Terms of Business
Effective date: July 3, 2024
1. DEFINITIONS AND INTERPRETATION
1.1.1 In these Conditions, unless the context otherwise requires, the words or expressions that begin with capital letters shall have the meaning as set out below:
1.1.2 Authorised Person means the project quantity surveyor or the person or persons authorised by the Buyer as named in the Purchase Order, or such other person as the Buyer shall notify to the Supplier from time to time to perform such role
1.1.3 Buyer means Upnorth Engineering Services Limited (company number 04366405) whose registered office is at Merlin House, Princesway, Team Valley Trading Estate, Gateshead, Tyne and Wear, NE11 0NF, which includes any successors in title and permitted assigns trading as [UNG Data Centres][UNG Building Services][UNG Building Facilities][UNG Infrastructure];
1.1.4 Cancellation Payment means an amount equating to £100 set out in the Purchase Order;
1.1.5 Claim means any claim or entitlement which the Supplier has or may have against the Buyer under, arising out of or in connection with the Purchase Contract;
1.1.6 Conditions means these terms and conditions as may only be varied by the Buyer;
1.1.7 Delivery Address means the address for the delivery of the Products as identified in the Purchase Order or any other location specified by the Buyer to the Supplier;
1.1.8 Delivery Date(s) means the date(s) for delivery of the Products as set out in the Purchase Order;
1.1.9 Insolvent means the Supplier is; unable to pay its debts as they fall due; enters into an arrangement, compromise or composition in satisfaction of his debts (excluding a scheme of arrangement as a solvent company for the purposes of amalgamation or reconstruction); or without a declaration of solvency, passes a resolution or makes a determination that he be wound up; or has a winding up order or bankruptcy order made against him; or he has appointed to him or appoints a liquidator or an administrator or administrative receiver or a compulsory manager or other similar officer in respect of any of the Supplier's assets; or he is the subject of any analogous arrangement, event or proceedings in any other jurisdiction;
1.1.10 Material Breach means any breach of the Purchase Contract by the Supplier where the Buyer has served notice on the Supplier that it has seven (7) days in which to rectify the breach and the Supplier fails to do so;
1.1.11 Payment Date means sixty (60) days from the end of the calendar month during which the Buyer receives the Supplier's valid and properly prepared and submitted invoice for payment or such other period as may be specified in writing in the Purchase Contract Documents.
1.1.12 Price means all sums payable to the Supplier for the storage, supply and delivery of the Products as stated in the Purchase Order + VAT;
1.1.13 Products means the goods, materials and products (or any part of them) to be supplied and delivered pursuant to the Purchase Contract whether as expressly described in the Purchase Contract or to be inferred therefrom;
1.1.14 Project means the works at the Site of which the Products will form a part;
1.1.15 Purchase Contract means the contract between the Buyer and the Supplier comprising the Purchase Contract Documents relating to the manufacture, supply and delivery of the Products;
1.1.16 Purchase Contract Documents means the Purchase Order; the Conditions; and any other documents included by the Buyer;
1.1.17 Purchase Order means the order from the Buyer to the Supplier relating to the manufacture, supply and delivery of the Products which may be revised or amended from time-to-time by the Buyer;
1.1.18 Site means the location of the Project as described in the Purchase Order;
1.1.19 Statutory Requirements’ Statutory Requirements: any and all requirements pursuant to any Act of Parliament, any instrument, rule or order made under any Act of Parliament, statutory instrument, any subordinate legislation within the meaning of Section 21(i) of the Interpretation Act 1978, or any regulation or byelaw of any local authority or of any statutory undertaker or public or private utility or undertaking which has any jurisdiction with regard to the Main Contract Works or the Site or with whose systems the same are or will be connected including without limitation any statutory provisions and any decision of a relevant authority or organisation thereunder which controls the right to develop the Site, or other requirement from any relevant authority relating to pollution or protection of the environment and/or human health and safety and/or planning, or any exercise of the Royal Prerogative, any other applicable law and the term ‘Statutory Requirements’ includes but is not limited to any modification, amendment or re- enactment (whether before or after the date the Sub-Contract is entered into) to any relevant Statutory Requirements;
1.1.20 Supplier means the legal entity with whom the Buyer enters into the Purchase Contract and to whom the Purchase Order is addressed;
1.1.21 Variation means a variation, modification, omission, addition or other alteration (including but not limited to the nature, scope, quantity, subject matter, delivery arrangements, requirements or timing of Delivery Dates) to the Products; and
1.1.22 Working Day means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a statutory bank holiday in any year
1.2 In these Conditions, unless the context otherwise requires:
1.2.1 words in the singular shall include the plural and in the plural shall include the singular;
1.2.2 clause headings are inserted for convenience only and shall not affect the construction of these Conditions;
1.2.3 a reference to a statute or statutory provision is a reference to it as amended, extended, re-enacted or substituted from time to time;
1.2.4 a reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision;
1.2.5 a reference to a ‘person’ includes any individual, firm, partnership, company and any other legal entity;
1.2.6 a reference to a party or the parties is a reference to a party or the parties to the Purchase Contract and references to a party shall include its successors in title and permitted assigns; and
1.2.7 a reference to writing or written includes email, but not fax;
1.2.8 any reference to an English legal term for any action, remedy, method proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most closely accords to the English legal term in that jurisdiction. .
2. BASIS OF THE PURCHASE CONTRACT
2.1.1 Any quotation and/or tender received by the Buyer from the Supplier in respect of the Products is deemed to have been made subject to these Conditions. Any terms and conditions of the Supplier are superseded, are of no effect and do not form part of or apply to the Purchase Contract in any and all circumstances even if included as part of the Purchase Order or the Purchase Contract Documents.
2.1.2 The Supplier shall be deemed to have read and accepted these Conditions in full.
2.1.3 The Supplier acknowledges that the Purchase Contract and the documents referred to or incorporated in it constitute the entire agreement between the Buyer and the Supplier and supersede and extinguish any previous oral or written agreements or arrangements between the Buyer and the Supplier relating to the subject matter of the Purchase Contract and shall apply to all relations between the Buyer and the Supplier to the exclusion of all other terms including any terms which may be implied by trade, custom, practice or common course of dealing.
2.1.4 The Supplier acknowledges and agrees that it has not entered into the Purchase Contract in reliance on any statement or representation of any person (whether a party to this Purchase Contract or not) other than as expressly incorporated into this Purchase Contract.
2.1.5 Without limiting the generality of the foregoing, the Supplier irrevocably and unconditionally waives any right or remedy it may have to claim damages and/or to rescind this Purchase Contract by reason of any misrepresentation (other than a fraudulent misrepresentation) having been made to it by any person (whether party to this Purchase Contract or not) and upon which it has relied in entering into this Purchase Contract.
2.1.6 The terms and conditions of the Purchase Contract may only be amended or varied in writing by the Authorised Person. Any other purported variation shall be of no effect.
2.1.7 Notwithstanding the date the Buyer and the Supplier enter into the Purchase Contract, any goods supplied or work performed by or on behalf of the Supplier prior to the date of the Purchase Contract in anticipation of the Buyer entering into the Purchase Contract with the Supplier (including but not limited to any goods supplied pursuant to any letters of intent) shall be treated as forming part of and shall be subject to the terms of the Purchase Contract and the Supplier assumes full responsibility for the same. Any monies already paid as at the date of the Purchase Contract by the Buyer to the Supplier in connection with the Products shall be treated as payments on account of the Price.
2.1.8 Where any Products manufactured for the Buyer's benefit are to be stored by the Supplier prior to delivery by the Supplier, the Supplier shall include any and all costs of storage and protection within the Price and ensure that the Products are kept apart from all other goods and that they are properly packaged, protected and identified as being for delivery to the Buyer, together with a reference to the Purchase Order, its Delivery Address and any other relevant reference.
2.1.9 The Purchase Contract is to be read as a whole. In the event of any conflict, ambiguity or discrepancy within or between the Conditions and any of the other documents forming part of the Purchase Contract Documents then the Conditions shall prevail. Where there is any conflict, ambiguity or discrepancy within or between any of the Purchase Contract Documents, the Supplier shall notify the Buyer as soon as possible and the Buyer shall instruct the Supplier as to which of the discrepant, ambiguous or conflicting items is to be adopted and the Supplier shall (subject always to complying with all Statutory Requirements) comply with such instruction at no cost to the Buyer and without any adjustment or addition to the Price or the Delivery Date(s) and without any entitlement to a Claim.
3. PURCHASE CONTRACT DOCUMENTS
3.1 The Purchase Contract Documents are to be read as a whole. Where there is any conflict, ambiguity or discrepancy within or between any of the Purchase Contract Documents, the Buyer shall instruct the Supplier as to which of the discrepant items is to be adopted and the Supplier shall (subject always to complying with all Statutory Requirements) comply with such instruction at no cost to the Buyer and without any adjustment to the Price or the Delivery Dates.
4. GENERAL OBLIGATIONS AND WARRANTIES
4.1 The Supplier warrants to the Buyer that the Supplier is fully experienced, qualified, equipped, organised and financed to perform its obligations under the Purchase Contract and warrants to the Buyer that the Products:
4.1.1 will be of sound and satisfactory quality and fit for all purposes for which the Products are commonly supplied and and/or will meet the Buyer's requirements and/or for any special purposes which are notified to the Supplier;
4.1.2 will meet the Buyer’s performance criteria and conform to best industry practice;
4.1.3 will be free from defects in design, materials and workmanship; and
4.1.4 will comply with all and will not contravene any Statutory Requirements relating to the manufacture and sale of materials and goods, product safety, packaging, labelling and hazardous substances (including the appropriate British Standard and Codes of Practice or equivalent specification unless otherwise agreed).
4.2 The Supplier warrants that it shall not use or permit to be used in the Products any materials or products which at the time of use:
4.2.1 by their nature or application contravene or are not in accordance with any relevant Statutory Requirement, British Standard or Code of Practice; or
4.2.2 reduce, or possibly reduce, the normal life expectancy of the Products or the Project or any part or component of the Products or the Project; or
4.2.3 are identified as deleterious, unsatisfactory or unsuitable.
4.2.4 The Supplier shall ensure that copies of any guarantees or warranties referred to in the Purchase Contract Documents (or otherwise required under any Statutory Requirements or by a regulatory body) are provided to the Buyer upon delivery of the Products and shall take effect from practical completion of the Buyer's works.
4.2.5 The Supplier shall keep the Buyer indemnified against all penalties and liability of any kind for any breach of any Statutory Requirements.
4.2.6 The Buyer reserves the right to make visits at any reasonable time to any or all of the Supplier’s premises and/or the Supplier’s sub-suppliers for the purpose of auditing and/or inspecting and/or testing work-in-progress and/or factory acceptance testing of Products and/or any records of the Supplier or at any place of storage to ensure compliance of the terms of this Purchase Contract without prejudice to any other rights or remedies as set out under this Purchase Contract to require the making good, amendment or alteration of anything which is defective or does not comply with this Purchase Contract and to reject any Product (or part thereof) or services of which it reasonably disapproves. The Buyer shall give not less than 24 hours’ notice of any such visit. The Supplier shall immediately make good, amend or alter as so required and any Product (or part thereof) or service shall be replaced and/or re-executed by the Supplier to the Buyer's full satisfaction. No such inspection or testing shall operate in any way to relieve the Supplier of any liability under the Purchase Contract or otherwise.
4.2.7 The Supplier will if required supply samples free of charge to the Buyer for the purpose of design, performance, inspection and testing. Samples may be collected by the Supplier on completion of such tests in such condition as the nature of the tests permit.
4.2.8 The Supplier shall produce to the Buyer on written demand true and accurate copies (certified to be such) of all test certificates and reports prepared by it in relation to the Goods.
5. PRICES, PAYMENT & CLAIMS
5.1 In consideration of the satisfactory design, manufacture, supply and delivery of the Products, the Buyer shall pay to the Supplier the Price in accordance with and subject to these Conditions. Subject to payments in respect of Variations pursuant to clause 6, the Price, as stated in the Purchase Order, shall be:
5.1.1 fixed;
5.1.2 deemed to be sufficient to cover all of the Supplier’s obligations under the Purchase Contract whether express or implied;
5.1.3 exclusive of any applicable VAT (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
5.1.4 inclusive of all charges (including but not limited to) or packaging, packing, shipping, carriage, import and/or export duties, insurance and delivery and unloading of the Products to the Delivery Address and any and all duties or levies other than VAT which may become due in the United Kingdom.
5.2 If the Price is not stated in the Purchase Order, the Price shall be the lowest price currently quoted or charged at the date of the Purchase Order by the Supplier for the Products but shall in no event be higher than the price most recently charged to the Buyer by the Supplier for such Products.
5.3 Unless otherwise stated in the Purchase Contract Documents, the Supplier may submit an invoice to the Buyer within [thirty (30) days] after the delivery of the Products.
5.4 The Supplier shall provide a separate invoice for each individual delivery to the Buyer. The invoice must contain:
5.4.1 the Buyer's reference number for the Purchase Contract;
5.4.2 the name of the project to which the Purchase Contract relates;
5.4.3 the Site address;
5.4.4 a full description of the Products clearly showing any part delivery and that part of the Purchase Order which remains outstanding;
5.4.5 the Delivery Date(s) clearly showing the date of any previous part delivery, the relevant Delivery Date to which the invoice relates and any further anticipated Delivery Date(s);
5.4.6 cumulative details of all sums previously certified for payment and paid by the Buyer to the Supplier to date, the amount applied for in relation to the relevant invoice and such supporting information as is necessary to enable the Buyer to ascertain the value of the part delivery of the Purchase Order and sufficient evidence to satisfy the Buyer that the Supplier owns good title to any materials or goods for which a request for payment is included in an invoice together with evidence (if requested by the Buyer) that the Supplier has paid its suppliers (if any) in respect of any work, goods or materials the value of which has been included in its previous invoices and any amount outstanding; and
5.4.7 VAT where applicable shall be shown separately on all invoices.
5.5 Invoices not complying with the terms of clause 5.4 shall not be valid for the purposes of this clause 5 and may be returned to the Supplier. The Buyer shall have no liability to make any payment until the Supplier presents an invoice in accordance with clause 5.4.
5.6 The Buyer shall be entitled to deduct from the Price:
5.6.1 the unit price for such proportion of the Products as may be defective and rejected by the Buyer together with the costs of returning such Products to the Supplier; and/or
5.6.2 any costs or expenses incurred by the Buyer as a consequence of the Supplier failing to deliver the Products to the correct destination; and/or
5.6.3 any amount which is disputed by the Buyer, pending resolution of such dispute; and/or
5.6.4 any set-off or counterclaim by the Buyer against the Supplier under the Purchase Contract or any other contract or agreement the Buyer has entered into enter into with the Supplier; and/or
5.6.5 any sums owing by the Supplier to the Buyer under any other contract or agreement with the Buyer.
5.7 The final date for payment of each invoice submitted to the Buyer in accordance with clause 5.3 shall be the Payment Date.
5.8 If the Buyer fails to pay a sum due to the Supplier by the final date for payment, simple interest shall be added to the unpaid sum from the final date for payment until the actual date of payment. This shall be calculated on a daily basis at the annual rate of two per cent (2%) above the Bank of England Base Rate. The Parties acknowledge that the liability of the Buyer under this clause is a substantial remedy for the purposes of section 9(1) of the Late Payment of Commercial Debts (Interest) Act 1998.
5.9 For the avoidance of doubt, the Buyer shall be entitled to recover from the Supplier any overpayments made at any time. All interim payments made to the Supplier shall be payments on account only of sums due under the Purchase Contract.
5.10 Any notification of any Claim must be made by the Supplier in writing and received by the Buyer within and no later than twenty-one (21) days of the Supplier becoming aware or a prudent supplier having experience of providing products similar size, scope, nature and complexity to the Products ought to have become aware of the event first occurring on which the Supplier relies as being the cause of the claim.
5.11 Each Claim shall be properly documented with appropriate references to the contractual provisions on which the Supplier relies, together with copies of all relevant correspondence and documentation. Compliance with the requirements of clauses 5.10 and 5.11 shall be a condition precedent to any right on the part of the Supplier to be granted or obligation on the part of the Buyer to grant any extension of time and/or to any right on the part of the Supplier to be paid or obligation on the part of the Buyer to pay any additional payments pursuant to or arising out of or in connection with the Purchase Contract. If the Supplier fails to comply with those requirements, then it irrevocably waives its right, both under the Purchase Contract and at common law, in equity and/or pursuant to statute to any such entitlement to any extension of time or to additional payment.
5.12 The Supplier's rights and remedies available to it under the Purchase Contract shall be its exclusive and exhaustive rights and remedies available to it in respect of all matters under, arising out of or in connection with the Purchase Contract. Except as expressly provided for in the Purchase Contract, the Buyer shall not be obligated or liable to the Supplier in respect of any damages, costs, losses or expenses suffered or incurred by the Supplier that arise out of or in connection with the Purchase Contract or the Products. Any other rights and remedies that the Supplier may otherwise have had at law are excluded to the fullest extent permitted by law.
5.13 Provided the Supplier submits a Claim in accordance with clause 5.10 and clause 5.11, it will be reviewed by the Buyer within a reasonable time after having received the information referred to in clause 5.11 and clause 5.14 and the Buyer will then notify the Supplier of its decision.
5.14 Without prejudice to the Buyer's position in relation to any Claim, the Buyer shall notify the Supplier of any additional information the Buyer requires the Supplier to provide for the purpose of substantiating any Claim which the Supplier shall provide at its own expense as soon as reasonably practicable.
5.15 The Supplier shall be entitled to include any amount notified under clause 5.13 in any application for interim payment after the date of the relevant notification without being deemed to have accepted such amount in acceptance of any Claim.
6.1 The Supplier shall carry out any Variations required by the Buyer and no change shall vitiate the Purchase Contract. No Variations shall be complied with or paid for unless the subject of an additional or revised Purchase Order issued in writing by the Buyer. Variations shall be valued by agreement between the Buyer and the Supplier or, if they fail to agree, in accordance with the rates and prices in the Purchase Contract Documents or (if no applicable rates and prices exist) such prices as shall be fair and reasonable in the circumstances.
6.2 The Buyer reserves the right to take any action in the event of an emergency or unforeseen situation arising in connection with the Purchase Contract and in particular may require the Supplier to deliver the Products in advance of the time specified. The Supplier shall use all reasonable endeavours to comply with the Buyer’s instructions in such an event.
6.3 In the event a Variation results in any omission from the Purchase Contract, the Buyer shall deduct an appropriate sum from the Price in accordance with clause 6.1 and it shall be entitled to engage another supplier to carry out and complete the order for such omission without terminating the Supplier’s engagement under the Purchase Contract. The Buyer shall not be liable to the Supplier for any costs, losses, damages or expenses accrued, suffered or incurred by the Supplier arising from such omission nor shall the Supplier be entitled to raise any Claim. The act of giving work to or placing an order with a third party or instructing a third party to supply such omitted works, services, goods, materials, plant or equipment shall not be treated or construed as a breach of contract by the Buyer.
7.1 The Supplier must not sub-let all or any part of the Purchase Contract or assign or charge all or any part of the Purchase Contract or any rights or benefits under it without the Buyer’s prior written consent.
7.2 Notwithstanding whether or not the Buyer permits the Supplier to sub-let any part or all of the Purchase Contract or any of its obligations or duties under it, the Supplier will remain responsible and liable for the manufacture, supply and delivery obligations and duties it sub-lets to a third party as if the Supplier had performed such manufacture, supply, delivery obligations and duties itself. Any sub-letting of part or all of the Purchase Contract or any obligations or duties under it, whether or not Buyer has given its consent, shall not in any way relieve the Supplier from or reduce any of its obligations, duties and liabilities arising from or in connection with the Purchase Contract.
7.3 The Buyer may assign the benefit of or any rights under the Purchase Contract to any person by way of absolute legal assignment on two occasions, provided that any assignment (whether by legal assignment, equitable assignment, charge or otherwise and including re-assignments) to and from any group company will not count towards the number of assignments permitted without consent under this clause 7.3. No further or other assignment is permitted without the Supplier's prior written consent, such consent not to be unreasonably withheld or delayed.
7.4 The Supplier shall not be entitled to contend that any person to whom the Purchase Contract is assigned in accordance with this clause is precluded from recovering under the Purchase Contract any loss incurred by such assignee resulting from any breach of the Purchase Contract (whenever happening), by reason that such person is an assignee and not a named party under the Purchase Contract by reason that the Buyer or any intermediate assignee or party escaped any loss by reason of the disposal of any interest in the Project or that the Buyer or any intermediate beneficiary has not suffered any or as much loss as such assignee.
8. DEFECTS AND RIGHT OF REJECTION
8.1 If the Buyer or its representatives considers any of the Products to be defective or inferior in quality of material and/or not in accordance with the Purchase Contract in any respect then (without limiting any other right or remedy that the Buyer may have) the Buyer shall have the option to:
8.1.1 reject any such Products and/or determine the Supplier’s engagement under the Purchase Contract. In the event of such rejection or determination the Buyer shall be entitled to procure substitute Products and performance of the Purchase Contract from a third party and recover from the Supplier on demand the cost of so doing and any loss or expense it incurs as a result thereof; or
8.1.2 require the Supplier to replace any Products in their entirety at no cost to the Buyer.
8.2 If the Supplier fails to replace any such Products within a reasonable period of time in accordance with clause 8.1.2, the Buyer shall be entitled to reject such Products and/or determine the Purchase Contract and procure substitute Products in accordance with clause 8.1.1. The Supplier shall be responsible for and indemnify the Buyer from and against any and all costs, losses, damages and expenses suffered or incurred by the Buyer arising from or in consequence of any defective Products and the replacement of any Products shall not prejudice any other rights or remedies to which the Buyer is or shall become entitled to pursuant to the Purchase Contract or otherwise.
8.3 Where the Buyer rejects any Products it shall so notify the Supplier in writing and upon issuing such notification, property and risk in any such rejected Products shall revert to the Supplier and the Buyer shall be entitled to a full refund of the Price relating to such rejected Products if the Buyer has paid for such Products (whether or not the Buyer has previously required the Supplier to repair or replace the rejected Products). If such Products have already been delivered, the Supplier shall make arrangements with the Buyer for the collection of such Products at the Supplier’s own expense.
8.4 The Buyer's rights and remedies under these Conditions are in addition to the rights and remedies available to the Buyer in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with the Purchase Contract.
8.5 The terms of the Purchase Contract shall apply to any replacement Products supplied by the Supplier.
9.1 The Products shall be delivered to the Delivery Address by the Delivery Dates in accordance with these Conditions.
9.2 Time of performance is of the essence of the Purchase Contract. Notwithstanding this, if for any reason the Buyer requests performance to be delayed, the Supplier shall agree to such request at no extra cost to the Buyer and the provisions of this clause 9 shall apply to any such revised date for performance.
9.3 The Supplier shall immediately report any delay or anticipated delay whatsoever in relation to the delivery of the Products and shall keep the Buyer fully informed with dates of anticipated actual delivery and shall use its best endeavours (without prejudice to its other contractual obligations) to eliminate such cause or causes of delay.
9.4 If the Products are not delivered on or before the Delivery Date(s) then the Supplier shall be fully responsible for any additional expenses, costs or losses incurred by the Buyer arising therefrom.
9.5 The Supplier shall be responsible for despatch delivery (including packaging, loading and if so required unloading) to the Delivery Address or such other location as may be designated by the Buyer.
9.6 The Products upon delivery shall be accompanied by an advice note showing the Purchase Contract number, date of delivery, the quantity, weight and full description of the goods delivered.
9.7 The Supplier shall upon delivery obtain a receipt for the Product signed by an authorised signatory of the Buyer. Such receipt shall be upon a duplicate copy of the advice note and shall be forwarded to the Buyer with the Supplier’s invoice.
9.8 Once the Buyer has had a reasonable opportunity to inspect the Products following delivery and has not identified any defects or faults in the Products, or any breach by the Supplier of the terms of the Purchase Contract, the Authorised Person shall sign the delivery note to confirm that delivery has been effected and accepted. Such delivery or acceptance shall however not be construed as confirmation by the Buyer that the Products delivered are of the correct quality, quantity, specification, materials, is in accordance with the Purchase Contract and shall in no way diminish the liability of the Supplier under the Purchase Contract. The Products shall only be accepted after the Supplier has in the opinion of the Buyer satisfied the requirements of the Purchase Contract in every respect.
9.9 The Buyer reserves the right to reject partial deliveries of the Products unless otherwise agreed with the Supplier.
9.10 Deliveries will only by accepted by the Buyer between [8:30am and 4:00pm] unless by prior written arrangement with the Buyer.
10.1 All items shall be carefully packed and protected to protect against damage in transit in such a way as to facilitate safe and secure off-loading. All costs of packing, tagging, marking etc are at the expense of the Supplier and no packaging is returnable unless otherwise agreed by the Buyer in writing and signed by the Authorised Person or specified in the Purchase Contract Documents. The Supplier warrants that all packing, packaging and marking of the Products complies with all Statutory Requirements.
10.2 In the case of any delivery having a weight of more than half a tonne or any individual package having a volume in excess of [one cubic metre] the Supplier shall give the Buyer not less than ten (10) Working Days' notice in writing stating the Purchase Contract number, quantity and full description and weight of the Product and the date and time (where appropriate) of the proposed delivery.
11.1 The Supplier agrees to waive any right to exercise a lien upon the Products or upon any materials, component parts, work in progress and relevant drawings and acknowledges that its sole remedy in the event of any breach by the Buyer of its obligations under the Purchase Contract is to seek financial relief through the courts. As and when required by the Buyer the Supplier shall give a certificate of waiver of lien, and of any other rights over the Products or to any injunctive or performance remedies to the Buyer or to any third party nominated by the Buyer.
12. SUSPENSION AND TERMINATION
12.1 The Buyer may instruct the Supplier to suspend performance at any time and for any reason on reasonable notice. Where performance has been suspended pursuant to this clause the Buyer may at any time require the Supplier in writing to resume performance of its obligations under the Purchase Contract in whole or in part and set new Delivery Dates for delivery of the Products and the Supplier shall as soon as reasonably practicable so resume performance.
12.2 The Buyer may terminate the Supplier’s engagement under the Purchase Contract at any time and for any reason by giving to the Supplier not less than seven (7) days’ prior written notice. On expiry of such notice period, the Supplier’s engagement under the Purchase Contract will terminate automatically.
12.3 In the event of termination pursuant to clause 12.2 the Buyer shall fully discharge all the Buyer’s liabilities to the Supplier under the Purchase Contract by either paying for all Products satisfactorily delivered to the Delivery Address up to the date of termination or paying the Cancellation Payment to the Supplier. The Buyer shall have no further or greater liability to the Supplier, howsoever arising whether under the Purchase Contract or otherwise, than pursuant to this clause 12.3.
12.4 On termination under clause 12.2, the Buyer shall not be liable to the Supplier for any losses, costs, damages, claims or expenses suffered or incurred by the Supplier arising from or in connection with such termination under clause 12.2 (and, without prejudice to the foregoing, the Buyer shall not be liable to pay the Supplier any amounts in respect of loss of profit, loss of contract, loss of opportunity).
12.5 Without prejudice to the Buyer’s rights under clause 13.2, if any one or more of the following occurs then the Buyer may give written notice to the Supplier to terminate the Supplier’s engagement under the Purchase Contract and such termination shall take effect from the date of receipt by the Supplier of such notice:
12.5.1 Material Breach by the Supplier; or
12.5.2 a breach by the Supplier of the terms of any of clauses 17, 18 or 19; or
12.5.3 the Supplier’s rate of progress is not sufficient to meet the Delivery Dates or in accordance with the Buyer's direction; or
12.5.4 the Supplier refuses or fails to repair, replace or reinstate any defective Products; or
12.5.5 the Supplier fails to comply with any Statutory Requirements; or
12.5.6 any act or threat of violence or dishonesty or criminal damage by the Supplier or the Supplier’s Persons;
12.5.7 the Supplier is or is likely to become (in the Buyer’s reasonable opinion) Insolvent.
12.6 The Buyer shall not be liable to the Supplier for any losses, costs, damages, claims or expenses suffered or incurred by the Supplier arising from or in connection with such termination under clause 12.5 (and shall not be liable to pay any loss of profit, loss of contract, loss of opportunity) and the Buyer shall not be obliged to make any further payment to the Supplier in such circumstances and no further sums shall become due to the Supplier. On termination under clause 12.5, the Supplier shall be liable to the Buyer for all costs, losses, damages, claims and expenses which the Buyer suffers or incurs arising from or in connection with such termination.
12.7 If the Buyer purports to terminate the Supplier’s engagement under clause 12.5, but no ground for termination under clause 12.5 has arisen, or any ground that had arisen had been waived by the Buyer, then the Buyer shall be deemed to have decided to terminate and to have terminated the Supplier’s engagement under the Purchase Contract under clause 12.2.
12.8 In the event of any termination under clause 12, no forbearance whether by allowing an opportunity to rectify such default or breach or otherwise shall constitute a waiver of the Buyer's rights to terminate. Termination of the Supplier’s engagement under the Purchase Contract shall not affect the accrued rights and remedies available to either party as at the date of such termination. The Supplier’s obligations shall survive termination of the Supplier’s engagement under the Purchase Contract or in the event the Purchase Contract is brought to an end for any reason, except the obligation to supply and deliver Products after the date of such termination.
12.9 In the event of termination pursuant to this clause 12, the Buyer shall be entitled to repudiate title in or otherwise reject any goods which it does not require.
13.1 Title and ownership in the Products shall pass from the Supplier to the Buyer on the sooner of; (i) the creation of the relevant goods forming the whole or part of the Products; or (ii) allocation from stock or acquisition by the Supplier of the relevant goods forming the whole or part of the Products. Notwithstanding the passing of title and ownership, the risk in such goods shall remain with the Supplier until acceptance of the Products by the Buyer in accordance with the provisions of the Purchase Contract, whichever shall be later. All materials or equipment forming part of the Products in which title has passed shall be:
13.1.1 clearly marked by the Supplier as the Buyer's property and shall be stored separately from the Supplier's property;
13.1.2 properly packaged to withstand freight handling and periods of storage as necessary; and
13.1.3 insured for their full replacement cost with a reputable insurer carrying on business in the United Kingdom and approved by the Buyer.
14. INDEMNITIES AND INSURANCES
14.1 The Supplier shall be liable for and indemnify, save, defend and hold harmless the Buyer from and against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of reputation and all interest, penalties and legal and other reasonable professional fees, costs and expenses) accrued, suffered or incurred by the Buyer arising out of or in connection with:
14.1.1 any breach of contract, breach of statutory duty or negligent performance or non-performance or non-observance of any of the terms of the Purchase Contract by the Supplier or any of the Supplier's Persons;
14.1.2 the enforcement of the Purchase Contract;
14.1.3 any claim made against the Buyer for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with any ;
14.1.4 any claim made against the Buyer by a third party arising out of or in connection with the performance and supply of the Products, to the extent that such claim arises out of any breach of contract, breach of statutory duty, negligent performance, tortious liability or failure or delay in performance of the Purchase Contract by the Supplier or any of the Supplier's Persons;
14.1.5 personal injury to or the death of any person arising out of or in the course of or caused by the performance or supply of the Products; and
14.1.6 any loss, injury or damage to property (real or personal) arising out of or in connection with the performance or supply of the Products and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Supplier or the Supplier's Persons.
14.2 The indemnities given by the Supplier in these Conditions shall apply whether or not Buyer has been negligent or at fault.
14.3 The Supplier shall maintain insurance cover against such liabilities as are referred to in clause 14 and shall provide to Buyer on demand valid certificates of insurance in respect thereof.
14.4 Without prejudice to clause 14.3, the Supplier shall have in force policies of insurance showing adequate cover with such insurers as Buyer may approve including:
14.4.1 insurance of the Products for their full replacement cost, such insurance to be maintained up until the point at which the Products have been delivered, unpacked, checked and accepted by the Buyer;
14.4.2 public liability insurance against all damage whether to persons or property belonging to the Buyer or otherwise and whether occurring during the performance of the Supplier’s obligations under the Purchase Contract or otherwise with a minimum cover of ten million pounds (£10,000,000) for each and every claim unless the Purchase Contract specifies a higher/lower level of cover, such insurance to be maintained up until the point at which the Products have been delivered, unpacked, checked and accepted by the Buyer; and
14.4.3 product liability insurance with a minimum cover of five million pounds (£5,000,000) for each and every claim save where the Purchase Contract specifies a higher/lower level of cover, such insurance to be maintained for the period until twelve (12) years after the [date on which the Products have been delivered, unpacked, checked and accepted by the Buyer][date of practical completion of the works to which the Products form part of].
14.4.4 professional indemnity insurance with a minimum cover of five million pounds (£5,000,000) for each and every claim save where the Purchase Contract specifies a higher/lower level of cover, such insurance to be maintained for the period until twelve (12) years after the [date on which the Products have been delivered, unpacked, checked and accepted by the Buyer][date of practical completion of the works to which the Products form part of].
14.5 The Supplier shall take out and maintain any other insurance which it is required to effect by law or statute and such other insurance which would be effected by a prudent supplier producing similar goods to the Products.
14.6 The Supplier shall within five (5) Working Days of a request by the Buyer, provide the Buyer with copies of the insurance policies the Supplier is required to maintain under the Purchase Contract or such other evidence of insurance as the Buyer may reasonably require.
15.1 Each provision of the Conditions is distinct and severable from the others. If at any time one or more of those provisions is or becomes invalid, unlawful or unenforceable (whether wholly or partly), the validity, lawfulness and enforceability of the remaining provisions (or the same provision to any other extent) shall not be affected or impaired in any way.
15.2 If any court or other competent authority finds that any provision (or part thereof) of these Conditions is invalid, illegal or unenforceable, that provision or part provision shall be deleted to the extent required. If any invalid, unenforceable or illegal provision of these Conditions would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
15.3 The Buyer and the Supplier may agree to amend the Conditions in order to ensure the Conditions are valid, lawful and enforceable.
16.1 Any notice, consent, approval, request, requirement, representation, certificate or other communication required or authorised by the Appointment (together 'Notices') will be valid only if it is given in writing or, if given verbally, is confirmed in writing by the person giving it.
16.2 Any Notice issued or given by the Supplier to the Buyer may only be served by e-mail, post or Royal Mail special delivery or personal delivery to the Buyer's e-mail address and address stated in the Purchase Order. All Notices must be marked for the attention of the Authorised Person. Any Notice not given or sent in accordance with this clause shall be of no effect.
16.3 Any Notice issued or given by the Buyer to the Supplier may be served by post, personal delivery, email or any other effective means.
16.4 Subject to clause 16.5, in the absence of evidence of earlier receipt a Notice is deemed to be received:
16.4.1 If delivered personally then on delivery;
16.4.2 if sent by post two (2) Working Days after posting it; and
16.4.3 if sent by email on completion of its transmission.
16.5 In the case of a Notice given pursuant to this clause 16 where this occurs after five (5) p.m. on a business Working Day; and/or on a day which is not a Working Day then the date of service shall be deemed to be the next Working Day.
16.6 In the case of adjudication and/or court proceedings only, copies of all notices to the Contractor must (in addition) be sent to: Address: DAC Beachcroft LLP, Bank House, East Pilgrim Street,, Newcastle upon Tyne NE1 6SQ FAO: Upnorth Engineering Services Limited Construction Contact Partner
17.1 The Supplier shall itself and shall procure that any of its suppliers, employees, servants and agents shall comply with all applicable laws, statutes, regulations and codes relating to anti- bribery and anti-corruption practices including (without limitation) the Bribery Act and associated guidance (together ‘the Requirements’); and comply with the Buyer’s Anti-bribery Policy (‘the Policy’) as the Buyer may update the same from time to time a copy of which is available for inspection at the Contractor’s registered office at all times upon request.
17.2 The Supplier shall have and maintain in place throughout the term of the Purchase Contract its own policy and procedures including adequate procedures to ensure compliance with the Requirements and the Policy and shall enforce them whenever appropriate and shall be directly liable to the Contractor in the event of any breach of this clause 17 by the Supplier or any associated person and the Supplier shall indemnify the Buyer from and against any costs, losses, damages or expenses (including but not limited to legal costs and expenses) consequent upon such breach howsoever arising under any circumstances whatsoever.
18. MODERN SLAVERY ACT COMPLIANCE
19.1 Any agreement by the Buyer to waive any obligation or liability of the Supplier will only be effective if: in writing, refers to the Purchase Contract and this clause and is signed by the Authorised Person. Failure to exercise, or any delay in exercising any right or remedy by the Buyer provided under the Purchase Contract or by law shall not constitute a waiver by the Buyer of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy by the Buyer.
19.2 No allowance of time, indulgence, non-enforcement, waiver, forbearance, release, inspection, admission, approval, comment, review or consent or omission to inspect, approve, comment, review or consent by the Buyer or its employees, servants, suppliers or agents shall in any way derogate, limit or reduce the Supplier’s duties and obligations in connection with the Purchase Contract. Notwithstanding any other provision of the Purchase Contract, the term “approval” when used in the context of any approval to be given by the Buyer shall have the meaning “acceptance of general principles only” and no such approval shall diminish or relieve the Supplier from any of its obligations or responsibilities under the Purchase Contract.
20.1 The Supplier agrees to execute and deliver such documents and instruments and take such further actions as the Buyer may, from time to time, reasonably request in order to effectuate the purposes and to carry out the terms of the Purchase Contract.
20.2 If required by the Buyer, the Supply shall execute and deliver to the Buyer not later than fourteen (14) days after receipt of a request from the Buyer to do so a deed or deeds of collateral warranty in the form reasonably required by the Buyer in favour of any third party in relation to the Purchase Contract.
21. CONFIDENTIALITY AND PUBLICITY
21.1 The Supplier shall treat as confidential any information which the Supplier either has obtained or later obtains from the Contractor or any other third party in connection with the Purchase Contract. The Supplier shall not disclose any such information to anyone other than as required and necessary to carry out the Supplier's obligations under the Purchase Contract or in order to seek professional advice in relation to the Supplier's rights or obligations under the Purchase Contract or as otherwise required by law, without the Buyer's prior written consent (such consent not to be unreasonably withheld or delayed).
21.2 Under no circumstances is the Supply permitted to release information in any form in respect of the Purchase Contract to the press or other news agencies or media, without first obtaining approval from the Contractor. All requests for approval shall be submitted in writing to the Contractor which may be rejected by Buyer.
21.3 The Buyer may monitor all references to the Supplier that are in the public domain, including but not limited to any reference to the Supplier in any social media, blogs, forums, on Twitter, Linked-in and Facebook posts. The Supplier shall ensure that it does not and shall procure that the Supplier's employees, servants, agents and suppliers do not make (whether direct or indirect and whether alone or in conjunction with anyone else) any adverse or negative comments, observations or remarks (including, but not limited to, anything which could bring the Buyer, its business or personnel into disrepute or damage reputation or in any way defame or disparage the Buyer, its customers, employees, suppliers or other stakeholders or which could constitute discrimination, bullying, harassment or victimisation of the Buyer's employees or other third parties) about the Buyer or any element of its business or personnel in any social media.
21.4 The Buyer reserves all rights and remedies available to it in relation to any breach of this clause 21 or the Purchase Contract more generally and the Supplier agrees and acknowledges that damages alone may not be a sufficient remedy for the Buyer for any breach of this clause 21 or the Purchase Contract by the Supplier.
22. LIMITATION PERIOD
22.1 Notwithstanding the manner in which the Purchase Contract has been entered into, the statutory contractual limitation period in respect of the Supplier’s obligations and liabilities under the Purchase Contract shall extend to the expiration of twelve (12) years after the [date of delivery of all Products to the Buyer under the Purchase Contract] [date of practical completion of the works to which the Products form part of].
22.2 For the avoidance of doubt, the provisions of the Limitation Act 1980 (and any subsequent amendment, extension or re-enactment) relating to claims in contract are excluded and do not apply to claims, actions or proceedings by the Buyer against the Supplier under the Purchase Contract.
22.3 The Supplier agrees that it will not rely upon a defence under the Limitation Act 1980 (and any subsequent amendment, extension or re-enactment) in any action or proceedings brought by the Buyer under the Purchase Contract.
23. GOVERNING LAW AND JURISDICTION
23.1 The Purchase Contract shall be governed and construed in accordance with English law and the English courts shall have exclusive jurisdiction (except for the purposes of enforcement of an English court judgment or order in another jurisdiction) with regard to all matters arising from it.
ENDS
Contact Us
If you have any questions about this Privacy Policy, please visit our contact page.