Terms and conditions for the purchase of goods and services
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday, or public holiday in Scotland when banks in Scotland are open for business.
Commencement Date: has the meaning set out in the Contract or, if no commencement date is specified in the Contract, will be the last date of signature of the Contract.
Confidential Information: has the meaning set out in clause 15.1.
Conditions: these terms and conditions as amended from time to time in accordance with clause 21.8.
Contract: the contract between the Customer and the Supplier for the supply of Goods and/or Services consisting of (i) any written agreement between the parties or contract award letter from the Customer to the Supplier setting out the key commercial terms on which the Customer will purchase Goods and Services from the Supplier (ii) any documents referred to in
Customer: Peak Scientific Instruments Limited, a company incorporated in Scotland with company number SC175368 and having its registered office at 11 Fountain Crescent, Inchinnan Business Park, Inchinnan, Renfrew PA4 9RE, and its affiliates as applicable.
Customer Materials: has the meaning set out in clause 6.3(i).
Deliverables: all documents, information, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the provision of the Goods and/or Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Delivery Location: has the meaning set out in clause 5.2(b).
Disclosing Party has the meaning set out in clause 15.1.
Pressure Equipment Directive means the Pressure Equipment Directive (97/23/EC)
Force Majeure: any cause preventing either party from performing any or all of its obligations under the Contract which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented (but for the avoidance of doubt excluding (i) strikes, lockouts or other industrial disputes which have their origin within the employees of the party so prevented; or (ii) the acts, omissions or defaults of suppliers or sub- contractors; or (iii) breakdown of vehicles).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Intellectual Property Rights: 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, 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.
Order: The Customer's order for the supply of Goods and/or Services, as set out in writing by the Customer in the Customer's purchase order form issued to the Supplier.
Receiving Party has the meaning set out in clause 15.1.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by the Customer and the Supplier.
Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.
Supplier Materials: all documents, information, products and materials provided by the Supplier to the Customer in the provision of the Goods and/or the Services which existed prior to the commencement of the Contract or developed other than in the performance of the Contract.
TUPE Regulations: The Transfer of Undertakings (Protection of Employment) Regulations 2006.
VAT: has the meaning set out in clause 10.7.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) a reference to a party includes its personal representatives, successors or permitted assigns.
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re- enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted.
(d) 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
(e) a reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 The express provisions of the Contract apply to the exclusion of any other terms that the Supplier may seek to impose or incorporate, or which may be implied by trade, custom, practice or course of dealing. The Supplier waives any right which it otherwise might have to rely on such other terms. For the avoidance of doubt, any signature procured from any of the Customer's staff or representatives on any acknowledgement of an Order, delivery note, or invoice or similar documentation submitted by the Supplier shall be evidence of such acknowledgement, delivery or receipt only and will not be valid to effect or evidence the Customer's acceptance of any alternative terms and conditions attached to such acknowledgement of an Order, delivery note, invoice or similar documentation.
2.2 All of these Conditions shall apply to the supply of both Goods and Services except
2.3 Unless otherwise expressly stated in the Contract the Supplier is appointed on a non- exclusive basis and the Customer shall be free at any time to purchase Goods from any other supplier.
2.4 Except as otherwise expressly stated in the Contract, nothing in these Conditions is to be construed as a commitment by the Customer to purchase any minimum volume of Goods from the Supplier.
3. SUPPLY OF GOODS
3.1 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 Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgment;
(c) where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery.
(d) comply with all standards and quality requirements set out in the Contract or the Order.
(e) not contain any minerals from conflict affected or high-risk areas, as set out in the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas and the Supplier shall provide such documentary evidence to confirm this as may be reasonably requested by the Customer;
(f) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling, and delivery of the Goods; and
(g) comply with the Restriction on Hazardous Substances regulation ROHS3 Directive 2015/863 and the Supplier shall provide such documentary evidence of such compliance as may be reasonably requested by the Customer.
(h) comply with the European Union Regulation (EC) 190712006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH).
3.2 Where the Customer notifies the Supplier in writing that the Goods are to be incorporated into a Customer product which is CE, UKCA, Pressure Equipment Directive or Canadian Standards Association approved:
(a) the Supplier shall not change or modify any part of the Goods without the prior written consent of the Customer; and
(b) the Supplier will continue to supply the original Goods for not less than 6 months from the date of notification of the proposed change or until such earlier date as may be agreed in writing by the Customer in order to allow the Customer to either: (i) obtain CE, Pressure Equipment Directive or Canadian Standards Association approval for the Customer product which will incorporate the modified Goods; or
(ii) find an alternative supplier for the original Goods.
3.3 The Supplier shall always ensure that 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.
3.4 The Customer shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following delivery, or, in the case of a latent defect in the Goods, until a reasonable time after the latent defect has become apparent. For the avoidance of doubt, any signature procured from any of the Customer's staff or representatives on a delivery note or similar documentation shall be evidence of delivery and not evidence of the Customer's acceptance.
3.5 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.6 Notwithstanding any such inspection or testing, 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 Customer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. GOODS SUPPLY MANAGEMENT
4.1 The Supplier will manage its manufacturing planning and forecasting so as to guarantee its capacity to meet the Customer's Orders for Goods in accordance with the requirements of the Contract and will supply the Customer with such quantities of Goods as are set out in an Order.
4.2 If, on receipt of an Order, the Supplier anticipates that it will be unable to fulfil the Order for any reason, the Supplier shall inform the Customer in writing as soon as possible.
4.3 If the Contract specifies that the Customer will provide forecasts of the Goods it expects to purchase then:
(a) not less than 5 Business Days before the beginning of each month the Customer shall provide the Supplier with a written forecast of the Goods it expects to purchase during the 3 months following that month (such forecasts shall be indicative only, and shall not constitute Orders); and
(b) if the Supplier anticipates that it will be unable to meet the Customer's forecasted requirements the Supplier shall inform the Customer in writing as soon as possible.
4.4 If the Contract specifies that the Supplier shall maintain a minimum stockholding of Goods at its premises for the benefit of the Customer, then:
(a) the Customer shall commit to purchasing such minimum stockholding of Goods whether during the term of the Contract or on termination provided that the Customer shall not be obliged to purchase such minimum stockholding of Goods on any termination by the Customer pursuant to clause 17.4 or the Supplier pursuant to clause 17.2;
(b) if at any time the Supplier anticipates that it will be unable to maintain the minimum stockholding required by the Contract, the Supplier shall inform the Customer in writing as soon as possible; and
(c) if, as a result of a failure to maintain the minimum stockholding, the Supplier is unable to meet forecasted requirements of the Customer or fulfil an Order placed by the Customer then the Customer will be entitled to exercise the remedies set out in clause 8 (Customer Remedies).
(d) Supplier MUST inform the customer a minimum of 12 months in advance of any product discontinuations or significant changes in product functionality to allow the customer to take relevant actions (See 3.2 for compliance related changes)
5. DELIVERY OF GOODS
5.1 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 shall act as an inventory of the Goods delivered and for no other purpose, and which shows the date of the Order, the 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, the outstanding balance of Goods remaining to be delivered; and if the Supplier requires the Customer to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
5.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order or, if no such date is specified, then within 7 days of the date of the Order.
(b) to such location as is set out in the Order or as instructed by the Customer before delivery (Delivery Location).
(c) during the Customer's normal hours of business on a Business Day, or as instructed by the Customer. 5.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
6. SUPPLY OF SERVICES
6.1 The Supplier shall, from the date set out in the Order and for the duration of this Contract, provide the Services to the Customer in accordance with the terms of the Contract.
6.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the Customer.
6.3 In providing the Services, the Supplier shall:
(a) co-operate with the Customer in all matters relating to the Services and comply with all instructions of the Customer.
(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 this 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 expressly or impliedly made known to the Supplier by the Customer;
(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 Customer, will be free from defects in workmanship, installation and design.
(g) obtain and always maintain all necessary licences and consents and comply with all applicable laws and regulations.
(h) observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises.
(i) hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials ) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer's written instructions or authorisation; and
(j) not do or omit to do anything which may cause the Customer to lose any license, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Customer may rely or act on the Services.
7.1 In the event of any delay in delivery of the Goods or performance of the Services:
(a) the Supplier must notify the Customer in writing of any such delay (along with an explanation for such delay) as soon as the Supplier becomes aware of the delay; and
(b) the Customer shall be entitled to exercise the remedies set out in clause 8 (Customer Remedies).
8. CUSTOMER REMEDIES
8.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, then without limiting its other rights or remedies, the Customer may exercise one or more of the following rights:
(a) where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier.
(b) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party.
(c) to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to meet such dates.
(d) to terminate the Contract with immediate effect by giving written notice to the Supplier; and
(e) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make.
8.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) 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, in which case the Supplier will indemnify the Customer on demand against all costs incurred by the Customer in connection with the defective Goods supplied, including return carriage and administrative costs;
(b) to terminate the Contract with immediate effect by giving written notice to the Supplier.
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid).
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make.
(e) to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier's failure to supply Goods in accordance with clause 3.1.
8.3 These Conditions shall extend to any substituted or remedial services and/or repaired, or replacement goods supplied by the Supplier.
8.4 The Customer's rights under this Contract are in addition to its rights and remedies implied by statute and common law.
9. CUSTOMER'S OBLIGATIONS
9.1 The Customer shall:
(a) provide the Supplier with reasonable access at reasonable times to the Customer's premises for the purpose of providing the Services; and
(b) provide such information as the Supplier may reasonably request for the provision of the Services and the Customer considers reasonably necessary for the purpose of providing the Services.
10. CHARGES AND PAYMENT
10.1 The price for the Goods:
(a) 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 at the Commencement Date; and
(b) shall be inclusive of the costs of packaging, insurance, and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer.
10.2 The charges for the Services shall be set out in the Order 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 Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
10.3 Where the term of the Contract, or the term specified in a particular Order is for more than 1 year, the Supplier shall, unless otherwise expressly agreed by the parties in the commercial terms set out in the Contract, a particular Order or separately in writing, apply an automatic 3% reduction in the amounts payable by the Customer in each subsequent year of the term.
10.4 If the Customer can obtain from any other third party (on a like-for-like basis) more favourable commercial terms with respect to the supply of the Goods or Services delivered by the Supplier, then:
(a) the Customer may notify the Supplier in writing, together with details of such more favourable commercial terms, and request that the Contract be amended to replace the existing commercial terms with the more favourable commercial terms.
(b) within 5 Business Days following receipt of such notification in clause 10.4(a) above, the Supplier shall either: (i) agree to such request and notify the Customer in writing, in which case the Contract shall be amended accordingly and the charges shall be adjusted automatically to reflect such more favourable commercial terms which shall be applicable to any subsequent Order for Goods or Services made by the Customer following receipt of the Supplier's acceptance; or
(ii) provide an alternative proposal for the Customer, in which case the Customer shall consider such alternative proposal and either
(a) confirm its acceptance of such alternative proposal in writing, in which case the Contract shall be amended accordingly and the charges shall be adjusted automatically to reflect such alternative proposal and which shall be applicable to any subsequent Order for Goods or Services made by the Customer from the point of the Customer's acceptance of such alternative proposal; or
(b) reject such alternative proposal; or
(iii) reject such request.
(c) If the Supplier rejects the Customer's request pursuant to clause 10.4(b)(iii), or the Customer rejects an alternative proposal by the Supplier pursuant to clause 10.4(b)(ii)(B), the Customer may (at its sole option) elect to immediately terminate the Contract.
10.5 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number. Where Goods are supplied from outside the European Union the Supplier will also provide the applicable import and entry documentation, airway or sea freight invoice and invoice for each shipment and any other information as may be required by the Customer in order for the Customer to obtain Inward Processing relief for such Goods. The Supplier will indemnify the Customer on demand against any customs duties, import taxes and interest payable by the Customer as a result of failure to obtain Inward Processing relief due to the Supplier's failure to provide the required documentation.
10.6 In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 30 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
10.7 All amounts payable by the Customer 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 Customer, the Customer 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.
10.8 All charges and other amounts payable by the Customer under the Contract or an Order shall be expressed and payable in pounds sterling unless otherwise agreed in writing by the parties.
10.9 Where the parties have agreed in the Contract or a particular Order that charges and costs shall be expressed and payable in a currency other than pounds sterling, the charges and costs payable by the Customer will be based on the exchange rate specified in the Contract or particular Order. The Supplier will cover variations of up to +/-3% between the specified exchange rate in the Contract or Order and the spot exchange rate. Any variation between the specified exchange rate and the spot exchange rate greater than +/- 3% at the date of invoice shall be applied to the Customer's account resulting in an extra cost in the event of a less favourable rate or a credit in the event of a more favourable rate. The Supplier will notify the Customer in writing of the spot exchange rate applicable at the date of invoice.
10.10 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of Scotland's base rate from time to time. Such interest shall accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting party disputes in good faith.
10.11 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 Customer to inspect such records at all reasonable times on request.
10.12 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
11. Intellectual Property Rights
11.1 Subject to clause 11.2, the Supplier assigns to the Customer (and where relevant, shall procure the assignation of), its full present and future right, title and interest, in the Deliverables free from all liens, charges and encumbrances.
11.2 As between the Supplier and the Customer, all Intellectual Property Rights in the Supplier Materials shall be owned by the Supplier. The Supplier licenses all such rights to the Customer free of charge and on a non-exclusive, worldwide, perpetual basis with the right to grant sub-licences to such extent as is necessary to enable the Customer to make reasonable use of the Deliverables and the Services.
11.3 The Supplier shall obtain waivers of all moral rights in 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.
11.4 The Supplier shall, promptly at the Customer's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with clause 11.1.
11.5 All Customer Materials are the exclusive property of the Customer. The Customer grants to the Supplier a limited, personal, non-exclusive, non-sublicensable licence to use the Customer Materials for the purpose of the provision of the Goods and/or Services to the Customer only for the term of the Contract.
11.6 Owner of Content and Website. As between Provider and Customer, any content given to Provider by Customer under this Agreement or otherwise, and all User Content, shall always remain the intellectual property of the Customer or its licensor. Provider shall have no rights to the Content or User Content, other than the limited right to use such content for the purposes expressly set forth in this agreement by the provider.
12.1 In respect of the Goods and any goods that are transferred to the Customer as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to sell and transfer all such items to the Customer.
12.2 The Supplier warrants that, to the best of the Supplier's knowledge, all written statements and representations in any written submissions made by the Supplier as part of the procurement process held by the Customer for award of the Contract to the Supplier were true and accurate at the time of submission and remain true and accurate, except to the extent that such statements and representations have been expressly superseded or varied by Contract or to the extent that the Supplier has otherwise disclosed to the Authority in writing prior to the date of the Contract.
13.1 The Supplier shall keep the Customer 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 by the Customer because of or in connection with:
13.2 any claim made against the Customer 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, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents, or subcontractors.
13.3 any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
13.4 any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods or the Services, 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.
13.5 Nothing in these terms and conditions shall limit or exclude the liability of either party for:
13.6 death or personal injury resulting from negligence; or
(a) fraud or fraudulent misrepresentation; or
(b) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(c) breach of section 2 of the Consumer Protection Act 1987; or
(d) the liabilities described in clause 13.1; or
(e) the deliberate default or wilful misconduct of that party, its employees, agents, or subcontractors.
13.7 Other than as expressly set out in these Conditions and without prejudice to clause 13.2, neither party shall be liable to other, whether in contract, delict or tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any special, indirect or consequential damage or loss suffered by a party that arises under or in connection with this Contract.
13.8 This clause 12 shall survive termination of the Contract.
14.1 During the term of the Contract, 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 Contract, and shall, on the Customer'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.
15.1 A party (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 (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 (Confidential Information ). 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.
15.2 This clause 15 shall survive termination of the Contract.
16.1 The Customer and/or its external auditors shall have the right from time to time to conduct audits of the Supplier and its sub- contractors which right will include the right:
(a) to monitor, inspect, interview and audit the staff, facilities, data, documentation, systems, records, internal policies and controls and materials of the Supplier applicable to the Contract for the purpose of reviewing the Supplier’s compliance and ability to comply with the Contract; and/or
(b) enter any other premises from which the Goods are manufactured or stored, or the Services provided.
17.1 Without limiting its other rights or remedies, the Customer may terminate the Contract, by giving the Supplier 90 days' prior written notice.
17.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Customer 180 days' prior written notice.
17.3 In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party 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.
17.4 The customer shall reserve the right to revisit the termination agreement with the supplier to support a last time buy (LTB) proposal thus extending the lifetime and longevity of PEAK manufactured products. This would be primarily to support but not limited to the service organisation’s material requirements.
17.5 Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of receipt of notice in writing to do so.
(b) the Supplier repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(c) the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(d) the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier.
(e) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(f) the Supplier (being an individual) is the subject of a bankruptcy petition or order.
(g) a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(h) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
(i) the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver.
(j) a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier.
(k) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 17.4(c) to clause 17.4(j) (inclusive);
(l) the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business.
(m) the Supplier's financial position deteriorates to such an extent that in the Customer's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(n) the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
17.5 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
17.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
18. CONSEQUENCES OF TERMINATION
18.1 On termination of the Contract for any reason, the Supplier shall:
(a) unless otherwise agreed by the parties in writing, continue to fulfil all Orders for Goods made prior to the date of the notice of termination.
(b) in respect of Services, immediately deliver to the Customer all Deliverables whether or not then complete.
(c) return all Customer Materials; and
(d) return all documents and materials (and any copies) containing the Customer's Confidential Information and erase all its Confidential Information from the Supplier's computer systems (to the extent technically possible); and
(e) on request, certify in writing to the Customer that it has complied with the requirements of this clause 18. 18.2 If the Supplier fails to return all Customer Materials and all Confidential Information of the Customer, then the Customer 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 this Contract.
18.3 Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
19.1 The parties believe that on commencement, expiry or termination (in whole or in part) of this Contract or any particular Order, no transfer of employment between the parties (or their subcontractors) of any personnel shall take place by reason of the TUPE Regulations or otherwise. The provisions of this clause shall apply whether as a matter of law the TUPE Regulations are applicable.
19.2 The Supplier shall ensure (and shall procure that all of its subcontractors ensure) that at no time are any of its personnel "assigned" to the provision of the Goods and/or Services within the meaning given to it in Regulation 2(1) of TUPE Regulations.
19.3 If, on the expiry or termination of this Contract, some or all of the Services transfer to a third party or to the Customer, and the TUPE Regulations apply or are deemed to apply resulting in a transfer of employment, the Supplier shall be liable for and shall indemnify and hold harmless the Customer and any replacement supplier against all costs, claims, fines, liabilities, awards and expenses (including legal expenses) arising from the termination of the employees' employment, the operation of the TUPE Regulations, their purported transfer to a new employer or in respect of redundancy, unfair dismissal or wrongful dismissal relating to those employees.
20. FORCE MAJEURE
20.1 Neither party to the Contract shall be deemed to be in breach of the Contract or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under the Contract to the extent (and solely for the duration) that the same is caused by reason of Force Majeure.
20.2 If a party is unable to perform any of its obligations under this Contract by reason of Force Majeure then it shall give written notice to the other party, specifying the nature, extent and anticipated impact of the Force Majeure, immediately on becoming aware of the Force Majeure and will at all times use all reasonable endeavours to mitigate the severity of the Force Majeure. The Customer shall only be obliged to pay the Supplier for Services delivered during the Force Majeure.
20.3 Immediately upon the cessation of the Force Majeure the party affected shall serve a notice informing the other party in writing that the Force Majeure has ceased. The party affected shall thereafter immediately resume full performance of its obligations under this Contract save where the Customer has terminated this Contract in accordance with clause 20.4.
20.4 If pursuant to this clause 19, the Supplier is excused from the performance of any of its obligations for a period exceeding 30 days, then the Customer may terminate this Contract by giving written notice of termination to the Supplier.
21.1 Assignation and other dealings.
(a) The Customer may at any time assign, transfer, mortgage, charge, subcontract, or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Customer.
(a) 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 21.2(a); if sent by pre- paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21.3 Anti-Bribery. The Supplier shall comply with all applicable laws, statutes, regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010. The Supplier shall comply with Customer's anti-bribery policies as notified to the Supplier by the Customer from time to time. Furthermore, the Supplier shall ensure that it has and shall maintain throughout the term of this Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010.
21.4 Modern Slavery. Peak Scientific Instruments maintains a preferred supplier list. We conduct due diligence on all suppliers before allowing them to become a preferred supplier. Due diligence includes regular meetings with partners and stakeholders, and online research to ensure that the organisation has never been convicted of offences relating to modern slavery. In addition, we conduct audits which include a review of working conditions. Our anti-slavery policy forms part of our contract with all suppliers and they are required to confirm that no part of their business operations contradicts this policy. In addition to the above, as part of our contract with suppliers, we require they confirm to us that:
- They have taken steps to eradicate modern slavery within their business.
- They hold their own suppliers to account over modern slavery.
- Eradicate any form of forced labour, human trafficking and child labour.
- They pay their employees at least the national minimum wage - for UK-based suppliers.
- They pay their employees any prevailing minimum wage applicable within their country of operations. – for international suppliers.
- We may terminate the contract at any time should any instances of modern slavery become known.
21.5 Child labour and exploitation. The Supplier shall comply with all applicable laws, statutes, regulations relating to child labour laws:
The term “child labour” is defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that:
is mentally, physically, socially or morally dangerous and harmful to children; and/or interferes with their schooling by: depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work.
21.6 Severance. 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.
21.7 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing 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.
21.8 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
21.9 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
21.10 Variation. 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 Customer.
21.11 Governing law. 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, Scots law.
21.12 Jurisdiction. Each party irrevocably agrees that the Scottish Courts 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).