SECTION B: THE CONTRACTOR’S COMMITMENT TO THE COMPANY
The CONTRACTOR will sell the GOODS to the COMPANY on the terms set out in the PURCHASE ORDER.
The CONTRACTOR will deliver or make the GOODS available to the COMPANY on the DELIVERY DATE at the place specified in the PURCHASE ORDER.
In the event that the CONTRACTOR is unable to deliver the GOODS on the delivery date the CONTRACTOR shall notify the COMPANY at the earliest possible opportunity. The company and CONTRACTOR shall endeavour to agree a mutually acceptable revised DELIVERY DATE. However, in the event that the COMPANY and CONTRACTOR cannot agree, the COMPANY shall have the right to terminate the PURCHASE ORDER and recover from CONTRACTOR the direct losses sustained as a result of the delay up to an amount not to exceed the value of the PURCHASE ORDER.
B3. Inclusive Price
The price which the COMPANY has agreed to pay for the GOODS is set out in the PURCHASE ORDER and is exclusive of VAT but includes all other taxes, duties or other charges as applicable.
The CONTRACTOR will allow the COMPANY to expedite, inspect and test the GOODS during manufacture at CONTRACTOR’S premises on reasonable prior notice. Any expediting, inspection, testing or any failure to do so shall in no way relieve the CONTRACTOR of its obligations as specified in the PURCHASE ORDER.
The CONTRACTOR will ensure that the GOODS will meet the COMPANY’S requirements with regards to any quality, quantity or specifications, which are set out in the PURCHASE ORDER.
B6. Defects Correction
The CONTRACTOR will repair, replace or rectify any of the GOODS (or any replacements) which are defective. The CONTRACTOR’S obligation shall apply only when the GOODS are used in accordance with the CONTACTOR’S specification if any. The CONTRACTOR’S obligation shall cease 12 months after the date on which the GOODS are first put into operational use or 24 months from DELIVERY whichever shall first occur. Title and risk in the GOODS or any part thereof which do not comply with the requirements of the PURCHASE ORDER and which are rejected by the COMPANY shall re-vest in the CONTRACTOR on return to the CONTRACTOR.
The CONTRACTOR will ensure that the GOODS are properly packed, secured and labelled in accordance with accepted industry practice and to meet the COMPANY’S requirements as specified in the PURCHASE ORDER.
The CONTRACTOR will provide the COMPANY by the due date(s), all drawings, certificates or other documentation in the specified format and quantities as detailed in the PURCHASE ORDER.
B9. Hazardous Materials
The CONTACTOR will ensure that the GOODS will comply with the requirements of law and, to the extent that they contain toxic, corrosive or hazardous materials, the CONTRACTOR will ensure that a notice to that effect accompanies each consignment, together with appropriate care and handling instructions.
GOODS supplied under the PURCHASE ORDER, which are contaminated beyond use, at the time of DELIVERY, shall be regenerated or disposed of by the CONTRACTOR. The title and risk of the contaminated GOODS will transfer to the CONTRACTOR, at the time contamination is identified and notified to the CONTRACTOR, who will bear all expenses for the said processes. In the event that COMPANY contaminates the GOODS, the COMPANY will be liable for the processes of regeneration or disposal.
B10. Title and Risk
Title and Risk in the GOODS will pass from the CONTACTOR to the COMPANY at DELIVERY in accordance with the COMPANY’S requirements under the PURCHASE ORDER.
B11. Patent Indemnity
The CONTRACTOR shall save, defend, indemnify and hold harmless the COMPANY GROUP from all claims, losses, damages, costs (including legal costs), expenses, and liabilities of every kind and nature for, or arising out of, any alleged infringement of any patent or intellectual property or proprietary or protected right, arising out of or in connection with the performance of the obligations of the CONTRACTOR under the performance of the PURCHASE ORDER and/or the provision of the GOODS and services by the CONTRACTOR.
However, the CONTRACTOR shall use its reasonable endeavours to identify any infringement in the job specification of any patent or proprietary or protected right, and should the CONTRACTOR become aware of such infringement or possible infringement then the CONTRACTOR shall inform the COMPANY immediately.
The PURCHASE ORDER is placed on the condition that the CONTRACTOR shall give sufficient notice to COMPANY of its intention to cease supply of GOODS, component parts or replacements, to enable the COMPANY to purchase such GOODS, component parts or replacements.
SECTION C THE COMPANY’S COMMITMENT TO THE CONTRACTOR
The COMPANY will buy the GOODS from the CONTRACTOR on the terms set out in the PURCHASE ORDER.
Acceptance shall be from the time that a duly authorised employee or representative of the COMPANY accepts the GOODS, delivered or collected, and where such GOODS are not defective or damaged in any way and comply with the PURCHASE ORDER. In the event that a defect in or damage to the GOODS or any breach of the PURCHASE ORDER is identified by the COMPANY, it shall be deemed not to have accepted the GOODS until such time as such defect, damage or breach is remedied by the CONTRACTOR.
Such acceptance shall be within a reasonable time of DELIVERY or collection, but shall be without prejudice to the CONTRACTOR’S liability for any defect in or damage to the GOODS or any breach of the PURCHASE ORDER which is not identified by such duly authorised employee or representative of the COMPANY at the time of acceptance.
The CONTRACTOR will not be liable for any loss or damage resulting from the failure of the COMPANY to use the GOODS in accordance with any specific operating conditions set out in the PURCHASE ORDER.
Subject to Clause B6., the COMPANY will be responsible for the risk of loss or damage to the GOODS with effect from the DELIVERY.
C5. Price Payment
Except where the CONTRACTOR has failed to perform its obligations under the PURCHASE ORDER or where the CONTRACTOR’S invoice contains a material error, the COMPANY will pay for the GOODS against the CONTACTOR’S invoice in the amounts specified in the PURCHASE ORDER within 30 days of receipt of the CONTRACTOR’S invoice, the receipt not being earlier than the DELIVERY.
C6. Patent/Design Rights
All designs, drawings and other technical information relating to the GOODS or services, including the software provided solely by the CONTRACTOR under the PURCHASE ORDER, and the intellectual property rights therein made or acquired solely by the CONTRACTOR prior to or during the preparation of the proposal or tender or in the course of work on the PURCHASE ORDER shall be and remain the CONTRACTOR’S property unless otherwise set out in the PURCHASE ORDER. The CONTRACTOR licenses all such rights to the COMPANY free of charge on a non-exclusive, worldwide basis to such extent as is necessary to enable the COMPANY to make use of the GOODS and/or services.
C7. Termination for Convenience
The COMPANY may at any time give written notice to the CONTRACTOR to terminate the PURCHASE ORDER forthwith and in such event the COMPANY shall pay, and the CONTRACTOR shall accept in full and final settlement of all claims under the PURCHASE ORDER, such sums as shall reasonably compensate it for all work done and obligations assumed by it in performance of the PURCHASE ORDER prior to its termination and for all work reasonably done by the CONTRACTOR in giving effect to such termination. The value of any material, payment for which has been arranged by the COMPANY but left with, and can be put to use by, the CONTRACTOR, shall be taken into account when calculating such losses but such sum shall in no event exceed the price set out in the PURCHASE ORDER unless otherwise agreed in writing.
C8. Status of COMPANY
The COMPANY enters into the PURCHASE ORDER for itself and as agent for and on behalf of the other CO-VENTURERS. Notwithstanding the above:
(a) the CONTRACTOR agrees to look only to the COMPANY for the due performance of the PURCHASE ORDER and nothing contained in the PURCHASE ORDER will impose any liability upon, or entitle the CONTRACTORS to commence any proceedings against any CO-VENTURER other than the COMPANY; and
(b) the COMPANY is entitled to enforce the PURCHASE ORDER on behalf of all CO-VENTURERS as well as for itself. For that purpose the COMPANY may commence proceedings in its own name to enforce all obligations and liabilities of the CONTRACTOR and to make any claim which any CO-VENTURER may have against the CONTRACTOR.
SECTION D OUR COMMITMENTS TO EACH OTHER
D1. Indemnity Arrangements
D1.1 CONTRACTOR’S indemnification
The CONTRACTOR assumes sole responsibility for and shall protect, defend, indemnify and hold the COMPANY GROUP harmless from and against any and all loss, damage, injury, liability, judgments and claims thereof (collectively, “Losses”) arising out of, connected with, incident to, or otherwise directly or indirectly resulting from or related to, any injury to, illness and/or death of the CONTRACTOR’S employees and/or personnel including agents, subcontractors, invitees and other affiliates or for loss of or damage to property or equipment owned, leased or otherwise provided by the CONTRACTOR or its subcontractors, by whomever brought, whether based on statute, tort, contract or quasi contract. Such indemnity shall apply irrespective of whether a member of the COMPANY GROUP was, is claimed to be, or is determined to be, in whole or in part, passively, solely, concurrently, or actively negligent, at fault, strictly liable or liable without fault and regardless of whether liability without fault is imposed or sought to be imposed on one or more of the members of the COMPANY GROUP.
The CONTRACTOR shall promptly pay to the relevant member of the COMPANY GROUP all costs and attorneys’ fees incurred by the COMPANY GROUP resulting directly or indirectly from any and all such Losses for which the CONTRACTOR is obligated to indemnify the COMPANY GROUP under this agreement. The relevant member of the COMPANY GROUP shall have the right, at its option, to participate in the defence of any suit or claim at its cost without relieving the CONTRACTOR of any obligations hereunder.
D1.2 COMPANY’S indemnification
The COMPANY assumes sole responsibility for and shall protect, defend, indemnify and hold the CONTRACTOR GROUP harmless from and against any and all loss, damage, injury, liability, judgments and claims thereof (collectively, “Losses”) arising out of, connected with, incident to, or otherwise directly or indirectly resulting from or related to, any injury to, illness and/or death of the COMPANY’S employees and/or personnel including agents, subcontractors, invitees and other affiliates or for loss of or damage to property or equipment owned, leased or otherwise provided by the COMPANY or its subcontractors, by whomever brought, whether based on statute, tort, contract or quasi contract. Such indemnity shall apply irrespective of whether a member of the CONTRACTOR GROUP was, is claimed to be, or is determined to be, in whole or in part, passively, solely, concurrently, or actively negligent, at fault, strictly liable or liable without fault and regardless of whether liability without fault is imposed or sought to be imposed on one or more of the members of the CONTRACTOR GROUP.
The COMPANY shall promptly pay to the relevant member of the CONTRACTOR GROUP all costs and attorneys’ fees incurred by the CONTRACTOR GROUP resulting directly or directly from any and all such Losses for which the COMPANY is obligated to indemnify the CONTRACTOR GROUP under this agreement. The relevant member of the CONTRACTOR GROUP shall have the right, at its option, to participate in the defence of any suit or claim at its cost without relieving the COMPANY of any obligations hereunder.
D1.3 THIRD PARTIES
With respect to loss, damage, illness or death to third parties and their property, the CONTRACTOR shall protect defend, indemnify and hold harmless the COMPANY from and against any loss or damage to property and illness, injury or death to persons to the extent that such is caused or contributed to by the COMPANY under the terms of this agreement.
D2. Consequential Loss
For the purposes of this Clause D2 the expression “Consequential Loss” shall mean indirect losses and/or loss of production, loss of product, loss of use and loss of revenue, profit or anticipated profit.Neither CONTRACTOR nor COMPANY shall be liable to the other in respect of any consequential loss incurred by the other, including, but not limited to, loss of profit, loss of revenue, or loss of production, arising or alleged to arise out of either CONTRACTOR’S or COMPANY’S failure to properly carry out its obligations under this Contract.
This provision shall apply regardless of whether such consequential loss is caused or brought about by any negligence (including sole, joint, concurrent or gross negligence) or any other theory of legal liability, including strict liability, on the part of the released party.
The COMPANY and CONTRACTOR shall maintain levels of insurance sufficient to cover their respective liabilities and obligations under the PURCHASE ORDER and at law.
To the extent of risks specifically assumed hereunder by CONTRACTOR, the policies providing the insurance covering the CONTRACTOR’S Comprehensive or Commercial General Liability shall expressly include the COMPANY as additional insureds with an endorsement waiving underwriters’ rights of subrogation against the COMPANY.
The COMPANY and CONTRACTOR (including their employees, agents and subcontractors) shall keep the PURCHASE ORDER and any information, which either party learns about the other in the context of any PURCHASE ORDER in strict confidence and will not disclose the same to any third party without the prior written consent of the other party unless required by law.
With reasonable prior notice the COMPANY and CONTRACTOR shall discuss variations to the PURCHASE ORDER and agree with each other resulting charges to any of the details shown in the PURCHASE ORDER.
D6. Force Majeure
Neither the COMPANY nor the CONTRACTOR shall be responsible for any failure to fulfil any term or condition of the PURCHASE ORDER if and to the extent that fulfilment has been delayed or temporarily prevented by a force majeure occurrence, as hereunder defined, which has been notified in accordance with this Clause and which is beyond the control and without the fault or negligence of the party affected and which, by the exercise of reasonable diligence, the said party is unable to provide against.
For the purposes of the PURCHASE ORDER only the following occurrences shall be force majeure:
(a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion;
(b) ionising radiations or contamination by radio-activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel or radio-active, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof;
(c) pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds;
(d) earthquake, flood, fire, explosion and/or other natural physical disaster, but excluding weather conditions as such regardless of severity;
(e) strikes at a national or regional level or industrial disputes at a national or regional level, or strikes or industrial disputes by labour not employed by the affected party its subcontractors or its suppliers and which affect a substantial or essential portion of the GOODS;
(f) maritime or aviation disaster; and
(g) changes to any general or local Statute, Ordinance, Decree, or other Law, or any regulation or by-law of any local or other duly constituted authority or the introduction of any such Statute, Ordinance, Decree, Law, regulation or bye-law.
D7. Transfer of PURCHASE ORDER
Neither the COMPANY nor the CONTRACTOR shall at any time sub-contract or assign any part of their respective rights or obligations under the PURCHASE ORDER to any other person, without first obtaining the other party’s prior consent which shall not unreasonably be withheld or delayed.
D8. Dispute Resolution
If either party is dissatisfied with the performance of the other in relation to the GOODS or the PURCHASE ORDER, the parties shall meet as soon as possible in good faith to try to resolve the matter in an amicable way.
In the absence of any agreement being reached on a particular dispute the English courts shall have exclusive jurisdiction to resolve the dispute at any time.
The CONTRACTOR or COMPANY may terminate the PURCHASE ORDER in the event that:
(a) the other party is in breach of a condition of the PURCHASE ORDER; or
(b) the other party goes into liquidation other than for the purpose of a bona fide restructuring, becomes insolvent or makes an arrangement with creditors or has any form of distress or diligence executed, executioned or levied against his goods or becomes bankrupt or commits any act of bankruptcy or if a receiver or administrator is appointed in respect of the other party of any of then-assets.
In such an event, the only remaining commitment will be for the COMPANY to pay for GOODS already delivered by the CONTRACTOR but not yet paid for.
D10. Proper Law and Language
The PURCHASE ORDER shall be construed and take effect in accordance with English law excluding those conflict of law rules and choice of law principles which would deem otherwise, and subject to the provisions of Clause D8, shall be subject to the exclusive jurisdiction of the English courts.
The ruling language of the PURCHASE ORDER shall be the English language.
D11. Special Terms
The CONTRACTOR and COMPANY agree that any special conditions set out in the PURCHASE ORDER will take precedence over the general terms and conditions set out above.
D12.1 The CONTRACTOR GROUP shall:
(a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
(b) comply with the COMPANY’s ethics, anti-bribery and anti-corruption policies (“Relevant Policies”);
(c) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and will enforce them where appropriate;
(d) promptly report to the COMPANY any request or demand for any undue financial or other advantage of any kind received by the CONTRACTOR in connection with the performance of this agreement; and
(e) immediately notify the COMPANY if a foreign public official becomes an officer or employee of the CONTRACTOR or acquires a direct or indirect interest in the CONTRACTOR (and the CONTRACTOR warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of the PURCHASE ORDER),
The CONTRACTOR shall enter into written agreements with any person who performs services or provides goods in connection with this agreement, imposing on such person equivalent terms to those imposed on the CONTRACTOR in this clause D12.
D12.2 For the purpose of this clause D12, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause D12 a person associated with the CONTRACTOR includes but is not limited to any subcontractor of the CONTRACTOR.