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1.1 In these General Terms, unless otherwise stated or unless the context otherwise requires, each capitalised term will have the meaning set out below:
Acceptance or Accepted means the Company’s written agreement that the applicable Deliverable(s) meet the applicable Acceptance Criteria;
Acceptance Criteria means the acceptance criteria, requirements and/or specifications set out in or described in the Purchase Order. If no such specific criteria, requirements or specifications are provided for particular Deliverables, then the Acceptance Criteria is that such items meet the Company’s reasonable satisfaction;
Affiliate means, in relation to a party to these General Terms, any person or entity Controlling, Controlled by or under common Control with such party, for the time being;
Agreement means the recitals, clauses 1-14, Appendix A (clauses 15-19), Appendix B (clauses 20-24) and Appendix C (clauses 25-29) in this document, the Purchase Order and all other documents attached hereto or otherwise referenced, all as amended from time to time;
Anti-Bribery Law means any bribery, fraud, kickback, or other similar anti-corruption law or regulation of any relevant country, including the Bribery Act and the US Foreign Corrupt Practices Act of 1977;
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national [or international in any relevant jurisdiction];
Associated Person means in relation to any entity, a person who (by reference to all the relevant circumstances) performs services for or on behalf of that entity in any capacity and including, without limitation, employees, agents, subsidiaries, representatives and subcontractors;
Bribery Act means the UK Bribery Act 2010 (as amended from time to time);
Business Days means a day (other than a Saturday or a Sunday or a public holiday) on which commercial banks are generally open for business in the country in which the Goods, Deliverables, Software and/or Services described in the Purchase Order are being provided;
Company means Lancaster plc or a Group Company as stated in the Purchase Order. The Purchase Order may state the trading or business name of Lancaster plc and/or that Group Company’s full legal name of Lancaster plc;
Company Equipment means any of the Company’s or its Affiliate's hardware on which the Software is installed;
Company Network means the Company’s computing environment (consisting of hardware, firmware and software) on which the Software will be installed and with which the Software must operate;
Company Premises means premises owned, leased, licensed or otherwise controlled by any member of the Company from time to time;
Charges means the charges or license fees payable by the Company to the Supplier under these General Terms and set out in the Purchase Order; Confidential Information means in relation to either party to these General Terms (first party) any and all information in whatever form (including Personal Data), whether in oral, tangible or in documented form, that (i) is by its nature confidential; or (ii) the other party knows or ought to know is confidential; or (iii) is designated by the first party as confidential, and is disclosed to or otherwise learnt, acquired or developed by the other party in connection with these General Terms (or its subject matter);
Control means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract, ownership of shares, membership of the board of directors, agreement or otherwise. The terms Controlling and Controlled shall have a corresponding meaning;
Data Protection Legislation means all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, the processing of personal data and privacy, including without limitation,(a) the Data Protection Act 1998; (b) (with effect from 25 May 2018) the General Data Protection Regulation (EU) 2016/679; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United Kingdom law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy resulting from the United Kingdom leaving the European Union;
Defect means (i) a situation where a Deliverable does notperform in accordance with the applicable Acceptance Criteria or as otherwise agreed between the Parties (ii) any error or failure of code within the Software which causes the Software to produce unintelligible or incorrect results or (iii) any failure to provide the functionality or performance features described in its specification or the Documentation or (iii) both (ii) and (iii);
Defect Rectification Period means a period of one (1) year following Acceptance of the applicable Deliverable or a different period expressly specified in the Purchase Order as such Order’s Defect Rectification Period;
Deliverable means the items (other than Software) identified as such in the Purchase Order together with any other materials or items provided by or on behalf of the Supplier to the Company in the course of providing the Services;
Delivery Date means the date of which the Goods and/or Services are delivered to the Company under these General Terms;
Disclosing Party means, in relation to any Confidential Information, the party to whom such Confidential Information belongs;
Documentation means the documentation relating to the operation, specification, structure or use of the Software (or any part thereof), including operation manuals, user instructions, and technical literature, for aiding the use, operation or application of the Software;
Effective Date means the order date stated as such in the Purchase Order;
Force Majeure means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce;
Good Industry Practice means the exercise of degree of skill, diligence, prudence and foresight which would reasonably and ordinarily be expected from a skilled and experienced supplier engaged in the same type of undertaking under the same or similar circumstances;
Goods means the items (other than Software) identified as such in the Purchase Order;
Group Company means any company which for the time being is a subsidiary or holding company (as those expressions are defined by Section 1159 & Schedule 6 Companies Act 2006) of the Company or any subsidiary of any such holding company and any company which is not a subsidiary of the Company but whose issued Equity Share Capital (as defined in Section 548 Companies Act 2006) is owned as to at least 20% by the Company or any subsidiary of the Company or any holding company of the Company (and “Group Companies” shall be construed accordingly).
Indemnified Parties means the Company and their respective officers, directors, employees, contractors, agents, representatives, successors and assigns and Indemnified Party shall be construed accordingly;
Insolvency Event means one or more of the following events: (i) an administrator, administrative receiver, receiver or manager, liquidator or similar officer is appointed in respect of the whole or any part of the Supplier's assets and/or a winding up petition is issued against the Supplier;(ii) the Supplier proposes to enter or enters into any composition or arrangement with its creditors generally or any class of creditors; (iii) the Supplier is unable to pay its debts as they fall due; or (iv) any similar or analogous event takes place in any relevant jurisdiction;
Intellectual Property Rights means patents, trademarks, service marks, logos, trade names and business names, copyright (including future copyright), database rights, rights in and to Confidential Information (including know how, business methods, data and trade secrets) and all other intellectual property rights, in each case subsisting or pending at any time in any part of the world;
IR35 means the off-payroll working rules for clients, workers (contractors) and their intermedieries;
Licence means the licence to use the Software and Documentation granted pursuant to clause 21;
Material means any document, information, software, data, output or other material (in whatever form);
Modify means to add to, enhance, detract, reduce, change, replace, vary, derive or improve, and Modification and Modified shall be construed accordingly;
New Version means any new version of the Software containing enhanced, upgraded or additional functionality or performance, developed by or on behalf of the Supplier or the relevant third party from time to time (identified by reference to variations in version numbers e.g. v.1, v.2 etc.);
Personal Data means any and all personal data in respect of which the Company is a data controller and which will be processed by the Supplier in connection with these General Terms where personal data, process and data controller have the meanings given to them by the Data Protection Legislation;
Purchase Order means the purchase order (including these General Terms) detailing, amongst other things, the specification of the Goods, Deliverables, Services, Software and/or a written instruction to be provided by the Supplier to the Company and which refers therein to these terms and conditions;
Receiving Party means that party to whom the Confidential Information of the other party may be learnt, developed or otherwise acquired pursuant to or in connection with these General Terms;
Relevant Law means any statute, enactment, ordinance, order, regulation, guidance or other similar instrument in any jurisdiction, including any jurisdiction from which the Services are provided or in which any Services are received (or both), which relate to the performance of these General Terms;
Services means the performance of the services described in the Purchase Order;
Software means the software, the Intellectual Property Rights in which are owned by the Supplier or a third party licensor and licensed to the Company pursuant to the Licence (including all Modifications thereto made pursuant to these General Terms, all New Versions and Upgrades);
Software Warranty Period means the period of 12 months from the date of the delivery of the Software to the Company or, acceptance by the Company, whichever is the later;
Source Code means program source code, specifications and all other materials and documents necessary to enable a reasonably skilled programmer to use, understand, reproduce, maintain, modify and enhance the software without reference to any other person or documentation whether in eye-readable or machine readable form and without the need for any external modification;
Supplier Materials means all software technology, documents, intellectual property and/or other material (i) created by or for Supplier or (ii) owned by a Third Party (other than any Company Affiliate), in each case prior to or independent of these General Terms, and that are: (a) provided to or made available to the Company by or on behalf of Supplier, or (b) incorporated into, combined with, or required for the use, operation or exploitation of any Services or Deliverables;
Supplier Personnel means all employees, officers, contractors, consultants, agency staff and other individuals employed or engaged by or on behalf of the Supplier or any of its subcontractors;
TUPE means Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended or re-enacted from time to time;
Upgrade means in relation to the Software, (i) patches and bug fixes correcting previously reported Defects; (ii) updates necessitated by changes in the law; and (iii) variations necessitated by changes in the system software that runs on any hardware (if applicable);
Use means to install, access, load, store, copy, Modify, transmit and run (including for testing and back-up purposes) and any other use whatsoever provided such use is not expressly prohibited under these General Terms; and
1.2 In these General Terms, unless otherwise stated or unless the context otherwise requires the words other, includes, including, for example and in particular do not limit the generality of any preceding words and any words which follow them shall not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible.
1.3 In the event and to the extent of any inconsistency, the terms in Appndix A, B and C will prevail over clauses 2 to 17 of these General Terms.
These General Terms shall commence on the Effective Date and shall, unless terminated in accordance with the provisions of these General Terms or otherwise in accordance with law or equity, continue until the Delivery Date.
3.1 Without prejudice to the generality of clause 17 (General), these Terms shall apply to the Agreement to the exclusion of any other Supplier terms and conditions contained or referred to in any acknowledgement or acceptance of order, specification, letter, invoice or other communication sent by the Supplier to the Company unless signed by both parties.
3.2 If the Purchase Order provides for the:
(a) provision of Goods to the Company, the additional terms set out in Appendix A shall apply;
(b) provision of Services to the Company, the additional terms set out in Appendix B shall apply; and/or
(c) licensing of Software to the Company, the additional terms set out in Appendix C shall apply.
3.3 Acceptance by the Supplier of these General terms is assumed upon the earlier of the signing of the Contract by the Supplier or the commencement of supply of the Goods or the Services.
4.1 The Supplier shall ensure that:
(a) it has procedures and systems in place to manage the continued performance of its obligations under these General Terms in an emergency as reasonable and appropriate given the nature of the
Supplier’s obligations under these General Terms;
(b) it takes all reasonable precautions to (i) safeguard, protect and prevent the loss of any Company assets provided to it by the Company and (ii) prevent any unauthorised access to Company Premises;
(c) it has IT and logical access management procedures and systems in place to store, process, safeguard, protect and prevent the loss of Company data in accordance with Good Industry Practice and as reasonable and appropriate given the nature of the Supplier’s obligations under these General Terms; and
(d) it has procedures and systems in place to manage record retention and management in accordance with Good Industry Practice and as reasonable and appropriate given the nature of the Supplier’s obligations under these General Terms.
5.1 The Company may, at its reasonable discretion, make changes to the details specified in these General Terms or any agreement by written or oral instruction to the Supplier. If any such change affects the time of performance or delivery, or the costs involved, the Company shall consider, if appropriate, an equitable adjustment to the Delivery Date or price.
5.2 The Company may cancel any individual purchase of Goods or Services at any time prior to the delivery / performance of the Goods / Services under the terms of General Terms or any agreement. The Company shall in such an event pay the Supplier the value to the extent which the Good and/or Services have been provided.
5.3 The Supplier shall not make changes in the design or composition or specification of any Goods and/or Services without the Company’s prior written consent.
5.4 The Company reserves the right to take any action in the event of an emergency or otherwise unforeseen event arising in connection with these General Terms or any agreement, and may require the Supplier to deliver the Goods or perform the Services in advance of the Delivery Date. The Supplier shall use all reasonable endeavours to comply with the Company’s instructions in such case
6.1 The Company shall pay to the Supplier the Charges by the end of the month following the month of receipt and agreement by the Company of the invoice(s) submitted after delivery of the Goods or performance of the Services. The Supplier shall also submit a monthly statement of invoice without which payment cannot be made.
6.2 In making payment, the Company shall be entitled to deduct from the price:
(a) any expenses incurred by it due to the inadequate performance of the Supplier;
(b) any sums owed to the Company whether under the Contract or any other agreement between the parties; and
(c) any costs already paid for defective or rejected Goods and any costs already incurred in replacing or repairing defective Goods or Services
6.3 All Charges and other sums payable under these General Terms are exclusive of Value Added Tax and equivalent taxes in other countries which will be payable at the applicable rate.
6.4 The Supplier shall, where requested by the Company, comply with the Company invoicing requirements (electronic or otherwise) including entering into agreements, and complying with the invoicing processes, or any third party nominated by the Company for the purposes of receiving or processing invoices.
6.5 Without prejudice to the Company’s other rights and remedies, the Company may deduct from any sums due to the Supplier under these General Terms an amount equivalent to any sum due from the Supplier to the Company (whether such sums are due to the Company under these General Terms or under any other agreement between the Supplier and the Company) and may also deduct any sum of money that is recoverable from or payable by the Supplier under these General Terms from any sum due or which at any time thereafter may become due under any other agreement between the Company and the Supplier.
7.1 The Supplier shall be and shall remain fully responsible for the acts, omissions and management of all Supplier Personnel.
7.2 The Supplier shall ensure that all Supplier Personnel who perform any obligations in connection with these General Terms have passed an identity check, are eligible to perform any obligation or work in these General Terms, would be otherwise suitable in accordance with Good Industry Practice and has no matches against approved Sanctions database checks. The Supplier shall not assign any Supplier Personnel to any obligations, work or services relating to these General Terms without the Company's prior written consent if the Supplier has not complied with this clause.
7.3 The Company reserves the right to refuse to admit to, or remove from, any Company Premises any Supplier Personnel (i) whose admission or presence would, in the Company’s opinion be undesirable or who represents a threat to confidentiality or security; or (ii) whose presence would be in breach of any rules and regulations governing the Company’s own staff. The exclusion of any such individual from such Company Premises shall not relieve the Supplier from the performance of its obligations under these General Terms.
7.4 Upon the expiration or termination of the assignment of any Supplier Personnel to any obligations under or pursuant to these General Terms or the re-assignment of Supplier Personnel to other tasks or roles, the provisions of clause 12.5 will apply.
7.5 In this clause, "Discrimination Provisions" means the provisions of:
(a) the Equality Act 2010 (together with any statutory consolidation, re-enactment, amendment or replacement of it) (the "EA");
(b) any sub-ordinate legislation, codes or guidance issued under or in connection with the EA; and
(c) any Company requirements or guidance concerning the EA (as issued from time to time).
7.6 In performing the Services, the Supplier shall comply with the Discrimination Provisions.
7.7 The Supplier shall promptly inform the Company on becoming aware of any aspect of the Services (or the way in which the Services are delivered) which does not comply with the Discrimination Provisions.
8.1 The Supplier warrants and represents as at the Effective Date and on an on-going basis that:
(a) it has full authority to grant the licences granted by the Supplier under these General Terms;
(b) it will perform its obligations under these General Terms with all due skill, care and diligence and in accordance with Good Industry Practice;
(c) it will perform its obligations in compliance with all relevant laws, regulations, standards, codes of practice and requirements of any competent authority (including those relating to health and safety). The Supplier shall obtain any licences, permits or consents necessary in order to do so; and
(d) the performance of its obligations under these General Terms and Company receipt and use of the Services, any Intellectual Property Rights provided or made available, any Confidential Information disclosed to it by the Supplier, any of the Goods or Deliverables and the exercise of any rights granted under any licences granted by the Supplier to the Company will not infringe any Intellectual Property Rights (or moral rights) of any third party.
9.1 All Intellectual Property Rights belonging to a party prior to the execution of these General Terms shall remain vested in and belong exclusively to that Party. Nothing in these General Terms shall be taken to be a transfer or assignment of or an agreement to transfer or assign any of the Company’s Intellectual Property Rights to the Supplier.
9.2 The Supplier shall not be entitled to use any of the Company’s Intellectual Property Rights other than as set out in these General Terms and shall not permit any third party to use such rights without the express written consent of the Company, in its absolute discretion, and always in accordance with Clause 14.5.
9.3 The Company grants to the Supplier, during the term of these General Terms only, a non-exclusive, royalty free, non-transferable, non-sub licensable and revocable licence to use the Company’s Intellectual Property Rights in any Materials provided by the Company to the Supplier, to the extent that such use of those Intellectual Property Rights is required for the purpose of performing its obligations under these General Terms. The Company shall be entitled to revoke the licence granted under this Clause and to immediately terminate these General Terms if, in the Company’s sole opinion, the Supplier uses the Company’s Intellectual Property Rights in a manner, form or medium not expressly approved and permitted in writing by the Company.
9.4 The Supplier grants to the Company a non-exclusive, royalty free, non-transferable and fully sub licensable (in accordance with Clause 14.5) licence to use the Supplier’s Intellectual Property Rights to the extent that such use is required for the purpose of performing its obligations under these General Terms. The Supplier has the right to terminate this licence if the Company commits a material breach of this Clause.
9.5 Save to the extent that the Deliverables include Intellectual Property Rights belonging to the Supplier prior to the execution of these General Terms, where the Deliverables supplied under these General Terms form a work which is protected by, or which is capable of being protected by, Intellectual Property Rights (whether registered or otherwise), any such rights, title or interest, or the option to obtain such rights, title or interest, shall be the sole and exclusive property of the Company. If upon the creation of such Intellectual Property Rights the rights, title or interest automatically vest in the Supplier, the Supplier shall hold them on trust for the Company, and take any action requested by the Company in relation to such rights, title or interest, at the Company’s expense.
9.6 The Supplier warrants and undertakes that, both now and throughout the term of these General Terms, it has or shall procure all rights, permissions and consents necessary to legally produce any Goods or Deliverables under these General Terms, where required to do so.
9.7 The Supplier shall at all times whether during or after termination or expiry of these General Terms indemnify and keep indemnified the Indemnified Parties against all losses suffered by, incurred by or awarded against the Indemnified Parties or which are agreed by the Company (or the relevant Indemnified Party) to be paid by way of settlement or compromise, arising out of or in relation to:
(a) any infringement or alleged infringement of any Intellectual Property Rights of any third party as a result of the Company (or the relevant Indemnified Party’s) receipt of the Services or its use or possession of any Goods, Deliverables, Software, Documentation or Intellectual Property Rights provided or otherwise made available to the Company (or the relevant Indemnified Party) by the Supplier; and/or
(b) any negligent or wilful act or omission of the Supplier, its employees, agents or contractors in supplying, delivering or installing the Goods, Deliverables, Software or Documentation,
whether or not such losses were foreseeable at the Effective Date
10.1 The Receiving Party will treat and keep all Confidential Information of the Disclosing Party as secret and confidential in perpetuity and will not, without the Disclosing Party's written consent, directly or indirectly communicate or disclose (whether in writing or orally or in any other manner) Confidential Information to any other person other than in accordance with the terms of these General Terms. The foregoing shall not apply to the extent that:
(a) the Receiving Party needs to have or disclose (or have and disclose) Confidential Information of the Disclosing Party to any Affiliate, subcontractor, agent or employee of the Receiving Party in order to fulfil its obligations, exercise its rights under these General Terms or to receive the benefit of the Services; or
(b) any Supplier Confidential Information is embodied in or otherwise incorporated into any Goods, Software or Deliverables.
10.2 The Supplier shall not issue any press release or other public document containing or make any public statement containing or otherwise disclose to any other person who is not a party information that relates to or is connected with or arises out of these General Terms or any agreement or the matters contained in it without the prior written approval of the Company as to its content and the manner and extent of its publication.
11.1 The Supplier shall comply with all Data Protection Legislation including (where applicable) by maintaining any valid and up-to- date registration or notification required under the Data Protection Legislation.
11.2 The Supplier shall only process Personal Data:
(a) for the purpose of providing Goods, Deliverables and/ or Services to the Company; or
(b) as otherwise expressly authorised by the Company.
11.3 The Supplier shall not process, transfer or permit access to the Personal Data outside the European Economic Area and the United Kingdom without the prior written consent of the Company and in compliance with all Data Protection Legislation.
11.4 The Supplier shall implement appropriate technical and organisational measures to protect Personal Data against unlawful or unauthorised processing and against accidental loss, destruction, damage, alteration or disclosure of the Personal Data. Such measures shall be appropriate to the harm that might result and the nature of the Personal Data to be protected and shall include encrypting all Personal Data stored or processed on all digital or electronic portable storage devices and take into account any specific requirements imposed by Data Protection Legislation.
11.5 The Supplier shall promptly notify the Company if:
(a) the data subject of any Personal Data makes a written request to have access to Personal Data or any complaint or request relating to the Company’s obligations under Data Protection Legislation; or
(b) it becomes aware of any loss, damage, destruction, or unauthorised Processing or accidental disclosure of Personal Data or any other breach of the Data Protection Legislation. The Supplier shall provide full cooperation and assistance to the Company in relation to any such request, complaint or non-compliance with the Data Protection Legislation.
11.6 The Supplier shall not subcontract the processing of any Personal Data on to any third party save to the extent the Company provides prior written consent, and the Supplier procures compliance by such third party with the Data Protection Legislation and with the terms of these General Terms. Notwithstanding such consent, the Supplier shall at all times remain liable for the acts or omissions of its subcontractors as though they were the Supplier’s own acts or omissions.
11.7 The Supplier agrees to indemnify and keep indemnified the Company against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation any direct or indirect, or consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with any action in relation to a breach by the Supplier of this clause 10.
12.1 Neither party limits or excludes its liability (i) in respect of any deceit, theft, fraud or fraudulent misrepresentation by it or its employees, and in the case of Supplier, by Supplier Personnel; (ii) for death or personal injury caused by its negligence; (iii) under clause 8 (Intellectual Property Rights); (iv) breach of clause 9 (Confidentiality); (v) breach of clause 10 (Data Protection ); or (vi) to the extent such limitation or exclusion is not permitted by law.
12.2 Subject to clause 11.1 the Supplier shall indemnify, and keep indemnified, the Company and its Affiliates from and against any losses, damages, liability, costs (including legal fees) and expenses which the Company its Affiliates may suffer or incur directly or indirectly from as a result of any:
(a) alleged or actual infringement by the Supplier or its Affiliates of a third party’s Intellectual Property Rights or other rights in connection with the supply or performance or manufacture of the Deliverables under these General Terms or any agreement (IPR Claim);
(b) claim made against the Company or its Affiliates in respect of any losses, damages, liability, costs and expenses sustained by the employees or agents or any customer of the Company or of its Affiliates or any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Deliverables or from a direct or indirect breach or negligent performance or failure or delay in performance of these General Terms or any agreement by the Supplier; or
(c) defects in materials, quality, workmanship or performance of the Deliverables.
12.3 Subject to clause 11.1, neither party will be liable to the other party for any indirect or consequential loss or damage including any indirect loss of business or profits, in each case whether arising from negligence, breach of contract or otherwise.
12.4 The Supplier shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom insuring the Deliverables and any of the Company's materials in the Supplier’s possession against the usual risks, including accident, fire and theft, for their full replacement value until the risk in them passes to the Company, and insuring against all other risks that a prudent Supplier should consider reasonable which should be of no less than £5,000,000 per event per insurance policy. On request, the Supplier shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Supplier shall on request assign to the Company the benefit of such insurance.
13.1 These General Terms may be terminated for convenience by the Company at any time by giving to the Supplier not less than 14 days’ prior written notice.
13.2 The Company may terminate these Terms and/or any agreement at any time by giving notice in writing to Supplier if the Supplier:
(a) stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
(b) is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;
(c) becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
(d) becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;
(e) becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;
(f) becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;
(g) has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
(h) has a resolution passed for its winding up;
(i) has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
(j) is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven (7) days of that procedure being commenced;
(k) has a freezing order made against it;
(l) The right of the Company to terminate the Agreement pursuant to clause 13.2 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.
13.3 The Company to terminate these General Terms, in whole or in part, with immediate effect on giving written notice to the Supplier of a material breach by the Supplier of these General Terms (being a single event or a series of events which are together a material breach) which is either not capable of being remedied, or, if the breach is capable of being remedied, the Supplier fails to remedy such breach within thirty (30) days of receiving written notice requiring it to do so.
13.4 Any termination or expiry of these General Terms shall not affect any accrued rights or liabilities of either party or the coming into force or continuation in force of any other clauses and provisions of these General Terms which are expressly or by implication intended to come into force or continue in force on or after termination or expiration.
13.5 Within thirty (30) days of expiry or termination of these General Terms, the Supplier will return or destroy all Personal Data and any copies thereof, unless legislation or regulation prevents it doing so, in which case the Supplier undertakes that it will no longer process such Personal Data and will comply with the provisions of clause 9 (Confidentiality) in relation to such Personal Data such that the Personal Data remains confidential.
13.6 On expiry or termination of these General Terms for whatever reason, upon the Company’s request at any time or as specified elsewhere in these General Terms, the Supplier shall, and shall procure that the Supplier Personnel shall:
(a) immediately, or as otherwise advised in writing by the Company, deliver up to the Company, or any third party nominated in writing by the Company, all property belonging to the Company (including any IT equipment, any access credentials such as cards, keys or electronic fobs to the Company Premises, mobile phones, Confidential Information and the Company data) which may be in the possession of, or under the control of, the Supplier or any of the Supplier Personnel (or both of them); and
(b) ensure that all IT access provided by or on behalf of the Company to the Company’s systems is fully and properly withdrawn (including changing any passwords or log-ins) from all Supplier Personnel and that email accounts used by the Supplier Personnel are immediately terminated. If any such property is in electronic form the Supplier shall provide the Company with unencrypted copies of the same on magnetic media or, at the Company’s option, via email if such information is capable of transmission by e-mail, and shall irretrievably destroy and delete copies so held.
13.7 On the earlier of expiry or termination of these General Terms or the completion of the Services for any reason whatsoever, (but without prejudice to the Supplier's obligations under these General Terms), any property of the Supplier shall be removed from the relevant Company Premises within five days after the expiry or termination of these General Terms or completion of the Services and the Supplier shall be liable for any storage charges and all risk, including loss, damage and theft of such property from termination or expiry of the Agreement until the removal of the property of from the relevant Company Premises by the Supplier or the Supplier Personnel.
13.8 Upon request by the Company, the Supplier shall confirm in writing to the Company that it has complied fully with the provisions of clauses 12.5 and 12.6 above.
13.9 This clause 12 shall survive the termination or expiry of these General Terms.
14.1 The Supplier must not violate any Applicable Anti-Bribery Law.
14.2 The Supplier has and must at all times implement adequate procedures designed to prevent it or any Associated Person from engaging in any activity which would constitute an offence under the Bribery Act if it were carried out in the UK, or violate any Applicable Anti-Bribery Law.
14.3 The Supplier represents that, in connection with these General Terms, no improper financial or other advantage has been, will be or is agreed to be given to any person (whether working for or engaged by the Company Group or any third party) by or on behalf of the Supplier or its Associated Persons.
14.4 Breach of any of the provisions in this clause or of any Applicable Anti-Bribery Law is a material breach of these General Terms and, without prejudice to any other right, relief or remedy, entitles the Company to terminate these General Terms immediately.
14.5 The Supplier must promptly report to the Company in writing upon becoming aware that it or any of its Associated Persons relevant to these General Terms (or to any agreement with the Company):
(a) have committed an actual or suspected breach of this clause or of any Applicable Anti-Bribery Law;
(b) are proposed for debarment or suspension from, or are ineligible for participation in, any government procurement programmes or contracts;
(c) are the subject of any actual or threatened police, judicial or regulatory investigation or proceedings in relation to any suspected breach of any Applicable Anti-Bribery Law; or
(d) have received any request or demand for any undue financial or other advantage in connection with the performance of these General Terms.
14.6 The Supplier must keep detailed up to date books, accounts, and records that accurately reflect its transactions relating to these General Terms, and the steps taken by it to comply with Applicable Anti-Bribery Law from the date of these General Terms, and such books, accounts and records shall be retained for a period of not less than six years after their creation;
14.7 The Supplier must from time to time, at the reasonable request of the Company:
14.8 confirm in writing that it has complied with its obligations under this clause and must provide any information reasonably requested by the Company in support of such compliance; and
14.9 permit the Company to have such access to its books, accounts, and records (and to take such copies thereof) as reasonably necessary in order to verify compliance with this clause, and to meet with those of its Associated Persons as are relevant to these General Terms to audit such compliance, for seven (7) years after termination or expiry of these General Terms.
14.10 The Supplier must give reasonable assistance and cooperation to the Company in relation to any police, judicial or regulatory investigation or enquiry in relation to any suspected bribery or corruption, whether during the term of these General Terms or up to three years after its termination;
14.11 The Supplier represents that the responses it provided to the Company due diligence enquiries remain true, accurate and complete.
15.1 The Supplier shall comply with all anti-slavery legislation, including the Modern Slavery Act 2015.
15.2 The supplier shall implement due diligence procedures for its own suppliers, sub-contractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chain.
16.1 The Supplier warrants that its relevant associated persons (including any employee, officer, subsidiary, subcontractor or any third party providing services for or on behalf of the Supplier):
(a) complies with and has, since 30 September 2017 complied, with all applicable laws, statutes, regulations, guidance, recognised practice and codes, relating to the prevention of tax evasion and/or the prevention of the facilitation of tax evasion (whether within, or outside of, the United Kingdom) including but not limited to the Criminal Finances Act 2017 ("CFA 2017");
(b) has not done, failed to do or been engaged in any activity, practice, conduct or thing which would (or the omission of which would) constitute:
(i) A UK tax evasion offence within the meaning of section 45(4) of the CFA 2017 ("UK Tax Evasion Offence");
(ii) A foreign tax evasion offence within the meaning of section 46(5) of the CFA 2017 ("Foreign Tax Evasion Offence"); or
(iii) A facilitation of UK Tax Evasion Offence within the meaning of section 45(5) of the CFA 2017; or
(iv) Or facilitation of Foreign Tax Evasion Offence within the meaning of section 46(6) of the CFA 2017; or
(v) Failure to prevent a Facilitation Offence within the meaning of sections 45 or 46 of the CFA 2017.
16.2 The Supplier and (where applicable) its associated persons has carried out an assessment, and carries out periodic assessments, of the risk of one or more of it and its employees and other associated persons committing a Facilitation Offence.
16.3 The Supplier has in place (and has at all times maintained) policies and procedures, including prevention procedures under the CFA 2017, to ensure continued compliance with the CFA 2017 and has taken steps, so far as it is reasonably practicable to do so, to ensure that it associated persons have adhered to such policies and procedures.
16.4 For the purpose of paragraph 16.3, the meaning of prevention procedures and associated persons shall be determined in accordance with sections 44(4), 44(5), 45(3) and 46(4), as applicable of the CFA 2017 (and any guidance issued under section 47 of the CFA 2017).
17.1 For Suppliers that host or process Customer Confidential Information and/or Personal Data, the Supplier shall at least annually engage at its own expense a third party service provider for penetration and, vulnerability testing (“Penetration Testing”) and provide the Customer with an unredacted copy of the report of such testing. The Supplier shall ensure that the third party shall have CREST or CHECK certification. The method of test scoring and issue ratings shall follow standard industry practice, such as the latest Common Vulnerability Scoring System (CVSS) published by the US National Institute of Standards and Technology (NIST). For any material findings (critical, priority, or high risk), the Supplier shall within thirty (30) days from its receipt of penetration test results produce a remediation plan detailing the actions and dates by when these security issues shall be fully resolved. The Supplier’s failure to prepare and schedule a remediation plan within sixty (60) days of the penetration test report represents sufficient grounds for the Customer to terminate the Agreement for cause.
18.1 The Supplier shall at all times indemnify the Company and keep the Company indemnified in full from and against all claims, proceedings, actions, damages, costs, expenses, liabilities and demands whatsoever and howsoever arising (including either before or after the making of a demand pursuant to the indemnity hereunder) by reason of any circumstances whereby the Customer is alleged or determined, whether during the Agreement or arising from termination or expiry of this Agreement, to have been assumed or imposed with:
(a) the liability or responsibility for the Supplier or any of the Supplier’s staff as an employer; and/or
(b) any liability or responsibility to HM Revenue or Customs as an employer to the Supplier or the Supplier’s staff.
19.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
(a) promptly notifies the other of the Force Majeure event and its expected duration; and
(b) uses best endeavours to minimise the effects of that event.
19.2 If, due to Force Majeure, a party:
(a) is or shall be unable to perform a material obligation; or
(b) is delayed in or prevented from performing its obligations for a continuous period exceeding thirty (30) days;
the other party may, within thirty (30) days, terminate the Contract on immediate notice.
20.1 Audit: The Supplier shall grant to the Company, its auditors and regulators the right to (i) access any premises used by the Supplier to provide the Services or from where the Services are managed or administered, (ii) interview any Supplier Personnel, and (iii) copy any relevant record in order to audit the Supplier's compliance with these General Terms.
20.2 Amendment and Variation: No variation to these General Terms shall be valid unless it is in writing, expressed to amend these General Terms and signed by each of the parties to it.
20.3 No partnership or agency: Nothing in these General Terms shall be deemed to constitute a partnership between the parties, nor constitute either party the agent of the other party for any purpose.
20.4 Severance: If any provision of these General Terms or any agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of these General Terms or any agreement shall not be affected.
20.5 Third Party Rights: Except as set out in this clause 14.4, a person who is not a party to these General Terms has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these General Terms. Each and every obligation of the Supplier under these General Terms is owed to the Company and each Affiliate of the Company who may enforce the terms of these General Terms under the Contracts (Rights of Third Parties) Act 1999 and references to the Company in the context of the Supplier's obligations shall be construed accordingly. If a person who is not a party to these General Terms is stated to have the right to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999, the parties may rescind or vary these General Terms (and any documents entered into pursuant to or in connection with it) without the consent of that person.
20.6 Assignment and Subcontracting: The Supplier shall not be entitled to assign, transfer, subcontract or otherwise deal with its rights and obligations arising under or in connection with these General Terms without the Company prior written consent. The Company shall have the right to assign or novate any or all of its rights and obligations under these General Terms in whole or in part to any of its Affiliates or to the successor to the whole or a part of the Company business, subject to such Affiliate or successor undertaking in writing to the Supplier that it will perform all Company obligations under these General Terms which are relevant to such assigned or novated rights and/or obligations.. All references in these General Terms to the Company shall be construed as including any Affiliate or successor to which such rights or obligations (or both, as applicable) are assigned or novated.
20.7 Notices: All notices and consents to be given to a party under these General Terms shall be in writing in English and shall be marked for the attention of the person, and delivered by hand, sent by facsimile transmission or prepaid registered post or courier to the address set out in the Purchase Order.
20.8 Waiver: No failure, delay or omission by the Company in exercising any right, power or remedy provided by law or under these General Terms shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
20.9 Cumulative Rights: Except as expressly stated in these General Terms the rights of each party under these General Terms are cumulative and not exclusive of rights or remedies provided by law save to the extent that such rights are inconsistent with those rights as expressly set out in these General Terms.
20.10 Further Assurance: Each party shall, and the Supplier shall ensure that the Supplier Personnel and any its subcontractors shall, at the request and cost and expense of the other party, sign all documents and do all other acts, which may be necessary to give full effect to these General Terms.
20.11 Compliance with Law: The Supplier shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with these General Terms.
20.12 Whole Agreement: Subject to (B) above, these General Terms (together with all other documents to be entered into pursuant to it) sets out the entire agreement and understanding between the parties, and supersedes all proposals and prior agreements, arrangements and understandings between the parties, relating to its subject matter. Each party acknowledges that in entering into these General Terms it has not relied on any representation, warranty, collateral contract or other assurance (except those set out in these General Terms and the documents referred to in it) made by or on behalf of any other party before the Effective Date. Each party waives all rights and remedies which, but for this clause 14.9 might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.
20.13 Governing Law and Jurisdiction: These General Terms and any non- contractual obligations arising out of or in relation to these General Terms shall be governed by and will be interpreted in accordance with English law. All disputes arising out of or relating to these General Terms or any non-contractual obligations arising out of or relating to these General Terms shall be submitted to the exclusive jurisdiction of the English courts.
20.14 We reserve the right to amend these General Terms at any time without notice to you. The latest, fully-amended version of these General Terms will be published on our website. You are responsible for regularly reviewing the website to obtain timely notice of such amendments. If you continue to supply any services after the effective date of any amendment, you will be conclusively deemed to have accepted such amended version of these General Terms.
21.1 Without prejudice to any other rights and remedies the Company may have, the Supplier warrants and represents to the Company that the Goods will:
(a) conform as to quantity, quality and description with the particulars stated in the Purchase Order;
(b) be new and unused;
(c) (without prejudice to clause 15.1(a) above) be free from defects, be of merchantable quality and be fit for the purpose held out by the Supplier or made known to it either expressly or by implication by the Company;
(d) be equal to and comply with in all respects with any samples or patterns provided by either party and accepted by the other; and
(e) comply with all Relevant Laws relating to the manufacture and sale of the Goods at the time when the same are supplied including but not limited to the Sale of Goods Act 1979
22.1 If so required by the Company, the Supplier shall submit samples of the Goods for Company approval before the Goods are delivered.
22.2 The Company shall be entitled at any time during the manufacture, processing and storage prior to delivery (or any of them) of the Goods to inspect and test the Goods. The Supplier shall at its own cost provide or shall procure the provision of such facilities as may be reasonably required by the Company for such purpose.
22.3 If as a result of any inspection or test carried out pursuant to clause 16.2, the Company is of the opinion that the Goods do not comply with these General Terms or are unlikely on completion of manufacture or processing to so comply, the Company may inform the Supplier accordingly and the Supplier shall take such steps as may be necessary to ensure such compliance.
22.4 Notwithstanding any testing or inspection carried out pursuant to this clause the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Supplier's obligations under these General Terms.
22.5 In the event the Goods are rejected by the Company, the Supplier shall not sell/use any rejected Goods bearing the Company's logo, trademarks or indicia without the Company's prior written consent.
23.1 The Goods shall be delivered to the Company Premises described in the Purchase Order (or to such other destination as may be specified by the Company) on the Delivery Date or within the period stated on the Purchase Order and in either case during the normal business hours of the Company.
23.2 Unless otherwise provided in these General Terms, no charge shall be made by the Supplier for packing cases and packing materials or for delivery to the specified place of delivery.
23.3 All Goods wherever practicable shall be constructed and packaged using environmentally friendly or recyclable material.
23.4 The Supplier acknowledges that time of delivery shall be of the essence. The Company will be under no obligation to accept or pay for quantities of Goods delivered in excess or in advance of the quantity, date or rate (as appropriate) stipulated by such requirements. The Company shall not be liable for any Goods provided in excess of those agreed or those which are provided that do not conform to the Goods provided under these General Terms.
23.5 The Supplier shall provide to the Company in good time any instructions or other information required to enable the Company to accept delivery of the Goods.
23.6 The Goods shall be properly packed and secured in such a manner as to reach their destination in a good condition having regard to the nature of the Goods and the other circumstances of the case. The Supplier shall off-load the Goods at its own risk as directed by the Company.
23.7 The Company shall have no obligation to pay for or return packing cases, skids, drums or other articles used for packing the Goods whether or not re-usable. The time of delivery of the Goods shall be of the essence of the Agreement.
23.8 All Goods should be accompanied by a detailed delivery note stating the Purchase Order number and giving full particulars of the Goods supplied. If the Goods are delivered to the Company in excess of the quantities set out in the Purchase Order, the Company shall not be bound to pay for the excess and any excess shall be and remain at the Supplier's risk and shall be returnable at the Supplier's expense.
23.9 Upon delivery of the Goods to the Company, the Company shall (within 30 Business Days after the delivery of the relevant Goods) either reject or accept the Goods. The Company shall not be deemed to have accepted the Goods until it has had 30 Business Days after delivery of the relevant Goods to inspect the relevant Goods, or in the case of a latent defect in the Goods, until a reasonable time after the latent defect has become apparent.
23.10 Without prejudice to any other right or remedy the Company may have, if any Goods are not supplied in accordance with, or if the Supplier fails to comply with, any of the terms of these General Terms, the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion:
(a) to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith to the Company by the Supplier;
(b) to give the Supplier the opportunity (at the Supplier's expense) either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Agreement are fulfilled;
(c) to claim all such damages as may have been as a result of or in connection with the Supplier's breach or breaches of these General Terms including but not limited to recovering the costs of obtaining the Goods from a third party; or
(d) terminate these General Terms in whole or in part immediately upon giving written notice to the Supplier.
24.1 Without prejudice to clause 8 (Intellectual Property Rights) title and risk in the Goods shall pass to the Company upon the delivery of such Goods to the Company, free from any third party rights or interests (including liens, charges and options), unless payment for the Goods is made prior to delivery in accordance with these General Terms, in which case title to the Goods shall pass to the Company once payment has been made for the Goods by the Company.
24.2 The Supplier shall, at its sole expense until delivery of the Goods in accordance with these General Terms, insure the Goods on an "all risks" basis and shall also provide cover for loss or damage in transit for their full replacement value.
25.1 Without prejudice to any other rights and remedies of the Company, the Supplier shall forthwith upon request by the Company replace or (at the Company’s option) repair all Goods which are or become defective during the period of 12 months from the date of delivery, where such defect occurs under proper usage and is due to faulty design, or inadequate or faulty materials or workmanship, the Supplier's erroneous instructions as to use or any breach by the Seller of any provision of these General Terms. Repairs and replacements shall themselves be subject to the foregoing obligations for a period of 12 months from the date of delivery, reinstallation or passing of tests (if any) whichever is appropriate after repair or replacement.
25.2 The Supplier, to the extent that it is permitted to do so, shall assign the benefit of any guarantee or warranty provided by the manufacturer of the Goods received by the Supplier under an agreement with the manufacturer or supplier of the relevant Goods
26.1 The Services shall be free from errors and defects and performed by appropriately qualified and trained personnel to a high standard of quality as is reasonable for the Company to expect.
26.2 In the event of any breach of this clause, or of failure to perform any of its obligations under these General Terms, the Supplier shall remedy the breach to the Company’s satisfaction, and/or indemnify the Company and its Group Companies against all loses, claims, costs expenses and damages arising out of the Supplier’s failure to comply with its obligations under these General Terms and the exercise by the Company of its rights under the contract or at law, to include, but not be confined to, undertaking remedial action itself or arranging for a third party to do so.
26.3 The Supplier shall not hinder any operations of the Company while carrying out the Services and shall ensure that the Company’s Premises is, on completion of the Services, left in a secure, clean, safe and tidy condition to the Company’s satisfaction.
26.4 The Supplier shall observe strictly the Company’s rules and regulations regarding health and safety, security and the prevention of fire as may apply to the Company’s Site, and any other reasonable requirements of the Company from time to time.
26.5 The Supplier shall ensure that its employees, agents and subcontractors shall only enter those areas of the Company’s Premises as are necessary for carrying out the requirements of the Contract or as may be specified by the Company.
27.1 Save for Deliverables that are Intellectual Property Rights belonging to the Supplier prior to the execution of this Agreement, the Supplier, on behalf of itself and the Supplier Personnel, acknowledges and agrees that the Company will own all right, title and interest in the Deliverables, both as individual items and/or as a combination of components and whether or not the Agreement and/or Services are completed.
27.2 To the extent that ownership of any Deliverable does not by operation of law vest in the Company, Supplier hereby irrevocably and absolutely assigns, transfers and conveys (and shall cause all relevant Supplier Personnel to so assign, transfer and convey) to the Company (or, at the Company’s request, to any other Company Affiliate designated in writing by an authorised representative of the Company to receive such rights and interests), all right, title, interest, including all Intellectual Property Rights, in any Deliverable, all of which shall vest in the Company (or such designee) immediately upon creation of the same, with full title guarantee and free from all encumbrances and other rights of whatever nature exercisable by any Third Party, together with the right to take action for any past, present and/or future infringement and claim damages and other remedies in respect of any infringement or alleged infringement of such Intellectual Property Rights. The Supplier hereby irrevocably and unconditionally waives and shall procure that all Supplier Personnel irrevocably and unconditionally waive any moral rights in or relating to any Deliverable and shall on request provide the Company with written evidence of such waiver. The Supplier shall, and shall ensure that all Supplier Personnel shall, give the Company and any Company designee all reasonable assistance and execute all documents and perform all acts that Company counsel deems necessary or advisable to assist or enable the Company to perfect the assignment of Intellectual Property Rights contemplated under this clause 20 and preserve, register, record, enforce and defend the Company (or its designee's) rights in the applicable Deliverable.
27.3 The Supplier shall, immediately upon the Company’s request, or on the termination, cancellation or expiration of these General Terms, turn over to the Company all Deliverables prepared or developed in connection with these General Terms held by or on behalf of Supplier, together with all copies thereof.
27.4 The Company grants to the Supplier a royalty-free, non-exclusive, non- transferable, non-sublicensable, revocable licence to use a Deliverable during the term of these General Terms, solely to the extent necessary to perform the Services for the Company’s Entities receiving Services under these General Terms.
28.1 The Supplier and Company acknowledge and agree that the commencement and subsequent expiry or termination of this Agreement are not events that are intended to give rise to any relevant transfers to which TUPE will apply, either in relation to any employees of the Customer or former supplier transferring to the employment of the Supplier at commencement; or the Supplier’s staff transferring from the Supplier to the Company or a replacement Supplier at expiry or termination.
28.2 The Supplier shall indemnify and keep indemnified the Company and any successor supplier against all costs, claims, expenses, damages, demands, actions, losses and liabilities arising out of or in connection with:
(a) any act, default or omission of the Supplier or any sub-contractor in respect of any person who was or is employed or engaged by the Supplier or any sub-contractor;
(b) the employment or termination of employment of any person engaged wholly or principally in the execution of the Services up to and including the date of completion of the Services or expiry or termination of these General Terms;
(c) any breach by the Supplier or any sub-contractor of its obligation to provide employee liability information to the Company or any successor supplier in accordance with Regulation 11 of TUPE.
29.1 The Company’s ownership rights and Supplier's assignment obligations above do not apply to Supplier Materials. The Supplier (or the relevant Supplier Affiliate) and/or their licensors (as applicable) will retain all Intellectual Property Rights in Supplier Materials.
29.2 If any Supplier Material(s) are incorporated into, combined with, or required for the use, operation or exploitation of any Services or Deliverables, Supplier:
(a) shall notify the Company promptly after it is aware of such situation, and
(b) regardless of whether such notice is provided, hereby grants to the Company Affiliates and any contractor under contract to provide services to any Company Affiliate (provided that such contractors' use shall be limited solely to providing such services), at no additional charge, a non- exclusive, fully paid up, royalty-free, perpetual, irrevocable, transferable, sublicenceable (through multiple levels of sublicensees), worldwide license to use, execute, copy, display and perform (whether publicly or otherwise), distribute copies of, reproduce, maintain, modify, enhance, and create derivative works of and otherwise make, have made, sell, offer to sell, import and exploit such Supplier Materials (in whole or in part), in any form or media (now known or later developed), without consideration or any obligation to account to Supplier or any third party.
30.1 Unless otherwise set forth in the Purchase Order, each Deliverable will be subject to acceptance testing by the Company and the acceptability of any Deliverable will be based on the Company’s determination that the Deliverable meets the applicable Acceptance Criteria. If any Deliverable does not meet the applicable Acceptance Criteria, the Company will notify Supplier, specifying its reasons in reasonable detail, and Supplier will, at no additional cost to the Company, within thirty (30) days of notification by the Company (or such other time period as specified in the Purchase Order) (the "Acceptance Testing Correction Period"), conform the Deliverable to the applicable Acceptance Criteria and submit a corrected Deliverable to the Company for re- performing the Acceptance test.
30.2 If at the end of any Acceptance Testing Correction Period, the applicable Deliverable still does not meet the Acceptance Criteria, the Company may, at its option and without obligation or liability of any kind:
(a) terminate the relevant these General Terms, in whole or in part, and receive a prompt refund of all Charges for the portion of the Agreement so terminated and any Deliverable the utility of which is dependent on such rejected Deliverable, or
(b) extend the time for Supplier to correct the affected Deliverable by an amount of time determined in the Company’s sole and absolute discretion. If following any extension granted by the Company, the Deliverable still does not meet the applicable Acceptance Criteria, the Company may implement its rights under clause (a) of the preceding sentence.
30.3 When a Deliverable provided to the Company for review is determined by the Company to meet the applicable Acceptance Criteria, the Company will notify Supplier in writing of its Acceptance. Any acceptance by the Company shall not be deemed to mean that the Company has varied or waived any rights under the Purchase Order.
30.4 In the event the Company elects to exercise its right under clause 27.2(a), the Supplier shall be liable for and shall indemnify the Company against all and any loss, damage, cost, expense, liability, claims and proceedings whatsoever in respect of a failure of the Supplier to comply with its obligation to deliver the Services;
31.1 Without limiting any of the Company’s other rights and/or remedies, if, during the Defect Rectification Period, the Company brings a Defect in any Deliverable to Supplier's attention, Supplier will take such actions as are required to remedy the Defect as soon as possible and at least within 20 Business Days after it learns of such Defect.
32.1 Supplier shall achieve the Delivery Date in accordance with the Purchase Order. In respect of any failure to achieve the Delivery Date, the Supplier will:
(a) mitigate the impact of such failure;
(b) promptly propose an appropriate, written corrective action plan with respect to such failure and, subject to the Company’s approval (which shall not be unreasonably withheld or delayed), proceed diligently to execute such action plan; and
(c) to the extent possible, take appropriate preventive measures so the failures do not recur.
33.1 The Supplier shall supply the Software and Documentation on the date or within the period stated on the Purchase Order in accordance with the terms and conditions set out in these General Terms
33.2 The Supplier shall deliver a copy of the Documentation to the Company in legible form and on such media or other format as the Company may reasonably request, at no additional charge to the Company.
33.3 Each member of the Company may make as many copies of the Documentation as are reasonably necessary for its business purposes and for the users of the Software.
34.1 The Supplier hereby grants, and will procure that its Affiliates grant, to the Company and each other member of the Company (each a Licensee), a royalty free, worldwide, perpetual, non- exclusive, non-transferable licence (with the right to grant sub- licences) to Use the Software and Documentation:
(a) in the ordinary course of business of each Licensee;
(b) to provide services (including training) to other Licensees; and
(c) to allow suppliers (including outsource providers) or any Licensee to Use the Software and Documentation in connection with the provision of goods and/or services to any Licensee.
34.2 Save to the extent set out in the Purchase Order, the scope and cost of the Licence shall not be restricted or limited, or calculated by reference to:
(a) the number of Licensees;
(b) the number of users;
(c) the number or volume of transactions;
(d) the number of interfaces;
(e) the number of employees or the size of turnover of the Licensee;
(f) the number or location of suppliers of the Licensee;
(g) the equipment on which the Software may be used from time to time including, without limitation, the number, size or specification of CPUs; or
(h) the location of equipment on which the Software may be used.
34.3 Each Licensee shall have the right to adapt, reverse engineer, decompile, disassemble and Modify the Software in whole or Price
34.4 in part:
(a) as permitted by law;
(b) to the extent that such action is legitimately required for the purposes of integrating the operation of such Software with the operation of other software or systems used by any Licensee from time to time; or
(c) to the extent necessary for the purpose of back-up and disaster recovery,
(d) and for no other purpose.
34.5 The Company shall be under no obligation to purchase New Versions from the Supplier.
34.6 The provisions of the Licence shall apply to all New Versions and Upgrades to the Software and related Documentation (as applicable).
34.7 If the Supplier removes any features or functionality from the licensed Software and subsequently offers those features or functionality in a new or different product (whether directly or indirectly or through a third party), then the License will be deemed to include (i) the portion of those new or different products that contain the original features or (ii) if those features cannot be separated out, the entire product. If the Supplier stops licensing the licensed Software other than as bundled or otherwise combined with other software, the License will be deemed to include that other software. If the licensed Software is a suite or other combination of software products and the Supplier elects to unbundled or otherwise separately license those products, the License will be deemed to include all of the products containing the functionality originally licensed to the Company. There will be no additional charges for changes to the scope of the License under this clause.
35.1 The Supplier warrants and represents on an on-going basis that:
(a) the Software will be free from all viruses and other contaminants including any codes or instruction that may be used to access, modify, delete or damage any data files, or other computer programs used by the Company (or any other member of the Company) from time to time, and that for this purpose, the Supplier warrants and represents that it shall use the most comprehensive and up to date virus detection software and methods available prior to the delivery and installation of the Software; and
(b) the Documentation is a full and accurate description of the operation, features, functionality and performance of the Software, providing sufficient information to enable users with appropriate training and skills to Use the Software, and is current and up-to-date.
36.1 The Supplier warrants and represents that the Software will, with effect from delivery and throughout the Software Warranty Period:
(a) function and operate in accordance with its specification and the Documentation;
(b) operate and perform on, and be compatible with the Company Equipment and Company Network; and
(c) be defect free and error free in all material respects.
36.2 Without prejudice to any of the Company’s' other rights and remedies under these General Terms, at law or in equity, in the event that the Company discovers any Defect which prevents, hinders or otherwise affects the use of the Software in accordance with these General Terms and notifies the Supplier of the Defect during the Software Warranty Period, then the Company may elect to: require the Supplier to correct the Defect within fifteen (15) days of notifying the Supplier of such Defect, provided that the Supplier shall not be under any obligation to correct the Defect if it has been caused (i) by any Modification to the Software not performed or otherwise authorised in writing by the Supplier, or (ii) through the incorrect use of the Software in accordance with the Documentation, or (iii) by use of the Software with other software or hardware which is incompatible with the Software and of which the Supplier has previously notified to the Company in writing; or immediately terminate these General Terms.
36.3 If the Supplier is directed to correct the Defect as above and fails to do so in the required timeframe, the Company may terminate these General Terms.
If requested by the Company at any time during the term of these General Terms, the Supplier shall, as soon as reasonably practicable, enter into a National Computer Centre (NCC) Escrow Agreement in relation to the Source Code for the Supplier Software.