and shall inform the Customer of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest); and
16.4.2 without prejudice to clause 16.1, if the Supplier believes that any instruction received by it from the Customer is likely to infringe the Data Protection Laws it shall promptly inform the Customer and be entitled to cease to provide the relevant Services until the parties have agreed appropriate amended instructions which are not infringing.
16.5 The Supplier shall implement and maintain the technical and organisational measures set out in Part C of the schedule to protect the Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access.
16.6 The Supplier shall:
16.6.1 not permit any processing of Protected Data by any Sub-Processor without the prior specific written authorisation of the Customer;
16.6.2 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a written contract containing materially the same obligations as under this clause 16 (including those relating to sufficient guarantees to implement appropriate technical and organisational measures) that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
16.6.3 remain fully liable to the Customer under the Contract for all the acts and omissions of each Sub-Processor as if they were its own; and
16.6.4 ensure that all natural persons authorised by the Supplier or any Sub-Processor to process Protected Data are subject to a binding written contractual obligation to keep the Protected Data confidential.
16.7 The Customer authorises the appointment of the Sub-Processors listed in the schedule.
16.8 The Customer shall reply to any communication from the Supplier requesting any further prior specific authorisation of a Sub-Processor pursuant to clause 16.6.1 promptly and in any event within 10 Business Days of request from time to time. The Customer shall not unreasonably withhold, delay or condition any such authorisation.
16.9 The Supplier shall (at the Customer’s cost):
16.9.1 assist the Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36 of the GDPR taking into account the nature of the processing and the information available to the Supplier; and
16.9.2 taking into account the nature of the processing, assist the Customer (by appropriate technical and organisational measures), insofar as this is possible, for the fulfilment of the Customer’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws) in respect of any Protected Data.
16.10 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Customer.
16.11 The Supplier shall at the Customer’s cost and expense promptly refer to the Customer all requests it receives for exercising any Data Subjects’ rights under Chapter III of the GDPR which relate to any Protected Data. It shall be the Customer’s responsibility to reply to all such requests as required by applicable law.
16.12 The Supplier shall, in accordance with Data Protection Laws, make available to the Customer such information that is in its possession or control as is necessary to demonstrate the Supplier’s compliance with the obligations placed on it under this clause 16 and to demonstrate compliance with the obligations on each party imposed by Article 28 of the GDPR (and under any equivalent Data Protection Laws equivalent to that Article 28), and allow for and contribute to audits, including inspections, by the Customer (or another auditor mandated by the Customer) for this purpose (subject to a maximum of one audit request in any 12 month period under this clause 16.12).
16.13 The Supplier shall notify the Customer without undue delay and in writing on becoming aware of any Personal Data Breach in respect of any Protected Data.
16.14 On the end of the provision of the Services relating to the processing of Protected Data, at the Customer’s cost and the Customer’s option, the Supplier shall either return all of the Protected Data to the Customer or securely dispose of the Protected Data (and thereafter promptly delete all existing copies of it) except to the extent that any applicable law requires the Supplier to store such Protected Data. This clause 16 shall survive termination or expiry of the Contract.
17 Force majeure
Neither party shall have any liability under or be deemed to be in breach of the Contract for any delays or failures in performance of the Contract which result from Force Majeure. The party subject to the Force Majeure event shall promptly notify the other party in writing when such the event causes a delay or failure in performance and when it ceases to do so. If the Force Majeure event continues for a continuous period of more than 60 days, either party may terminate the Contract by written notice to the other party.
18.1 The Supplier may terminate the Contract or any other contract which it has with the Customer at any time by giving notice in writing to the Customer if:
18.1.1 the Customer commits a material breach of the Contract and such breach is not remediable;
18.1.2 the Customer commits a material breach of the Contract which is not remedied within
14 days of receiving written notice of such breach;
18.1.3 the Customer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 days after the Supplier has given notification that the payment is overdue; or
18.1.4 any consent, licence or authorisation held by the Customer is revoked or modified such that the Customer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
18.2 The Supplier may terminate the Contract at any time by giving notice in writing to the Customer if the Customer:
18.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
18.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case;
18.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
18.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
18.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
18.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
18.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
18.2.8 has a resolution passed for its winding up;
18.2.9 has a petition presented to any court for its winding up or an application is made for an administration Purchase Order, or any winding-up or administration Purchase Order is made against it;
18.2.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven days of that procedure being commenced;
18.2.11 has a freezing Purchase Order made against it;
18.2.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items;
18.2.13 is subject to any events or circumstances analogous to those in clauses 18.2.1 to
18.2.12 in any jurisdiction; OR
18.2.14 takes any steps in anticipation of, or has no realistic prospect of avoiding, any of the events or procedures described in clauses 18.2.1 to 18.2.13 including for the avoidance of doubt, but not limited to, giving notice for the convening of any meeting of creditors, issuing an application at court or filing any notice at court, receiving any demand for repayment of lending facilities, or passing any board resolution authorising any steps to be taken to enter into an insolvency process.
18.3 The Supplier may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Customer if the Customer undergoes a change of Control or if it is realistically anticipated that it shall undergo a change of Control within two months.
18.4 The right of the Supplier to terminate the Contract pursuant to clause 18.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to the Contract.
18.5 If the Customer becomes aware that any event has occurred, or circumstances exist, which may entitle the Supplier to terminate the Contract under this clause 18, it shall immediately notify the Supplier in writing.
18.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Supplier at any time up to the date of termination.
19.1 Any notice or other communication given by a party under these Conditions shall:
19.1.1 be in writing and in English;
19.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
19.1.3 be sent to the relevant party at the address set out in the Contract
19.2 Notices may be given, and are deemed received:
19.2.1 by hand: on receipt of a signature at the time of delivery;
19.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second Business Day after posting;
19.2.3 by Royal Mail International Tracked & Signed OR Royal Mail International Signed post: at 9.00 am on the fourth Business Day after posting
19.2.4 by fax: on receipt of a transmission report from the correct number confirming uninterrupted and error-free transmission; or
19.2.5 by email provided confirmation is sent by first class post: on receipt of a delivery OR read receipt email from the correct address.
19.3 Any change to the contact details of a party as set out in the Contract shall be notified to the other party in accordance with clause 19.1 and shall be effective:
19.3.1 on the date specified in the notice as being the date of such change; or
19.3.2 if no date is so specified, 5 Business Days after the notice is deemed to be received.
19.4 All references to time are to the local time at the place of deemed receipt.
19.5 This clause does not apply to notices given in legal proceedings or arbitration.
20 Cumulative remedies
The rights and remedies provided in the Contract for the Supplier only are cumulative and not exclusive of any rights and remedies provided by law.
Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Customer’s obligations only.
22 Further assurance
The Customer shall at the request of the Supplier, and at the Customer’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
23 Entire agreement
23.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
23.2 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
23.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
25.1 The Customer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed OR which it may withhold or delay at its absolute discretion.
25.2 Notwithstanding clause 25.1, the Customer may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives the Supplier prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under the Contract shall be deemed to be an act or omission of the Customer itself.
26 Set off
26.1 The Supplier shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Customer under the Contract or under any other contract which the Supplier has with the Customer.
26.2 The Customer shall pay all sums that it owes to the Supplier under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
27 No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
28 Equitable relief
The Customer recognises that any breach or threatened breach of the Contract may cause the Supplier irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Supplier, the Customer acknowledges and agrees that the Supplier is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
29.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
29.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in Purchase Order to agree the terms of a mutually acceptable alternative provision.
30.1 No failure, delay or omission by the Supplier in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
30.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Supplier shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Supplier.
30.3 A waiver of any term, provision, condition or breach of the Contract by the Supplier shall only be effective if given in writing and signed by the Supplier, and then only in the instance and for the purpose for which it is given.
31 Compliance with law
The Customer shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
32 Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Purchase Order, schedules, appendices or annexes to the Contract, the terms of the Conditions and of Part B and Part C of the schedule shall prevail to the extent of the conflict.
33 Costs and expenses
The Customer shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
34 Third party rights
34.1 Except as expressly provided for in clause 34.2, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
34.2 Any Affiliate of the Supplier shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract. The consent of any such Affiliate is not required in Purchase Order to rescind or vary the Contract or any provision of it.
35 Dispute resolution
35.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 35.
35.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
35.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
35.3.1 Within 5 Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.
35.3.2 If the dispute has not been resolved within 10 Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority) of each of the parties. The chief executives (or equivalent) shall meet within 5 Business Days to discuss the dispute and attempt to resolve it.
35.4 Either party may issue formal legal proceedings at any time whether or not the steps referred to in clause 35.3 have been completed. OR Until the parties have completed the steps referred to in clause 35.3, and have failed to resolve the dispute, neither party shall commence formal legal proceedings except that either party may at any time seek urgent interim relief from the courts.
36 Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of Scotland.
The parties irrevocably agree that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).