- DEFINITIONS AND INTERPRETATION
In these Conditions the following definitions apply:
Acceptance Conditions: means the conditions set out in clause 7.2;
Business Day: means a day other than a Saturday, Sunday or bank or public holiday when banks generally are open for non-automated business in England;
Conditions: means the Customer’s terms and conditions of purchase set out in this document;
Construction Act: means Housing Grants Construction and Regeneration Act 1996 (as amended);
Contract: means the agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Order;
Customer: means ETHICAL POWER LTD. registered in England and Wales with company number 07223160 whose registered office is at Unit 9 Dunchideock Barton, Dunchideock, Exeter, Devon, England, EX2 9UA or any of its subsidiaries, affiliates or parent or holding companies and its and their successors and assigns including without limitation the Employer;
Data Protection Laws: means all applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Deliverables, as may be in force from time to time;
Deliverables: means the Goods or Services or both as the case may be;
Documentation: means any descriptions, instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;
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;
Goods: means the goods and related accessories, spare parts and Documentation (if any) and other physical material as agreed between the parties or understood by the parties to be included in the Goods and to be supplied by the Supplier to the Customer in accordance with the Contract;
Insolvent (and related terms) derive their meaning from section 113, Construction Act 1996;
Intellectual Property Rights: means copyright, patents, know-how, trade secrets, trademarks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, domain names and all similar rights;
Order: means the Customer’s order for the Deliverables on the purchase order form preceding these Terms and Conditions of Purchase;
Personal Data: shall have the meaning given in applicable Data Protection Laws from time to time;
Price: has the meaning given in clause 3.1;
Services: means the services to be supplied by the Supplier to the Customer as agreed between the parties and in accordance with the Contract;
Site: means the site as defined in the Order;
Specification: means the description or Documentation provided for the Deliverables set out or referred to in the Contract;
Supplier: means the named party in the Contract who has agreed to sell the Deliverables to the Customer and whose details are set out in the Order;
Supplier Personnel: means all employees, officers, staff, other workers, agents and consultants of the Supplier, its affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time;
VAT: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables;
In these Conditions, unless the context otherwise requires:
1.1 a reference to the Contract means these Conditions, the Order, and their respective schedules, appendices and annexes (if any);
1.2 any clause, schedule or other headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
1.3 a reference to a ‘party’ means either the Supplier or the Customer and includes that party’s personal representatives, successors and permitted assigns;
1.4 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns
1.5 a reference to a ’company’ includes any company, corporation or other body corporate, wherever and however incorporated or established;
1.6 a reference to a gender includes each other gender;
1.7 words in the singular include the plural and vice versa;
1.8 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.9 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (excluding email);
1.10 a reference to legislation is a reference to that legislation as in force at the date of the Contract or amended, extended, re-enacted or consolidated from time to time except to the extent that any such amendment, extension or re-enactment would increase or alter the liability of a party under the Contract; and
1.11 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2. SALE AND SUPPLY OF DELIVERABLES
2.1 The Supplier shall sell and supply the Deliverables to the Customer in accordance with the terms of this Contract.
3. PRICE
3.1 The Price for the Deliverables shall be as specified in the Order.
3.2 No increase in the Price may be made by the Supplier after the Order is placed by the Customer.
3.3 All prices are fixed and the Price includes any delivery charges.
4. PAYMENT
4.1 The Supplier’s invoices shall be issued by the Supplier and paid by the Customer within 30 days of receipt of a valid invoice..
4.2 Time of payment is not of the essence. Where sums due under the Contract are not paid in full by the due date, to compensate the Supplier for all loss from the Customer’s breach, the Customer shall pay on the sum overdue interest (before and after judgment) on a daily basis from the due date until payment in full at the rate of 3 per cent per annum above the official bank rate from time to time of The Bank of England. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
4.3 VAT shall be charged by the Supplier and paid by the Customer at the then applicable rate.
5. CANCELLATION
5.1 The Customer shall have the right to cancel the Order on giving not less than 5 Business Days’ notice in writing to the Supplier for the Deliverables or for any part of the Deliverables which have not yet been delivered to the Customer.
5.2 In relation to any Order cancelled or part-cancelled under clause 1, the Customer shall pay (less any set off or counterclaim that the Customer may have) for that part of the price which relates to the Deliverables which at the time of cancellation has been delivered to the Customer and the costs of materials and labour which the Supplier has purchased to fulfil the Order for the Deliverables which cannot be used for other orders or be returned to the Supplier’s supplier of those materials for a refund.
6. DELIVERY OF GOODS AND PERFORMANCE OF THE SERVICES
6.1 The Deliverables shall be delivered on the basis of INCOTERMS Delivery at Place.
6.2 The Goods shall be delivered by the Supplier, or its nominated carrier to the Site on the delivery date(s) specified in the Order. The Goods shall be deemed delivered by the Supplier only on completion of unloading of the Goods at the Site.
6.3 The Services shall be performed by the Supplier at the Site on the date(s) specified in the Order.
6.4 The Services shall be deemed performed on confirmation of completion of the Acceptance Conditions by the Customer in writing.
6.5 The Goods shall not be delivered and the Services shall not be performed in instalments unless otherwise agreed in writing by the Customer.
6.6 Each delivery of the Goods or performance of the Services shall be accompanied by a delivery note stating:
6.6.1 the date of the Order;
6.6.2 the relevant Customer and Supplier details;
6.6.3 if Goods, the product numbers and type and quantity of Goods in the delivery;
6.6.4 if Services, the category, type and quantity of Services performed;
6.6.5 any special instructions, handling and other requests;
6.6.6. in the case of Services, details of the Supplier Personnel performing the Services; and
6.6.7 in the case of Goods, whether any packaging material is to be returned, in which case the Customer shall, after the Goods are unpacked, make them available for collection by the Supplier at the Supplier’s expense.
6.7 Time of delivery of the Goods or performance of the Services (as the case may be) is of the essence. If the Supplier fails to deliver any of the Goods or perform any of the Services by the dates required under clause 1, other than as a result of any delay caused by the Customer, the Customer shall (without prejudice to its other rights and remedies) be entitled at the Customer’s sole discretion:
6.7.1 to terminate the Contract;
6.7.2 to purchase the same or similar Deliverables from a supplier other than the Supplier;
6.7.3 to refuse to accept the delivery or the performance (as the case may be) of any more Deliverables under the Contract;
6.7.4 to recover from the Supplier, on a full indemnity basis all costs, losses and damage resulting to and incurred by the Customer, including any liquidated or common law damages payable under its contracts with its customers, and the amount by which the price payable by the Customer to acquire those Deliverables from another supplier exceeds the price payable under the Contract and any loss of profit; and
6.7.5 to do all or any of the foregoing.
6.8 If the Customer does not accept delivery of the Goods on the date or within the period set out in the Order, the Supplier shall at reasonable cost to the Customer store and insure the Goods pending delivery.
7. ACCEPTANCE, REJECTION AND INSPECTION
7.1 The Customer shall not have accepted, or be deemed to have accepted, the Deliverables until the Acceptance Conditions are fulfilled.
7.2 The Acceptance Conditions are that:
7.2.1 for the Goods, the Goods and delivery note have been delivered to or at the Site;
7.2.2. for the Services, the Services have been performed at the Site;
7.2.3 all pre-delivery and post-delivery acceptance tests and inspections have been completed to the satisfaction of the Customer at its sole discretion acting reasonably; and
7.2.4 the Customer has notified the Supplier in writing that the Deliverables have been delivered in full compliance with the terms and conditions of the Contract.
7.3 The Customer shall be entitled to reject any Goods which are not in full compliance with the terms and conditions of the Contract. Any acceptance of defective, late or incomplete Goods or any payment made in respect thereof, shall not constitute a waiver of any of the Customer’s rights and remedies, including its right to reject. If the Goods or any part thereof are rejected due to the volume of the Goods exceeding the tolerances (if any) specified in the Order, the Supplier shall promptly and at its own cost arrange for redelivery of the correct volume.
7.4 Any rejected Goods may be returned to the Supplier by the Customer at the Supplier’s cost and risk. The Supplier shall pay to the Customer a reasonable charge for storing and returning any of the Goods over-delivered or rejected.
7.5 The Customer may require acceptance tests to be performed or to be carried out, at the Customer’s option, either by the Customer or the Supplier, and the results of the tests shall be made available to the Customer.
7.6 The Customer may inspect and test the Goods during manufacture or processing prior to despatch, and the Supplier shall provide the Customer with all facilities and access reasonably required.
7.7 Any inspection or testing of the Goods shall not be deemed to be acceptance of the Goods or a waiver of any of the Customer’s rights and remedies, including its right to reject.
7.8 The rights of the Customer in this clause 7 are without prejudice to the Customer’s rights under clause 9.
8. TITLE AND RISK
8.1 Risk in the Goods shall pass to the Customer on delivery and when the Customer has notified the Supplier in writing that it has accepted the Goods.
8.2 Title to the Goods shall pass to the Customer on the sooner of: (a) payment by the Customer therefor; or (b) delivery of the Goods to the Customer, as the case may be.
8.3 The passing of title shall not prejudice any other of the Customer’s rights and remedies, including its right to reject.
8.4 Neither the Supplier, nor any other person, shall have a lien on, right of stoppage in transit or other rights in or to any Goods title to which has vested in the Customer or any specifications or materials of the Customer, and the Supplier shall ensure that relevant third parties accept the exclusion of such lien and rights.
8. 5 The Supplier warrants and represents that it:
8.5.1 has at the time the Contract is made and at all times thereafter full, clear and unencumbered title to the Goods, and the full, clear and unencumbered right to sell and deliver them to the Customer; and
8.5.2 shall hold such title and right to enable it to ensure that the Customer shall acquire a valid, unqualified title to the Goods and shall enjoy quiet possession of them.
9. WARRANTY AND SUPPLIER OBLIGATIONS
9.1 The Supplier warrants and represents to the Customer and its assignees that the Supplier shall:
9.1.1 have all consents, licences and authorisations necessary to deliver and perform the Deliverables;
9.1.2 provide high quality Documentation for the Deliverables;
9.1.3 ensure compliance and fulfilment of its obligations in accordance with the Order and the Contract;
9.1.4 observe, and ensure that the Supplier Personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises including the Site;
9.1.5 ensure that the Supplier Personnel use reasonable skill and care in the delivery and performance of the Deliverables;
9.1.6 keep the Customer fully informed of all activities concerning the Deliverables and provide the Customer with activity reports on request; and
9.1.7 conduct such tests, including pre-delivery and post-delivery acceptance tests and inspections, in relation to the Deliverables prior to delivery or performance as the Customer may require at its sole discretion acting reasonably.
9.2 The Supplier warrants and represents to the Customer and its assignees that the Deliverables shall:
9.2.1 conform in all respects to any sample, to the quality and description of the Specification;
9.2.2 be free from defects in design, material and workmanship;
9.2.3 comply with all applicable laws, standards and best industry practice;
9.2.4 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
9.2.5 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982; and
9.2.6 be fit for purpose and any purpose held out by the Supplier and as otherwise required to meet the Customer’s needs.
9.3 The Supplier agrees that the approval by the Customer of any design and specification provided by the Supplier shall not relieve the Supplier of any of its obligations under this clause 9.
9.4 The Supplier warrants that it understands the Customer’s business and needs.
9.5 The Customer may reject the Deliverables if any part of it does not comply with clauses 9.1 and/or 2 and the Supplier shall, at the Customer’s option, promptly remedy, repair, replace or correct or refund the price of any such Deliverables.
9.6 The provisions of these Conditions shall apply to any Deliverables that are remedied, repaired, replaced, or corrected with effect from the date of the delivery of the remedied, repaired, replaced, corrected Deliverables.
9.7 The Customer’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and conditions contained in the Supply of Goods and Services Act 1982, s12 to 16 and the Sale of Goods Act 1979, s13 to 15.
9.8 The Customer shall be entitled to exercise its rights under clause 9 regardless of whether the Deliverables have been accepted under the Acceptance Conditions and notwithstanding that the Deliverables were not rejected following initial inspection.
9.9 ln all its activities carried out pursuant to this Contract, the Supplier and its employees shall comply with, and shall contractually require its permitted subcontractors and their employees to comply with, all sex discrimination, race relations, disability discrimination, employment equality, sexual orientation and age discrimination legislation, regulations, statutory guidance and codes of practice appliable in the countries of operation of the Supplier and its permitted subcontractors.
9.10 The Supplier undertakes, warrants and represents that:
9.10.1 neither the Supplier nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015.
9.10.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy and shall notify the Customer immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or sub-contractors have breached or potentially breached any of the Supplier’s obligations under clause 9.10. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Supplier’s obligations.
10. INDEMNITY AND INSURANCE
10.1 The Supplier shall indemnify and keep the Customer indemnified at all times from and against all claims, liabilities, losses, reasonably incurred expenses, fines, penalties and/or damages the Customer may suffer in consequence of any claim for, or in respect of, (a) the death and/or personal injury of any person arising as a result of any act or omission of the Supplier in connection with the Deliverables or (b) any loss of or damage to property or assets of the Customer or any third party arising as a result of any act or omission of the Supplier in connection with the Deliverables, except in either case to the extent that it is due to any act or omission of the Customer or (c) defects in materials, quality, workmanship or performance of the Deliverables.
10.2 Throughout the duration of this contract and for a period of six years thereafter the Supplier shall take out and maintain with reputable insurers Professional Indemnity and Third Party Liability Insurances with a limit of indemnity of not less than £5,000,000 per occurrence, the number of occurrences being unlimited.to the Third Party Liability insurance shall indemnify the Supplier and its permitted Subcontractors should it or they be held legally liable for claims relating to third party property damage or injury/death of third parties in accordance with all applicable laws of the country where the Goods are delivered and/or the Services are performed.
11. LIMITATION OF LIABILITY
11.1 Subject to clause 2,
11.1.1 the Supplier’s total liability for default under this Contract shall not exceed the Price for the Deliverables; and
11.1.2 the Supplier shall not be liable for consequential, indirect or special losses nor for any loss of profit, opportunity, or goodwill incurred by the Supplier.
11.2 Notwithstanding any other provision of the Contract, the liability of the Supplier shall not be limited in any way in respect of the following:
11.2.1 its liability under clause 1;
11.2.2 death or personal injury caused by its negligence;
11.2.3 fraud or fraudulent misrepresentation on its part;
11.2.4 any losses caused by wilful misconduct on its part; or
11.2.5 any other losses which cannot be excluded or limited by applicable law.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 All specifications provided by the Customer and all Intellectual Property Rights in the Deliverables made or performed in accordance with such Specifications shall vest in and remain at all times the property of the Customer and such specifications may only be used by the Supplier as necessary to perform the Contract. In respect of any Intellectual Property Rights that vest in the Supplier, the Supplier grants to the Customer an irrevocable, royalty free, assignable licence to use and reproduce any drawings, data, designs, plans or specifications produced by and on behalf of the Supplier.
12.2 The Supplier shall indemnify the Customer from and against all losses, damages, liabilities, costs (including legal fees) and expenses incurred by the Customer as a result of or in connection with any action, demand or claim that use or possession of any of the Deliverables or any of the Intellectual Property Rights licenced by any of the foregoing provisions of this clause 12 infringes the Intellectual Property Rights of any third party.
13. CONFIDENTIALITY AND PUBLICITY
13.1 The Supplier shall not without the prior written approval of the Supplier take or permit to be taken any photographs of the Site, staff, or visitors for use in any publicity, advertising or otherwise.
13.2 The Supplier shall not without the prior written approval of the Customer, disclose to any other person (other than any person to whom disclosure must be made in order for the Supplier to fulfil its duties under the Contract, the Supplier’s lawyers, auditors and other professional advisers subject to a duty of confidence or as may be required by statute or by a court of competent jurisdiction) any information about the Customer, its staff, customers, suppliers or visitors or its business. The Supplier’s obligations under this clause shall not apply to any information which is already in the public domain or to any information which came to him otherwise than in connection with his involvement in relation to the Contract except where its entry into the public domain or its coming to the Supplier was as a result of a breach of any contractual obligation by the Supplier or any other person for whom the Supplier is responsible.
13.3 The Supplier shall ensure that any sub-contract and any appointment of a consultant entered into by the Supplier for the purposes of the Services (if any) contains the provisions in clauses 1 and 13.2 (mutatis mutandis) and shall take all reasonable steps to ensure that such provisions are enforced.
14. TERMINATION
14.1 The Customer shall be entitled to terminate the Contract without liability by giving 5 Business Days’ notice to the Supplier at any time or forthwith if the Supplier:
14.1.1 becomes Insolvent; or
14.1.2 is in breach of any of its obligations hereunder.
14.2 If the Supplier becomes aware that any event has occurred, or circumstances exist, which may entitle the Customer to terminate the Contract under this clause 14, it shall immediately notify the Customer in writing.
14.3 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of the Buyer at any time up to the date of termination.
14.4 Where the dispute cannot be resolved by negotiated settlement either party may issue formal legal proceedings at any time.
15. FORCE MAJEURE
15.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
15.1.1 promptly notifies the other of the Force Majeure event and its expected duration; and
15.1.2 uses best endeavours to minimise the effects of that event.
15.2 If, due to Force Majeure, a party:
15.2.1 is or shall be unable to perform a material obligation; or
15.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days;
the other party may, within 30 days, terminate the Contract on immediate notice.
16. GENERAL
16.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
16.2 No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of order, specification or other document issued to the Customer by the Supplier shall form part of the Contract.
16.3 No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions, and is duly signed or executed by, or on behalf of, the Customer.
16.4 The Supplier may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part.
16.5 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
16.6
16.7 No waiver by the Customer of any breach of this Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision. Any waiver by the Customer shall only be effective if in writing expressly waiving the provision in question.
16.8 A waiver of any term, provision, condition or breach of the Contract by the Customer shall only be effective if given in writing and signed by the Customer, and then only in the instance and for the purpose for which it is given.
16.9 Any notice or other communication given by a party under these Conditions shall be in writing and be sent to the relevant party at the address set out in the Contract or to their registered office either by recorded delivery or by hand. A notice given under these Conditions is not validly served if sent by email.
16.10 Unless stated otherwise, time is of the essence for any date or period specified in the Contract in relation to the Supplier’s obligations only.
16.11 The Supplier shall at the request of the Customer, and at the Supplier’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
16.12 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
16.13 Each party acknowledges that it has not entered into the Contract or any documents entered into pursuant to it in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract or any documents entered into pursuant to it. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement not contained in the Contract.
16.14 The Supplier shall comply with all laws, enactments, regulations, regulatory policies, guidelines and industry codes applicable to it together with any policies of the Customer notified to it and shall maintain such authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
16.15 The parties agree to comply with all necessary obligations under the relevant Data Protection Laws in force from time to time.
16.16 If there is a conflict between the terms contained in the Conditions and the terms of the Order, schedules, appendices or annexes to the Contract, the terms of these Conditions shall prevail.
16.17 Save for any assignee of the Customer, a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
16.18 The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England.
16.19 The parties irrevocably agree that the courts of England shall have jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).