AGREEMENT TO PURCHASE GOODS AND SERVICES – Terms and Conditions of Purchase
1. Definitions
In this document the following words shall have the following meanings:
1.1 Agreement” means these Terms and Conditions together with the terms of any applicable Purchase Order;
1.2 “Buyer” means Ambrey Baker Construction Ltd, with a trading style of Ambrey Baker Industrial Solutions, of Sellwood House, Sellwood Court, Sleaford, Lincolnshire, NG34 8GJ, a Company Registered in England 5993779 and VAT Registration No. 902 975904
1.3 “Intellectual Property Rights” means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable;
1.4 “Purchase Order” means the Buyer document which includes or is attached to a statement of work describing the goods and/or services to be provided by the Supplier and provides a maximum value payable by the Buyer to the Supplier;
1.5 “Supplier” or “Sub-contractor” are identical in the meaning that they are the organisation or person who supplies goods and/or services to the Buyer;
1.6 “Supplier Personnel” means any employee, contractor, or plant supplied by the Supplier to provide services.
1.7 “Restricted Period” shall be during the course of the Supplier undertaking of the works, Purchase Order or Contract and for 12 months after that last Purchase Order, Completion or Termination of a Contract.
2. General
2.1 These Terms and Conditions shall apply to all contracts for the supply of goods and/or services by the Supplier pursuant to one or more Purchase Orders.
2.2 Where it is agreed that the Supplier shall supply goods and/or services, the goods and/or services to be supplied, the price payable and any other special terms agreed between the parties shall be set out in the Purchase Order. All Purchase Orders shall be subject to these Purchase Terms and Conditions.
2.3 No changes or variations to these Terms and Conditions or any Purchase Order shall be effective unless agreed in writing between the Parties.
2.4 In the event of any conflict or discrepancy between any terms of business produced by the Supplier and these Terms and Conditions of the Buyer, it is agreed that these Terms and Conditions shall prevail and supersede those stated in any offer or conditions communicated by the Supplier as conditions precedent.
3. Price and Payment
3.1 The price and any taxes and expenses for the goods and/or services shall be as specified in the Buyer’s Purchase Order.
3.2 An invoice shall be produced by the Supplier to the Buyer in accordance with the terms set out in the Purchase Order. The Buyer shall pay for the goods and/or services at the end of the month following the month in which the goods and/or services are supplied or in which the invoice is received, whichever is the later. In no circumstances shall the time for payment be of the essence of the Agreement and simply be as stated above. These payment terms supersede the Scheme for Construction Contracts. Invoices shall contain reference to the Purchase Order Number, its date and description of goods and services therein, else may be rejected until it is received in proper form.
3.3 The Buyer shall not be responsible for any expenses, charges or price other than those set out in the Purchase Order.
3.4 In the event of late payment by the Buyer, the Supplier shall be entitled to charge the Buyer interest at the rate of 2% per annum above the base rate of the Bank of England, from the date when payment becomes due, daily until the date of payment. The parties agree that this provision shall constitute a “substantial remedy” for the purposes of The Late Payment of Commercial Debts (Interest) Act 1998.
3.5 If the Parties agree that the Supplier is to provide goods and/or services or resources in addition to those specified in a Purchase Order, then such agreement will need to be reflected in a further Purchase Order, which will be deemed supplementary to and incorporated into these Terms an agreement.
3.6 Once a Purchase Order has been agreed by the Buyer, the price for the goods and/or services shall be fixed.
3.7 Whilst from time-to-time formal contractual standards forms are not completed, the JCT Minor Works Form of Contract shall be implied on all sub-contractor works up to the value of £250,000 and the JCT Intermediate Form over that value. In the event of a conflict between terms there-in or theses Buyer’s Terms, the Buyer Terms shall be precedent.
3.8 Ambrey Baker shall be entitled to set-off costs against the supplier as it deems fair and appropriate and, treat any costs for non-performance or breach of the terms here-in or agreed as part of a contract between the Parties (Buyer and Supplier) as a debt.
3.9 The Supplier may suspend provision of Services whilst any undisputed payment is overdue by more than 30 days overdue subject to 21 days’ notice.
3.10 For the avoidance of doubt the Buyer shall be under no obligation to make any payment to the Supplier of Services:
3.10.1 in respect of any periods during which Services have not been provided (including holiday or days on which the Company has no requirement for the Services), for whatever reason; or
3.10.2 in respect of Services with which the Company has reasonable grounds for dissatisfaction; or
3.10.3 Where the amount invoiced by the Consultant for any element of the Services exceeds the amount agreed.
4. Warranty
4.1 The Supplier warrants and guarantees that all goods, materials, plant or services supplied under this Agreement shall be free from any defects, patent or latent, omissions and errors in material and workmanship, or design, conform to applicable specifications, requirements, performance and drawings and, to the extent that detailed designs when not provided to the Buyer but when provided by you the Supplier, as part of your services and supply, will be free from design defects and in every aspect suitable for the purposes intended by the Buyer, as to which the Supplier hereby acknowledges that it has had due notice. Any approval by the Buyer of any designs provided by the Supplier shall not relieve the Supplier of its obligations under any provision contained in this Clause.
4.2 The Supplier’s obligations under this Clause shall extend to any defect or non-conformity arising or manifesting itself within the manufacturer’s fair and reasonable or otherwise agreed warranty period from delivery.
4.3 Where there is a breach of the warranty contained in this Clause by the Supplier, the Buyer, without thereby waiving any rights or remedies otherwise provided by law and/or elsewhere in this Agreement, may (at the Buyer’s sole election) require the Supplier to repair or replace the defective goods at the Supplier’s risk and expense or repay the price or part of the price relating to the defect to the Buyer; and within a specified time by Ambrey Baker to rectify such matters. If the Supplier fails to remedy that breach in the Ambrey Baker specified time or if no such time to remedy has been specified, then time shall be of the essence.
4.4 Items repaired or replaced shall be subject to these Terms and Conditions in the same manner as those originally delivered under this Agreement. If the Supplier refuses or fails promptly to repair or replace items when requested under this provision, the Buyer may itself, or through an agent or sub-contractor, consultants or otherwise, repair or replace or re-design any item itself and the Supplier agrees to reimburse the Buyer for any costs and expenses incurred.
4.5 From time-to-time, if the Supplier is providing professional services, design, project management, supervisory, ground or materials testing or specialist services that require a more formalised warranty arrangement such as a collateral warranty and associated appointment documentation for the benefit of the Buyer, and/or his successors, funders, tenants, landlords, assignees, or any client of the Buyer and/or any other relevant party that the Buyer is required to, enter into similar arrangements with, then, the Supplier shall within 14 days of such documentation being issued to the Supplier by the Buyer or his advisors, execute and return the same to the Buyer under seal or deed by recorded delivery post, if requested to do so.
5. Delivery
5.1 Delivery of the goods shall be made to such location as the Buyer shall direct. Any time agreed between the parties for such delivery shall be of the essence of the Agreement and the Buyer shall be entitled to cancel, without notice, the whole or any part of this Agreement if this Clause is not complied with by the Supplier.
5.2 Where the Buyer cancels the whole or part of the contract in accordance with Clause, then:
5.2.1 All sums payable by the Buyer in relation to the whole or part of the contract cancelled shall cease to become payable;
5.2.2 All sums paid by the Buyer in relation to the whole or part of the contract cancelled shall be repaid by the Supplier immediately;
5.2.3 the Buyer shall be entitled to recover damages and losses from the Supplier for any loss or consequential damages caused as a result of the Supplier’s failure to deliver the goods, or perform the services expected to the necessary standards of skill, care and diligence and/or as a result of the cancellation of the whole or part of the contract or for not complying with any programme or time for performance. The Buyer reserves position in respect of treating any losses that it has incurred because of the Supplier breaching this agreement as a debt.
6. Title
6.1 The Supplier warrants that it has honest, unencumbered title to the goods and that it will transfer such title as it may have in such goods to the Buyer pursuant to Clause 6.2.
6.2 Title in the goods will pass to the Buyer when the goods are unconditionally appropriated (by either party or by or with the consent of either party) to this Agreement, or on delivery to the Buyer, whichever happens first.
7. Risk
The goods will be and shall remain at the Supplier’s risk until such time as they are delivered to the Buyer (or at his direction) and are found to be in accordance with the requirements of this Agreement. It shall always be the duty of the Supplier to maintain a contract of insurance over the goods, plant or services and, on request from the Buyer, to assign to the Buyer the benefits of such insurance or provide such warranties as he may require.
8. Inspection of Goods
8.1 The Buyer shall inspect the goods upon delivery.
8.2 Where goods are damaged, or considered not fit for purpose, or potentially defective, the Buyer shall notify the Supplier. The Buyer may reject the damaged, ineffective goods, unworkable designs and reports or inadequate performance of services and the following provisions shall apply:
8.2.1 the Supplier shall forthwith collect the damaged goods from the Buyer at the Supplier’s expense;
8.2.2 during the period between delivery of the goods to the Buyer and collection by the Supplier, the Buyer shall not be liable for any loss or further damage caused to the damaged goods;
8.2.3 all sums payable by the Buyer in relation to the damaged goods or services shall cease to become payable;
8.2.4 all sums paid by the Buyer in relation to the damaged goods or inadequate provision of services shall be repaid by the Supplier immediately;
8.2.5 the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer as a result of the goods being damaged, incorrect, detrimental acts, failure to perform adequately, or omissions, or the provision of services found to be inadequate and as such, the Buyer reserves position to treat such losses as a debt.
8.3 Where there are shortages in the order, as received/delivered, the Buyer shall notify the Supplier and the following provisions shall apply:
8.3.1 all sums payable by the Buyer in relation to the missing goods or omitted services shall cease to become payable;
8.3.2 all sums paid by the Buyer in relation to the missing goods or omitted services shall be repaid by the Supplier immediately.
8.3.3 the Buyer shall be entitled to claim damages from the Supplier for any losses caused to the Buyer because of the shortages or inadequate performance or breach of any part of these Terms & Conditions by the Supplier and it shall be recoverable as a debt.
8.4 If the Buyer so requests, the Supplier shall immediately replace damaged goods or supply goods or services or such documentation which are missing from the supply of goods or services and at the Supplier’s expense, or the Buyer shall be entitled to cancel, without notice, the whole or any unexecuted part of the order and the rights referred to in Clause 5.2 shall apply.
8.5 Where there is an excess of goods in relation to the order the Buyer may reject the excess goods by notice in writing to the Supplier and the following provisions shall apply:
8.5.1 the Supplier shall collect the excess goods from the Buyer at the Supplier’s expense.
8.5.2 during the period between delivery of the goods and collection by the Supplier, the Buyer shall not be liable for any loss or damage caused to the excess goods;
8.5.3 no sum shall be due to the Supplier for the excess goods and, if sums are paid to the Supplier for the excess goods, the Supplier shall repay such sums to the Buyer immediately.
8.6 The Buyer may accept excess goods by notifying the Supplier of such acceptance and the price of the excess goods shall be payable by the Buyer.
8.7 The Supplier shall repair or replace or make-good or undertake or provide free of charge, any goods or documents damaged or lost in transit upon or missing; or services not provided to the satisfaction of the Buyer having received notice to that effect from the Buyer within whatever time the Buyer stipulates and is proportionate and reasonable.
8.8 The Buyer’s signature on any delivery note of the Supplier is evidence of the number of packages or information as having been received only and not evidence of the correct quantity of goods or services received or that the goods or services are in a good condition or of the correct and workable quality or fit for their intended purpose.
9. Supplier’s Obligations
9.1 The Supplier warrants, represents and undertakes that:
9.1.1 all services performed under this Agreement shall be performed in good faith and with all due skill, care, and diligence, in a good and workmanlike manner and otherwise, in line with the best practice within its industry (“Best Industry Practice”) and any procedures set down by the Buyer.
9.1.2 the Supplier Personnel will possess the appropriate qualifications, professional competence and experience to carry out such services in accordance with Best Industry Practice, any consents, authority, regulatory requirements or statutory obligation.
9.1.3 Suppliers, when acting as sub-contractors will either work strictly in accordance with Ambrey Baker Procedures, or where a specialist process is involved, subject to Ambrey Baker instructing the supplier in writing, allow them to perform the supply, under their own detailed arrangement once approved. Approval in the case of the latter, will require submission 21 days prior to commencing work by the sub-contractor of their risk assessments, method statements, or other work instructions, hazardous substance data and equipment certification that relates to their activities. Review by Ambrey Baker will be within 14 days of written submission and the supplier shall ensure that this is built into his programme. Please note that if the aforementioned are not satisfactory and rejected, not unreasonably, then that is the Supplier’s risk and they shall not be allowed to commence on site until such time as the RAMS etc are approved by all relevant Parties and as such, any delays or costs arising from those delays shall also vest with the Supplier.
9.1.4 in respect of those Ambrey Baker Procedures, Suppliers/Sub-contractors’ supervisors or site managers contracted to the Buyer whether as self-employed or as a Limited Company will be required to follow these procedures and the Company Handbook.
They may also be given specific instructions and rules prior to starting work, which will be recorded.
Sub-Contractors must assess the risks for the specific contracted work and any works of other contractors that could affect the health and safety of the workforce or anyone else. All Sub-contractors, unless agreed prior to commencing work in writing with Ambrey Baker, must ensure that they provide suitable and sufficient information, instruction and training to their staff. A minimum requirement of First Aid at Work, Supervisor Training (SSSTS or SMSTS), Working at Height, Manual Handling, Asbestos Awareness and COSHH. Sub-contractors are required to provide Ambrey Baker proof of relevant training and competence of their personnel.
9.1.5 Ambrey Baker are proud of having a pristine Health & Safety record and operates their business on a “Health & Safety First” basis. Many of our Clients also operate a “RED CARD”/” YELLOW CARD” PROCEDURE to target certain high-risk breaches of their health and safety systems.
Ambrey Baker, similarly, applies such procedures to their sites when they are acting as CDM Principal Contractor and /or CDM Principal Designer whether Client sites do/don’t operate such measures as part of their site rules.
The following applies to all persons who enter our CDM-controlled environments, and that includes Client personnel because our site procedures associated with CDM and other regulations and statutes, are designed to manage risk and attempt to protect all persons on our sites, no matter who you are, i.e. even members of the Client’s own personnel or the Client team:
A Red Card will be issued for the most serious offences and will result in immediate removal and banning from site. A Yellow Card will be issued for the less serious offences. For directly employed staff the Ambrey Baker disciplinary procedures will also be applied and be followed for all Red Card breaches. A “Red Card” and a “Yellow Card” each consist of a written notice from Ambrey Baker to the offender and their employer (which will include the Sub-Contractor where the offender is on-site, working on behalf of the Sub-Contractor; any other Contractor, any Designer, and a Client team member or whoever has ignored the site rules with respect to our CDM area or any other restricted areas that we impose from time to time) identifying the offence committed and identifying it as either a Red Card offence or a Yellow Card offence.
Red Card Offences:
The following non-exhaustive list of actions will result in the removal and banning of the offender from the CDM area/workplace for 3 years AND MAY ALSO RESULT IN THE IMMEDIATE TERMINATION OF THE CONTRACT WITH AMBREY BAKER. In addition, a payment/allowance to Ambrey Baker from the perpetrator of £500.00 in respect of each offence committed by them or by anyone on site on their behalf:-
• Unsafe work at height
• Abuse of and/or putting the public at risk.
• Flagrant disregard for the risk assessments, safety method statement and induction mandates.
• Urinating and defecating in unauthorised location.
• Drugs and alcohol abuse.
• Working within unsafe excavations and confined spaces.
• Misuse of scaffolding or access equipment.
• Unauthorised use or abuse of plant.
• Illegal discharges into drainage or water courses.
• Misuse of fire prevention equipment.
• Unauthorised access to controlled or safety-critical areas.
• Unauthorised working in spaces with asbestos-containing materials.
• Wilful abuse of; or tampering with safety mitigations and/or warnings of danger with due contemplation of the reasons why they prevail.
• Smoking in restricted areas
• Operating plant while using a mobile phone
A non-exhaustive list of Yellow Card Offences would include:
• Not wearing the correct hard hats.
• Not wearing safety footwear and other site-specific requisite PPE.
• Incorrect use of PPE.
• Misuse of lifting appliances and equipment.
• Misuse of tools and equipment.
• Use of mobile telephones in unsafe areas.
• Misuse of welfare facilities.
• Failure to comply with reasonable instructions related to the CDM area (depending on the severity and also, the number of repeat offences this may easily become a red card)
After a Yellow Card notice has been issued, should a further offence be committed by the same person and or Sub-Contractor on ANY site within a period of 6 months from the original offence (the continuance of the original offence by the offender shall be deemed to be a further offence), Ambrey Baker will issue a RED CARD and will require the removal of the offender (which will also include the Sub-Contractor where the offender is on-site on behalf of the Sub-Contractor) from the workplace.
9.1.6 the services will not in any way infringe or violate any Intellectual Property Rights, trade secrets or rights in proprietary information, nor any contractual, employment or property rights, duties of non-disclosure or other rights of any third parties; and
9.1.7 it has full capacity and authority to enter into this Agreement and that it has or will obtain prior to the commencement of the services, any necessary licences, consents and permits required of it for the performance of the services and not least, the latest obligations in respect of the CDM Regulations.
9.2 The Supplier shall provide the Buyer with such progress reports, programmes, timings, evidence or other information concerning the services as may be requested by the Buyer from time to time within 5 days of such a request uring the restricted perod.
9.3 The Supplier shall be responsible for maintaining such insurance policies in connection with the provision of the services as may be appropriate or as the Buyer may require from time to time and no less than £5.0million Professional Indemnity Insurance, £10million Public and Employer’s Liability Insurances
9.4 The Supplier shall procure that the Supplier Personnel take all reasonable steps to safeguard their own safety and the safety of any other person who may be affected by their actions, and the Supplier agrees to indemnify and keep indemnified the Buyer from all and any liabilities, obligations, costs and expenses whatsoever arising from any loss, damage or injury caused to the Buyer or any third party by the Supplier Personnel.
9.5 At any time during the course of the Restricted Period, the Supplier agrees not to engage in any conduct detrimental to the interests of the Buyer or any of the Buyer’s Customers or other Suppliers or Personnel which includes any conduct tending to bring the Buyer or the Customer or other Suppliers into disrepute or may be harmful to the Buyer’s commercial interests or which could result in the loss of custom or business or is sensitive or private between the Supplier and the Buyer or is damaging to the relationship between the Buyer and its Customers or other Suppliers or other Personnel.
10. Status and other Liabilities
10.1 It is expressly understood that neither the Supplier nor the Supplier Personnel have the authority to act as agent for the Buyer or to contract on the Buyer’s behalf, unless explicitly instructed to do so in writing by the Buyer, from time-to-time.
10.2 The Supplier’s personnel shall at no time be deemed to be employed or otherwise engaged by the Buyer.
10.3 The Supplier shall be responsible for paying the Supplier Personnel and for making any deductions required by law in respect of any pension, income tax and National Insurance contributions or similar contributions relating to the provision of the services.
The Supplier agrees to indemnify the Buyer in respect of any claims that may be made by the relevant authorities against the Buyer in respect of tax demands or National Insurance or similar contributions relating to the provision of the services by the Supplier both now and at any time previously, since the Supplier was first engaged by the Buyer to provide services.
10.4 During the Restricted Period, the Supplier shall not, directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, or consultant of any entity engaged in the Restricted Business (architecture-engineering-construction related services that compete, displace or potentially damage the Buyer’s potential activities and/or revenue, including the Supplier being employed by any Customer of the Buyer) the Buyer’s business activities without the prior, written consent of the Company at any time during the Restricted Period.
10.5 The Supplier shall possess appropriate insurances and no less than £10million Public Liability Cover; £10million Employers Liability Cover and when undertaking design or design is implied, no less than £5million Professional Indemnity Cover.
10.6 During the Restricted Period, the Supplier will not disclose to any third party, without the prior written consent of the Buyer, any information which is received from the Buyer or any third party, including from a Customer which, if received in tangible form, is marked confidential or if received otherwise, is confirmed in writing as being private or confidential or, if received in tangible form or otherwise communicated in writing or verbally, is manifestly or by its nature private between all relevant parties or indeed, sensitive or potentially could be construed harmful in any way to the Buyer if communicated to any third party, including a customer. If unsure, the Consultant should clarify this with the Buyer. The Supplier agrees that any such sensitive or private or confidential information received from the Buyer may be used by themselves only for the purposes of providing the Services under this or any other contract between the parties.
10.7 The restrictions defined in clauses 10.6 will not apply to any information which: (i) is or becomes generally available to the public other than as a result of a breach of any obligation of confidence; or (ii) is acquired from a third party who owes no obligation of confidence in respect of the information; or (iii) is or has been independently developed by the recipient or was known to it prior to receipt.
10.8 Notwithstanding Clauses 10.6 and 10.7 above, the Consultant will be entitled to disclose the confidential information of the Company: (i) to its insurers or legal advisors where this is reasonably required to conduct its own business; or (ii) to a third party to the extent that this is required by any court of competent jurisdiction, or by a governmental or regulatory authority or where there is a legal right, duty or requirement to disclose, provided that, in the case of sub-Clause 5.3 (ii) where reasonably practicable (and without breaching any legal or regulatory requirement), not less than 2 business days’ notice in writing is first given to the Company.
10.9 The Supplier forthwith upon termination of this agreement for any reason or upon the receipt by it of written demand from the Company, return all written confidential information provided to it and shall either return or destroy all notes, memoranda and other stored information (including information stored in any computer system or other device capable of containing information whether in readable form or otherwise) prepared by it which relate to any confidential information, whether or not any of the same are then in its possession and it will, upon receipt of written demand from the Company, confirm in writing that all confidential information has been returned or destroyed.
10.10 The Supplier undertakes to promptly enter into any reasonable form of confidentiality agreement or confidentiality undertaking directly with a customer if so requested by the Company in writing at any time during the continuance of this agreement.
10.11 If the Buyer has any cause for dissatisfaction with performance of the Services it will (where practicable) note the relevant Timesheet accordingly and/or provide written confirmation to the Supplier of services of the unsatisfactory or defective services provided within a Defect Warranty Period of 5 working days after Services are completed or the month end in which they are completed whichever is later. The Supplier will promptly provide any requested further details on the Services in question and the Consultant agrees they will make good any unsatisfactory or defective services, all within 48 hours, or another timescale as agreed with the Company.
10.12 The Buyer’s authorised representative (the Finance Director – Richard Carpenter) must also approve any expenses incurred by the Supplier, if allowable under the Contract or Agreement. Before incurring any additional expenses beyond the Purchase Order stated, the Supplier shall obtain a signature from the authorised representative of the Company as confirmation that any expenses incurred by the Supplier will be paid. Invoices should contain any expenses that have been appropriately incurred by the Supplier and be supported by an itemised spreadsheet of the expenses and scanned copies of receipts for all expenses. The Buyer will not be responsible for the Supplier’s travel to and from the place of work, unless otherwise agreed by the Authorised Representative.
10.13 For a period of twelve months after termination, the Supplier shall not directly or indirectly solicit or attempt to solicit, without the prior written consent of the Buyer:
10.13.1 any personnel employed by the Buyer or the Buyer’s Customers or individuals working for the Buyer or for the Buyer’s Customers who are provided by employment agencies or similar organisations, at the date of such solicitation or attempted solicitation or who have been so employed or provided during the preceding nine months.
10.13.2 For the purposes of this clause “solicit” means an approach by a party or a third party on its behalf to an individual with a view to employ or engage or procure the employment or engagement of such person as an employee, director, officer or independent contractor or consultant or supplier.
10.13.3 The Supplier undertakes to the Buyer that it will not (otherwise than with the express prior written consent of the Buyer’s Finance Director) provide or offer to provide any services or goods to, or undertake or transact any business with, a customer (current or former) or competitor of the Company at any time during the period commencing on the date of the Agreement or Purchase Order and ending on the expiration of twelve months from completion of the last Contract (Restricted Period) concluded in accordance with this Agreement.
10.4 During the Restricted Period, the Supplier shall not, directly or indirectly, own, manage, operate, join, control, finance or participate in the ownership, management, operation, control or financing of, or be connected as an officer, director, employee, partner, principal, agent, representative, or consultant of any entity engaged in the Restricted Business (architecture-engineering-construction related services) without the prior, written consent of the Company.
11. Termination
11.1 The Buyer may terminate this Agreement for any reason by providing 7 days prior written notice to the Supplier.
11.2 The Buyer may terminate this Agreement with immediate effect by providing written notice to the Supplier if:
11.2.1 the Supplier or the Supplier Personnel commit any material or persistent breach of this Agreement;
11.2.2 the Supplier fails to or refuses after written warning to procure that the Supplier Personnel provide the services properly required of them in accordance with this Agreement;
11.2.3 the Supplier passes a resolution for any insolvency process, winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect;
11.2.4 the Supplier ceases to carry on its business or substantially the whole of its business; or
11.2.5 the Supplier is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
12. Indemnity
The Supplier agrees to indemnify the Buyer against all claims, costs and expenses which the Buyer may incur and which arise, directly or indirectly, from the Supplier’s breach of any of its obligations under this Agreement. Once deemed to have been accepted the terms and conditions of this Agreement and that same can be by continuance with or commencing the provision of supply of goods or services after seven days of receipt of a purchase order or notification of these terms and conditions, this Agreement shall have deemed to have commenced at the first time that the services were supplied by the Supplier or purchased by the Buyer but limited in respect of under hand rather than by deed as six rather than 12 years, unless expressly agreed otherwise at any time past..
13. Intellectual Property Rights
All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Buyer, and the Supplier shall do all that is reasonably necessary to ensure that such rights vest in the Buyer by the execution of appropriate instruments or the making of agreements with third parties.
14. Force Majeure
The Buyer shall not be liable for any delay or failure to perform any of its obligations under this Agreement if the delay or failure results from events or circumstances beyond its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, pandemic, fire, flood or industrial disputes, and the Buyer shall be entitled to a reasonable extension of its obligations.
15. Relationship of Parties
Nothing in this Agreement shall be construed as establishing or implying any partnership or joint venture or a contract of employment between the parties and nothing in this Agreement shall be deemed to construe either of the parties as the agent of the other.
16. Assignment
The Supplier shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without the prior written consent of the Buyer.
17. Severability
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if this Agreement had been agreed with the invalid illegal or unenforceable provision eliminated.
18. Waiver
No failure by the Buyer to enforce any of these Terms and Conditions shall constitute a waiver of its rights hereunder.
19. Notices & Communications
19.1 Any notice to be given by either party to the other may be served by email and by registered post to the address of the other party, given in the Purchase Order or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved be deemed to be received on the day it was sent, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or if sent by registered post shall be deemed to have been delivered no later than 2 days from the date of posting special or recorded.
19.2 Electronic Communications: During the engagement the Buyer and/or Supplier may wish to communicate electronically with each other. However, the electronic transmission of information cannot be guaranteed to be secure or virus or error free and such information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or otherwise be adversely affected or unsafe to use. The parties recognise that systems and procedures cannot be a guarantee that transmissions will be unaffected by such hazards, and the parties confirm that each of them accepts the risks of, and authorise, electronic communications between them. The parties agree to use commercially reasonable procedures to check for the then most known viruses before sending information electronically. Each party will be responsible for protecting its own systems and interests in relation to electronic communications and, save to the extent expressly provided in this Agreement, neither party (in each case including its respective partners, directors, employees or agents) shall have any liability to the other on any basis, whether in contract, tort (including negligence) or otherwise, in respect of any error, damage, loss or omission arising from or in connection with the electronic communication of information between the parties and their respective reliance on such information.
20. No third parties
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
21. Entire Agreement
This Agreement contains the entire agreement between the parties relating to the subject matter and supersedes any previous agreements, arrangements, undertakings or proposals, oral or written.
22. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the law of England and the parties hereby submit to the exclusive jurisdiction of the English courts.