Supplier Terms & Conditions

1. Definitions

1. In these Terms of Business the following words shall have the following meanings:

"Background IP" all Intellectual Property incorporated into the Goods and/or Services which existed prior to the date of the Contract and is owned by you;

“Contract” a contract between you and us on the terms of an Order and incorporating these Terms of Business;

"Foreground IP" all Intellectual Property arising in the course of or as a consequence of you supplying the Goods and/or Services;

“Goods” any goods agreed in a Contract to be purchased by us from you (including any part - or parts of them);

“Health and Safety Laws” all applicable statutes, statutory legislation, common law, treaties, regulations and directives which are in force and legally binding in the relevant location at any time during a Contract, including but without limitation the Factories Act 1961, the Health and Safety at Work etc. Act 1974 and the Construction (Design and Management) Regulations 2007 concerning the supply of any Goods and Services;

“Intellectual Property” any patent, IP Materials, registered design, unregistered design right, trade mark, service mark, copyright (including copyright in software), design right, utility model or other industrial or intellectual property anywhere in the world together with any current applications for any registrable items of the foregoing;

“IP Materials” any documents, records, tapes, discs, diskette s, flash storage and any

other materials containing copyright works, know-how or software;

“Order” our written instructions to you to supply the Goods and/or provide the Services, incorporating these Terms of Business;

“Services” any services agreed in a Contract to be supplied to us by you (including any part or parts of them);

"Third Party IP" all Intellectual Property incorporated into the Goods and/or Services which is owned by any third party;

“we/us/our/ours” Checkland Kindleysides Limited (company number 2012831); and

“you/your/yours” the person, firm or company who accepts an Order which provides for the supply of Goods and/or Services to us. Written and in writing include e-mail.

1.2 In these Terms of Business references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.

1.3 In these Terms of Business references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.

1.4 In these Terms of Business the headings will not affect the construction of these Terms of Business.

2. Order and Contract Terms

2.1 These Terms of Business are the only terms upon which we are prepared to deal with you and they shall govern each Contract to the entire exclusion of all other terms or conditions.

2.2 Each Order shall be deemed to be an offer by us to purchase Goods and/or for the supply of Services subject to these Terms of Business.

2.3 No Order shall be accepted until you either expressly by giving notice of acceptance, or implicitly by fulfilling the Order, in whole or in part, accept our offer.

2.4 No terms or conditions endorsed upon, delivered with or contained in your quotation, acknowledgement or acceptance of Order, specification or similar document will form part of a Contract and you waive any right which you otherwise might have to rely on such terms and conditions.

2.5 These Terms of Business apply to all our dealings with you and the terms of a Contract shall consist of:

2.5.1 the details specified on the applicable Order; and/or

2.5.2 these Terms of Business, which shall not be varied or overridden by any conditions stipulated by you or by any other agreement between you and us, unless agreed in writing between your authorised representative and one of our directors.

2.6 We will not be responsible in any way for goods supplied or to be supplied or services provided or to be provided to us, other than Goods and Services specified in a Contract and covered by an official Order.

2.7 An Order is placed only on the understanding that the applicable Goods shall be safe and conform with Section 6 of the Health and Safety at Work etc. Act 1974 and that where appropriate you shall correctly install such Goods and advise us of their correct method of operation and the appropriate safety precautions to be taken by persons engaged in its subsequent use.

2.8 You may not assign or subcontract any or all of your rights and obligations under a Contract at any time.

3. Inspection and Testing

3.1 At any time prior to delivery of any Goods to us or our client we shall have the right to inspect and test such Goods.

3.2 We reserve the right to inspect any Goods at any stage of manufacture at your place of business or any third party premises prior to despatch.

3.3 If the results of such inspection or testing cause us to be of the opinion that any Goods do not conform or are unlikely to conform with the applicable Order or to any specifications and/or patterns supplied or advised by us to you, we shall inform you and you shall immediately take such action as is necessary to ensure conformity and in addition we shall have the right to request and witness further testing and inspection.

3.4 Notwithstanding any such inspection or testing, you shall remain fully responsible for any Goods and any such inspection or testing shall not diminish or otherwise affect your obligations under the applicable Contract.

4. Quality and Warranty

4.1 You warrant to us that any Goods will:

4.1.1 be of the best quality, material and workmanship and fit for any purpose held out by you or made known to you in writing at the time the applicable Order is placed or accepted;

4.1.2 be free from defects in design material and workmanship;

4.1.3 correspond with any relevant specification or sample;

4.1.4 comply with all statutory requirements and regulations relating to the sale of goods; and

4.1.5 not infringe any Intellectual Property rights of any third party.

4.2 You warrant to us that you have the power to supply all Services and have obtained all necessary approvals to do so. You also warrant to us that all Services will be supplied by appropriately qualified and trained personnel, with due care and diligence, in compliance with all relevant statutory requirements and regulations, and to such high standard of quality as it is reasonable for us to expect in all the circumstances. In particular you warrant to us that in supplying the Goods and/or the Services to us, you comply and will at all times comply with all applicable laws and regulation including without limitation the Working Time Regulations 1998, all Health and Safety Laws, and all ethical and moral requirements determined by us from time to time.

4.3 Where applicable you shall, at our request, procure the assignment of the benefit of any manufacturer’s warranty, guarantee or indemnity given to you and until such assignment is made will account to us for any such benefit obtained.

4.4 Our rights under these Terms of Business are in addition to the statutory conditions implied in our favour by the Sale of Goods Act 1979 or the Supply of Goods and Services Act 1982.

5. Fulfilment

5.1 The time of delivery of Goods or provision of Services shall be of the essence.

5.2 If you are unable to comply with the delivery instructions and/or any other instructions or conditions of a Contract you must advise us immediately and thereupon we reserve the right to cancel that Contract either in whole or part or to confirm that Contract subject to such further instructions as shall be in our opinion reasonable. If we cancel that Contract in whole or in part we shall not be liable to you for any payment of whatever nature relating to the whole of that Contract or that part of it (as appropriate).

6. Price and Payment

6.1 The price for any Goods or Services shall be as stated in the applicable Order and, unless otherwise so stated, shall be:

6.1.1 exclusive of any applicable value added tax (which shall be payable by us subject to receipt of a VAT invoice); and

6.1.2 in the case of Goods inclusive of all charges for packaging and its return, packing, shipping, carriage, insurance and delivery of such Goods to our premises or such other premises as stated in the applicable Order and any duties, imposts or levies other than VAT, and

6.1.3 in the case of Services inclusive of all expenses including without limitation, the cost of insurance, travel, subsistence, accommodation, delivery, communication and photocopying.

6.2 You shall invoice us at any time after delivery of any Goods or provision of any Services and, subject to Clauses 5.2 and 7.1.1 and you not being in breach of the terms of any Contract relating to such Goods or Services, we will pay you within 30 days of receipt of your invoice.

6.3 If we fail to make any payment, you shall be entitled to charge us interest on the amount unpaid, at the rate of two percent per annum above HSBC Bank PLC base rate from time to time, until payment in full is made (interest to be payable on demand and to accrue daily on the basis of a year of 365 days).

6.4 No increase in any Contract price may be made (whether on account of increased material, labour or money transfer costs, fluctuation in rate of exchange or otherwise) without the prior consent in writing of a director of ours.

7. Packaging and Delivery

7.1 Each consignment of Goods must be accompanied by a packing delivery note which must show an order reference number and the quantities of each item. In addition,

7.1.1 you must ensure that each delivery note is signed by an authorised representative of ours in order to prove delivery of the applicable Goods in question and without prejudice to any other remedy we reserve the right to delay payment to you if you fail to do so or if the order reference number is not included on the delivery note and your invoice;

7.1.2 delivery of any Goods to us, our inspection or failure to inspect such Goods and/or our signature on any delivery note shall not constitute or imply our acceptance of the quality or standard of such Goods or that they comply with the terms of any applicable Contract.

7.2 When required, you will mark Goods in accordance with our instructions.

7.3 No signs or advertisements, maker’s names or trademarks shall be permitted on any Goods or on any material whatsoever unless agreed by a director of ours in writing.

7.4 Where we agree to accept delivery of the Goods in instalments, the Contract shall still be a single contract. If you do not deliver any one instalment, however, we may treat the whole Contract as terminated.

8. Confidentiality

8.1 You shall keep in strict confidence all Intellectual Property, IP Materials, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to you by us, our agents, our sub-contractors, our clients or their agents, and any other confidential information including without limitation the existence of any Contract concerning our clients or our clients’ businesses or our or their products or services which you may obtain.

8.2 You shall restrict disclosure of such confidential material to such of your employees, agents or sub-contractors as need to know the same for the purpose of discharging your obligations to us and shall ensure that such employees, agents or sub-contractors are subject to equivalent obligations of confidentiality to those that bind you.

9. Intellectual Property

9.1 All Foreground IP shall belong to us and you hereby assign to us, by way of present and future assignment, all Intellectual Property rights in any Foreground IP (and you agree to waive or procure the waiver of any equivalent moral rights) immediately on full settlement of your fee.

9.2 Any tooling produced in relation to any Contract, and all Intellectual Property in such tooling shall belong to us. On termination of a Contract or on payment by us of your invoice relating to such tooling (whichever is the earlier) you shall immediately on our request deliver it/them to us and if you fail to do so we are hereby granted an irrevocable licence to enter your premises and remove it/them.

9.3 You warrant to us that the Intellectual Property referred to in Clause 9.1 shall be free of all third party claims of ownership and that except as stated in writing in a Contract all work undertaken by you in which the Intellectual Property might arise shall be your own original work.

9.4 You grant us a non-exclusive, royalty free, perpetual, worldwide licence to use the Background IP to the extent necessary to allow us to use the Goods and/or Services in the ordinary course of our business and you shall ensure that any Third Party IP can be sub-licensed to us on the same terms as this clause 9.4.

9.5 If full legal title to any Intellectual Property shall fail automatically to belong to us by virtue of this Clause 9.1, you shall hold such Intellectual Property on trust for us absolutely, and shall immediately at our request execute or procure the execution of any document required by us to vest in us the full legal title to such Intellectual Property and to enable us (or our nominee) to enjoy the benefit of such Intellectual Property.

9.6 You will return to us or (at our request) destroy or delete on demand any IP Materials, drawings, specifications, films or other items or information belonging to us or our clients together with any copies in whatever format held.

9.7 You will be responsible for and insure against loss or damage to the full value of any IP Materials, drawings, specifications, films and other items belonging to us or our clients while they are in possession of you or your agents or in transit to or from our premises, nominated locations or those of our clients. You will also maintain product and public liability insurance of no less than £10,000,000 and shall at our request provide us with a copy of such insurance policy.

10. Insurance against Risk

10.1 You will indemnify us in full against all liability, loss of profit, loss of business, depletion of goodwill, loss of opportunity, loss of data, loss of use, loss of contracts, loss of expected savings, interruption to our business, damages, costs and expenses (including legal fees and expenses) awarded against or incurred or paid by us as a result of or in connection with:

10.1.1 your breach of any Contract and in particular breach of any warranty given by you in relation to any Goods or Services;

10.1.2 any claim that any Goods infringe, or their importation, use or resale, infringes the Intellectual Property of any other person, except to the extent that the claim arises from compliance with any specification supplied by us;

10.1.3 any liability under the Consumer Protection Act 1987 in respect of any Goods;

10.1.4 any act or omission of yours or your employees, agents or sub-contractors in supplying, delivering and installing any Goods or supplying any Services;

10.1.5 any claim that the Goods do not conform with any Health and Safety Laws; and

10.1.6 failure to deliver any Goods or supply any Services within the time specified in the applicable Order or Contract.

10.2 You will insure all Goods against loss or damage to their full value whilst, they are on your premises, in transit to our premises or to another destination at our request or being installed by you at our or other premises and until delivery of such Goods to us or our clients and shall at our request provide us with a copy of such insurance policy. Risk in the Goods shall pass to us or our clients (as appropriate) on delivery. Where Goods require installation by you, delivery shall not take place until such installation is completed to our satisfaction and our authorised representative has signed a delivery note in accordance with clause 7.1.1.

11. Ownership and Guarantees

11.1 Ownership of all Goods shall pass to us on delivery or when payment has been made in whole or in part, whichever is the earlier. The Goods shall be free of any lien or third party rights and shall not be subject to retention of title by you, the manufacturer or any intermediary.

11.2 We shall be entitled to deduct from or set off against any monies due from us to you any sums which you shall be liable to pay us on any account.

11.3 In the event of any defect appearing in any Goods or Services supplied by you within 12 months from the date of delivery of such Goods or supply of such Services, without prejudice to our other remedies, at our request such defective Goods or Services shall be replaced or made good by you at your cost and expense as soon as possible and in any event no later than 7 days after discovery of that defect.

12. Remedies

12.1 Without limiting any other remedy which we may have, if any Goods are not supplied or any Services are not performed in accordance with a Contract, then we shall be entitled (whether or not any part of the goods and services have been accepted by us):

12.1.1 to rescind that Contract;

12.1.2 to reject the Goods (in whole or in part) and return them to you at your risk and cost on the basis that you will give us a full refund for these Goods;

12.1.3 to refuse to accept any further deliveries of the Goods or the provision of any further Services but without any liability to you;

12.1.4 to carry out at your cost any work necessary to make the Goods and Services comply with that Contract;

12.1.5 to claim such damages as may have been sustained as a result of your breaches of that Contract;

12.1.6 to require you at your cost to repair the Goods or to supply replacement Goods or to re-perform the Services in accordance with that Contract within seven days; or at our sole option, and whether or not we have previously required you to repair the Goods or to supply any replacement for the Goods or to re-perform the Services, to treat that Contract as discharged by your breach and require the repayment of any part of the price which we have paid.

13. Termination

13.1 Notwithstanding any other provision of these Terms of Business and without prejudice to any other remedy, we reserve the right to terminate or suspend (in whole or in part) a Contract without any liability to you in the event of:

13.1.1 either of us being unable or prevented from performing our obligations under that Contract due to any circumstances beyond our reasonable control;

13.1.2 breach of any warranty by you in relation to the applicable Goods or Services;

13.1.3 the levying of any distress or execution against you or the making by you of any composition or arrangement with your creditors or (being a company), your liquidation (whether by members’ or creditors’ voluntary liquidation);

13.1.4 a receiver, administrator or administrative receiver being appointed over any of your assets or undertaking or (being an individual) an order is made for your bankruptcy or (being a company) you are unable to pay your debts within the meaning of Section 123 of the Insolvency Act 1986;

13.1.5 any analogous proceedings to those at Clauses 13.1.3 or 13.1.4 occurring in any other jurisdiction or under any foreign law;

13.1.6 your doing or permitting of any act by which our Intellectual Property rights or the rights which should belong or be assigned to us pursuant to Clause 9 may be prejudiced or put in jeopardy;

13.1.7 your failing to deliver such Goods or perform such Services by the time specified in the applicable Order or Contract;

13.1.8 your breach of any provision of that Contract (where you have failed to remedy the breach within 14 days of being notified of it by us).

13.2 Termination of a Contract shall not terminate or affect any of the rights, obligations or liabilities of you or us which have accrued under that Contract prior to the date of termination.

13.3 The following clauses shall survive termination of a Contract and shall continue with full force and effect in respect of that Contract: clauses 1, 8, 9, 10, 11, 12 and 13.

14. Adjudication and Law

14.1 Where Part II of the Housing Grants, Construction and Regeneration Act 1996 applies to a Contract either you or we may refer any dispute of difference arising out of it to adjudication. The adjudication procedures will be as set out in the Scheme for Construction Contracts (SI No 649 of 1998 as amended from time to time). The nominating body will be the Technology and Construction Solicitors’ Association or any successor organisation.

14.2 Both you and we will be bound to comply forthwith with the decision of any adjudicator until such time

(if any) as it is superseded by a decision of the courts in relation to the matter in question.

14.3 Any notice required or permitted to be given by either party to the other under these Terms of Business shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may have been notified pursuant to this clause to the party giving the notice and may be delivered personally, by first class post, by first class airmail letter, e-mail if a normal mode of communication or by fax. A notice shall be deemed to have been served if personally delivered at the time of delivery, if sent by first class post 48 hours after posting, if delivered by first class airmail letter 7 clear days after posting or if sent by e-mail or fax at the time of transmission.

14.4 No waiver by us of any breach of any provision of a Contract by you shall be considered as a waiver of any subsequent breach of the same or any other provision.

14.5 The formation, interpretation and operation of each Contract shall be governed by English Law and you agree to submit to the exclusive jurisdiction of the English Courts in all matters regarding it except to the extent that we invoke the jurisdiction of the Courts of any other country.

14.6 The Contracts (Rights of Third Parties) Act 1999 shall not apply to a Contract and no person other than you and we shall have any rights under that Contract.