1. DEFINITION AND INTERPRETATIONS
1.1 In these Conditions, the following definitions apply:
Business Day: means a day (other than a Saturday, Sunday or public holiday) when the banks in London are open for business.
Conditions: the terms and conditions set out in this document.
Customer: means the FirstPort Group company identified on the Purchase Order as the Customer.
Customer Materials: means all materials, equipment, tools, drawings, specifications, and data supplied by the Customer to the Supplier.
Deliverables: means all documents, products, materials and any other type of deliverable developed and/or provided by the Supplier (or its agents and/or sub-contractors) as part of or in relation to the Services (in any form or media).
FirstPort Group: means Knight Square Limited (trading as FirstPort), any subsidiary or holding company from time to time of Knight Square Limited and any subsidiary from time to time of a holding company of Knight Square Limited. Subsidiary and holding company shall have the meanings given to them in Section 1159 of the Companies Act 2006.
Force Majeure Event: means any event beyond the Customer’s or Supplier’s reasonable control, including without limitation, any Act of God, war, strikes, lockouts, fires, floods, earthquakes, Government action, terrorism, riots, civil disorders, rebellions or revolutions.
Goods: means the goods (or any part of them) as set out in a Purchase Order.
Intellectual Property Rights (“IPR”): means the intellectual property rights, including but not limited to copyright, patents, trade secrets, trademarks, trade names, domain names and all similar rights, whether registered or not, and whether vested, contingent, or future, in whatever part of the world existing.
Party: means individually, the Customer or the Supplier who shall be referred to collectively as the “Parties” from time to time.
Purchase Order: means an order placed by the Customer on the Customer’s order form under which the Supplier agrees to supply the Goods and/or Services, incorporating these Conditions by reference.
Specification: means any specification for the Goods and/or Services, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Services: means the services, including without limitation any Deliverables, to be provided by the Supplier under the Purchase Order.
Supplier: means the entity or individual from whom the Customer purchases the Goods and/or Services.
2. BASIS OF CONTRACT
2.1 The Purchase Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier. Subject to Clause 2.2, any purchase by the Customer is conditional upon acceptance of these Conditions by the Supplier, which are incorporated by reference into the Purchase Order to the exclusion of any other terms that the Supplier may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 Should the Customer and the Supplier already be parties to a fully executed Framework Agreement (or an agreement of a similar nature), then in the event of a conflict between the terms of the Framework Agreement and these Conditions, the Framework Agreement shall take precedence.
3. SUPPLY OF GOODS
3.1 The Supplier shall ensure that the Goods (i) correspond with their description and any applicable Specification; (ii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier expressly or by implication, (iii) be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and ( iv) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, insurances, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Purchase Order in respect of the Goods.
3.3 If following an inspection, or certain testing, the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.4 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Purchase Order, and the Customer shall have the right to conduct further inspections and tests after the Supplier has carried out any remedial action.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition and that each is accompanied by a delivery note which shows the date of the Purchase Order, the Purchase Order number (if any) and the type and quantity of the Goods.
4.2 The Supplier shall deliver the Goods on the date specified in the Purchase Order or, if no such date is specified, then within 14 days of the date of the Purchase Order to the location set out in the Purchase Order or as instructed by the Customer before delivery, during the Customer’s normal hours of business on a Business Day. The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the delivery location specified on the Purchase Order. Title and risk in the Goods shall pass to the Customer on completion of delivery.
5. SUPPLY OF SERVICES
5.1 The Supplier shall provide the Services to the Customer in accordance with the terms of the Purchase Order and shall meet any performance dates for the Services specified in the Purchase Order or notified to the Supplier by the Customer.
5.2 In providing the Services, the Supplier shall co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer.
5.3 The Supplier shall perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade; 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 Purchase Order; ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Specification, and ensure that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer.
5.4 The Supplier shall provide all equipment, tools and vehicles and such other items as are required to provide the Services and shall use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all other goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design.
5.5 The Supplier warrants to the Customer that it shall:
5.5.1 observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises or the location where asked by the Customer to carry out the Services, including but not limited to the Health and Safety at Work Act 1974, Control of Asbestos at Work Regulations, the Electricity at Work Regulations, Manual Handling Regulations; Health & Safety (First Aid) Regulations, the Provision and Use of Work Equipment Regulations, ACop, the Construction (Design and Management) Regulations 2015 and the Management Regulations; and
5.5.2 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations, and
5.5.3 observe the Construction Industry Scheme rules and regulations where relevant;
5.5.4 hold all materials, equipment, tools, drawings, specifications and data supplied by the Customer to the Supplier in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer’s written instructions or authorisation.
6. CUSTOMER REMEDIES
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Customer shall, without limiting its other rights or remedies, have one or more of the following rights:
6.1.1 to terminate the Purchase Order with immediate effect;
6.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
6.1.3 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods and/or services from a third party;
6.1.4 where the Customer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have any amounts paid in advance refunded by the Supplier.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods:
6.2.1 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
6.2.2 to terminate the Purchase Order with immediate effect;
6.2.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
6.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.2.5 to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and
6.2.6 to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier and the Customer’s rights under the Purchase Order are in addition to its rights and remedies implied by statute and common law.
7. CUSTOMER’S OBLIGATIONS
The Customer shall:
7.1.1 provide the Supplier with reasonable access at reasonable times to the relevant premises for the purpose of providing the Services;
7.1.2 provide such information as the Supplier may reasonably request for the provision of the Goods/Services and the Customer considers reasonably necessary for the purpose of providing the Goods/Services.
8. CHARGES AND PAYMENT
8.1 The price of the Goods:
8.1.1 shall be the price set out in the Purchase Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the date of the Purchase Order; and
8.1.2 shall be inclusive of the costs of packaging, insurance, and carriage of the Goods, unless otherwise agreed in writing by the Customer. No extra charges shall be effective unless agreed in writing and signed by the Customer.
8.2 The charges for the Services shall be set out in the Purchase Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services and the provision of any related Deliverables. Unless otherwise agreed in writing by the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant Purchase Order number.
8.4 In consideration of the supply of Goods and/or Services by the Supplier in accordance with these Conditions, the Customer shall pay all standard corporate invoiced amounts within 60 days of the date of a correctly rendered invoice to a United Kingdom bank account nominated in writing by the Supplier.
8.5 All amounts payable by the Customer under the Purchase Order are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Purchase Order by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.6 If a Party fails to make any payment due to the other Party under the Purchase Order by the due date for payment, then the defaulting Party shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting Party shall pay the interest together with the overdue amount. This clause shall not apply to payments that the defaulting Party disputes in good faith.
8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services for at least six (6) years following termination of the Purchase Order, including all such materials required by any regulations, accreditations or trading bodies
8.8 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Purchase Order.
9 INTELLECTUAL PROPERTY RIGHTS
9.1 In respect of the Goods and any goods that are transferred to the Customer as part of the Services under the Purchase Order, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items and all necessary consents, permissions and clearances in respect of them, and that at the date of delivery of such items to the Customer, it will have full and unrestricted rights to sell and transfer all such items to the Customer and that the Customer will thereupon be free to use and exploit them as it sees fit.
9.2 All Deliverables will be the sole and exclusive property of the Customer and, to the fullest extent permitted by law: (a) the Supplier hereby assigns to the Customer by way of present assignment with full title guarantee all IPR in and to the Deliverables, for the Customer to hold and own absolutely during the full period of the IPR in question including all renewals, revisions and extensions of them; and (b) this assignment will take effect as an assignment of present and future IPR; and (c) all IPR in the Deliverables which comes into existence (both before and after the date these Conditions) will vest in the Customer without further assurance and the Supplier will do all such things as necessary in the Customer’s opinion to vest the IPR in the Customer.
9.3 All Customer Materials and existing IPR are and will remain the exclusive property of the Customer.
10. INDEMNITY AND INSURANCE
10.1 Neither Party will be liable to the other Party for any indirect, special or consequential loss or damage.
10.2 The Supplier shall keep FirstPort Group indemnified against all liabilities, costs, expenses, damages and losses suffered or incurred by the Customer directly or indirectly from any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods or Services, to the extent that the defects in the Goods or Services are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
10.3 During the term of the Purchase Order and for a period of two years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Purchase Order in an insured sum no less than £5,000,000 (five million pounds), and shall, on the Customer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
11.1 A Party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other Party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain other than as required to be disclosed by the Customer to its customers, clients and other end users in the ordinary course of business and in order to meets its obligations to those persons. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.1 Without limiting its other rights or remedies, the Customer may terminate the Purchase Order:
12.1.1 in respect of the supply of Services, by giving the Supplier one weeks’ written notice; and
12.1.2 in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Purchase Order. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
12.2 Without limiting its other rights or remedies, the Customer may terminate the Purchase Order with immediate effect by giving written notice to the Supplier if:
12.2.1 the Supplier commits a material breach of the terms of the Purchase Order and (if such a breach is remediable) fails to remedy that breach within 10 days of receipt of notice in writing to do so;
12.2.2 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
12.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) or the Supplier (being an individual) is the subject of a bankruptcy petition or order;
12.2.4 the Supplier suspends, or threatens to suspend, or ceases, to carry on all or a substantial part of its business;
12.2.5 the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Purchase Order has been placed in jeopardy; or
12.2.6 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
13. CONSEQUENCES OF TERMINATION
13.1 On termination of the Purchase Order for any reason, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Purchase Order.
13.2 Termination of the Purchase Order, however arising, shall not affect any of the Parties’ rights and remedies that have accrued as at termination.
13.3 If this Purchase Order is terminated for any reason the rights and obligations set out in clauses 9, 10, 11 and 13 shall remain in effect.
14. FORCE MAJEURE
14.1 Neither Party shall be in breach of the Purchase Order nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control, but the Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations and notify the Customer immediately about the Force Majeure Event.
14.2 If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 20 business days, the Customer may terminate the Purchase Order immediately by giving written notice to the Supplier.
15.1 Assignment and other dealings.
15.1.1 The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Purchase Order.
15.1.2 The Supplier may not assign, transfer, subcontract, or deal in any other manner with all or any of its rights or obligations under the Purchase Order without the prior written consent of the Customer. For the avoidance of doubt, the Supplier shall not use sub-contractors to fulfil their obligations under the Purchase Order without prior written permission from the Customer.
15.2.1 Any notice or other communication given to a Party pursuant to the Conditions shall be in writing, addressed to that Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, or commercial courier or fax or email. Such notice to be deemed given on the day when in the ordinary course of the means of transmission it would first be received by the address in normal business hours.
15.3 Waiver. Failure of the Customer to enforce or partially enforce any provision of the Purchase Order shall not be construed as a waiver of its rights under the Purchase Order.
15.4 No partnership or agency. Nothing in the Purchase Order is intended to, or shall be deemed to, establish any partnership or joint venture between the Parties. Neither Party shall have authority to act as agent for, or to bind, the other Party in any way.
15.5 Data Protection. The Supplier shall comply with any data protection, privacy and any similar or equivalent laws relating to personal data, including but not limited to, the DPA 1998 and the data protection principles that apply in relation to any protected data and shall comply with all data protection laws relating to the processing of personal data. In addition, the Supplier grants the Customer a licence to use, process, edit, copy and store any personal data it provides to the Customer and acknowledges that whilst the Customer’s purchase to pay system is based within the EEA, personal data may be transferred outside of the EEA under certain circumstances and the Supplier hereby agrees to such transfer.
15.6 Third parties. A person who is not a Party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
15.7 Variation. The Customer may vary and update these Conditions from time to time by posting a new version on the purchase to pay website, and the FirstPort website, and the Supplier’s continued supply of goods and/or services after that date will constitute the Supplier’s acceptance of the varied/updated Conditions. No purported variation of the Conditions by the Supplier, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Customer.
15.8 Governing law and Jurisdiction. The formation, construction, performance, validity and all aspects of the Purchase Order are governed by English law and the Parties submit to the exclusive jurisdiction of the English courts.