PURCHASE TERMS

• 1. INTERPRETATION

The following definitions and rules of interpretation apply in this agreement.

1.1 Definitions:

“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

“Conditions” means these terms and conditions.

“Contract” means the contract between the Customer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.

“Control” means shall be defined as in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly.

“Customer” means 3J Services Limited, registered in England and Wales with company number 11614503.

“Deliverables” means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

“Goods” means the goods (or any part of them) set out in the Order.

“Goods Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.

“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

“Order” means the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form.

“Services” means the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.

“Service Specification” means the description or specification for Services agreed in writing by the Customer and the Supplier.

“Supplier” means the person or firm from whom the Customer purchases the Goods and/or Services.

• A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
  A reference to a party includes its personal representatives, successors and permitted assigns.
• A reference to a statute or statutory provision is a reference to it as amended or re-enacted.
• A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
• Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
• A reference to writing or written includes fax and email.

2. BASIS OF CONTRACT

• The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
• The Order shall be deemed to be accepted by the Supplier on the earlier of:
  • the Supplier issuing written acceptance of the Order;
  • the performance of any act by the Supplier consistent with fulfilling the Order; or
  • 3 Business Days passing from submission of the Order by the Customer without notice of rejection from the Supplier;

at which point and on which date the Contract shall come into existence (“Commencement Date“).

• These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing or are purported to be added or amended by the Supplier’s order acceptance or equivalent documentation.
• All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.

3. SUPPLY OF GOODS

• The Supplier shall ensure that the Goods shall:
  • correspond exactly with their description and any applicable Goods Specification;
  • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
  • be free from defects in design, materials and workmanship and remain so until (subject to clause 3.1.4) the earlier of (i) the date 18 months after delivery; or (ii) the date 12 months after the date of first use by the Supplier (excluding any use for the purposes of testing or quality control);
  • where repaired or replacement Goods are supplied by the Supplier then, notwithstanding when the period specified in clause 3.1.3 may expire in relation to the original Goods, the period set out in clause 3.1.3 shall (in relation to such repaired or replacement Goods), if it would otherwise have expired earlier, be extended to the date 12 months from the date on which the repaired or replacement Goods are accepted in writing by the Customer;
  • comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
  • be new and unused (unless expressly agreed otherwise in the Order).
• The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods, and shall inform the Customer of any such licences, permissions, authorisations, consents and permits that the Customer is required to hold in relation to the Goods post-delivery.
• The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract. Where any Goods are being manufactured at, or are otherwise present at, the premises of a third party (including without limitation a subcontractor of the Supplier), then the Supplier shall procure access to such premises for the Customer for the purposes of exercising its rights under this clause 3.3 and clause 3.5. For the avoidance of doubt, sub-contractors may only be used by the Supplier with the Customer’s prior written consent.
• If following such inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately (and at the Supplier’s expense) take such remedial action as is necessary to ensure compliance.
• The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
• Where the Supplier finds, after entering into the Contract, that it is unable to supply the Goods specified in the Goods Specification, it shall notify the Customer immediately (and in any event within 24 hours of discovery of the issue) (i) which Goods are affected, (ii) the Supplier’s proposed substitution for the Goods affected, and (iii) any further information which the Customer requests in order for it to assess the proposed substitution. Without prejudice to its other rights and remedies, whether under this agreement or at law, the Customer may agree to a variation to this Contract in order to replace the relevant Goods with the proposed substitution. For the avoidance of doubt, the Supplier shall not be entitled to any additional payment where the cost to it in supplying the substitution exceeds its anticipated costs in providing the original Goods.
• The Supplier warrants that, at the date of delivery of the Goods and for the period of ten years thereafter, a sufficient quality and variety of spare and replacement parts will be available for the purposes of repair and maintenance of the Goods. For the avoidance of doubt, the ten year period shall recommence where repaired or replacement goods are provided hereunder.
  Without prejudice to the Customer’s rights and remedies under clause 7 hereof, the Customer may also elect to send to the Supplier (at any time after delivery of Goods or performance of Services) a list of defects or issues which the Customer wishes to give the Supplier the opportunity to remedy without invoking clause 7 immediately (“Snagging List“).
• The Supplier shall, on receipt of the Snagging List, promptly perform the required rectification work at no cost to the Customer. Such rectification shall be completed within 5 Business Days of receipt of the Snagging List except where the Customer notifies the Supplier with reasons (and a time estimate for rectification) why it will be unable to do so, and the Supplier authorises such additional period.

4. DELIVERY OF GOODS

• The Supplier shall ensure that:
  • the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition (with such packaging becoming the property of the Customer upon delivery unless otherwise specified in the Order);
  • each delivery of the Goods is accompanied by a delivery note (in the format supplied by the Customer which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by installments, the outstanding balance of Goods remaining to be delivered, plus a copy of any electrical or other certification specified in the Order or otherwise typically supplied alongside such Goods (and a further copy of such certification shall be emailed to [email protected]); and
• The Supplier shall deliver the Goods (or, where specified in the Order, make the Goods available for the Customer or its contractor to collect) – in either case “Delivery“:
  • on the date specified in the Order;
  • to or at the location as is set out in the Order or as instructed by the Customer before Delivery (Delivery Location);
  • during the Customer’s normal hours of business on a Business Day, or as instructed by the Customer;

and time shall be of the essence in relation to Delivery of the Goods.

• Delivery of the Goods shall be completed on:
  • In the case of delivery to the Customer, the completion of unloading of the Goods at the Delivery Location; or
  • In the case of collection by the Customer, the completion of loading of the Goods at the Delivery Location.
• The Supplier must obtain a delivery receipt from an authorised representative of the Customer at the Delivery Location. If the Supplier fails to do so, then the Goods shall remain entirely at the risk of the Supplier until the Customer accepts delivery of the Goods in writing (or, if earlier, until title to the Goods passes to the Customer).
• The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in clause 7.1 in relation to all instalments, whether delivered or yet to be delivered.
• Title and risk in the Goods shall pass to the Customer on completion of delivery.

5. SUPPLY OF SERVICES

• The Supplier shall from the date set out in the Order and for the duration of the Contract supply the Services to the Customer in accordance with the terms of the Contract.
• The Supplier shall meet any performance dates for the Services specified in the Order or that the Customer otherwise notifies to the Supplier and time is of the essence in relation to any of those performance dates.
• In providing the Services, the Supplier shall:
  • co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;
  • perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
  • use personnel who are suitably skilled, qualified and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
  • ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier (and in this respect the Customer shall rely on the Supplier’s skill and judgement);
  • provide all equipment, tools and vehicles and such other items as are required to provide the Services;
  • use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
  • obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
  • comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services (including without limitation the Waste Electrical & Electronic Equipment Regulations 2006, where applicable);
  • observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises;
  • use its best endeavours to perform the Services in an environmentally friendly manner, including without limitation by conserving energy, water, wood, paper and other resources; reducing waste; minimising the use of ozone depleting substances and the release of greenhouse gases, volatile organic compounds and other substances damaging to health or the environment;
  • hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (“Customer Materials“) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation;
  • not do or omit to do anything which may cause the Customer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services; and
  • comply with any additional obligations as set out in the Service Specification.

6. CUSTOMER’S RIGHT OF SUBSTITUTION

• At any time prior to delivery, the Customer may submit a written request (“Order Amendment“) to the Supplier proposing an increase, decrease and/or modification to the Goods and/or Services ordered under a particular Order.
• Where the Supplier identifies that an Order Amendment will cause a change to either the price or the proposed delivery/order date for the relevant Goods or Services, then it shall notify the Customer as soon as reasonably practicable and in any event within 24 hours of receipt of the Order Amendment. Where performance of the Order Amendment requires the procurement of goods or services from a third party and it is not possible for the Supplier to substantiate the time/cost impact of the Order Amendment within the 24 hour period, it shall confirm this position to the Supplier within the 24 hour period and shall issue a further notification confirming the cost/price impact of the Order Amendment within 5 Business Days of its receipt of the Order Amendment.
• Where the Supplier gives notification under clause 6.2 above, it should also suspend any and all performance of its obligations under this Order. The notification (or second notification where the last sentence of clause 6.2 applies) shall set out the proposed price and/or delivery date change, along with the methodology for the calculation of the change (demonstrating that the same pricing and profitability method was used as for the original Order price).
• The Customer shall be entitled to consider the proposal for 2 clear Business Days following receipt of the notification (or second notification where the last sentence of clause 6.2 applies). If the Customer accepts the changes proposed in the notification, then the Order Amendment shall alter the Goods Specification or Service Specification as applicable. Where the Customer rejects the changes, then the Order Amendment shall no longer apply and the original price and schedule shall resume, subject to a time extension for the documented and evidenced delays caused to the Supplier’s manufacturing process by the suspension following the Order Amendment.

7. CUSTOMER REMEDIES

• If the Supplier fails to deliver the Goods and/or perform the Services (in each case, completely and correctly) by the applicable date, the Customer shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
  • to terminate the Contract with immediate effect by giving written notice to the Supplier;
  • to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
  • to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
  • to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and
  • to claim damages for any additional costs, loss or expenses incurred by the Customer (including without limitation any costs, penalties, damages (whether liquidated or otherwise) or other loss incurred by the Customer arising out of its onwards contract(s) with its own customer(s)) which are in any way attributable to the Supplier’s failure to meet such dates.
• If the Goods are not delivered by and/or the Services are not performed by the applicable date, the Customer may, at its option, claim or deduct 2% of the price of the Goods/Services for each day’s delay in delivery or performance by way of liquidated damages, up to a maximum of 100% of the total price of the Goods/Services. If the Customer exercises its rights under this clause 7.2 it shall nevertheless be entitled to any of the remedies set out in clause 7.1 in addition thereto (except that no further liquidated damages may be accrued after the Customer has exercised its right under clause 7.1.1 or 7.1.2).
• If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, or performed Services which do not comply with its obligations under clause 5.3, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights, whether or not it has accepted any Goods or Services:
  • to terminate the Contract with immediate effect by giving written notice to the Supplier;
  • to reject the Goods or Services (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
  • to require the Supplier to repair or replace rejected Goods, to re-perform the rejected Services or to provide a full refund of the price of the rejected Goods/Services;
  • to refuse to accept any subsequent delivery of the Goods or performance of the Services which the Supplier attempts to make;
  • to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods or services from a third party; and
  • to claim damages for any additional costs, loss (including loss of profit) or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1 and/or Services in accordance with clause 5.3.
• These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
• The Customer’s rights under the Contract are in addition to its rights and remedies implied by statute and common law.

8. CUSTOMER’S OBLIGATIONS

• The Customer shall
  • (where applicable) provide the Supplier with reasonable access at reasonable times to the Customer’s premises for the purpose of providing the Services;
  • provide such necessary information for the provision of the Services as the Supplier may reasonably request; and
  • perform any other obligations expressly stated in the Order.

9. CHARGES AND PAYMENT

• The price for the Goods:
  • shall be the price set out in the Order, as varied in accordance with these Conditions (if applicable); and
  • shall be inclusive of the costs of packaging, insurance, storage, carriage, delivery, installation and commissioning (where applicable) of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.
• The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
• In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number. Invoices must be submitted to [email protected].
• In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 30 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
• All amounts payable by the Customer under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (“VAT“). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
• If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 1% a year above the Bank of England’s base rate from time to time.
• The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Customer to inspect such records at all reasonable times on request.
• The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

10. INTELLECTUAL PROPERTY RIGHTS

• All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Customer Materials) shall be owned by the Supplier.
• The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free transferrable, sub-licencable, perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding Customer Materials) for the purpose of receiving and using the Services and the Deliverables and for its other business purposes.
• The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to use and copy any materials provided by the Customer to the Supplier for the term of the Contract for the sole purpose of providing the Services to the Customer.
• All Customer Materials are the exclusive property of the Customer.

11. INDEMNITY

• The Supplier shall indemnify and keep the Customer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:
  any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Customer Materials);
  • any claim made against the Customer by a third party (which for the purposes of this clause 11.1.2 shall include an employee, agent, officer or contractor of the Supplier or Customer) for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and
  • any claim made against the Customer by a third party (which for the purposes of this clause 11.1.3 shall include an employee, agent, officer or contractor of the Supplier or Customer) arising out of or in connection with the supply of the Goods, as delivered, or the Services.
• This clause 11 shall survive termination of the Contract.

12. INSURANCE

During the term of the Contract and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance. The public liability insurance shall have an aggregate and per event limit of not less than £2,000,000.

13. CONFIDENTIALITY

• Each party undertakes that it shall not at any time during the Contract and for a period of five years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
• Each party may disclose the other party’s confidential information:
  • to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information must comply with this clause 13; and
  • as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
• Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
• The Supplier hereby authorises the Customer to contact it by email, telephone or post regarding other potential transactions or general news/updates. If the Supplier wishes to cease such correspondence, it should notify the Customer in writing.

14. TERMINATION

• Without affecting any other right or remedy available to it, the Customer may terminate the Contract (in whole or in part) for convenience immediately upon giving written notice to the Supplier. The Supplier shall immediately cease any and all work on the applicable Goods/Services and shall not thereafter take on any additional obligations or liabilities relating to those Goods/Services. The Supplier shall calculate its costs and expenses incurred up to the date of termination under the Contract, and shall present this to the Customer with sufficient evidence to verify to the Customer’s satisfaction that the Supplier has taken all possible steps to mitigate its losses. The Customer shall thereafter, within 90 days of receipt of an invoice for an agreed amount (or failing agreement an amount determined in accordance with clause 17.10), make payment to the Customer of the Customer’s reasonable costs and expenses incurred under the Contract less (i) any sums which were or should have been recovered by the Customer to mitigate its loss, and (ii) the Customer’s reasonable assessment of the value to the Supplier of any part of the Goods or Services manufactured or performed which could be used by the Customer for other contracts.
• Without affecting any other right or remedy available to it, the Customer may terminate this Contract with immediate effect by giving notice to the Supplier if:
  • the Supplier fails to pay any amount due under this Contract on the due date for payment;
  • the Supplier commits a material breach of any other term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified to do so;
  • the Supplier repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Contract;
  • there is a change of Control of the Supplier; or
  • the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
  • the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
  • the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
  • a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
  • an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Supplier (being a company);
  • the holder of a qualifying floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
  • a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
  • a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the Supplier’s assets;
  • any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2.6 to clause 14.2.12 (inclusive); or
  • the Supplier suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

15. CONSEQUENCES OF TERMINATION

• On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
• Termination of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
• Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
• For the avoidance of doubt, where the Contract is terminated under clause 14.2 by the Customer, the Supplier shall not be entitled to receive any payment (whether as a percentage of the price set out in the Order or as an alternative payment) in consideration for its compliance with clause 15.1.
• Where the Contract is terminated by the Supplier under clause 14.2, then (subject to the transfer to the Customer of that part of the Goods/Services manufactured or performed to date) the Customer shall compensate the Supplier for the balance of its losses directly and unavoidably incurred by the Supplier as a result of such termination, less (i) any amount by which this would have been reduced by the Supplier taking all possible steps to mitigate its losses, and (ii) any amounts already paid by the Customer hereunder. Where the amounts pre-paid by the Customer exceed the losses recoverable by the Supplier hereunder, then the Supplier shall return the balance to the Customer immediately upon demand.

16. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 30 days, the Customer may terminate this agreement by giving 14 days’ written notice to the Supplier.

17. GENERAL

• Assignment and other dealings.
  • The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
  • The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Customer.
• Direct contact between Supplier and Customer’s customer (“End User”).
  • The Supplier acknowledges that it is inevitable that there will be some direct contact between the Supplier’s representatives and those of the End User in some cases.
  • The Supplier and its representatives are not authorised, under any circumstances, to agree changes to the scope of the Goods or Services under this Contract, or the goods and services to be provided by the Customer to the End User under any other contract, directly. If the Supplier or its representatives choose to attempt to do so then the Customer shall be entitled to:
    • treat such changes as defects in the Goods or Services hereunder, and require them to be rectified;
    • require the Supplier to delay delivery of Goods or completion of Services as applicable (without incurring any liability whatsoever towards the Supplier) until it has negotiated a formal variation of its contract with the End User; and
    • make no additional payment to the Supplier for such changes (regardless of what the Supplier and the End User may have agreed).
  • No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Contract.
• Entire agreement.
  • This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
  • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
• No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
• No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
• If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
• Any notice given to a party under or in connection with this Contract shall be in writing and shall be:
  • delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
  • sent by fax to its main fax number; or
  • sent to the email address typically used by a party.
• Any notice shall be deemed to have been received:
  • if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
  • if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service (if earlier).
  • if sent by fax or email, at 9.00 am on the next Business Day after transmission.
• This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
• Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
• Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
• Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.