1. Interpretation
1.1 In these Conditions, the following words and expressions shall have the following meanings:
(i) Company: Hillier Nurseries Limited, a company registered in England and Wales with company registration number 01260468 and whose registered office is Ampfield House, Ampfield, Romsey SO51 9PA.
(ii) Conditions: These Supply of Goods and Services Terms and Conditions.
(iii) Contract: has the meaning given in paragraph 2.1.
(iv) Company Materials: has the meaning given in in paragraph 6.3(ix).
(v) Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
(vi) Goods: the goods, including any part or parts of them and any labelling, to be provided by the Supplier under the Contract.
(vii) Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Company and the Supplier
(viii) Order: the Company’s confirmation in writing that it wishes to buy Goods and/or Services. The Order may be the Company’s purchase order.
(ix) Services: the services, including any Deliverables, to be provided by the Supplier under the Contract.
(x) Services Specification: the description or specification for Services agreed in writing by the Company and the Supplier.
(xi) Supplier: the person, firm or company that accepts an Order. If applicable, the Supplier is named in the Trading Agreement. Otherwise the Supplier is named in the Company’s Order.
(xii) Trading Agreement: a written agreement signed by the Company and Supplier headed “Supplier Trading Agreement”. The Company reserves the right to require the Supplier to complete and sign a Trading Agreement before the Company submits an Order.
1.2 The headings in these Conditions are for ease of reference only and shall not affect the construction or interpretation of any Contract. Words denoting the singular meaning include the plural and vice versa unless the context otherwise requires. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms
1.3 References to any statute, statutory provision or regulation include a reference to:-
(i) that statute, statutory provision or regulations as from time to time amended, extended, re-enacted or consolidated whether before or after the date of a Contract; and
(ii) all subordinate legislation made from time to time under that legislation or legislative provision.
1.4 A reference to “writing” or “written” includes email.
2. Application of terms
2.1 Where an Order is accepted by the Supplier, the Order (including any Goods Specification and Services Specification), together with the Trading Agreement and these Conditions, will constitute a contract between the parties (the “Contract”). Each Contract entered into between the parties constitutes a separate contract.
2.2 Subject to any variation under paragraph 2.4, the Order (including any Goods Specification and Services Specification), these Conditions and the Trading Agreement are the only conditions upon which the Company is prepared to deal with the Supplier and they shall govern each Contract to the entire exclusion of any terms that the Supplier purports to apply or which might otherwise be implied by operation of law or course of dealing. No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Supplier waives any right which it otherwise might have to rely on such terms and conditions.
2.3 These Conditions apply to all the Company’s purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing by the Company’s Head of Purchasing or a director of the Company.
2.4 Where there is any manifest inconsistency between the provisions of these Conditions, an Order (including any Goods Specification and Services Specification) and the Trading Agreement, the provisions of the Order will prevail.
2.5 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. Acceptance and cancellation of Orders
3.1 Each Order shall be deemed to be an offer by the Company to buy such Goods/Services subject to these Conditions. An Order shall be accepted by the Supplier either by expressly giving notice of acceptance, or by doing any act consistent with fulfilling the Order, or by not sending the Company notice of rejection within 5 days of the date of the Order.
3.2 Notwithstanding the Supplier’s acceptance of the Order, the Company may suspend or withdraw an Order without liability to the Supplier:
(i) if, or to the extent that, the Order is for Goods, upon giving written notice provided such notice is received no later than 7 days before the Goods are due to be dispatched; and
(ii) if, or to the extent that, the Order is for Services, upon giving written notice provided such notice is received no later than 7 days before the Services are due to commence.
4. Supply of Goods
4.1 The Supplier warrants and represents that all Goods:
(i) are of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended);
(ii) are fit for any purpose held out by the Supplier or made known to the Supplier by the Company;
(iii) are without material fault and conform in all material respects with their description, the relevant Order, any Goods Specification, and these Conditions;
(iv) comply with all applicable statutory and regulatory requirements;
(v) are able to be resold by the Company in the UK without infringing the intellectual property rights of any person; and
(vi) are free from notifiable plant pests and diseases as defined by DEFRA.
4.2 At any time prior to dispatch of the Goods, the Company may give notice to inspect and test the Goods at the Supplier’s premises. If the results of such inspection or testing cause the Company to reasonably suspect that the Goods do not conform, or are unlikely to conform on delivery, with the warranties in paragraph 4.1, the Company shall inform the Supplier and the Supplier shall immediately take such action, at its own cost, as is necessary to ensure conformity. The Company may request further testing and inspection prior to dispatch.
4.3 Notwithstanding any such inspection or testing pursuant to paragraph 4.2, the Supplier shall remain fully responsible for all aspects of the quality and conformity of the Goods and shall remain liable to the Company for any breach of the warranties in paragraph 4.1.
4.4 If any of the Goods fail to comply with paragraph 4.1 the Company may avail itself of any one or more remedies listed in paragraph 10.3.
5. Delivery of Goods
5.1 The Supplier will comply with all delivery instructions set out in the Order. Unless otherwise specified in the Order:
(i) time for delivery shall be of the essence;
(ii) the Goods shall be delivered, carriage paid, to the Company’s retail outlet or other place of delivery described in the Order, or such other place in the UK notified to the Supplier by the Company in writing prior to delivery of the Goods;
(iii) the date for delivery shall be as specified in the Order, as may be amended by the Company upon reasonable prior notice. If so requested by the Company, the Supplier shall store free of charge any Goods ready for delivery until the date the Company requests delivery;
(iv) the time for delivery must be within normal business hours at the delivery location;
(v) the Company shall off-load the Goods from the relevant vehicle at the delivery location; and
(vi) the Goods shall be suitably packaged to protect them during transit using, where practicable, reusable or recyclable packaging materials.
5.2 Where the Company agrees in writing to accept delivery in instalments, the Contract shall extend to all instalments and a breach of these terms in relation to a single instalment shall be construed as a breach of the entire Contract.
5.3 The Supplier shall ensure that each delivery is accompanied by a delivery note which states at minimum: the Order number, date of Order, number of packages and their contents, and, in the case of part delivery, the outstanding balance remaining to be delivered.
5.4 If the Supplier requires the Company to return any packaging materials to the Supplier, that fact must be clearly stated on the accompanying delivery note and any such returns shall be at the Supplier’s expense.
5.5 The Goods shall be deemed delivered only once a representative of the Company has signed the Supplier’s delivery note.
5.6 The Company shall not be deemed to have accepted the Goods until it has had a reasonable time to inspect them following delivery, or, in the case of a latent defect in the Goods, until a reasonable time after the latent defect has become apparent. Where the Goods are intended for retail resale by the Company, the Supplier acknowledges that inspection may only take place at the point the Goods are displayed for sale. Although the Company reserves the right to inspect the Goods prior to signing the delivery note, the Company’s signing of the delivery note shall not constitute an acknowledgement of the condition, quantity or nature of the Goods, or their compliance with paragraph 4.1.
6. Supply of Services
6.1 The Supplier shall supply the Services from the date specified in the Order. If the Order does not specify a commencement date then the Supplier shall supply the Services from the date it accepts the Order.
6.2 The Supplier shall meet any performance dates for the Services specified in the Order and time is of the essence in relation to those performance dates.
6.3 In providing the Services, the Supplier shall:
(i) co-operate with the Company in all matters relating to the Services, and comply with all instructions of the Company;
(ii) perform the Services with reasonable care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(iii) 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;
(iv) ensure that the Services will conform with all descriptions, standards and specifications set out in any Services Specification, and that the Deliverables shall be fit for any purpose that the Company makes known to the Supplier prior to the Services commencing;
(v) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(vi) use high quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Company, will be free from material defects in workmanship, installation and design;
(vii) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(viii) observe all health and safety rules and regulations and any other security requirements that apply at any of the Company’s premises;
(ix) hold all materials, equipment and tools, drawings, specifications and data supplied by the Company to the Supplier (“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;
(x) 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; and
(xi) comply with any additional obligations as set out in the Services Specification.
6.4 The Company shall provide the Supplier with such access to its premises, at reasonable times, as is reasonably necessary for the Supplier to provide the Services.
7. Risk and Ownership
The Goods shall remain at the risk of the Supplier until delivery to the Company is completed in accordance with paragraph 5.5, at which point in time title and risk in the Goods shall pass to the Company.
8. Price and invoicing
8.1 The price of the Goods/Services shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges including delivery. For the avoidance of doubt, the price for the Services set out in the Order is inclusive of every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.2 No increase in the price nor extra charges shall be accepted by the Company unless these have been explicitly agreed in the Order.
8.3 The Supplier shall invoice the Company for the Goods upon, but separately from, delivery of the Goods to the Company. If the quantity of Goods supplied is less than the amount contracted for then the Supplier shall issue a credit note and re-invoice the Company.
8.4 The Supplier shall invoice the Company for the Services upon completion of the Services unless specified otherwise in the Order.
8.5 Each invoice and credit note shall be in a separate pdf format file and must be e-mailed to accountsdept@hillier.co.uk. Each should include the associated purchase order number or, if that is not applicable, the name of the Company employee placing the order. The Company reserves the right to amend its invoicing arrangements from time to time by notice in writing to the Supplier.
9. Payment and reporting
9.1 The Company shall pay the Supplier’s invoice 60 days from the end of the month in which it is received by the Company unless a different payment term is specified in the Trading Agreement (or if the Supplier has not been required to sign a Trading Agreement, in the Order), in which case that other payment term shall apply. Time for payment shall not be of the essence unless stated in the Trading Agreement (or if the Supplier has not been required to sign a Trading Agreement, in the Order).
9.2 The Company shall make payment to the account nominated by the Supplier in the Trading Agreement, even if a different account is specified on the Supplier’s invoice. If the Supplier has not been required to sign a Trading Agreement then the Company shall make payment to the account specified on the Supplier’s invoice. If the Supplier wishes to change its nominated account then it will follow the Company’s procedure for doing so (details available on request).
9.3 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Supplier to the Company against any amount payable by the Company to the Supplier under any Contract or for any other reason.
9.4 If any sum under a Contract is not paid when due then, the Supplier may charge interest on that sum from the due date until payment is made in full, both before and after any judgement, at 2% per annum over 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%. The Supplier is not entitled to suspend deliveries of the Goods or the performance of any of its obligations under any Contract as a result of any sums being outstanding.
9.5 No payment shall be made for crates or packing materials of any description except by special arrangement in writing.
9.6 The Supplier shall before the 10th day of each calendar month send by e-mail to accountsdept@hillier.co.uk, or as otherwise stipulated by the Company, a monthly statement of account listing all outstanding invoices including their value and date of issue.
10. Remedies
10.1 If the Goods are not delivered in accordance with paragraph 5, or the Services are not supplied by the applicable date for performance, then, without prejudice to any other rights which it may have, the Company may:
(i) terminate the Contract in whole or part upon notice to the Supplier; and
(ii) refuse to accept any subsequent delivery of the Goods and/or supply of the Services which the Supplier attempts to make (including any subsequent instalments under the Contract).
(iii) recover from the Supplier any costs incurred by the Company in obtaining substitute goods and/or services from a third party; and
(iv) 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.
10.2 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess. The excess shall be at the Supplier’s risk and shall be returnable on request at the Supplier’s expense.
10.3 If any Goods delivered to the Company do not comply with paragraph 4.1, or are otherwise not in conformity with the terms of the Contract, then, without limiting any other right or remedy that the Company may have, the Company may reject those Goods and:
(i) require the Supplier to repair or replace the rejected Goods at the Supplier’s risk and expense within 30 days (or 7 days if the Goods are perishable) of being requested to do so and if the Supplier fails to do so, the Company may without affecting its rights under paragraph 10.3(iii) obtain substitute goods from a third party supplier, or have the rejected Goods repaired by a third party, and the Supplier shall reimburse the Company for the costs it incurs in doing so;
(ii) require the Supplier to immediately repay the price of the rejected Goods in full (whether or not the Company has previously required the Supplier to repair or replace the rejected Goods);
(iii) claim damages for any other costs, expenses or losses resulting from the Supplier’s delivery of Goods that do not conform with the terms of the Contract; and
(iv) refuse to accept further deliveries of Goods from the Supplier without liability.
10.4 If the Supplier is required to collect the rejected Goods then it shall do so at its own cost and within 28 days (or 7 days if the Goods are perishable) from the date of the Company’s request. If the rejective Goods are not collected within 28 days, or have perished, then the Company may dispose of the Goods and may recover from the Supplier its reasonable costs for doing so. All reimbursements under this paragraph 10.4 are payable on demand.
10.5 If the Supplier has supplied Services which do not comply with paragraph 6.3(iv) or paragraph 6.3(vi), then, without limiting any other right of remedy that the Company may have, the Company shall have one or more of the following rights and remedies:
(i) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(ii) to return the Deliverables to the Supplier at the Supplier’s own risk and expense;
(iii) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
(iv) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make; and
(v) to recover from the Supplier any expenditure incurred by the Company in obtaining substitute services or deliverables from a third party.
10.6 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
10.7 The Company’s rights and remedies under this paragraph 10 are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
11. Regulatory compliance
11.1 The Supplier must at all times conduct its business in accordance with applicable statutory and regulatory requirements which shall include, without limitation:
(i) modern slavery and human trafficking legislation;
(ii) anti-bribery and anti-corruption legislation; and
(iii) applicable environmental regulations, e.g. relating to the use of neonicotinoids, plant health and plant passporting regulations.
11.2 The Supplier shall make reasonable endeavours, on an ongoing basis, to reduce its use of single use plastic and other non-recyclable materials.
11.3 The Supplier shall enclose COSHH sheets for applicable Goods when first ordered by the Company. If the COSHH sheets for Goods subsequently change then the Supplier shall notify the Company in writing and shall provide the updated COSHH sheets prior to the next delivery of those Goods. COSHH sheets must be provided electronically in PDF format.
11.4 The Supplier agrees to keep the Company informed of all legal requirements relating to the Goods and receipt of the Services. Changes must be notified to the Company in writing without undue delay and in any event no later than 14 days before the change takes effect.
11.5 The Supplier undertakes:
(i) only to supply timber which is FSC Certificated; and
(ii) not to supply plants sourced from or grown in areas designated as Xylella fastidiosa outbreak areas (as listed by DEFRA from time to time).
11.6 The Supplier will ensure that all units (boxes/large items likely to be moved separately) over 15kg are clearly marked with the item weight in metric units.
11.7 On request, the Supplier shall provide written evidence and a certificate of its compliance with its obligations under this paragraph 11.
12. Insurance
12.1 During the Contract and for a period of three years afterwards, the Supplier shall maintain in force the following insurance policies with reputable insurance companies:
(i) if the Supplier is providing Services, professional indemnity insurance for not less than £5million per claim;
(ii) public liability insurance for not less than £5million per claim; and
(iii) product liability insurance for not less than £5million for claims arising from any single event and not less than £5million in aggregate for all claims arising in a year.
12.2 Without undue delay following the Company’s request in writing, the Supplier shall provide the Company with copies of its insurance certificates and evidence of having paid the premiums due thereunder.
13. Confidentiality
13.1 The Supplier undertakes that it shall not at any time during the Contract and for a period of four years after termination or expiry thereof disclose to any person any confidential information concerning the business, affairs, customer, clients or suppliers of the Company or of any member of its group, including information relating to the Company’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”), except as permitted by paragraph 13.2.
13.2 The Supplier may disclose the Company’s Confidential Information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the Supplier’s rights or carrying out its obligations under or in connection with the Contract. The Supplier shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the Company’s Confidential Information comply with this paragraph 13; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 The Company reserves all rights in its Confidential Information. No rights or obligations in respect of the Company’s Confidential Information other than those expressly stated in these Conditions are granted to the Supplier or are to be implied from the Contract.
14. Publicity
14.1 The terms of the engagement between the Supplier and the Company are confidential and the Supplier may not:
(i) disclose its supply of goods or services to the Company;
(ii) list the Company as one of its customers; or
(iii) use the Company’s name or trade marks,
in any publicity materials or on its website or on social media without first obtaining the express written permission of a director of the Company or the Head of Marketing.
15. Termination
15.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(i) the other party fails to pay any undisputed amount due under the Contract on the due date for payment and remains in default not less than 90 days after being notified in writing to make such payment;
(ii) the other party commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(iii) the other party repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
(iv) the other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
(v) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(vi) the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
(vii) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(viii) an application is made to court, or an order is made, for the appointment of an administrator or a notice of intention to appoint an administrator is given or an administrator is appointed over the other party;
(ix) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(x) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(xi) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(xii) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraph 14.1(i) to paragraph 14.1(xi));
(xiii) the other party ceases or threatens to cease to carry on its business; or
(xiv) the financial position of the other party deteriorates to such an extent that in the reasonable opinion of the terminating party the capability of the other party adequately to fulfil its obligations under the Contract is in jeopardy.
15.2 The Company may additionally terminate the Contract if there is a change of control of the Supplier (within the meaning of section 1124 of the Corporation Tax Act 2010) and the Company has not given its prior written consent to such change of control (such consent not to be unreasonably withheld or delayed).
16. Consequences of termination
16.1 On termination of the Contract, the Supplier shall immediately deliver to the Company all Deliverables 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.
16.2 The termination of any Contract, however arising, shall be without prejudice to the rights and duties of the parties accrued prior to termination. The sections of these Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination of the Contract.
17. Liability
17.1 Nothing in these Conditions limits any liability which cannot legally be limited, including liability for:
(i) death or personal injury caused by negligence;
(ii) fraud or fraudulent misrepresentation;
(iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
(iv) breach of section 2 of the Consumer Protection Act 1987.
17.2 Subject to paragraph 16.1, neither party shall be liable to the other, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise 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 of use or corruption of software, data or information;
(vi) loss of or damage to goodwill; or
(vii) indirect or consequential loss,
suffered by the other party that arises under or in connection with the Contract.
17.3 Subject to paragraphs 16.1 and 16.2, the Company’s total liability to the Supplier shall not exceed the price of the Goods/Services to be supplied under the Contract.
18. Indemnity
18.1 The Supplier shall indemnify the Company against all liabilities, costs, expenses, damages and losses (all interest, penalties and legal costs (calculated on a full indemnity basis) and other reasonable professional costs and expenses) suffered or incurred by the Company arising out of or in connection with:
(i) the Supplier’s breach or negligent performance or non-performance of the Contract;
(ii) any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the supply or use of the Goods and/or Services;
(iii) any claim made against the Company by a third party arising out of, or in connection with, the supply of the Goods and/or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
(iv) 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, defective Goods or improperly provided Services, to the extent that the defect in the goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
19. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three months, the unaffected party may terminate the Contract by giving 21 days’ written notice to the other.
20. Intellectual property rights
20.1 All intellectual property rights arising out of or in connection with the Services (other than intellectual property rights in any Company Materials shall be owned by the Supplier.
20.2 The Supplier grants to the Company, or shall procure the direct grant to the Company of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding Company Materials) for the purpose of receiving and using the Services and the Deliverables.
20.3 The Company grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy, and modify with consent, any materials provided by the Company to the Supplier for the term of the Contract for the sole purpose of providing the Services to the Company.
20.4 The Supplier acknowledges that all rights in the Company Materials are and shall remain the exclusive property of the Company.
20.5 The Supplier warrants that (as applicable) the Company’s receipt of the Services and resale of the Goods will not infringe the intellectual property rights of any other person.
21 Data protection
21.1 The following definitions apply in this paragraph 20:
(i) “Controller”, “Processor”, “Data Subject”, “Personal Data”, “Personal Data Breach”, “processing” and “appropriate technical and organisational measures”: as defined in the Data Protection Legislation.
(ii) “Data Protection Legislation”: all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR); the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
(iii) “Domestic Law”: the law of the United Kingdom or a part of the United Kingdom.
21.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This paragraph 20 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
21.3 To the extent that the Supplier is providing Services requiring the processing of Personal Data, the parties acknowledge that, for the purposes of the Data Protection Legislation, the Company is the Controller and the Supplier is the Processor. The scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject for the purposes of the Contract are as follows:
(i) Scope, nature and purpose of processing: The Supplier will process Personal Data supplied by the Company, or collected on behalf of the Company from third parties which may include the Data Subjects, to allow the Supplier to provide the Services. The purpose of the processing is to allow the Supplier to provide, and the Company to receive, the Services pursuant to the Contract.
(ii) Duration of processing: The duration of the Contract (insofar as it applies to the Services).
(iii) Types of Personal Data: As described in the Order or as particularised elsewhere in writing.
(iv) Categories of Data Subject: As described in the Order or as particularised elsewhere in writing.
21.4 Without prejudice to the generality of paragraph 20.2, the Company will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Company for the duration and purposes of the Contract.
21.5 Without prejudice to the generality of paragraph 20.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
(i) process that Personal Data only on the documented written instructions of the Company unless the Supplier is required by Domestic Law to otherwise process that Personal Data. Where the Supplier is relying on Domestic Law as the basis for processing Personal Data, the Supplier shall promptly notify the Company of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Supplier from so notifying the Company;
(ii) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Company, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(iii) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(iv) not transfer any Personal Data outside of the UK unless the prior written consent of the Company has been obtained and the following conditions are fulfilled:
(a) the Company or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Company with respect to the processing of the Personal Data;
(v) assist the Company, at the Company’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(vi) notify the Company without undue delay on becoming aware of a Personal Data Breach;
(vii) at the written direction of the Company, delete or return Personal Data and copies thereof to the Company on termination of the Contract unless required by Domestic Law to store the Personal Data; and
(viii) maintain complete and accurate records and information to demonstrate its compliance with this paragraph 20.5 and allow for audits by the Company or the Company’s designated auditor and immediately inform the Company if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
21.6 The Company may separately consent in writing to the Supplier appointing one or more third party processors of Personal Data under the Contract. If and to the extent the Company has given such consent in writing, the Supplier warrants that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this paragraph 20 and which the Supplier undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Company and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it.
22. Notices
22.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address for that party specified in the Trading Agreement.
22.2 Any notice shall be deemed to have been received:
(i) if delivered by hand, at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second business day after posting ; or
(iii) 21.2(iii) “business hours” means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
22.3 This paragraph 21 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23. General
23.1 Assignment. The Supplier shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed).
23.2 Waiver. 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.
23.3 No Agency. The parties are each independent contractors with respect to each other and nothing in any Contract shall create any association, partnership, joint venture or agency relationship between them.
23.4 Entire Agreement. The Order (including any incorporated Goods Specification and Services Specification), these Conditions and the Trading Agreement collectively contain the entire agreement between the parties and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to their subject matter. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in in Order, these Conditions, or the Trading Agreement. Each party also agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Order, these Conditions, or the Trading Agreement.
23.5 Third Party Rights. The Contract does not give rise to rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
23.6 Governing law and jurisdiction. The Contract is subject to the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English courts.
Last updated: August 2021
