1. BASIS OF CONTRACT
1.1 The Order constitutes an offer by the Contractor to purchase Goods and/or Services from the Supplier in accordance with the terms of the Supply Agreement.
1.2 The Order shall be deemed to be accepted on the Commencement Date.
1.3 These terms and conditions of the Supply Agreement apply to the contract with the Supplier 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.
1.4 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.
2. SUPPLY OF GOODS
2.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Goods Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods and Supply of Services Act 1980, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Contractor, expressly or by implication, and in this respect the Contractor relies on the Supplier’s skill and judgment;
(c) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods; and
(e) completely fulfil the obligations of the Supplier as set out in the Supplier Obligations in the Supply Agreement.
2.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
2.3 The Contractor may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
2.4 If following such inspection or testing the Contractor considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at Clause 3.1, the Contractor shall inform the Supplier in writing and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
2.5 The Contractor may conduct further inspections and tests after the Supplier has carried out its remedial actions.
3. DELIVERY OF GOODS
3.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Purchaser Order Number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments as set out in the Supply Schedule in the Supply Agreement, the outstanding balance of Goods remaining to be delivered; and
(c) it states clearly on the delivery note any requirement for the Contractor to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
3.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order or within the number days of the date of the Order as set out in the Acceptable Delay Days in the Supply Agreement (the Delivery Date).
(b) to the Contractor’s premises as set out in the Supply Agreement or such other location as is set out in the Supply Description in the Supply Agreement or as instructed by the Contractor before delivery (Delivery Location); and
(c) during the Contractor’s normal hours of business, or as instructed by the Contractor.
3.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
3.4 If the Supplier:
(a) delivers less than 95% of the quantity of Goods ordered, the Contractor may reject the Goods; or
(b) delivers more than 105% of the quantity of Goods ordered, the Contractor may at its sole discretion reject the Goods or the excess Goods
and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Contractor accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
3.5 The Supplier shall not deliver the Goods in instalments without the Contractor’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Contractor to the remedies set out in Clause 6.1.
3.6 Title and risk in the Goods shall pass to the Contractor on completion of delivery.
4. SUPPLY OF SERVICES
4.1 The Supplier shall supply the Services to the Contractor on the Delivery Date in accordance with the terms of the Contract. Time is of the essence in relation to the Delivery Date or any other performance dates set out in the Order.
4.2 each delivery of the Service shall be accompanied by a delivery note which shows the date of the Order, the Purchase Order Number, the Service delivered and, if the Service is being delivered by instalments as set out in the Supply Schedule in the Supply Agreement, the specific Service component being delivered.
4.3 the acceptance of the delivery of the Service, whether in part or in full, shall be deemed as being received only if the Contractor confirms, in writing, that the Service is accepted.
4.4 In providing the Services, the Supplier shall:
(a) co-operate with the Contractor in all matters relating to the Services, and comply with all instructions of the Contractor;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) 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 the Contract;
(d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Contractor expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) 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 Contractor, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services, and with the Mandatory Policies;
(i) observe all health and safety rules and regulations and any other security requirements that apply at any of the Contractor’s premises;
(j) hold all materials, equipment and tools, drawings, specifications and data supplied by the Contractor to the Supplier (Contractor Materials) in safe custody at its own risk, maintain the Contractor Materials in good condition until returned to the Contractor, and not dispose or use the Contractor Materials other than in accordance with the Contractor’s written instructions or authorisation;
(k) not do or omit to do anything which may cause the Contractor to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Contractor may rely or act on the Services;
(l) comply with any additional obligations as set out in the Service Specification; and
(m) any other obligations as set out in the Supplier Obligations in the Supply Agreement or the Order.
5. CONTRACTOR REMEDIES
5.1 If the Supplier fails to deliver the Goods and/or perform the Services by the Delivery Date, the Contractor shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the Contractor in obtaining substitute goods and/or services from a third party;
(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and
(e) to claim damages for any additional costs, loss or expenses incurred by the Contractor which are in any way attributable to the Supplier’s failure to meet such dates.
5.2 If the Goods are not delivered or Services are not supplied by the applicable date, the Contractor may, at its option, claim or deduct the Weekly Deduction Percentage, up to a maximum of the Maximum Deduction Percentage, (in each case being a percentage of the Price for the Goods or Services as the case may be set out in the Supplier Execution), for each week’s delay in delivery by way of liquidated damages If the Contractor exercises its rights under this Clause 5.2 it shall not be entitled to any of the remedies set out in Clause 5.1 in respect of the Goods or Services’ late delivery.
5.3 If the Supplier has delivered Goods that do not comply with the undertakings set out in Clause 3.1, or Services that do not comply with the undertakings set out in Clause 4.4, then, without limiting or affecting other rights or remedies available to it, the Contractor shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
(c) to reject the Services (in whole or in part);
(d) to require the Supplier to repair or replace the rejected Goods or Services, or to provide a full refund of the price of the rejected Goods or Services (if paid);
(e) to refuse to accept any subsequent delivery of the Goods or Services which the Supplier attempts to make;
(f) to recover from the Supplier any expenditure incurred by the Contractor in obtaining substitute goods or services from a third party; and
(g) to claim damages for any additional costs, loss or expenses incurred by the Contractor arising from the Supplier’s failure to supply Goods in accordance with Clause 3.1 or Services in accordance with Clause 4.4.
5.4 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods or services supplied by the Supplier.
5.5 The Contractor’s rights under the Supply Agreement are in addition to its rights and remedies implied by statute and common law.
6. CONTRACTOR’S OBLIGATIONS
6.1 The Contractor shall:
(a) provide the Supplier with reasonable access at reasonable times to the Contractor’s premises for the purpose of providing the Services; and
(b) provide such necessary information for the provision of the Services as the Supplier may reasonably request.
7. CHARGES AND PAYMENT
7.1 The price for the Goods:
(a) shall be the price as set out in the Price in the Supplier Execution; and
(b) shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Contractor.
7.2 The charges for the Services shall be as set out in the Price in the Supply Execution, 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 the Contractor, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.3 In respect of the Goods, the Supplier shall invoice the Contractor on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Contractor on completion of the Services. Each invoice shall include such supporting information required by the Contractor to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
7.4 In consideration of the supply of Goods and/or Services by the Supplier, the Contractor shall pay the invoiced amounts within 30 days of the date of a correctly rendered invoice to the bank account as set out in the in the Supply Agreement.
7.5 All amounts payable by the Contractor under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Contractor, the Contractor 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 Services at the same time as payment is due for the supply of the Goods and/or Services.
7.6 If the Contractor fails to make a payment due to the Supplier under the Contract by the due date, then the Contractor shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 7.6 will accrue each day at 1% a year above EURIBOR.
7.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Contractor to inspect such records at all reasonable times on request.
7.8 The Contractor may at any time, without notice to the Supplier, set off any liability of the Supplier to the Contractor against any liability of the Contractor to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, the Contractor may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Contractor of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
During the term of the Supply Agreement and for a period of (3) years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Supply Agreement, and shall, on the Contractor’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.
9.1 In consideration of the Price the Supplier shall indemnify the Contractor and keep the Contractor indemnified against all 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 suffered or incurred by the Contractor arising out of or in connection with:
(a) any claim made against the Contractor for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Contractor Materials);
(b) any claim made against the Contractor by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and
(c) any claim made against the Contractor by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.
9.2 This Clause 9 shall survive termination of the Supply Agreement.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Save as set out herein, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Contractor Materials) shall be owned by the Supplier.
10.2 The Supplier grants to the Contractor, or shall procure the direct grant to the Contractor of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding Contractor Materials) for the purpose of receiving and using the Services and the Deliverables.
10.3 All Contractor Materials are the exclusive property of the Contractor.
10.4 To the extent that the Services consist of the Supplier developing or enhancing or creating in any way any Intellectual Property, (the Assigned Rights) in consideration of the sum of €1, (the receipt and sufficiency of which the Supplier acknowledges), the Supplier hereby irrevocably assigns all right, title and interest in the Assigned Rights for the whole term of such rights to the Contractor. The rights assigned to the Contractor under this clause 10 above include the right to bring proceedings in respect of, and recover any damages or benefit from any other remedies in respect of, any infringement of the Assigned Rights whether occurring before, during or after the Supply Agreement.
10.5 The Supplier irrevocably waives all its moral rights in the Assigned Rights.
10.6 To the extent that the Supplier is a legal entity (such as a company), the Supplier warrants to the Contractor that it has obtained from any individual involved in the creation of the Assigned Rights (an “Individual”) a written and valid assignment of all the Individual’s Intellectual Property Rights in the Assigned Rights and of all materials embodying such rights and a written irrevocable waiver of all the Individual’s statutory moral rights in the Assigned Rights, to the fullest extent permitted by law, and that the Individual has agreed to hold on trust for the Contractor any such rights in which the legal title has not passed (or will not pass) to the Contractor.
11.1 Without affecting any other right or remedy available to it, the Contractor may terminate the Supply Agreement:
(a) with immediate effect by giving written notice to the Supplier if:
(i) there is a change of control (as to more than 50%) of the Supplier; or
(ii) the Supplier’s financial position deteriorates to such an extent that in the Contractor’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(iii) the Supplier commits a breach of Clause 4.4(h),
(b) by giving the Supplier 30 days’ written notice.
11.2 Without affecting any other right or remedy available to it, either party may terminate the Supply Agreement with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Supply Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering examinership, liquidation, or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) 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.
12. CONSEQUENCES OF TERMINATION
12.1 On termination of the Supply Agreement, the Supplier shall immediately deliver to the Contractor all Deliverables whether or not then complete, and return all Contractor Materials. If the Supplier fails to do so, then the Contractor 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 not connected with the Supply Agreement.
12.2 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Supply Agreement which existed at or before the date of termination or expiry.
12.3 Any provision of the Supply Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Supply Agreement shall remain in full force and effect.
13.1 Severance. If any provision or part-provision of the Supply Agreement 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 Supply Agreement.
13.2 Waiver. A waiver of any right or remedy under the Supply Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Supply Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Supply Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.3 No partnership or agency. Nothing in the Supply Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
13.4 Variation. Except as set out herein, no variation of the Supply Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives (either electronically or by hand).
13.5 Governing law. The Supply Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of Ireland.