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1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
Acceptance Conditions has the meaning given in clause 7.2;
Adequate Procedures shall be construed in accordance with BA 2010 and guidance published under it;
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];
Associated With when used in:
a) clause 10 and in relation to bribery matters, shall be construed in accordance with BA 2010 and guidance published under it;
b) clause 12 and in relation to tax evasion facilitation, shall be construed in accordance with Part 3 of CFA 2017 and guidance published under it;
c) clause 13 and in relation to fraud, shall be construed in accordance with Part 5 of ECCTA 2023 and guidance published under it;
BA 2010 means the Bribery Act 2010;
Bribery Laws means BA 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 201 O;
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;
CFA 2017 means the Criminal Finances Act 2017;
Conditions means the Customer’s terms and conditions of purchase set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Deliverables, plans, 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 the agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order, and including all its schedules, attachments, annexures and statements of work;
Control 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;
Corporate Failure to Prevent Fraud Offence means an offence under section 199 of ECCTA 2023 and any other applicable United Kingdom laws, legislation, statutory instruments, and regulations in relation to failure to prevent fraud;
Corporate Failure to Prevent Tax Evasion Facilitation Offence means an offence under section 45 of CFA 2017 and/or section 46 of CFA 2017 and any other applicable United Kingdom laws, legislation, statutory instruments, and regulations in relation to preventing the facilitation of tax evasion; Customer means Castle Water Limited (registered number SC475583) having its registered office at 1 Boat Brae, Blairgowrie, PH10 7BH;
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;
ECCTA 2023 means the Economic Crime and Corporate Transparency Act 2023;
Force Majeure means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying ii 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; strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce;
Foreign Tax Evasion Offence shall be construed in accordance with Part 3 of CFA 2017 and guidance published under it;
Fraud Offence shall be construed in accordance with Part 5 of ECCTA 2023 and guidance published under it;
Goods means the goods and related accessories, spare parts and Documentation and other physical material set out in the 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, trademarks, 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:
a) whether registered or not,
b) including any applications to protect or register such rights,
c) including all renewals and extensions of such rights or applications,
d) whether vested, contingent or future,
e) to which the relevant party is or may be entitled, and
f) in whichever part of the world existing;
IPR Claim has the meaning given in clause 14.1.1;
Location means the address or addresses for delivery of the Goods and performance of the Services as set out in the Order; MSA 2015 means the Modern Slavery Act 2015;
MSA Offence means an offence under MSA 2015;
Order means the order for the Deliverables from the Supplier placed by the Customer as set out in the purchase order form; Prevention Procedures when used in:
a) clause 12 and in relation to tax evasion facilitation, shall be construed in accordance with Part 3 of CFA 2017 and guidance published under it; and
b) clause 13 and in relation to fraud, shall be construed in accordance with Part 5 of ECCTA 2023 and guidance published under it;
Price has the meaning given in clause 3.1;
Services means the services set out in the 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; and Supplier means the named party in the Contract who has agreed to sell the Deliverables to the Customer and whose details are set out in the Order; Supplier Associated Person means all or any of the following:
a) the Supplier’s officers, employees, agents, subcontractors, subsidiaries, and persons Associated with the Supplier (Supplier’s Associates); and
b) persons Associated With any of the Supplier’s Associates, in each case involved in performing services for or on behalf of the Supplier, the Services and/or the Contract;
Supplier Personnel means all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their subcontractors who are engaged in the performance of the Services from time to time;
UK Tax Evasion Offence shall be construed in accordance with Part 3 of CFA 2017 and guidance published under it; and
VAT means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables. 1.2 In these Conditions the following definitions apply:
1.2.1 a reference to the Contract includes these Conditions, the 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;
1.2.10 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time;
1.2.11 a reference to legislation includes all subordinate legislation made 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 Supplier’s quotation, sales conditions, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Customer otherwise agrees in writing.
2.3 No variation of these Conditions or to an 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 Order by the Customer to the Supplier shall be an offer to purchase Deliverables subject to the Contract including these Conditions.
2.5 An Order may be withdrawn or amended by the Customer at any lime before acceptance by the Supplier. An Order shall lapse unless accepted by the Supplier before the expiry of ten (10) Business Days after the date of the Order. If the Supplier is unable to accept an Order, it shall notify the Customer in writing promptly.
2.6 Acceptance of an Order by the Supplier shall occur when it is expressly accepted by the Supplier or by any other conduct of the Supplier which the Customer reasonably considers is consistent with acceptance of the Order.
3 Price
3.1 The price for the Deliverables shall be as set out in the Order or, where no such provision is set out, shall be calculated in accordance with the Supplier’s scale of charges as advised by the Supplier and received and acknowledged by the Customer before the date the Order is placed (Price). No increase in the Price may be made by the Supplier after the Order is placed by the Customer.
3.2 All Prices are fixed and the Price includes packaging, delivery, unloading, unpacking, shipping, carriage, insurance and all other charges or taxes related to the Goods and Services etc.
4 Payment
4.1 The Supplier shall invoice the Customer for:
4.1.1 the Goods on or after the completion of delivery of the Goods or, if later, the Customer’s acceptance of the Goods; and
4.1.2 the Services on or after the completion of performance of the Services or, if later, the completion of the Acceptance Conditions.
4.2 The Customer shall pay each validly submitted and undisputed invoice of the Supplier within 30 days following the end of the calendar month of receipt.
4.3 Without prejudice to any other remedy, the Customer shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Supplier in accordance with clause 27.1.
4.4 Time of payment is not of the essence. Where sums due under the Contract are not paid in full by the due date, to compensate the Supplier for all loss from the Customer’s breach, the Customer shall pay on the sum overdue interest (before and after judgment) on a daily basis until payment in full at the rate of 4 per cent per annum above the Official Bank Rate from time to time of the Bank of England. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
4.5 VAT shall be charged by the Supplier and paid by the Customer at the applicable rate at the lime the invoice was issued.
5 Cancellation
5.1 The Customer shall have the right to cancel the Order for the Deliverables or for any part of the Deliverables which have not yet been, in the case of Goods, delivered to and in the case of Services, performed for, the Customer.
5.2 In relation to any Order cancelled or part-cancelled under clause 5.1, on receipt of validly issued and properly documented evidence, the Customer shall pay for:
5.2.1 in respect of any Goods, that part of the price which relates to the Goods which at the lime of cancellation have been delivered to the Customer; and
5.2.2 in respect of any Goods, the costs of materials which the Supplier has purchased to fulfil the Order for the Goods which cannot be used for other orders or be returned to the Supplier’s supplier of those materials for a refund; and
5.2.3 in respect of any Services, that part of the Price that relates to the Services which, at the time of cancellation have been paid for or contractually committed by the Supplier and cannot be cancelled.
5.3 To the maximum extent possible, the Supplier shall mitigate all costs relating to the Order immediately upon receipt of cancellation under this clause 5.
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 Order.
6.2 The Goods shall be deemed delivered on completion of unloading 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 Order.
6.4 The Services shall be deemed performed on confirmation of completion of the Acceptance Conditions by the Customer in writing.
6.5 The Goods shall not be delivered and the Services shall not be performed in instalments unless otherwise agreed in writing by the Customer.
6.6 Each delivery of Goods or performance of the Services shall be accompanied by a delivery note stating:
6.6.1 The date of the Order;
6.6.2 the relevant Customer and Supplier details;
6.6.3 if Goods, the product numbers and type and quantity of Goods in the delivery;
6.6.4 if Services, the category, type and quantity of Services performed;
6.6.5 any special instructions, handling and other requests;
6.6.6 in the case of Services, details of the Supplier Personnel performing the Services;
6.6.7 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 for a period not exceeding 10 Business Days; and
6.6.8 any additional information requested by the Customer as set out in the Order.
6.7 Time of delivery or performance (as the case may be) is of the essence. If the Supplier fails to deliver any of the Goods or perform any of the Services by the date specified in the Order, the Customer shall (without prejudice to its other rights and remedies) be entitled at the Customer’s sole discretion:
6.7.1 to terminate the Contract in whole or in part;
6.7.2 to purchase the same or similar Deliverables from another supplier;
6.7.3 to refuse to accept the delivery or performance (as the case may be) of any more Deliverables under the Contract;
6.7.4 to recover from the Supplier all costs and losses resulting to the Customer from the failure in performance or delivery (as the case may be), including the amount by which the price payable by the Customer to acquire those Deliverables from another supplier exceeds the price payable under the Contract and any loss of profit; and
6.7.5 all or any of the foregoing.
6.8 If the Customer is unable or opts not to accept delivery of the Goods on the dale or within the period set out in the Order, the Supplier shall store and insure the Goods pending delivery for no longer than 10 Business Days.
7 Acceptance, rejection and inspection
7.1 The Customer shall not have accepted, or be deemed to have accepted, the Deliverables until the Acceptance Conditions are fulfilled and the Customer has notified confirmation of such to the Supplier in writing.
7.2 The Acceptance Conditions are that:
7.2.1 for Goods, the Goods and delivery note have been delivered to or at the Location;
7.2.2 for Services, the Services have been performed at the Location; and
7.2.3 all pre-delivery and post-delivery acceptance tests and inspections have been completed to the satisfaction of the Customer at its sole discretion; and
7.2.4 the Customer has notified the Supplier in writing that the Deliverables have been delivered or performed (as the case may be) in full compliance with the Order and the Conditions of the Contract including this clause 7.
7.3 The Customer shall be entitled to reject any Deliverables which are not in full compliance with the terms and conditions of the Contract. Any acceptance of defective, late or incomplete Deliverables or any payment made in respect thereof, shall not constitute a waiver of any of the Customer’s rights and remedies, including its right to reject.
7.4 If the Goods are rejected due to the volume of the Goods exceeding the tolerances (if any) specified in the Order, the Supplier shall promptly and at its own cost arrange for redelivery of the correct volume.
7.5 Any rejected Goods may be returned to the Supplier by the Customer at the Supplier’s cost and risk. The Supplier shall pay to the Customer a reasonable charge for storing and returning any of the Goods over-delivered or rejected.
7.6 The Customer may require pre-delivery and/or post-delivery acceptance tests to be performed or to be carried out, at the Customer’s option, either by the Customer or the Supplier, and the results of the tests shall be made available to the Customer.
7.7 The Customer may inspect and test the Deliverables during performance or during manufacture or processing prior to despatch, and the Supplier shall provide the Customer with access to and use of all facilities reasonably required.
7.8 Any inspection or testing of the Deliverables shall not be deemed to be acceptance of the Deliverables or a waiver of any of the Customer’s other rights and remedies, including its right to reject.
7.9 The rights of the Customer in this clause 7 are without prejudice to the Customer’s other rights and remedies under the Contract including under clause 9.
8 Title and risk
8.1 Risk in the Goods shall pass to the Customer on the later of:
8.1.1 delivery of the Goods to the Customer as set out in clause 6; or
8.1.2 the Customer’s acceptance of the Goods as set out in clause 7.
The Supplier shall unload the Goods in accordance with the Customer’s directions and at the Supplier’s risk. 8.2 Title to the Goods shall pass to the Customer on the sooner of:
8.2.1 payment by the Customer for the Goods under clause 4; or 8.2.2 delivery of the Goods to the Customer under clause 6.
8.3 The passing of title shall not prejudice any other of the Customer’s rights and remedies, including its right to reject.
8.4 Neither the Supplier, or any other person, shall have a lien on, right of stoppage in transit, or other rights in or to any Goods title to which have vested in the Customer, or any specifications or materials of the Customer, and the Supplier shall ensure that relevant third parties accept the exclusion of such lien and rights.
8.5 The Supplier warrants and represents that it:
8.5.1 has at the time the Contract is made full, clear and unencumbered title to the Goods, and the full, clear and unencumbered right to sell and deliver them to the Customer; and
8.5.2 shall hold such title and right to enable it to ensure that the Customer shall acquire a valid, unqualified title to the Goods and shall enjoy quiet possession of them.
9 Warranty
9.1 The Supplier warrants and represents that it shall:
9.1.1 have all consents, licences and authorisations necessary to deliver and perform the Deliverables;
9.1.2 ensure the Contract is executed by a duly authorised signatory on behalf of the Supplier;
9.1.3 provide high quality Documentation for the Deliverables;
9.1.4 ensure compliance and fulfilment of its obligations in accordance with the Order and the Contract;
9.1.5 observe, and ensure that the Supplier Personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises including the Location;
9.1.6 ensure that the Supplier Personnel use reasonable skill and care in the delivery and performance of the Deliverables;
9.1. 7 keep the Customer fully informed of all activities concerning the Deliverables and provide the Customer with activity reports on request;
9.1.8 if so requested by the Customer, conduct a power on/off test; and
9.1.9 conduct such tests, including pre-delivery and post-delivery acceptance tests and inspections, in relation to the Deliverables prior to delivery or performance as the Customer may require at its sole discretion;
9.2 The Supplier warrants and represents that, the Deliverables shall for a period of 24 months from delivery (the Warranty Period):
9.2.1 conform in all material respects to any sample, to the Specification and to any descriptions given in quotations, estimates and sales material; 9.2.2 be free from material defects in design, materials and workmanship;
9.2.3 comply with all Applicable Laws, standards and best industry practice (including in relation to their manufacture, packaging and delivery); 9.2.4 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.2.5 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 in accordance with good industry practice;
9.2.6 be fit for purpose and any purpose held out by the Supplier and set out in the Order; and
9.2. 7 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.
9.3 The Supplier agrees that the approval by the Customer of any design or Specification provided by the Supplier shall not relieve the Supplier of any of its obligations under this clause 9.
9.4 The Supplier warrants and represents that it understands the Customer’s business and needs.
9.5 Without limiting any other remedies to which it may be entitled, the Customer may reject any Deliverables that do not comply with clause 9.2 provided that the Customer provides written notification to the Supplier.
9.6 Without limiting any other remedies to which the Customer may be entitled, as soon as reasonably practicable but in any event within ten Business Days after receiving a written notification in accordance with clause 9.5, the Supplier shall, at the Customer’s option:
9.6.1 in the case of Goods, repair or replace the Goods;
9.6.2 in the case of Services, promptly remedy the non-compliance,
9.6.3 in the case of Services, re-perform the relevant Services; or
9.6.4 provide the Customer with a full refund of the Price paid by the Customer for the non-compliant Deliverables.
9.7 The Supplier shall at its own cost collect any Goods rejected under clause 9.5. Risk and title in the rejected Goods shall pass back to the Supplier at the point at which the Goods are collected or, if earlier, [ten] Business Days from the date on which the Customer notifies the Supplier of the rejection.
9.8 The provisions of these Conditions shall apply to any Deliverables that are remedied, repaired, replaced, corrected or re-performed with effect from the date of the delivery or performance of the remedied, repaired, replaced, corrected or re-performed Deliverables.
9.9 The Customer’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and remedies to which the Customer may be entitled and (without limitation) the conditions, warranties and terms implied by sections 12 to 16 of the Supply of Goods and Services Act 198 and sections 13 to 15 of the Sale of Goods Act 1979, are not excluded.
9.10 The Customer shall be entitled to exercise its rights under clause 9 regardless of whether the Deliverables have been accepted under the Acceptance Conditions and notwithstanding that the Deliverables were not rejected following their initial inspection under clause 7.3.
10 Anti-bribery
10.1 The Supplier shall:
10.1.1 Ensure that it and all Supplier Associated Persons do not, by any act or omission, place the Customer in breach of any Bribery Laws;
10.1.2 comply with all applicable Bribery Laws and ensure that all Supplier Associated Persons involved in the performance of the Supplier’s obligations under, and/or otherwise in connection with, the Contract so comply; and
10.1.3 implement, maintain and enforce Adequate Procedures designed to prevent Supplier Associated Persons engaging in conduct which contravenes BA 2010 or this clause 10.
10.2 Without limitation to clause 10.1, the Supplier shall not make or receive any bribe (which term shall be construed in accordance with BA 2010) or other improper payment or advantage, or allow any such bribe or improper payment or advantage to be made or received on its behalf, either in the United Kingdom or elsewhere.
10.3 The Supplier warrants and represents that it has not, and no Supplier Associated Person has:
10.3.1 offered, promised, given or received any bribe (which term shall be construed in accordance with BA 2010) or other improper payment or advantage;
10.3.2 been investigated in connection with, or charged with having committed, caused, facilitated or contributed to, a breach of Bribery Laws;
10.3.3 received any court orders, warrants, or oral or written notices from a government prosecuting authority concerning any actual or alleged violation by it, or any Supplier Associated Person, of any breach of Bribery Laws; or
10.3.4 received any report (including a report from the Supplier’s external auditors, any Supplier Associated Person, or any other person) or discovered any evidence suggesting that the Supplier, or any Supplier Associated Person, has committed a breach of Bribery Laws.
11 Modern slavery
11.1 The Supplier shall comply with MSA 2015 and ensure that all Supplier Associated Persons so comply.
11.2 The Supplier warrants and represents that ii has not, and no Supplier Associated Person has:
11.2.1 committed an MSA Offence;
11.2.2 been notified that ii, or any Supplier Associated Person, is subject to an investigation relating to an alleged MSA Offence or prosecution under MSA 2015; or
11.2.3 become aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under MSA 2015.
12 Anti-tax evasion facilitation
12.1 The Supplier shall ensure that ii and Supplier Associated Persons shall not by any act or omission commit, cause, facilitate or contribute to the commission by any person (including the Customer) of a:
12.1.1 Corporate Failure to Prevent Tax Evasion Facilitation Offence;
12.1.2 UK Tax Evasion Offence; or
12.1.3 Foreign Tax Evasion Offence,
12.1.4 in connection with the performance of services for or on behalf of the Customer, the Services and/or the Contract.
12.2 The Supplier shall not, and shall ensure that Supplier Associated Persons shall not, solicit or engage with or take steps to solicit or engage with any person Associated With the Customer to facilitate the commission of a UK Tax Evasion Offence or a Foreign Tax Evasion Offence in connection with the performance of services for or on behalf of the Customer, the Services and/or the Contract.
12.3 Without prejudice to paragraph 12.1, the Supplier shall ensure that it and all relevant Supplier Associated Persons have in place such Prevention Procedures as it is reasonable in all the circumstances to expect the Supplier and all relevant Supplier Associated Persons to have in place to prevent any breach of this clause 12.
12.4 The Supplier warrants and represents that it has not, and no Supplier Associated Person has:
12.4.1 been investigated in connection with, or charged with having committed or facilitated the commission of, any UK Tax Evasion Offence or any Foreign Tax Evasion Offence;
12.4.2 received any court orders, warrants, or oral or written notices from a government prosecuting authority concerning any actual or alleged violation by it, or any Supplier Associated Person, of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence; or
12.4.2.1 received any report (including a report from the Supplier’s external auditors, any Supplier Associated Person, or any other person) or discovered any evidence suggesting that the Supplier, or any Supplier Associated Person, has committed or facilitated the commission of any UK Tax Evasion Offence or any Foreign Tax Evasion Offence.
13 Prevention of fraud
13.1 The Supplier shall ensure that ii and Supplier Associated Persons shall not by any act or omission commit, cause, facilitate or contribute to the commission by any person (including the Customer) of a:
13.1.1 Corporate Failure to Prevent Fraud Offence; or
13.1.2 Fraud Offence,
in connection with the performance of services for or on behalf of the Customer, the Services and/or the Contract.
13.2 The Supplier shall not, and shall ensure that Supplier Associated Persons shall not, solicit or engage with or take steps to solicit or engage with any person Associated With the Customer to commit, cause, facilitate or contribute to the commission of a Fraud Offence in connection with the performance of services for or on behalf of the Customer, the Services and/or the Contract.
13.3 Without prejudice to paragraph 13.1, the Supplier shall ensure that it and all relevant Supplier Associated Persons have in place such Prevention Procedures as it is reasonable in all the circumstances to expect the Supplier and all relevant Supplier Associated Persons to have in place to prevent any breach of this clause 13.
13.4 The Supplier warrants and represents that it has not, and no Supplier Associated Person has:
13.4.1 been investigated in connection with, or charged with having committed, caused, facilitated or contributed to, the commission of any Fraud Offence;
13.4.2 received any court orders, warrants, or oral or written notices from a government prosecuting authority concerning any actual or alleged violation by it, or any Supplier Associated Person, of any Fraud Offence; or
13.4.3 received any report (including a report from the Supplier’s external auditors, any Supplier Associated Person, or any other person) or discovered any evidence suggesting that the Supplier, or any Supplier Associated Person, has committed, caused, facilitated or contributed to the commission of any Fraud Offence.
14 Indemnity and insurance
14.1 The Supplier shall indemnify, and keep indemnified, the Customer and its Affiliates from and against any losses, damages, liabilities, costs (including legal fees) and expenses which the Customer or its Affiliates may suffer or incur directly or indirectly from as a result of any:
14.1.1 alleged or actual infringement by the Supplier or its Affiliates of a third party’s Intellectual Property Rights or other rights in connection with the use, supply, performance or manufacture of the Deliverables under the Contract (IPR Claim);
14.1.2 claim made against the Customer or its Affiliates in respect of any losses, damages, liabilities, costs and expenses sustained by the employees or agents or any customer of the Customer or of its Affiliates or any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Deliverables or from a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier;
14.1.3 defects in materials, quality, workmanship or performance of the Deliverables.
14.2 If any IPR Claim is made or is reasonably likely to be made against the Customer, the Supplier shall promptly and at its own expense either:
14.2.1 procure for the Customer the right to continue using and possessing the relevant Deliverables; or
14.2.2 modify or replace the infringing part of the Deliverables and without adversely affecting the functionality of the Deliverables as set out in the Contract so as to avoid the infringement or alleged infringement,
provided that if, having used reasonable endeavours, neither of the above can be accomplished on reasonable terms, the Supplier shall (without prejudice to the indemnity above) refund the price paid by Customer in respect of the affected Deliverables.
14.3 The Supplier shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom insuring the Deliverables and any of the Customer’s materials in the Supplier’s possession against the usual risks, including accident, fire and theft, for their full replacement value until the risk in them passes to the Customer, and insuring against all other risks that a prudent Supplier should consider reasonable. On request, the Supplier shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Supplier shall on request assign to the Customer the benefit of such insurance.
15 Limitation of liability
15.1 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 15.
15.2 Subject to clauses 15.6 and 15.7, the Customer’s total liability shall not exceed the lower of (a) the value of Goods or Services (as applicable) or (b) the sum of £1,000,000.
15.3 Subject to clauses 15.6 and 15.7, the Customer shall not be liable for consequential, indirect or special losses.
15.4 Subject to clauses 15.6 and 15.7, the Customer shall not be liable for any of the following (whether direct or indirect):
15.4.1 loss of profit;
15.4.2 loss of revenue;
15.4.3 loss of [or use of] data;
15.4.4 loss of use;
15.4.5 loss of production;
15.4.6 loss of contract;
15.4.7 loss of commercial opportunity;
15.4.8 loss of savings, discount or rebate (whether actual or anticipated); 15.4.9 harm to reputation or loss of goodwill; and/or
15.4.10 loss of business.
15.5 Notwithstanding clauses 15.3 and 15.4, and without limiting the Customer’s entitlement to recover other types of loss, the parties agree that the Customer may recover the following from the Supplier as direct loss:
15.5.1 the cost of selecting, procuring, installing and testing replacement goods or services;
15.5.2 wasted expenditure or unnecessary charges incurred by the Customer (including regulatory fines); 15.5.3 liability to third parties (including customers); and
15.5.4 the cost of rectifying lost or damaged data.
15.6 The limitations of liability set out in clauses 15.2 to 15.4 shall not apply in respect of any indemnities given by the Supplier under the Contract. 15.7 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
15.7.1 death or personal injury caused by negligence;
15.7.2 fraud or fraudulent misrepresentation;
15.7.3 any other losses which cannot be excluded or limited by Applicable Law; 15.7.4 any losses caused by wilful misconduct.
16 Intellectual property rights
All Specifications provided by the Customer and all Intellectual Property Rights in the Deliverables made or performed in accordance with such Specifications shall vest in and remain at all times the property of the Customer and such Specifications may only be used by the Supplier as necessary to perform the Contract. The Supplier assigns (or shall procure the assignment) to the Customer absolutely, with full title guarantee, all right, title and interest in any such Intellectual Property Rights, and the Supplier shall do all such things and sign all documents necessary in the Customer’s opinion to so vest all such Intellectual Property Rights in the Customer, and to enable the Customer to defend and enforce such Intellectual Property Rights, and the Supplier shall at the Customer’s request waive or procure a waiver of applicable moral rights.
17 Confidentiality and announcements
17.1 The Supplier shall keep confidential all Confidential Information of the Customer and of any Affiliate of the Customer and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
17.1.1 any information which was in the public domain at the dale of the Contract;
17.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
17.1.3 any information which is independently developed by the Supplier without using information supplied by the Customer or by any Affiliate of the Customer; or
17.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
17.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract. 17.3 The Supplier shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
18 Force majeure
18.1 Where a Force Majeure occurs, or is reasonably likely to occur, a party shall not be liable to the extent that ii is if delayed in or prevented from performing its obligations under the Contract due to Force Majeure, provided that the affected party:
18.1.1 promptly notifies the other of the Force Majeure event and its expected duration;
18.1.2 uses reasonable endeavours to minimise the effects of that event; and
18.1.3 keeps the other party informed of the status of the event and its impact on the performance of the Contract.
18.2 If, due to Force Majeure, a party:
18.2.1 is or is likely to be unable to perform a material obligation; or
18.2.2 is or is likely to be delayed in or prevented from performing its obligations for a continuous period of more than 60 Business Days; either party may terminate the Contract on written notice.
19 Termination
19.1 The Customer may terminate the Contract at any time by giving notice in writing to the Supplier if:
19.1.1 the Supplier commits a material breach of the Contract and such breach is not remediable;
19.1.2 the Supplier commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach; or 19.1.3 any consent, licence or authorisation held by the Supplier is revoked or modified such that the Supplier is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
19.2 The Customer may terminate the Contract at any time by giving notice in writing to the Supplier if the Supplier:
19.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
19.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Customer reasonably believes that to be the case;
19.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
19.2.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
19.2.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
19.2.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
19.2.7 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
19.2.8 has a resolution passed for its winding up;
19.2.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
19.2.10 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;
19.2.11 has a freezing order made against it;
19.2.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;
19.2.13 is subject to any events or circumstances analogous to those in clauses 19.2.1 to 19.2.12 in any jurisdiction
19.3 The Customer may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Supplier if the Supplier undergoes a change of Control.
19.4 The right of the Customer to terminate the Contract pursuant to clause 19.2 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 entity agrees to adhere to the Contract.
19.5 If the Supplier becomes aware that any event has occurred, or circumstances exist, which may entitle the Customer to terminate the Contract under this clause 19, ii shall immediately notify the Customer in writing.
19.6 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Customer at any time up to the date of termination.
20 Notices
20.1 Any notice or other communication given by a party under these Conditions shall:
20.1.1 be in writing and in English;
20.1.2 be signed by, or on behalf of, the party giving ii ( except for notices sent by email); and 20.1.3 be sent to the relevant party at the address set out in the Contract
20.2 Notices may be given, and are deemed received:
20.2.1 by hand: on receipt of a signature at the lime of delivery;
20.2.2 by post: at 9.00 am on the second Business Day after posting; 20.2.3 by email: on receipt of a delivery email from the correct address.
20.3 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 20.1 and shall be effective:
20.3.1 on the dale specified in the notice as being the dale of such change; or
20.3.2 if no dale is so specified, 5 Business Days after the notice is deemed to be received.
20.4 All references to lime are to the local lime at the place of deemed receipt.
20.5 This clause does not apply to notices given in legal proceedings or arbitration.
21 Cumulative remedies
The rights and remedies provided in the Contract for the Customer only are cumulative and not exclusive of any rights and remedies provided by law.
22 Time
Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Supplier’s obligations only.
23 Further assurance
The Supplier shall at the request of the Customer, and at the Supplier’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
24 Entire agreement
24.1 The parties agree that the Contract and any documents entered into pursuant to ii 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.
24.2 Each party acknowledges that ii 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.
24.3 Nothing in these Conditions purports to limit or exclude any liability for fraud.
25 Variation
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.
26 Assignment
26.1 The Supplier may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Customer’s prior written consent, which it may withhold or delay at its absolute discretion.
26.2 Notwithstanding clause 26.1, the Supplier may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that ii gives the Customer prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Supplier acknowledges and agrees that any act or omission of its Affiliate in relation to the Supplier’s rights or obligations under the Contract shall be deemed to be an act or omission of the Supplier itself.
27 Set off
27.1 The Customer shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Supplier under the Contract or under any other contract which the Customer has with the Supplier.
27.2 The Supplier shall pay all sums that it owes to the Customer under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
28 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 ii. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
29 Equitable relief
The Supplier recognises that any breach or threatened breach of the Contract may cause the Customer irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Customer, the Supplier acknowledges and agrees that the Customer is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages.
30 Severance
30.1 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.
30.2 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 ii 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 order to agree the terms of a mutually acceptable alternative provision.
31 Waiver
31.1 No failure, delay or omission by the Customer 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 ii preclude or restrict any future exercise of that or any other right, power or remedy.
31.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by the Customer shall prevent any future exercise of it or the exercise of any other right, power or remedy by the Customer.
31.3 A waiver of any term, provision, condition or breach of the Contract by the Customer shall only be effective if given in writing and signed by the Customer, and then only in the instance and for the purpose for which ii is given.
32 Compliance with law
The Supplier shall comply with Applicable Law and shall maintain such licences, authorisations and all other approval, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
33 Conflicts within contract
If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
34 Costs and expenses
The Supplier 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).
35 Third party rights
35.1 Except as expressly provided for in clause 35.2, 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.
35.2 Any Affiliate of the Customer 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 order to rescind or vary the Contract or any provision of it.
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 England and Wales.
37 Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have non-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).