1.1.“Company” means NCFE (company number 02896700), with its registered office at Q6, Quorum Business Park, Benton Lane, Newcastle upon Tyne, NE12 8BT.
1.2.“Company Materials” means all materials, equipment and tools, drawings, specifications and data supplied by the Company to the Supplier pursuant to or in connection with the Contract (if any)
1.3.“Contract” means the contract between the Company and the Supplier for the supply of Goods and/or Services in accordance with these Terms and Conditions and the Purchase Order.
1.4.“Deliverables” means the Goods and/or outputs of the Services to be provided by the Supplier to the Company as identified in the Purchase Order.
1.5.“Goods” means the goods to be provided by the Supplier to the Company identified in the Purchase Order.
1.6.“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
1.7.“Services” means the services to be provided by the Supplier to the Company identified in the Purchase Order, including any activities ancillary to the supply of Goods and/or Services.
1.8.“Supplier” means any individual, firm or company supplying the Goods or performing the Services as identified in the Purchase Order.
2.1.The Purchase Order constitutes an offer by the Company to purchase the Goods and/or Services from the Supplier in accordance with these Terms and Conditions.
2.2.The Purchase Order shall be deemed to be accepted on the earlier of: (a) the Supplier issuing written notification of acceptance of the Purchase Order; or (b) any act by the Supplier consistent with fulfilling the Purchase Order, at which point and on which date the Contract shall come into existence (“Commencement Date”) between the parties.
2.3.These Terms and Conditions apply to every Purchase Order placed by the Company to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealings, including, but not limited to, any terms or conditions in or attached to any catalogue, invoice or other sales literature, any tender documentation, or any dispatch/delivery advice note of the Supplier.
2.4.All of these Terms and Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3.1.The price of the Goods and the charges for the Services shall be as specified in the Purchase Order (together, the “Charges”) and cannot be varied without written agreement of the Company and the Supplier. Such Charges shall be the full and exclusive remuneration of the Supplier in respect of the supply of Goods and/or Services.
3.2.Unless otherwise stated in the Purchase Order, the Charges are fixed and shall not be subject to variation and shall be deemed to include: (a) all expenses incurred by the Supplier (directly or indirectly) in relation to provision of the Services and/or the supply of Goods; and (b) the costs of packaging, insurance and carriage of Deliverables. The Charges are exclusive of any applicable VAT unless indicated in the Purchase Order.
4.1.Detailed priced invoices, which shall be valid VAT invoices, shall be sent to the Company at the address detailed in the Purchase Order. Invoices shall be issued on or as soon as reasonably practicable after completion of delivery of Deliverables or completion of the supply of Services. Each invoice shall include supporting information required by the Company to verify the accuracy of the invoice, including, but not limited to, the Purchase Order number.
4.2.Unless otherwise stated in the Purchase Order, the terms of payment are 30 days from the date of receipt by the Company of a correctly rendered Supplier’s invoice or acceptance of the Deliverables by the Company, whichever is later.
4.3.If the Company fails to make a payment due to the Supplier under the Contract by the due date, then the Company shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 2% a year above the Bank of England's base rate from time to time, but at 2% a year for any period when that base rate is below 0%.
4.4.The Company reserves the right to return any invoices not deemed to be correctly rendered.
4.5.The Company may at any time, without notice to the Supplier, set off any liability of the Supplier to the Company against any liability of the Company to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
5.1.The Deliverables under the Contract shall: (a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); (b) correspond with the Purchase Order, any description and/or any applicable specification, including, but not limited to, as to the quantity, type, sort and description; (c) be fit for the purpose held out by the Supplier or made known to the Supplier expressly or by implication and in this respect the Company shall rely on the Supplier's skill and judgement; (d) if they are Goods, be new (unless otherwise specified in the Purchase Order) and of sound materials and skilled and careful workmanship; and (e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery.
5.2.If the Deliverables do not comply with clause 5.1, then, without limiting or affecting other rights or remedies available to it, the Company shall have one or more of the following rights, whether or not it has accepted the Deliverables: (a) to terminate the Contract with immediate effect by giving written notice to the Supplier; (b) to reject the Deliverables (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense; (c) to require the Supplier to repair or replace the rejected Deliverables, or to provide a full refund of the price of the rejected Deliverables (if paid); (d) to refuse to accept any subsequent delivery of the Deliverables which the Supplier attempts to make; (e) to recover from the Supplier any expenditure incurred by the Company in obtaining substitute goods and/or services from a third party; and (f) to claim damages for any additional costs, loss or expenses incurred by the Company arising from the Supplier's failure to comply with clause 5.1.
5.3.These Terms and Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
5.4.In providing the Services, the Supplier shall: (a) co-operate with the Company in all matters relating to the Services, and comply with all reasonable instructions of the Company; (b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade; (c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract; (d) ensure that the Services conform with all applicable descriptions and specifications; (e) provide all equipment, tools and vehicles and such other items as are required to provide the Services; (f) use the best quality goods, materials, standards and techniques; (g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services; (h) comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services; (i) observe all health and safety rules and regulations and any other security requirements that apply at any of the Company's premises; (j) hold all Company Materials in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose or use the Company Materials other than in accordance with the Company's written instructions or authorisation; (k) not do or omit to do anything which may cause the Company to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Company may rely or act on the Services; (l) comply with any additional obligations as set out in the Purchase Order.
6.Delivery, Risk and Title
6.1.The Supplier shall deliver the Deliverables on the date(s) specified in the Purchase Order during the Company’s normal business hours, or as instructed by the Company.
6.2.The Supplier is responsible for the delivery and all costs associated with the delivery of the Goods to the Company's premises or such other location that is specified in the Purchase Order (“Delivery Location”). Delivery of Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
6.3.Title and risk in the Goods shall pass to the Company on completion of delivery.
6.4.If the quantity of the Goods delivered to the Company does not correspond with the Purchase Order, the Company may reject the Goods or the excess, as applicable. Any rejected Goods shall be returnable at the Supplier’s risk and expense.
6.5.The Supplier shall not deliver the Goods in instalments without the Company’s prior written consent.
7.Packaging and Preservation
7.1.All Goods supplied by the Supplier shall be packed as specified in the Purchase Order and if not specified shall be packed so as to avoid being damaged during transportation, loading and unloading.
8.1.Time is of the essence in the Supplier’s performance of the Contract. If it ever appears that the provision of Deliverables or the supply of Services will not be met within the time specified, the Supplier must immediately notify the Company of any anticipated delay, with complete information regarding the cause and the earliest possible delivery date.
8.2.If the Supplier fails to provide the Deliverables or perform the Services by the applicable delivery date set out in the Purchase Order (if any), the Company shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights: (a) to terminate the Contract with immediate effect by giving written notice to the Supplier; (b) to refuse to accept any subsequent performance of the Services and/or provision of the Deliverables which the Supplier attempts to make; (c) to recover from the Supplier any costs incurred by the Company in obtaining substitute goods and/or services from a third party; (d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; (e) to claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Supplier's failure to meet such dates.
9.1.The Supplier warrants that the Deliverables shall be free from defects in design, materials and workmanship and remain so for 12 months after delivery.
9.2.The Company’s rights under the Contract are in addition to its rights and remedies implied by statute and common law.
9.3.If any part or aspect of the Goods fail or becomes defective within 12 months from the date the Goods were delivered to the Company, the Supplier must without delay and at no cost to the Company do all things necessary to remedy the defect or failure in the Goods. This can be by way or repair, replacement, modification or other means acceptable to the Company. If the Supplier does not do so, within a reasonable period following notice of the defect from the Company, then the Company will have the right to remedy the defect and recover reasonable costs so incurred from the Supplier.
9.4.This clause 10 shall survive termination or expiry of the Contract.
10.Liability and Indemnity
10.1.The Supplier shall indemnify the Company on demand and keep the Company indemnified against all claims, demands, proceedings, costs, charges, expenses, damages and losses or any other liability (whether criminal or civil) suffered by the Company and/or its officers, employees and/or agents arising out of or in connection with: (a) any claim made against the Company for actual or alleged infringement of a third party's rights (including Intellectual Property Rights) arising out of, or in connection with, the manufacture (if applicable), supply or use of the Goods, or receipt, use or supply of the Services (excluding the Company Materials); (b) any claim made against the Company by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; (c) any claim made against the Company by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services; and/or (d) any breach by the Supplier of any of the terms of the Contract including any negligent or reckless act, omission or default in the provision of the Services and/or the supply of Goods.
10.2.The Company will not be liable to the Supplier for any: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss or corruption of software, data or information; (vi) loss of or damage to goodwill; and/or (vii) any indirect or consequential loss or damage.
10.3.The maximum sum for which the Company may be liable to the Supplier under or in connection with the Contract is limited to the total amount of the Charges paid under the Contract.
10.4.Nothing in the Contract shall exclude or limit either party’s liability for death, personal injury or fraud, or any other liability which cannot legally be limited or excluded.
11.1.The Supplier shall maintain in force, with a reputable insurance company, appropriate insurance policy to cover the liabilities that may arise under or in connection with the Contract and shall, on the Company’s request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
12.1.Nothing in the Contract shall affect the ownership of any Intellectual Property Rights existing prior to the Commencement Date.
12.2.The Company retains ownership of all Intellectual Property Rights in all Company Materials.
12.3.The Company grants to the Supplier a non-exclusive, royalty-free, non-transferable licence to use and copy the Company Materials for the term of the Contract to the extent required for the purpose of providing the Deliverables and/or the Services to the Company.
12.4.The Supplier grants to the Company, or shall procure the grant to the Company of, a perpetual, royalty-free, irrevocable non-exclusive worldwide licence to use, copy and modify the Deliverables for the purpose of receiving the full benefit and using the Deliverables and/or the Services.
12.5.Intellectual Property Rights in the Deliverables shall vest in the Supplier, unless otherwise specified in the Purchase Order or where the Deliverables are produced for the Company as bespoke, and in each such case the Intellectual Property Rights in such Deliverables shall vest in the Company upon their creation.
13.1.In the event the supply of Services under the Contract requires the Supplier to process any personal data as a data processor for and on behalf of the Company, the Supplier shall promptly enter into a written data processing agreement with the Company, in the form required by the Company.
14.1.Neither the Company nor the Supplier shall be liable to the other for default or delay in performing its obligations in respect of this Contract caused by any occurrence beyond its reasonable control including, without limitation, fire, strike, disturbance, riot, war, act of God and government order or regulation (“Force Majeure Event”), provided that the party affected by such occurrence notifies the other party in writing within seven (7) days of the commencement of that occurrence.
14.2.When the affected party ceases to be affected by the Force Majeure Event it must immediately recommence performing its obligations under the Contract and notify the other party accordingly. However, if as a result of any such Force Majeure Event, supply of all or part of the Deliverables and/or the provision of the Services is delayed more than 3 days after the relevant delivery date specified in the Purchase Order the Company may, without penalty, cancel the Purchase Order to the extent affected by the Force Majeure Event.
15.1.The Contract shall expire automatically on the completion of the delivery of all Deliverables and/or the completion of the Services specified in the Purchase Order, whichever is later.
15.2.Without affecting any other right or remedy available to it, the Company may terminate the Contract with immediate effect by giving written notice to the Supplier.
15.3.On termination or expiry of the Contract, the Supplier shall immediately deliver to the Company all Deliverables (including Goods paid for but not delivered) whether or not then complete, and return all Company Materials. If the Supplier fails to do so, then the Company may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
15.4.Termination or expiry of the Contract shall not affect the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
15.5.Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
16.1.Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 1.1.
16.2.Each party may disclose the other party's confidential information: (a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information must comply with this clause 16; and (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3.Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
17.1.A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
18.1.Alterations or variations to the Purchase Order, these Terms and Conditions or any other attached drawings or documents shall not be legally binding upon Company or Supplier unless agreed in writing by the parties.
19.1.The parties shall attempt in good faith to negotiate a settlement to any dispute arising out of or in connection with this Contract. In the event a settlement cannot be reached within one month of the dispute arising (whichever is the shorter period), the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. To initiate the mediation a party must give notice in writing (“ADR notice”) to the other party to the dispute, referring the dispute to mediation. A copy of the referral should be sent to CEDR. Unless otherwise agreed between the parties within 14 days of the ADR notice, the mediator will be nominated by CEDR. Unless otherwise agreed, the mediation will start not later than 28 days after the date of the ADR notice.
20.Rights of Third Parties
20.1.The parties do not intend any term of this Agreement to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999.
21.Sub-contracting and Assignment
21.1.The Supplier shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Company.
22.1.Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
23.1.Nothing in the Contract shall confer, or shall be deemed to confer, on the Supplier any right to be a sole or exclusive supplier of the Deliverables and/or the Services, nor any obligation on the Company to buy any minimum quantity save as expressly set out in the applicable Purchase Order.
24.Publicity and Transparency
24.1.The Supplier shall not, without the prior written permission of the Company, advertise or disclose to any third party that it is providing the Deliverables and/or the Services to the Company.
25.1.The Contract constitutes the entire agreement between the parties in relation to the subject matter of the Purchase Order and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
26.1.If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
27.1.Any notification by either party to the other under the Contract shall be in writing, delivered by first class post, or by email to the other party at the address shown in the Purchase Order. All notices shall be deemed duly given on the day of posting or if sent by e-mail immediately when the notice is transmitted.
28.Law and Jurisdiction
This Contract shall be subject to and construed in accordance with English Law and the parties submit to the exclusive jurisdiction of the English Courts.