Standard Conditions for Purchase of Goods and/or Services
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms have the following meanings: Affiliate: means any persons that Control; are Controlled by or are under common Control with the referenced Party from time to time. Business Hours: means 09:00 to 17:30 on any Monday – Friday on which the Bank of England is open and operating in London. Change: means an amendment to this Purchase Order that has been duly executed by both Parties and executed under and in accordance with the terms of the Purchase Order. Charges: means the charges for the Deliverables set out in this Purchase Order. Claims: means claims or proceedings made, brought or threatened by any person including without limitation any claims for breach of IPR. Confidential Information: means all information and data in this Purchase Order and any information that relates to a Party (or any of its Affiliates) disclosed to the other Party in connection with the Purchase Order, but excluding information received by the other Party that: (i) is publicly available (other than through a breach of Clause 11 (Confidentiality) below); (ii) was received from a third party who did not acquire it in confidence; or (iii) is developed without any breach of the Purchase Order. Control: has the meaning set out in Section 1124 of the UK Income and Corporation Taxes Act 2010 and Controlled is construed accordingly. Deliverables: means the Goods, Work Product and/or Services to be delivered by Supplier and specified as such in this Purchase Order. Deliverables Change: means any mechanical, software or other change in design, manufacturing process, supply chain, specifications, materials or product standards (including part substitutions or internal relocation of parts) which affects or potentially affects performance, reliability, function, safety, appearance, quality, dimensions, tolerances or any other Specifications of Deliverables. Delivery: means delivery of the Goods and/or Services in accordance with Clause 4 (Delivery of Goods/Supply of Services). Goods: means the goods to be provided by Supplier to Plexal as specified on the front pages of this Purchase Order. IPR: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Liability: means liability arising out of or in connection with this Purchase Order, whether in contract; tort; misrepresentation; restitution; under statute or otherwise including any liability under an indemnity contained in this Purchase Order and/or arising from a breach of, failure to perform, or delay in performing any of a Party’s obligations under this Purchase Order howsoever caused including if by negligence. Plexal: means Plexal (City) Limited. Purchase Order: means collectively these Standard Conditions for Purchase of Goods and/or Services; the Purchase Order front pages (including the signature page) or other e-form equivalents; any annexes or schedules that are specifically attached to this Purchase Order and all Changes. Services: means the services to be delivered by the Supplier to Plexal as specified on the front pages of (and as applicable in schedules and/or annexes to) this Purchase Order. Specification: means the specifications and requirements for the Deliverables as specified on the front pages of (and as applicable in schedules and/or annexes to) this Purchase Order. Supplier: means the entity named as the Supplier on the front signature page of this Purchase Order. Work Product: means any reports, documents, work product or other materials created by the Supplier for Plexal, or on the Supplier’s behalf, arising from the Services.
1.2 Headings are for ease of reference and do not affect the interpretation of this Purchase Order.
1.3 References to a person include any individual, body corporate, partnership, government authority, agency or department, state or any other entity (in each case whether or not having separate legal personality).
1.4 Any phrases following the words include, in particular or any similar expressions shall be construed without limitation and accordingly shall not limit the meaning of the words preceding them.
1.5 An obligation on a Party to procure or make sure the performance or standing of another person shall be construed as a primary obligation of that Party.
1.6 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
2.1 This Purchase Order is the only basis on which Plexal shall purchase Deliverables. The Supplier hereby waives and shall continue to waive any terms and conditions that the Supplier may otherwise seek to apply or which may otherwise be implied, including any which are endorsed on, delivered with or contained in a Supplier quotation, order acknowledgement, on the Supplier website or other sales materials or media or on any delivery note (collectively Supplier T&Cs).
2.2 The Supplier shall not provide the Deliverables by separate instalments unless specified otherwise in this Purchase Order.
3. QUALITY CONTROL & TESTING
3.1 The quantity, description and Specification of Deliverables is as set out in this Purchase Order.
3.2 The Supplier shall maintain a quality control; system test and inspection systems as is reasonably applied by comparable manufacturers.
3.3 The Supplier shall maintain quality control and manufacturing records for at least one (1) year (or such other period of time as set out in the Purchase Order) from the date of Delivery of Deliverables.
3.4 The Supplier shall permit Plexal (or a third party on Plexal’s behalf) to inspect or receive copies of all such relevant quality control and testing records on demand.
4. DELIVERY OF GOODS / SUPPLY OF SERVICES
4.1 Unless otherwise specified in this Purchase Order, the Supplier shall provide the Deliverables to the Plexal address specified on the front pages of this Purchase Order (Delivery Address) during Business Hours on or around the date specified in this Purchase Order for delivery (Delivery Date).
4.2 The Supplier shall be responsible and liable for off-loading the Deliverables from the Delivery vehicle. Delivery of the Goods shall occur when they have been off-loaded at the Delivery Address.
4.3 The Supplier shall perform Services to meet the applicable Specifications and in accordance with the applicable timetable as set out in this Purchase Order (Services Delivery Timetable).
4.4 Plexal shall accept Services when the Services in all material ways comply with the Specification for such Services.
4.5 The Supplier shall ensure that the packaging of the Goods is marked in accordance with Plexal’s reasonable instructions and any applicable laws, rules and regulations and are properly packed and secured; marked with information on their origin; Delivery is accompanied by a prominently displayed delivery note showing this Purchase Order number, date of this Purchase Order, type and quantity of Goods, and any special storage instructions; and delivered with all operating and safety instructions, clearly displayed warning notices and such other information as may be necessary for the proper use, maintenance and repair of the Goods.
4.6 Plexal shall have a reasonable period of time following Delivery to inspect Goods and may reject Goods which do not meet Specification for such Goods in any material way. Plexal may also reject Goods which are more or less than the quantity or type ordered or delivered prior to the date specified in this Purchase Order (Rejected Goods). Rejected Goods shall be returned at the Supplier’s cost and expense.
4.7 Risk and ownership in the Goods passes to Plexal on Delivery.
4.8 The Supplier shall notify Plexal in writing as soon as the Supplier is aware that any Goods or the product support for the Goods are to be discontinued or made of ‘end-of-sale’ or ‘end-of-life’. At Plexal’s request, the Parties shall negotiate the consequences and issues arising from that situation in good faith for a reasonable period of time (during which the Supplier shall keep agreed spare parts available for Plexal for any discontinued, de-supported, end-of-life or end-of-sale Goods).
5. SUPPLIER SPECIFIC OBLIGATIONS
5.1 Goods: The Supplier warrants, undertakes and shall ensure that the Goods shall:
5.1.1 be of satisfactory quality and comprise genuine, new materials (which are not used, refurbished, reconditioned, remanufactured, counterfeit or of such age as to impair usefulness or safety);
5.1.2 conform to and satisfy the Specification for such Goods;
5.1.3 be free from material defects in design, materials and workmanship;
5.1.4 be sold or licensed to Plexal with full and unencumbered title (if sold) and not infringe the IPR of any third party; and
5.1.5 comply with all: (i) applicable laws; (ii) regulatory requirements; and (iii) standards including those issued by the British Standards Institution and requirements of relevant statutory and regulatory bodies.
5.2 Services: The Supplier warrants, undertakes and shall ensure that it shall:
5.2.1 perform Services with the levels of care, skill and diligence that would be applied by any reasonable and professional UK-based supplier of similar goods and/or services;
5.2.2 use personnel (and sufficient number of personnel) who are suitably skilled and experienced to perform the Services;
5.2.3 ensure that the Services conform with Plexal’s reasonable written additional instructions comply with the Specification for the Services and do not infringe the IPR of any third party;
5.2.4 provide all equipment, tools and vehicles and other items required for the Supplier to provide the Services;
5.2.5 obtain and at all times maintain all licences and consents required for the Supplier to provide the Services;
5.2.6 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Goods and Services in England; and
5.2.7 not subcontract provision of any of the Goods or Services without specific prior written consent from Plexal on each occasion.
5.3 ‘Time shall be of the Essence’ is relation to all delivery dates, timetables and schedules specified in this Purchase Order.
5.4 Supplier personnel operating at Plexal premises shall observe all reasonable health and safety rules and regulations and any other reasonable security requirements that apply at those Plexal premises and are notified to the Supplier by Plexal in writing.
5.5 Supplier shall ensure that the Supplier personnel are appropriately insured while working on Plexal premises.
5.6 Without affecting any other rights or remedies that Plexal may have for any breach by the Supplier, if:
5.6.1 the Supplier materially breaches this Purchase Order;
5.6.2 any Deliverables (whether or not accepted in whole or in part) do not conform with the Warranties under this Purchase Order during the warranty period for the Deliverables specified in this Purchase Order; or
5.6.3 the Supplier fails in any other way to provide the Deliverables in accordance with this Purchase Order (including without. Limitation in accordance with this Clause 5 (Supplier Specific Obligations));
then Plexal shall (without limiting all and any other remedies available to Plexal at law, under contract or in equity) be entitled to the remedies in Clause 5.7 below.
5.7 Under the circumstances specified in Clause 5.6 above, Plexal shall be entitled to:
5.7.1 terminate the Purchase Order upon written notice to Plexal;
5.7.2 require the Supplier, at Plexal’s option, either to promptly repair or else replace the relevant Goods or to reperform the relevant Services free of charge;
5.7.3 reject the Deliverables (in whole or in part) and require the Supplier to refund the Charges for the relevant Deliverables; or
5.7.4 accept the Deliverables subject to an equitable Charges reduction.
5.8 Clauses 5.6 and 5.7 shall apply to any repaired or replacement Goods supplied under Clause 5.7.2.
6. OWNERSHIP AND ASSIGNMENT OF IPR
6.1 This Clause 6 (Ownership and Assignment of IPR) shall apply:
6.1.1 if the Goods are to be made, modified or redesigned to a Specification;
6.1.2 to any IPR created by delivery of the Services (including Work Product and collectively Services IPR).
6.2 Any Specification or Work Product that the Supplier creates or has created for Plexal shall be treated as Goods for the purposes of this Clause 6 (Ownership and Assignment of IPR).
6.3 Subject to Clause 6.5, Plexal shall own all present and future IPR (together with all other proprietary rights) in the Deliverables. Accordingly, the Supplier shall assign to Plexal any IPR in Deliverables that may have been or is attributed to the Supplier immediately upon their creation.
6.4 The Supplier shall:
6.4.1 at Plexal’s cost, do anything that Plexal reasonably requests from time to time in order to secure Plexal’s full right, title and interest in the IPR in the Deliverables; and
6.4.2 obtain the waiver of all moral rights (and any broadly equivalent rights) in the Deliverables.
6.5 The exception to Clause 6.3 is that any IPR in products, materials or data owned by the Supplier as at the Effective Date and contributed or used by the Supplier to create the Deliverables (Pre-Existing Materials) shall continue to belong to the Supplier (or to its third party vendors).
6.6 The Supplier hereby grants to Plexal an irrevocable, global, perpetual, assignable, sub-licensable, royalty-free licence to use and to modify the Pre-Existing Materials which form part of any Deliverables without restriction.
7. CHARGES AND PAYMENT
7.1 Plexal shall pay the Charges to the Supplier in accordance with this Clause 7 (Charges and Payment) and as may be further detailed as a payment schedule in the applicable Purchase Order.
7.2 The Charges are inclusive of all costs and expenses incurred by the Supplier including all packaging, insurance, carriage, duties and delivery costs.
7.3 Any sum payable under this Purchase Order is exclusive of Value Added Tax (and any other similar or equivalent taxes), which shall be payable by Plexal in addition to the Charges in the manner and at the rate prescribed by law from time to time but inclusive of all other taxes, fees and levies imposed from time to time by any government or other authority.
7.4 The Supplier shall invoice Plexal (firstname.lastname@example.org) for the Charges within three (3) months following completion of Delivery of the Deliverables. Any Charges not invoiced within that three month period shall be deemed to be waived by the Supplier.
7.5 Other than as set out in Clauses 7.7 and 7.8, each invoice shall be payable by Plexal within thirty (30) days following the date on which the invoice is received by the Supplier.
7.6 No payment made by Plexal shall constitute acceptance by Plexal of any Deliverables or shall otherwise affect any rights or remedies which Plexal may have against the Supplier including the right to recover any amount overpaid or wrongfully paid to the Supplier.
7.7 Plexal may withhold payment of any disputed sum until the dispute is settled subject to giving the Supplier written notice of such disputed Charges within seven (7) days of receipt of the applicable invoice.
7.8 If any undisputed sum payable under the Purchase Order is not paid when properly due, the Supplier may (on 7 days written notice to Plexal warning of such intention) charge Plexal interest daily on that sum at 1% per year above the base lending rate from time to time of Bank of England from the due date until the date of payment (whether before or after judgment).
8.1 Plexal may terminate this Purchase Order (in whole or in part):
8.1.1 if the Supplier commits a material breach of this Purchase Order and fails to remedy such breach within thirty (30) days’ after receiving written notice of such breach. Any breach of Clauses 6 (Ownership and Assignment of IPR); 10; (Indemnity), 11 (Confidentiality) and/or 15.10 (as regards non-assignment) shall be deemed to be a material breach; or
8.1.2 at any time, for Plexal’s convenience, upon three (3) days’ written notice (subject to paying all Charges due and payable up to the date of termination).
8.2 Either Party (Terminating Party) may terminate this Purchase Order by giving the other Party (Defaulting Party) written notice if the Defaulting Party has a receiver, administrator or liquidator (provisional or otherwise) appointed; is subject to a notice of intention to appoint an administrator or any other resolution on insolvency; passes a resolution for the Defaulting Party’s winding-up; has a winding-up order made by a court against the Defaulting Party; enters into any composition or arrangement with creditors; ceases to carry on business; is the subject of anything similar or equivalent to that set out in this Clause 8.2 under any applicable laws; or the Defaulting Party is subject to any change of Control and the Defaulting Party shall notify the Terminating Party immediately upon the occurrence of any such event or circumstance.
8.3 Following expiry or termination of this Purchase Order:
8.3.1 any provisions which expressly or impliedly continue to have effect after expiry or termination of the Purchase Order shall continue in force;
8.3.2 all other rights and obligations shall immediately cease but shall not affect any of the Parties’ respective rights, obligations, Claims and liabilities which may exist prior to the date of expiry or termination;
8.3.3 each Party shall immediately cease using the other Party’s Confidential Information and shall as soon as reasonably possible, if requested to do so, return to the other Party all of the other Party’s Confidential Information (including all copies and extracts) in its possession or control or confirm its secure destruction; and
8.3.4 each Party may keep any of the other Party’s Confidential Information which it has to keep to comply with any applicable law and Clause 8.3.3 shall not apply to such Confidential Information. Clause 11 (Confidentiality) shall continue to apply to any retained Confidential Information of the other Party.
8.4 If Plexal terminates this Purchase Order, Plexal may require the Supplier to deliver to Plexal any supplies, materials, drawings and all other items and IPR reasonably related to the Goods or Services produced or acquired by the Supplier for the terminated part of the Purchase Order and the Parties shall, in good faith, negotiate the amount payable for the same.
9. LIABILITY AND INSURANCE
9.1 Nothing in this Purchase Order shall operate to exclude or restrict either Party’s Liability:
9.1.1 for death or personal injury resulting from its negligence;
9.1.2 for its fraud or fraudulent misrepresentation;
9.1.3 for breach of obligations arising under section 12 Sale of Goods Act 1979 or breach of the term implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
9.1.4 for any matter for which it is not permitted by law to exclude or limit its Liability.
9.2 Subject to Clause 9.1, neither Party (Liable Party) shall have any Liability to the other Party (Claiming Party) for any:
9.2.1 loss of profit, goodwill or revenue; or
9.2.2 any indirect, consequential or special loss.
9.3 Subject to Clauses 9.1 and 9.2, Plexal’s aggregate Liability in respect of any and all events under law or equity shall be limited to an amount not to exceed the charges paid by Plexal to the Supplier under this Purchase Order in the three (3) months prior to the claim.
9.4 The exclusions from and limitations of Liability contained in this Purchase Order shall apply after as well as before the date of expiry or termination of the Purchase Order.
9.5 Each Party shall have satisfactory insurance cover with a reputable insurer to cover such Party’s obligations and potential Liability under this Purchase Order. The Supplier shall (as a minimum) have Public Liability insurance for £5 million; Employers’ Liability for £5 million and Professional Indemnity cover for £2million. Each Party shall provide evidence of such insurance coverage to the other Party if required to do so.
10.1 The Supplier shall indemnify Plexal and keep Plexal fully and effectively indemnified against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Plexal arising out of or in connection with any Claims made against Plexal for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the use of the Deliverables specifically but without limitation in relation to or by reason of:
10.1.1 any claim or allegation that the Deliverables infringe any intellectual property rights of any third party;
10.1.2 the negligence, recklessness or misconduct of the Supplier in the performance of any of its obligations in connection with the Deliverables;
10.1.3 any action or omission of the Supplier or its agents and/or employees; and
10.1.4 any breach or alleged breach of any applicable laws or regulations relating to the use of the Deliverables by the Supplier.
10.2 This indemnity shall apply whether or not the Supplier has been negligent or at fault.
11.1 Except as set out in Clause 11.2, each Party (Receiving Party) shall:
11.1.1 use the Confidential Information of the other Party (Disclosing Party) solely to perform the Receiving Party’s obligations and to exercise the Receiving Party’s rights under the Purchase Order;
11.1.2 keep the Disclosing Party’s Confidential Information secret, safe and secure; and
11.1.3 not disclose the Disclosing Party’s Confidential Information to any other person.
11.2 The Receiving Party may disclose the Disclosing Party’s Confidential Information:
11.2.1 to the extent required by law, any court of competent jurisdiction or the rules of any government, public or regulatory body or any stock exchange (subject to giving the Disclosing Party written notice as soon as possible of such requirement and as permitted by law and regulation); and
11.2.2 to its officers, directors, employees and professional advisers and, in our case, our Affiliates, agents and sub-contractors, who need the Confidential Information in order for that Party to perform its obligations and exercise its rights under the Purchase Order.
11.3 A Party disclosing the other Party’s Confidential Information under Clause 11.2.2 shall make sure that each person to whom it discloses that Confidential Information is bound by obligations of confidentiality no less onerous than those set out in this Clause 11 (Confidentiality).
11.4 Each Party acknowledges and agrees that damages alone may not be an adequate remedy for breach of this Clause 11 (Confidentiality). Accordingly, the Disclosing Party shall be entitled, without having to prove special damages, to injunctive relief, equitable relief and/or specific performance for any breach or threatened breach of this Clause 11 (Confidentiality).
11.5 Without limiting the general obligations and prohibitions of this Clause 11 (Confidentiality), the Supplier shall not under any circumstances make known in any public forum, publication (online or physical) or by any other means, the existence or contents of this Purchase Order or the existence of a contractual relationship between Plexal and the Supplier without approval from Plexal.
12. ETHICAL CONDUCT
12.1 The Supplier shall conduct its business ethically and lawfully in accordance with the highest standards adhered to by similar entities operating in UK.
12.2 The Supplier represents and warrants that the Supplier and its subcontractors and suppliers do not use or permit unacceptable labour practices, such as child or forced labour, or unsafe working conditions and comply with all applicable labour and employment laws, regulations, standards and conventions, including the Modern Slavery Act (2015), the UN’s Guiding Principles on Business & Human Rights and the International Labor Organization’s Conventions.
12.3 The Supplier shall comply with all applicable anti-bribery and anti-corruption laws, including but not limited to the UK Bribery Act and the Foreign Corrupt Practices Act (FCPA) (and related regulation and guidance).
12.4 The Supplier shall apply the highest standards of behaviour and compliance with all applicable laws as regards diversity and inclusion within its own workforce and shall procure equivalent obligations with any subcontractors that it uses or engages to provide Deliverables (as outlined by the UK Government in its Diversity and Inclusion Strategy 2019 to 2023 Policy Paper).
12.5 The Supplier represents and warrants that it shall only use minerals within the Deliverables that are procured from sources that neither:
12.5.1 contribute to conflict; nor
12.5.2 benefit from or finance armed groups in areas of conflict.
12.6 The Supplier warrants and represents that it has adopted, and that it requires its sub-contracted suppliers of minerals to adopt, conflict the highest standards of mineral policies and management systems.
13.1 Formal or legal notices and other communications provided for the purposes of this Purchase Order shall be in writing, in English and delivered by courier/ registered or certified post or by hand to the relevant Party’s address as specified on the front pages of this Purchase Order (or such other address which is notified to the other Party in writing from time to time).
14. EXPORT / IMPORT / ECONOMIC SANCTIONS CONTROLS
14.1 The Supplier shall comply with all applicable export controls and import and economic sanctions laws and regulations of the Supplier’s country of incorporation from where the Deliverables will be supplied as well as those of the United Kingdom; the European Union and the USA.
14.2 The Supplier shall also obtain, as required, and comply with all applicable government authorisations and their provisos in supplying the Deliverables.
14.3 Without limiting the foregoing, the Supplier shall not transfer any export controlled item, data or services provided by Plexal in relation to this Purchase Order, to include transfer to any persons, including those persons employed by or associated with, or under contract to the Supplier or Supplier’s subcontractors and suppliers, without the authority of an applicable licence, exemption or exception.
14.4 The Supplier shall provide to Plexal all information necessary to support any regulatory or government authorisation requirements the Supplier has regarding the Deliverables.
15.1 This Purchase Order constitutes the entire agreement between the Parties and supersedes any prior agreement or arrangement in respect of its subject matter.
15.2 Neither Party has entered into this Purchase Order in reliance upon, and shall have no remedy in respect of, any misrepresentation, representation or statement (whether made by the other Party or any other person) which is not expressly set out in this Purchase Order.
15.3 Nothing in Clauses 15.1 or 15.2 shall limit or exclude the Liability of either Party for fraud or fraudulent misrepresentation.
15.4 A Party’s delay in exercising, partial exercising or failure to exercise a right or remedy under this Purchase Order shall not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy. A waiver of any right, remedy, breach or default shall only be valid if it is in writing and signed by the Party giving it.
15.5 If any provision of this Purchase Order is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such provision shall be deemed to be severed from this Purchase Order and this shall not affect the remainder of this Purchase Order which shall continue in full force and effect.
15.6 Except to the extent otherwise specified in this Purchase Order, variations to this Purchase Order must be agreed in writing and duly executed by both Parties.
15.7 No partnership, agency or joint venture between the Parties shall be created by this Purchase Order.
15.8 Each Party is an independent contractor and is entering into this Purchase Order as principal and not as agent for or for the benefit of any other person.
15.9 Save as provided in Clause 15.8, the Parties do not intend that any provision of this Purchase Order shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
15.10 Neither Party shall assign, transfer, charge, hold on trust for any person or deal in any other manner with any of such Party’s rights under the Purchase Order.
15.11 Neither Party shall be liable to the other Party for failure to perform its obligations under this Purchase Order if such failure results from circumstances beyond its reasonable control.
16. GOVERNING LAW AND JURISDICTION
16.1 This Purchase Order and any non-contractual obligations arising in connection with it are governed by the laws of England. The courts of England have exclusive jurisdiction to determine any dispute arising in connection with this Purchase Order.