TERMS OF BUSINESS FOR SUPPLIERS
WARNING: No employee, worker, consultant, agent or other representative of Atom Supplies Limited (the Company) who is not a director of the Company has any authority to bind (whether by signature, by course of dealings or otherwise) the Company to any terms for the purchase of goods and/or services other than the Terms of Business set out on this page.
1.1 In these Terms of Business for Suppliers, as amended from time to time in accordance with clause 15.6 (these Conditions), the following definitions shall apply:
AWRS: means the Alcohol Wholesaler Registration Scheme.
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Company: means Atom Supplies Limited trading as ATOM Group (registered in England and Wales with company number 03193057) having its registered office at Unit 1, Ton Business Park, 2-8 Morley Road, Tonbridge, Kent, TN9 1RA and the VAT registration number GB 662241553, and the AWRS Unique Reference Number of XPAW00000101435.
Completion of Delivery: shall have the meaning ascribed to it in clause 3.8.
Consignment Goods: shall have the meaning ascribed to it in clause 8.1.
Consignment Terms: means terms which provide that the Company is to acquire title to the relevant Goods only in circumstances where it elects to do so, where it sells the relevant Goods to a third party or where those Goods are used or irreversibly mixed with other goods by the Company, and that the Company shall have the right to require the Supplier to take back the relevant Goods in the event that title does not pass to the Company. That such terms are to apply must be the subject of express agreement between the Company and the Supplier.
Contract: means the contract between the Company and the Supplier for the sale and purchase of the Goods and/or the Services in accordance with these Conditions.
Deliverables: means all documents, products and materials (if any) developed by the Supplier or its agents, contractors or employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Duty Stamp Error: shall have the meaning ascribed to it in clause 3.11.1.
Formal Insolvency Procedure: means any procedure connected with the inability of that party to pay its debts as they fall due, in any jurisdiction, which involves negotiations or agreement with creditors; the filing of any document in connection with the winding up of that party; an application to court or any formal insolvency arbiter in connection with the appointment of a manager, receiver, security holder or other insolvency professional in connection with the management of that party’s affairs; the appointment of any such manager, receiver, security holder or professional; or the enforcement of any security (or steps preparatory to the enforcement of any security), not being (in any case) a spurious or unsubstantiated step or procedure which is discharged (or otherwise not upheld).
Goods: means the goods (if any) or any part of them set out in the Order and/or the Specification.
Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Liabilities: means liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses).
Order: means the Company's order for the Goods and/or the Services placed with the Supplier (whether the Company’s order for the Goods and/or the Services was placed with the Supplier in person, using verbal telecommunications equipment, via VOIP equipment, by letter, fax, e-mail or otherwise; and whether the Company’s order for the Goods and/or the Services was placed in response to any quotation supplied by the Supplier or using any Company purchase order form or otherwise).
Regulations: means the Sale of Goods Act 1979; the Supply of Goods and Services Act 1982; The Food Labelling Regulations 1996; Directive 2000/13/EC on the labelling of foodstuffs; The Weights and Measures (Packaged Goods) Regulations 2006; The Spirit Drinks Regulations 2008; Regulation (EC) No 110/2008 on spirit drinks; The Scotch Whisky Regulations 2009; Regulation (EU) No 1169/2011 on the provision of food information to consumers; and the Food Information Regulations 2014.
Sales Report: a written statement that sets out all Consignment Goods title to which has passed to the Company during the preceding month.
Services: means the services (if any), including any Deliverables, to be provided by the Supplier under the Contract as set out in the Order and/or the Specification.
Specification: means any specification for the Goods and/or the Services, including any related plans and drawings, that is agreed by the Company and the Supplier.
Supplier: means the person or firm from whom the Company contracts to purchase the Goods and/or the Services.
1.2 In these Conditions:
1.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.2.2 a reference to a party or to the parties is a reference to a party to, or the parties to, the Contract, and includes that party’s (or those parties’) personal representatives, successors or permitted assigns;
1.2.3 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted;
1.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.5 a reference to writing or written includes e-mails.
2. Application of Conditions to Contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 No employee, worker, consultant, agent or other representative of the Company who is not a director of the Company has any authority to bind the Company to any contractual terms other than these Conditions. No director of the Company has authority to bind the Company to any contractual terms other than these Conditions otherwise than by way of signature of a written document.
2.3 The Order constitutes an offer by the Company to purchase the Goods and/or the Services in accordance with these Conditions to the exclusion of any other terms.
2.4 The Order shall be deemed to be accepted on the earlier of:
(i) the Supplier issuing a written acceptance of the Order; and
(ii) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
(iii) All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. The Goods
3.1 The Supplier undertakes that the Goods shall:
3.1.1 correspond with their written description by the Supplier and any applicable Specification;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Company expressly or by implication, and in this respect the Company relies on the Supplier's skill and judgement;
3.1.3 (where they are manufactured products), be free from defects in design, material and workmanship and (except in the case of perishable Goods and/or damage caused by the Company) remain so for 24 months after Delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods (including the Regulations, where applicable).
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, authorisations and consents that it is legally required to have in order to carry out its obligations under the Contract. Without prejudice to the foregoing, the Supplier warrants that, if it is conducting a controlled activity for the purposes of Sale of Goods Act 1979:
(i) it has registered with Her Majesty’s Revenues and Customs for AWRS;
(ii) it shall comply with requirements of AWRS; and
(iii) it has not been notified of any revocation of AWRS registration.
This warranty shall be repeated each time the Supplier accepts an Order and on completion of delivery of that Order.
3.3 The Company shall have the right to inspect and test the Goods at any time before delivery.
3.4 If, following any inspection or testing undertaken in accordance with clause 3.3, the Company considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Company shall inform the Supplier and the Supplier shall take such remedial action as is necessary to ensure compliance.
3.5 Notwithstanding any inspection or testing undertaking in accordance with clause 3.3, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract, and the Company shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions. That no report is made by the Company under clause 3.4 shall not be taken as confirmation by the Company that the Goods comply with the Supplier’s undertakings at clause 3.1.
3.6 The Supplier shall ensure that:
3.6.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
3.6.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods and special storage instructions (if any);
3.6.3 the Goods are not delivered in instalments without the Company’s written consent. If such consent is given, the delivery note shall detail the outstanding balance of Goods remaining to be delivered and the Goods shall be invoiced and paid for separately;
3.6.4 if the Supplier requires the Company to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier; and
3.6.5 (in circumstances where the Goods are excise goods which are not being delivered upon the Company’s instruction to an excise warehouse on a duty suspended basis) all import duties, taxes, levies or imposts properly chargeable in respect of the Goods (including United Kingdom excise duty (or any additional or replacement duty)) have been paid in full and that (where required) the Goods bear valid proof of duty payment, including free-standing or label excise duty stamps, which proof of duty payment has been properly affixed and has not been damaged or defaced.
3.7 The Supplier shall deliver the Goods (or the relevant instalment if the Company has consented to delivery in instalments):
3.7.1 on the date specified in the Order or, if no such date is specified, as soon as practicable and in any event within 28 days of the date of the Order (the Delivery Date). Time shall be of the essence of the Contract for the purposes of this clause 3.7.1;
3.7.2 to the Company’s premises at Unit 3, 2-8 Morley Road, Tonbridge, Kent, TN9 1RA or such other location as is set out in the Order, or as instructed by the Company prior to delivery (the Delivery Location); and
3.7.3 during the Company's normal business hours, or as instructed by the Company.
3.8 Delivery of the Goods (or the relevant instalment if the Company has consented to delivery in instalments) shall be completed on the completion of unloading the Goods at the Delivery Location and the signature of a delivery note or similar by a Company representative (Completion of Delivery). Completion of Delivery shall not constitute (or be deemed to constitute) acceptance by the Company of the return of any Goods which do not comply with the undertakings set out in clause 3.1.
3.9 If the Supplier:
3.9.1 delivers less than 95% of the quantity of Goods the subject of the Order (or the relevant instalment if the Company has consented to delivery in instalments), the Company may (acting in its absolute discretion) reject the Goods; or
3.9.2 delivers more than 100% of the quantity of Goods ordered (or the relevant instalment if the Company has consented to delivery in instalments), the Company may (acting in its absolute discretion) reject the Goods or the excess Goods.
3.10 Any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered (or comprising the relevant instalment if the Company has consented to delivery in instalments), and the Company accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
3.11 Without prejudice to any other remedies which the Company may have (and without any liability to the Supplier, including any liability to pay for the relevant Goods), the Company may destroy any Goods which are excise goods in circumstances where:
3.11.1 the Company considers (acting reasonably) that the Goods do not bear valid proof of duty payment or that any proof of duty payment affixed to the Goods has been improperly affixed to the Goods or has become damaged or defaced prior to arrival at the Delivery Location (a Duty Stamp Error);
3.11.2 the Company has notified the Supplier of the Duty Stamp Error in writing; and
3.11.3 the Supplier has failed to collect the Goods affected by the Duty Stamp Error prior to the expiry of the period of two weeks commencing on the date on which the Company first notifies the Supplier of the Duty Stamp Error.
4. The Services
4.1 The Supplier shall from the date set out in the Order and for the duration of this Contract provide the Services to the Company in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Order or agreed by the Supplier. Time shall be of the essence of the Contract for the purposes of this clause 4.2.
4.3 In providing the Services, the Supplier undertakes that it shall:
4.3.1 co-operate with the Company in all matters relating to the Services, and comply with all reasonable instructions of the Company;
4.3.2 perform the Services with all reasonable care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
4.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Contract;
4.3.4 ensure that the Services and Deliverables will conform with the Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Company;
4.3.5 comply with all applicable statutory and regulatory requirements relating to the performance of the Services (including the Supply of Goods and Services Act 1982);
4.3.6 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
4.3.7 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Company, will be free from defects in workmanship, installation and design;
4.3.8 obtain and at all times maintain all necessary licences and consents;
4.3.9 observe all health and safety rules and regulations and any other security requirements that apply at any of the Company's premises; and
4.3.10 not do or omit to do anything which may cause the Company to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Company will rely or act on the Services.
4.4 The Company shall:
4.4.1 provide the Supplier with reasonable access at reasonable times to the Company’s premises for the purpose of providing the Services; and
4.4.2 provide such information to the Supplier as the Supplier may reasonably request for the purpose of providing the Services.
5.1 Without prejudice to clauses 3.7.1 and 4.2, if the Supplier fails to deliver the Goods on the Delivery Date or to perform the Services by the applicable date, the Company shall have the right to any one or more of the following remedies:
5.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
5.1.2 to refuse to accept any subsequent delivery of the Goods and/or performance of the Services which the Supplier attempts to make;
5.1.3 to recover from the Supplier any reasonable costs incurred by the Company in obtaining substitute goods and/or services from a third party (and the Supplier shall refund such costs forthwith upon written request);
5.1.4 where the Company has paid in advance for Goods that have not been delivered by the Supplier and/or Services which have not been provided by the Supplier, to have such sums refunded by the Supplier (and the Supplier shall refund such sums forthwith upon written request);
5.1.5 to claim damages for any other costs, loss or expenses incurred by the Company which are attributable to the Supplier's failure to meet such dates; and
5.1.6 deduct five per cent. of the price of the Goods and/or the Services for each week's delay in delivery and/or performance by way of liquidated damages, up to a maximum of 20 per cent. of the total price of the Goods and/or the Services.
5.2 If the Supplier has delivered Goods which do not comply with the undertakings set out in clause 3.1, breaches the obligation or warranties set out in clause 3.2, or performs Services otherwise than in accordance with the undertakings set out in clause 4.3 then, without limiting any of its other rights or remedies, the Company shall have the right to any one or more of the following remedies, whether or not it has accepted the Goods and/or the Services:
5.2.1 to reject the Goods or any Deliverables (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
5.2.2 to require the Supplier to repair or replace the rejected Goods and/or Deliverables, or to provide a full refund of the price of the rejected Goods and/or Deliverables (if paid);
5.2.3 to reject the Services (in whole or part) and require the Supplier to provide substitute or remedial Services, or to provide a full refund of the price of the rejected Services (if paid);
5.2.4 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
5.2.5 to recover from the Supplier any reasonable costs incurred by the Company in obtaining substitute goods and/or services from a third party; and
5.2.6 to claim damages for any other costs, loss or expenses incurred by the Company which are in any way attributable to the Supplier's failure to comply with the undertakings set out in clause 3.1 or 4.3.
5.3 These Conditions shall apply to any repaired or replacement goods and/or to any substituted or remedial services supplied by the Supplier.
5.4 The Company's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6. Title and risk in Goods
Except in circumstances where Goods are supplied to the Company on Consignment Terms, title and risk in any Goods which comply with the undertakings set out in clause 3.1 shall pass to the Company on Completion of Delivery. In circumstances where Goods are supplied to the Company on Consignment Terms, the title and risk in those Goods shall pass to the Company in accordance with the provisions of clause 8. Title and risk in any Deliverables shall pass to the Company at the time they are delivered to the Company.
7. Price and payment
7.1 Subject to clause 7.5 below, the price of the Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date the Contract came into existence. The price of the Goods includes the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing by a director of the Company.
7.2 The charges for the Services shall be set out in the Order (the Charges), and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by a director of the Company, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services for which the Company shall be responsible.
7.3 The Supplier may invoice the Company for those Goods which comply with the undertakings set out in clause 3.1 on or at any time after Completion of Delivery. The Supplier may invoice the Company on or at any time after completion of the Services. Each invoice shall include such supporting information reasonably required by the Company to verify the accuracy of the invoice.
7.4 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and shall allow the Company to inspect such records at all reasonable times on request.
7.5 Except in circumstances where a director of the Company agrees otherwise in writing, the Company shall pay correctly rendered invoices on or prior to the date which falls 60 days after the date on which the relevant invoice is received by the Company. In circumstances where the Company pays an invoice on or prior to the date which falls 30 days after the date on which the relevant invoice is received by the Company, the Company shall apply (and the Supplier hereby agrees that the Company shall have the right to apply) a 2.5 per cent. early settlement discount. In circumstances where the Company pays an invoice on pro-forma terms (that is to say, on or before the date of delivery of any Goods or Services (or the last day of delivery of a series of linked Goods or Services)), the Company shall apply (and the Supplier hereby agrees that the Company shall have the right to apply) a 5 per cent. early settlement discount. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 All amounts payable by the Company under the Contract are exclusive of amounts in respect of VAT unless the invoice states otherwise. Where any taxable supply for VAT purposes is made to the Company under the Contract, the Company shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or the Services.
7.7 Subject to clause 7.8, if a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 3 per cent. per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. Neither party shall have any right to claim interest or to any other payment under the Late Payment of Commercial Debts (Interest) Act 1998.
7.8 The defaulting party shall not be required to pay interest on any overdue amount which it disputes in good faith.
7.9 Either party may at any time and without limiting any of its other rights or remedies, set off any present liability which it has to the other party against any present liability which the other party has to it (whether or not either liability arises under the Contract).
8. Consignment Terms
8.1 In circumstances where Goods are supplied to the Company on Consignment Terms (such Goods being Consignment Goods), the provisions of clause 8 shall apply to those Consignment Goods to the exclusion of the provisions of clause 6 and clauses 7.1, 7.2, 7.3, 7.4 and 7.5. Clauses 7.6 to 7.9 (inclusive) shall apply in all cases.
8.2 Risk in any Goods which are Consignment Goods shall pass to the Company on Completion of Delivery.
8.3 Title to any Goods which are Consignment Goods shall not pass to the Company until the earliest to occur of the following events:
8.3.1 the Supplier elects by written notice to the Supplier that the relevant Consignment Goods shall no longer be treated as Consignment Goods. Upon receipt of notice given pursuant to this clause 8.3.1, title to the relevant Consignment Goods shall pass immediately to the Company;
8.3.2 the Company sells the relevant Consignment Goods to a customer (in which event title to the relevant Consignment Goods shall pass to the Company immediately before that sale); or
8.3.3 the Company uses or irreversibly mixes with other goods the relevant Consignment Goods (in which event title to the relevant Consignment Goods shall pass to the Company immediately before that use or mixing takes place).
8.4 The Company may (but is not required to) resell or use all Goods which are Consignment Goods in the course of its business.
8.5 Until such time as title to any Goods which are Consignment Goods passes to the Company in accordance with clause 8.3, the Company shall:
8.5.1 not remove, deface or obscure any identifying mark on the Consignment Goods;
8.5.2 keep the Consignment Goods in satisfactory condition; and
8.5.3 keep the Consignment Goods insured.
8.6 Until such time as title to any Goods which are Consignment Goods passes to the Company in accordance with clause 8.3, the Company shall have the right to return those Consignment Goods to the Supplier. The Company shall notify the Supplier if it wishes to return any Consignment Goods in writing. The costs of returning any Consignment Goods to the Supplier shall be for the Company’s account, but the Supplier shall have no right to charge any re-stocking, administration or other fee in connection with the return of the Consignment Goods by the Company. Risk in any Consignment Goods which the Company elects to return to the Supplier shall pass to the Supplier on the completion of unloading of the returned Consignment Goods at the location reasonably identified by the Supplier (or, in circumstances where the Supplier fails to identify any location within five Business Days of any notice given by the Company pursuant to this clause 8.6, at the Supplier’s principal warehouse location).
8.7 The Company shall provide the Supplier with a Sales Report each month during which the Company has held any Goods which are Consignment Goods.
8.8 In circumstances where title to any Goods which are Consignment Goods passes to the Company in accordance with clause 8.3, the price payable by the Company for those Goods shall be the price applicable at the time at which the Company placed the order for those Goods with the Supplier. That price shall include the costs of packaging and carriage (and insurance before Completion of Delivery) of those Goods. No extra charges shall be effective unless agreed in writing by a director of the Company.
8.9 The Supplier may invoice the Company for any Goods which are Consignment Goods after title to those Consignment Goods has passed to the Company in accordance with clause 8.3. Each invoice shall include such supporting information reasonably required by the Company to verify the accuracy of the invoice.
8.10 Except in circumstances where a director of the Company agrees otherwise in writing, the Company shall pay invoices raised correctly in accordance with clause 8.9 at or prior to the end of the month after the month during which the relevant invoice is received. Payment shall be made to the bank account nominated in writing by the Supplier.
9. Company Materials and Intellectual Property Rights
9.1 The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by the Company to the Supplier (Company Materials) and all rights in the Company Materials are and shall remain the exclusive property of the Company. The Supplier shall keep the Company Materials in safe custody at its own risk, maintain them in good condition until returned to the Company, and not dispose or use the same other than in accordance with the Company's written instructions or authorisation.
9.2 The Supplier warrants that it has full clear and unencumbered title to the Goods and the Deliverables, and that at the date of delivery of such items to the Company, it will have full and unrestricted rights to transfer all such items to the Company.
9.3 The Supplier hereby assigns to the Company, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including the Deliverables, and shall promptly at the Company's request do (or procure to be done) all such further acts and things and the execution of all such other documents as the Company may from time to time require for the purpose of securing for the Company the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Company in accordance with this clause 9.3.
9.4 The Supplier shall obtain waivers of all moral rights in the products of the Services, including the Deliverables, to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
10.1 The Supplier shall keep the Company indemnified against all Liabilities suffered or incurred by the Company as a result of or in connection with:
10.1.1 any claim made against the Company for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the supply or use of the Goods or the receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
10.1.2 any claim made against the Company by a third party for death, personal injury or damage to property arising out of or in connection with defects in the Goods and/or the Services, to the extent that such claim arises out of breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
10.1.3 any claim made against the Company by a third party arising out of or in connection with the supply of the Goods and/or the Services (not being a claim in respect of death, personal injury or damage to property), to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
10.1.4 any breach of warranties set out in clause 3.2.
10.2 This clause 10 shall survive termination of the Contract.
11.1 For the duration of the Contract and for a period of six years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover all of the liabilities that may arise under or in connection with the Contract, and shall, on the Company's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
11.2 This clause 11 shall survive termination of the Contract.
12.1 A party (the Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business, its products and services which the Receiving Party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Receiving Party may also disclose such of the Disclosing Party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.2 This clause 12 shall survive termination of the Contract.
13.1 The Company may terminate the Contract:
13.1.1 in respect of the supply of Goods, in whole or in part, at any time before delivery of the Goods with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Company shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss; and
13.1.2 in respect of the supply of Services, by giving the Supplier one month’s written notice.
13.2 Where both Goods and Services are supplied by the Supplier to the Company under the Contract, the Company may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
13.3 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
13.3.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
13.3.2 the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that it does not have the intention or ability to give effect to the terms of the Contract;
13.3.3 the other party is subject to a Formal Insolvency Procedure;
13.3.4 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.3.5 the other party fails to comply with all applicable anti-bribery and anti-corruption laws (including the Bribery Act 2010).
13.4 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
13.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13.6 On termination of the Contract for any reason, the Supplier shall immediately deliver to the Company all Deliverables whether or not then complete, and return all Company Materials. If the Supplier fails to do so, then the Company may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose. Any access to the Supplier’s premises shall take place on reasonable notice, during normal working hours. The Supplier shall have the right to accompany the representatives of the Company who have access to the Supplier’s premises, and such representatives shall comply with all reasonable health and safety instructions which are given to them by the Supplier.
14. Force majeure
14.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from an event, circumstance or cause beyond its reasonable control (a Force Majeure Event).
14.2 Each party shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
14.3 If a Force Majeure Event prevents, hinders or delays the performance by one party of its obligations for a continuous period of more than 45 days, the other party may terminate the Contract immediately by giving written notice to the party affected by the Force Majeure Event.
15.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract to an associated company. The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of a director of the Company.
15.2 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, sent by registered airmail or other next working day international delivery service, sent by commercial courier or sent by e-mail.
15.3 In circumstances where a notice or other communication is given to the Company under or in connection with the Contract by a method other than e-mail, a copy of that notice shall be sent by e-mail to the Company. E-mails to the Company shall be sent to firstname.lastname@example.org with a copy sent to email@example.com and shall not be deemed received unless they are expressly acknowledged on behalf of the Company, responded to by an authorised representative of the Company or the subject of an automated read receipt.
15.4 A notice or other communication shall be deemed to have been received:
15.4.1 if delivered personally, when left at the address referred to in clause 15.2;
15.4.2 if sent by pre-paid first class post or other next working day delivery service to and from addresses within the United Kingdom, at 9.00 am on the second Business Day after posting;
15.4.3 if sent by registered airmail or other next working day international delivery service to or from an address outside the United Kingdom, at 9.00 am on the fifth Business Day after posting;
15.4.4 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or
15.4.5 (subject to clause 15.3) if sent by e-mail, one Business Day after transmission.
15.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.6 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.7 A waiver of any right or remedy under the Contract or law is only effective if given in writing (and, in the case of the Company, signed by a director of the Company) and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.8 A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.9 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the both parties (and, in the case of the Company, signed by a director of the Company).
15.10 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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