Esselle retail Ltd t/a Arthouse – Standard Terms and Conditions of Purchase for Suppliers
1.1 "Applicable Law" means any and all laws, regulations and industry standards or guidance and any binding judgment of a relevant court of law which is or are relevant to the Contract.
1.2 “Buyer” means Esselle retail Ltd t/a Arthouse (company number 12671338).
1.3 "Buyer Materials" means materials, equipment and tools, drawings, designs, specifications and data supplied or made available by the Buyer to the Supplier.
1.4 "Charges" means the charges payable by the Customer for the supply of the Services in accordance with condition 3.
1.5 "Conditions" means the terms and conditions set out in this document as amended from time to time in accordance with condition 16.2.
1.6 "Confidential Information" means any and all know-how, documentation and information, whether commercial, financial, technical, operational or otherwise, relating to the business, affairs, customers, suppliers, employees, affiliates, products and/or methods of the Buyer or the Supplier and disclosed to or otherwise obtained by the other party in connection with the Contract.
1.7 "Contract" means the contract between the Buyer and the Supplier for the supply of Goods and/or Services which incorporates the Conditions, the Purchase Order, and the Specification (as applicable).
1.8 "Deliverables" means all documents, products and materials developed by the Supplier as part of or in relation to the Services in any form or media, including drawings, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
1.9 "Delivery Location" means the address for delivery of Goods as set out in the Purchase Order.
1.10 “Due Date” means the date stated in the Purchase Order for delivery of Goods and/or Services.
1.11 “Force Majeure Event” means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any act of God, explosion, flood, fire or accident, war or threat of war, sabotage, civil disturbance, acts of any governmental or supra-national authority, currency restrictions and restraints or delays affecting carriers).
1.12 “Goods” means all or any of the items set out in the Purchase Order which are to be supplied by the Supplier to the Buyer.
1.13 "Good Industry Practice" means the use of standards, practices, methods and procedures conforming to Applicable Law and the exercise of that degree of skill, care, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced person engaged in the provision of services similar to the Services to an entity of a similar size and nature as the Buyer under the same or similar circumstances.
1.14 "Intellectual Property Rights" means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, 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.
1.15 “Parties” means the Buyer and the Supplier.
1.16 "Price" means the price payable by the Customer for the supply of the Goods in accordance with condition 3.
1.17 “Purchase Order” means the Buyer’s purchase order document specifying the Goods and/or Services to be supplied.
1.18 “Services” means the services (if any) described in the Purchase Order and, where used, the Specification.
1.19 “Specification” means the Buyer's specification document to which the Goods and/or Services shall conform.
1.20 “Supplier” means the person, firm or company to whom the Purchase Order is issued to.
1.21 “Working Day” means the Buyer’s usual working days, which exclude weekends, bank holidays and any other days notified to the Supplier by the Buyer.
2. Basis of Contract
2.1 These Conditions shall 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, unless otherwise agreed by the Buyer in a written side agreement signed by the Parties.
2.2 The Purchase Order constitutes an offer by the Buyer to purchase the Goods and/or the Services in accordance with these Conditions.
2.3 The Purchase Order shall be deemed to be accepted on the earlier of:
2.3.1 the Supplier issuing a written acceptance of the Purchase Order; and
2.3.2 the Supplier doing any act consistent with fulfilling the Purchase Order,
at which point the Contract shall come into existence ("Commencement Date").
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. Price and Payment
3.1 The price for the Goods shall be the price set out in the Purchase Order. The price:
3.1.1 excludes amounts in respect of UK value added tax ("VAT"), which the Buyer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
3.1.2 includes all taxes and duties other than VAT, the costs of packaging, insurance and carriage of the Goods.
3.2 The charges for the Services shall be the charges set out in the Purchase Order and shall be the Supplier's full and exclusive remuneration for the performance of the Services (including the supply of the Deliverables). The charges:
3.2.1 exclude amounts in respect of VAT, which the Buyer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
3.2.2 include all taxes and duties other than VAT and all costs and expenses incurred (directly or indirectly) by the Supplier in connection with the performance of the Services.
3.3 The price for the Goods and/or charges for the Services shall not be increased at any time, unless agreed in writing with the Buyer.
3.4 The Supplier may invoice the Buyer for the:
3.4.1 price plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery; and
3.4.2 charges plus VAT at the prevailing rate (if applicable) on or at any time after the completion of the Services to the Buyer's satisfaction.
3.5 The Supplier shall ensure that all invoices includes the date of the Purchase Order, the invoice number, the Supplier's VAT registration number and any supporting documents that the Buyer may reasonably require.
3.6 The Buyer shall pay correctly rendered and undisputed invoices in respect of Goods and/or Services that comply with the Contract within 30 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
3.7 If the Buyer disputes the whole or any part of an invoice, it may withhold payment in respect of the disputed amount provided that it gives notice in writing to the Supplier of any intention to withhold payment, specifying the amount to be withheld and the grounds for withholding payment.
3.8 Except where the Buyer withholds an amount due to a bona fide dispute pursuant to condition 3.7, the Supplier may charge interest on overdue amounts at the rate of 2% per annum above Barclays's bank base rate from time to time, from the due date until actual payment of the overdue amount, whether before or after judgment. The Supplier agrees that the right to claim interest under this condition 3.8 is a substantial remedy for late payment of undisputed invoices.
3.9 The Buyer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier (whether under the Contract or not) to the Buyer against any liability of the Buyer to the Supplier.
3.10 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services and allow the Buyer to inspect and take copies of such records at reasonable times on request.
4.1 The Supplier warrants that the Goods:
4.1.1 correspond with their description and where applicable the Specification;
4.1.2 are of satisfactory quality (within the meaning of the Sale of Goods 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Buyer expressly or by implication, and in this respect the Buyer relies on the Supplier's skill and judgment;
4.1.3 are free from defects in design, material and workmanship and shall remain so for 12 months after delivery;
4.1.4 comply with all Applicable Law relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
4.1.5 are manufactured, supplied and delivered:
188.8.131.52 without any breach of the Modern Slavery Act 2015 or activity that would constitute a breach of that act if it took place within England and Wales;
184.108.40.206 in accordance with good ethical trading practices and standards; and
220.127.116.11 in a manner reflecting a commitment to safety and human rights in the workplace.
4.2 Supplier shall assign to the Buyer any assignable manufacturer's warranty or other guarantee applicable to the Goods or any of them. If the Supplier becomes insolvent, any such warranties and guarantees shall be deemed to have been assigned immediately prior to the onset of insolvency.
4.3 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.
4.4 The Buyer may inspect and test the Goods at any time before delivery and the Supplier shall provide the Buyer with all facilities reasonably required for such inspection and testing. 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.
4.5 If following such inspection or testing the Buyer considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at condition 6.1, the Buyer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. The Buyer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
5. Delivery of Goods and Performance of the Services
5.1 In respect of delivery of the Goods the Supplier shall ensure that:
5.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition and wherever possible ensure all packaging and packing materials are suitable for recycling; and
5.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Purchase Order, the Purchase Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable; and
5.1.3 if the Supplier requires the Buyer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the Supplier's expense.
5.2 The Supplier shall deliver the Goods:
5.2.1 on the Due Date;
5.2.2 at the Delivery Location;
5.2.3 during the Buyer's normal business hours, or as instructed by the Buyer.
5.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
5.4 The Supplier shall notify the Buyer immediately in writing if delivery of the Goods is, or is likely to be, delayed, the reason for such delay and the timescales for delivery. The Supplier shall use all reasonable endeavours to avoid or minimise any delay.
5.5 The Buyer shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following delivery or, in respect of latent defects, until a reasonable time after the defect becomes apparent.
5.6 The Supplier shall not deliver the Goods in instalments without the Buyer's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. Upon any default or breach by the Supplier in respect of any instalment, the Buyer may at its option:
5.6.1 cancel any other instalment(s) and/or treat the whole Contract as repudiated; or
5.6.2 waive the default or breach and treat the Contract as continuing provided that such waiver shall in no way affect the Buyer's right to exercise its rights under condition 8 or any of its other rights or remedies under the Contract or at common law.
5.7 In performing the Services the Supplier:
5.7.1 shall from the Commencement Date and for the duration of the Contract provide the Services to the Buyer in accordance with the Contract;
5.7.2 shall perform the Services by the Due Date;
5.7.3 warrants that it shall:
18.104.22.168 co-operate with the Buyer in all matters relating to the Services and comply with all the Buyer's reasonable instructions;
22.214.171.124 perform the Services with reasonable care, skill and diligence in accordance with Good Industry Practice;
126.96.36.199 ensure that the Supplier Personnel are suitably skilled, experienced and qualified to perform tasks assigned to them, and of sufficient number to ensure that the Supplier performs its obligations in accordance with the Contract;
188.8.131.52 ensure that the Services and Deliverables correspond with their description and the Service Specification and that the Deliverables are of satisfactory quality (within the meaning of the Supply of Goods and Services Act 1982) and fit for any purpose held out by the Supplier or expressly or impliedly made known to the Supplier by the Buyer, and in this respect the Buyer relies on the Supplier's skill and judgment;
184.108.40.206 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
220.127.116.11 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 supplied to the Buyer are free from defects in design, material and workmanship and shall remain so for 12 months after delivery;
18.104.22.168 obtain and at all times maintain all necessary licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract;
22.214.171.124 observe and procure that the Supplier personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Buyer's premises;
126.96.36.199 keep and maintain all Buyer Materials in safe custody at its own risk, maintain the Buyer Materials in good condition until returned to the Buyer and not dispose of or use the Buyer Materials other than in accordance with the Buyer's written instructions or authorisation;
188.8.131.52 not do or omit to do anything which may bring the name or reputation of the Buyer into disrepute or prejudice the interests of the business of the Buyer; and
184.108.40.206 not do or omit to do anything which may cause the Buyer to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business and the Supplier acknowledges that the Buyer may rely or act on the Services.
6.1 If the Supplier fails to perform any of the Services in accordance with the Contract by the Due Date, the Buyer may, without limiting any of its other rights or remedies, exercise any one or more of the following remedies:
6.1.1 where such deficiency or non-compliance arises within 12 months from the date of performance of the Services, require the Supplier at its own cost to:
220.127.116.11 re-perform the Services; and/or
18.104.22.168 remedy any deficiency in the Services or Deliverables or non-compliance with the Contract as soon as possible and in any event within 10 Business Days;
6.1.2 terminate the Contract with immediate effect by giving written notice to the Supplier;
6.1.3 refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
6.1.4 recover from the Supplier any costs incurred by the Buyer in obtaining substitute services from a third party;
6.1.5 where the Buyer has paid in advance for Services that have not been provided by the Supplier in accordance with the Contract, to require the Supplier to refund the Charges relating to such Services on demand; or
6.1.6 claim damages for any other costs, loss or expenses incurred by the Buyer which are in any way attributable to the Supplier's failure to perform the Services in accordance with the Contract by the relevant date(s).
6.2 If any Goods are not delivered on the Due Date or do not comply with the undertakings set out in condition 6 then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Buyer may exercise any one or more of the following remedies:
6.2.1 terminate the Contract;
6.2.2 reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
6.2.3 require the Supplier to repair or replace the rejected Goods or to provide a full refund of the price of the rejected Goods (if paid);
6.2.4 refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.2.5 recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and/or
6.2.6 claim damages for any other costs, losses or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
6.3 If the Supplier fails to provide any Services by the Due Date the Buyer may, at its option, claim or deduct 5% of the Charges for such Services for each week's delay in delivery up to a maximum of 5% of the Charges for those Services.
6.4 If any of the Goods are not delivered on the Due Date the Buyer may at its option claim or deduct 5% of the price of such Goods for each week's delay in delivery by way of a price reduction, up to a maximum of 5% of the total price of the Goods.
6.5 The Supplier acknowledges that the Buyer has a legitimate interest in ensuring that the Supplier:
6.5.1 performs the Services on the Due Date; and
6.5.2 delivers the Goods on the Due Date,
and the price reductions referred to in conditions 6.3 and 6.4 are adjustments to the price to reflect the loss that the Buyer would suffer if they are not delivered on the Due Date.
6.6 If the Buyer claims a price reduction in accordance with condition 6.3 and/or 6.4 such price reduction shall be the Buyer's sole remedy in respect of that delay, provided always that:
6.6.1 the Buyer shall have no obligation to claim a price reduction; and
6.6.2 when the Buyer has claimed the maximum price reduction permissible under the Contract, the Buyer may terminate the Contract with immediate effect by giving written notice to the Supplier and/or claim damages generally in respect of any ongoing or additional failure or delay by the Supplier.
6.7 If the Buyer requires the Supplier to repair or replace the rejected Goods, the Supplier shall do so as soon as possible and in any event within 10 Business Days.
6.8 If the Supplier:
6.8.1 delivers less than 95% of the quantity of Goods ordered, the Buyer may reject the Goods; or
6.8.2 delivers more than 105% of the quantity of Goods ordered, the Buyer may at its discretion reject the Goods or the excess Goods,
and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
6.9 These Conditions shall apply to any substituted or remedial services and/or repaired or replacement goods provided by the Supplier.
6.10 The Buyer's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
7.1 Without limiting its other rights or remedies, the Buyer may terminate the Contract:
7.1.1 in respect of the supply of Services, with immediate effect in whole or in part at any time before completion of the Services by giving the Supplier at least five Business Days' written notice; and
7.1.2 in respect of the supply of Goods, with immediate effect in whole or in part at any time before delivery by giving the Supplier at least five Business Days' written notice,
whereupon the Supplier shall discontinue all work on the Contract.
7.2 If the Buyer terminates the Contract under condition 7.1:
7.2.1 it shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods and/or Services at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss; and
7.2.2 the Contract shall continue in full force and effect in respect of:
22.214.171.124 Goods already delivered or paid for by the Buyer or which the Buyer indicates that it still wishes to receive; or
126.96.36.199 Services already performed or paid for by the Buyer or which the Buyer indicates that it still wishes to receive.
7.3 Without limiting its other rights or remedies, the Buyer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
7.3.1 the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified in writing to do so;
7.3.2 the Supplier commits a breach of conditions 8, 15 or 16;
7.3.3 the Supplier repeatedly breaches any term of the Contract in such 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 the Contract;
7.3.4 performance of the Contract would, in the Buyer's reasonable opinion, cause the Buyer to be in breach of any Applicable Law;
7.3.5 the Buyer reasonably believes that a Force Majeure Event has impacted or may materially impact on the Supplier's ability to perform its obligations under the Contract;
7.3.6 the Supplier (being a body corporate) is declared or becomes insolvent, applies for or has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect of any of these circumstances (an "Insolvency Event");
7.3.7 the Supplier (being an individual) is declared bankrupt, enters into any composition or arrangement with his creditors, has a receiver appointed to any of his assets, or ceases to carry on business or takes or suffers any similar action in any jurisdiction or any step is taken (including the making of an application or the giving of any notice) by him or any other person in respect of any of these circumstances) (also an "Insolvency Event")) (or, the Supplier being a partnership, has a partner to whom any Insolvency Event applies);
7.3.8 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation;
7.3.9 the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
7.3.10 the Supplier's financial position deteriorates to such an extent that in the Buyer's opinion the Supplier's capability to fulfil its obligations under the Contract adequately has been jeopardised.
7.4 If the Buyer terminates the Contract pursuant to condition 7.4, then, without prejudice to any other right or remedy available to it, the Buyer may (at its option):
7.4.1 keep any Goods and Deliverables already delivered to it subject to payment of that proportion of the Price or Charges attributable to such Goods and/or Deliverables in accordance with the Contract (less any sums already paid to the Supplier); or
7.4.2 repudiate the Contract, return the Goods and Deliverables and require the repayment of the whole or any part of the Charges which have been paid.
7.5 On termination of the Contract for any reason, the Supplier shall immediately deliver to the Buyer all Deliverables whether or not complete and return all Buyer Materials to the Buyer. If the Supplier fails to do so, the Buyer may enter the Supplier's premises and take possession of them. Until such items have been delivered or returned, the Supplier shall be solely responsible for their safe keeping and shall not use them for any purpose not connected with the Contract.
7.6 Termination of the Contract, however arising, shall not affect any of the Parties' rights, remedies, obligations or liabilities that have accrued as at termination.
7.7 Conditions that expressly or by implication survive termination of the Contract shall continue in full force and effect.
8.1 Subject to condition 8.2 each party to the Contract (the "Recipient") shall:
8.1.1 use the other party's (the "Disclosing Party") Confidential Information solely for the performance of the Contract; and
8.1.2 keep the Disclosing Party's Confidential Information strictly confidential and not, without the Disclosing Party prior written consent, disclose it to any other person.
8.2 The Recipient may disclose the Disclosing Party's Confidential Information:
8.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Recipient's rights or carrying out its obligations under or in connection with the Contract and the Recipient shall ensure that such persons comply with this condition 8.2:
8.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and
8.2.3 if such information is public knowledge or already known to the Recipient at the time of disclosure or subsequently becomes public knowledge in each instance other than by breach of any duty of confidentiality (contractual or otherwise).
8.3 The Supplier shall not refer to the Contract, the Buyer or any of the Buyer's products or brands in any Buyer list, presentation, article or other promotional material without the Buyer's prior written consent.
8.4 The Supplier shall not, without the prior written permission of the Buyer, advertise or disclose to any third party that it is providing Goods and/or Services to the Buyer.
8.5 This condition 8 shall survive termination of the Contract.
9. Risk and Title
9.1 Risk in the Goods shall pass to the Buyer on completion of delivery of such Goods.
9.2 Title to each of the Goods shall pass to the Buyer on the earlier of:
9.2.1 the Buyer's payment for such Goods; and
9.2.2 delivery of such Goods. Nothing in this condition 9.2 shall prevent the Buyer from using or selling the Goods prior to title passing.
9.3 The Supplier warrants that, on the date of delivery, the Supplier shall have the full and unrestricted right to sell the Goods to the Buyer. Title to any Goods which the Buyer rejects shall revert to the Supplier only when the Buyer has recovered in full the price paid for the relevant rejected Goods together with any costs it has incurred in storing and/or returning such Goods to the Supplier.
10.1 During the term of the Contract and for a period of 3 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 Buyer'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.
10.2 Except under condition 11 and subject to condition 10.3, neither party shall be liable to the other for any indirect or consequential losses or damage suffered by the other party.
10.3 Nothing in the Contract shall limit either party's liability for:
10.3.1 death or personal injury arising from its negligence;
10.3.2 fraudulent misrepresentation; or
10.3.3 any other liability that cannot be excluded by law.
11.1 The Supplier shall indemnify, keep indemnified the Buyer from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit and loss of reputation whether arising in tort (including negligence), in contract or otherwise and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with the receipt, use or supply of the Goods and/or the Services including:
11.1.1 any breach of any warranty, undertaking or representation given by the Supplier;
11.1.2 any damage caused to any of the Buyer's premises by the Supplier;
11.1.3 any actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the receipt, use or supply of the Goods and/or Services (except to the extent that the infringement is attributable to compliance with any Specification supplied by the Buyer; or
11.1.4 for death, personal injury or damage to property arising out of or in connection with the supply of the Goods and/or Services including:
188.8.131.52 any defect in the Goods;
184.108.40.206 any defect in any Deliverable; or
220.127.116.11 any act or omission of the Supplier or its employees, agents or subcontractors.
11.2 The Supplier shall at its own expense defend any allegation of the type described in condition 13.1.3 against the Buyer by any third party. In the event of such an allegation, the Supplier shall use all reasonable endeavours to procure for the Buyer the right to continue receiving the relevant Goods and/or Services and/or using the relevant Deliverables or modify them so that they are non-infringing.
11.3 This condition 11 shall survive termination of the Contract.
12. Force Majeure
12.1 Subject to clause 12.2, neither party shall be in breach of the Contract or liable for delay in performing, or failure to perform, any of its obligations under it if such breach, delay or failure results from a Force Majeure Event, provided that the party affected promptly notifies the other of the cause and likely duration of the breach, delay or failure, uses all reasonable endeavours to remove or avoid the effects of the Force Majeure Event and resumes performance of its obligations under the Contract without delay when the Force Majeure Event ceases to have effect.
12.2 The Supplier warrants that it has in place and will maintain for the duration of the Contract adequate contingency or disaster recovery procedures so that it can continue to provide the Goods and/ or Services with the minimum delay in the event of Force Majeure Event.
13.1 The Supplier shall not, without prior written permission, use any of the Buyers designs for promotional purposes or in any way that a third party may work out the relationship between the Supplier and Buyer.
14. Intellectual Property
14.1 The Supplier acknowledges that the Buyer Materials and all rights in the Buyer Materials are and shall remain the exclusive property of the Buyer.
14.2 In respect of the Goods and any other goods that are supplied to the Buyer under the Contract as part of the Services, including the Deliverables or any part of them, the Supplier warrants that it has full, clear and unencumbered title to all such items, and that at the date of delivery of such items to the Buyer, it will have full and unrestricted rights to transfer all such items to the Buyer.
14.3 The Supplier assigns absolutely and with full title guarantee to the Buyer all Intellectual Property Rights arising in the performance of the Services (including the Deliverables) such that such rights shall forthwith on creation vest in the Buyer.
14.4 The Supplier waives, and shall procure waivers from any relevant Supplier Personnel of, any moral rights arising in the performance of the Services (including in relation to the Deliverables) to which they are now or may at any future time be entitled under Chapter IV of the Copyright, Designs and Patents Act 1988 or any similar provisions of Applicable Law.
14.5 The Supplier shall promptly at the Buyer's request do (or procure) all such further acts and things and the execution of all such other documents as the Buyer may from time to time require for the purpose of securing for the Buyer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Buyer pursuant to condition 16.3.
14.6 The Supplier acknowledges that all rights in the Buyer Materials are and shall remain the exclusive property of the Buyer. The Supplier shall keep the Buyer Materials in safe custody at its own risk, maintain them in good condition until returned to the Buyer and not dispose of or use the Buyer Materials other than in accordance with the Buyer's written instructions or authorisation.
15. Compliance with Applicable Laws and Policies
15.1 In performing its obligations under the Contract, the Supplier shall comply with:
15.1.1 all Applicable Law from time to time in force including the Bribery Act 2010, the Modern Slavery Act 2015, and all applicable health and safety laws; and
15.1.2 any of the Buyer's policies as notified to the Supplier from time to time;
15.2 The Buyer may immediately terminate the Contract for any breach of this condition 15.
16. Data Protection
16.1 For the purposes of this clause 16 the following definitions shall apply:
"Business Contact Data" means the business contact information of personnel engaged by either party to the Contract, specifically the name, business telephone number, business email address, business postal address and/or the job title of such personnel;
"Data Protection Laws" means the Data Protection Act 2018, the UK GDPR, GDPR, any relevant law implemented as a result of GDPR and ePrivacy Law;
"ePrivacy Law" Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector, as amended by Directive 2009/136/EC and any relevant law implementing or superseding Directive 2002/58/EC including without limitation the Privacy and Electronic Communication (EC Directive) Regulations 2003 and any superseding law;
"GDPR" means Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data; and
"UK GDPR" means GDPR 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 a part of the United Kingdom from time to time).
16.2 The expressions "personal data", "controller", "processor" and "process" bear the meaning given to that expression in GDPR.
16.3 The parties acknowledge and agree that for the purposes of the Contract:
16.3.1 each party is a controller for the personal data it processes in connection with the Contract;
16.3.2 each party is responsible for its own compliance with its data protection obligations under Data Protection Laws with regard to its processing of personal data; and
16.3.3 the only personal data to be transmitted between the parties is Business Contact Data.
16.4 If a party (the "Disclosing Party") discloses Business Contact Data to the other party (the "Recipient Party"), the Disclosing Party shall ensure that such disclosure is lawful.
16.5 The Recipient Party shall only process the Disclosing Party's Business Contact Data:
16.5.1 to the extent necessary to perform its obligations under the Contract or as is otherwise necessary to comply with a legal obligation; and
16.5.2 in compliance with Data Protection Laws.
16.6 In the event that clause 16.3.3 becomes or will become inaccurate or incomplete before the expiry or termination of the Contract, the parties agree to negotiate in good faith to vary these Conditions as soon as reasonably practicable in order to: (i) reflect the personal data being transmitted between the parties; and (ii) ensure that the transmission and processing of such personal data complies with all applicable requirements under Data Protection Laws.
17.1 Entire Agreement
The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Customer.
Except as set out in condition 2.4 and 14.4, 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 or 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 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 shall be deemed deleted. Any modification or deletion of a provision under this condition shall not affect the validity and enforceability of the rest of the Contract.
17.5.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
18.104.22.168 delivered by hand or by pre-paid first-class post or by a signed-for next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
22.214.171.124 sent by email to the email address specified in the Purchase Order.
17.5.2 Any notice or communication shall be deemed to have been received:
126.96.36.199 if delivered by hand, on signature of a delivery receipt or, if not signed for, at the time the notice is left at the correct address;
188.8.131.52 if sent by pre-paid first-class post, at 09:00 on the second Business Day after posting;
184.108.40.206 if sent by a signed-for next working day delivery service, at the time recorded by the delivery service; and
220.127.116.11 if sent by email, at 09:00 on the next Business Day after transmission.
17.5.3 This condition 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.
17.6 Third Party Rights
No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
17.7 Assignment and Sub-contracting
17.7. 1 The Buyer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
17.7.2 The Supplier may not assign, transfer, mortgage, charge, 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 Buyer.
17.7.3 The Supplier may not subcontract any or all of its rights or obligations under the Contract without the Buyer's prior written consent. The Supplier shall remain liable for all the acts and omissions of any subcontractor as if they were its own acts and omissions.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Supplier and the Customer, constitute either party the agent of the other party or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.9 Audit of records
For audit purposes, the Supplier will keep all records relating to the Goods and/ or Services in legible form or in a manner capable of being reproduced in legible form.
17.10 Governing Law
The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England.
The Supplier irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims). Nothing in this condition shall limit the Buyer's right to take proceedings against the Supplier in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdictions preclude the taking of proceedings in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdictions.