1.1 The terms of these Terms and Conditions of Purchase, together with the Supporting Documents and any and all Specifications, Purchase Orders shall apply to the exclusion of all other terms the Supplier may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.2 The terms of these Terms and Conditions of Purchase and the Supporting Documents shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
1.3 No variation to the Contract, including the introduction of any additional terms and conditions, shall be binding unless agreed in writing and signed by B&W.
1.4 Each Purchase Order constitutes an offer by B&W to purchase the Goods and/or Services from the Supplier in accordance with the terms of the Contract.
1.5 The Purchase Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Purchase Order or; and
(b) the Supplier doing any act consistent with fulfilling the Purchase Order,
(c) at which point the Purchase Order shall become binding.
1.6 The Supplier shall (unless otherwise specified in writing by B&W) properly execute each of the Supporting Documents on the same date on which it executes this Purchase Agreement and shall deliver copies of the same to B&W.
2.1 Definitions: In this Purchase Agreement, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
B&W: B&W Group Ltd (registered in England and Wales with company number 00880499).
B&W Materials: has the meaning in clause 10.
B&W Software: any and all computer software, firmware or coding (of whatever type and in whatever form or media) supplied by B&W to the Supplier in connection with the Goods.
B.O.M Bill of Material specified to make the Goods.
Contract: this Purchase Agreement, the Supporting Documents and any and all Specifications, Purchase Orders relating to this Purchase Agreement.
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 without limitation drawings, schematics,gerber files, maps, plans, diagrams, designs, pictures, computer programs, source code , data, specifications, reports and B.O.M (including drafts).
Delivery Date: has the meaning in clause 3.5 or, as applicable 4.2(a).
Delivery Location: has the meaning in clause 4.2(b).Drawings: a graphic representation by lines of an object or idea, as with a pencil or electronic media; a delineation of form with or without reference to color. Ethical Business Practice Policy: the ethical business practice policy between the Supplier and B&W (if any) the agreed form of which is included in the Schedule.
Force majeure: event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable.
Goods: the goods (if any) to be supplied by the Supplier under the Contract, as specified in a Purchase Order, whether raw materials, processed materials, fabricated products (or any part of such items).
Indemnified Person: has the meaning in clause 8.1.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world including the like created during the development of the Products and Services.Logistics Agreement: the logistics agreement between the Supplier and B&W (if any) the agreed form of which is included in the Schedule.
Mutual Confidentiality Agreement: the mutual confidentiality agreement between the Supplier and B&W (if any) the agreed form of which is included in the Schedule.
Packages: any containers, or packaging used in respect of the Goods, including bags, cases, cylinders, drums, pallets and tankers.
Products: the goods to be produced by B&W incorporating or including the Goods.
Purchase Agreement: this purchase agreement, and any reference to the same shall be a reference to this purchase agreement only (excluding the Supporting Documents).
Purchase Order: a purchase order or schedule agreement from B&W for the Goods and/or Services.
Relevant Requirements: has the meaning in clause 19.1(a).
Relevant Terms: has the meaning in clause 19.2.
Quality Agreement: the quality agreement between the Supplier and B&W (if any) the agreed form of which is included in the Schedule.
Schedule: the Schedule (if any) to this Purchase Agreement.
Services: the services (if any), including any Deliverables, to be provided by the Supplier under the Contract, as specified in the Purchase Order.
Software: any and all computer programs and computer software, firmware or coding (of whatever type and in whatever form or media) installed on or supplied with the Goods at the time of their delivery and either necessary for their operation in the manner contemplated by B&W or otherwise referred to in the Purchase Order but excluding B&W Software.
Specification: any specification for the Goods and/or the Services, including any related plans and drawings, agreed in writing by B&W and the Supplier or provided to B&W in accordance with clause 9 Specification and Software.
Supplier: the person from whom B&W purchases the Goods or Services.
Supporting Documents: the Quality Agreement, the Logistics Agreement, the Mutual Confidentiality Agreement and the Ethical Business Practice Policy or any of them as the context requires.
Tooling: any tool, fixture, fitting or jigs regardless of whether paid directly or indirectly by B&W and laid down specifically for the Goods or related material and processes.
Use: any use of the Goods or Services by B&W, including the sale, resale, offering for sale, importation, supply, advertisement, marketing, distribution, possession and operation of the Goods or of any other products of B&W in which the Goods may be incorporated or which are designed or intended to operate in conjunction with the Goods.
VAT Invoice : Any invoice issued for Sales Tax purposes, including Value Added Tax V.A.T
2.2 Construction. unless the context requires otherwise, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) Any terms defined in Incoterms (being the standard rules for the interpretation of trade terms of the International Chamber of Commerce as are in force at the time of the Contract), which are used but not otherwise defined in the Contract, shall apply to and be incorporated into the Contract. In the event of any conflict between the Contract and Incoterms, the Contract shall prevail.
(f) A reference to writing or written includes faxes, email and electronic schedules.
3.1 The Supplier shall ensure that:
(a) the Goods will conform to the quality, description and other particulars of the Goods stated in the Purchase Order and/or any Quality Agreement;
(b) the Goods will conform to any Specification and all samples, drawings and descriptions supplied to the Supplier by B&W or produced by the Supplier and agreed in writing by B&W;
(c) the Goods will conform to all industry, technical, testing, quality and other standards referred to on any part of the Goods and in any product packaging, technical specifications or other documentation in, with or in relation to which the Goods are supplied;
(d) the Goods will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by B&W expressly or by implication, and in this respect B&W relies on the Supplier's skill and judgement;
(e) the Goods will where applicable, be free from defects in design, material and workmanship and remain so for 24 months after delivery;
(f) the Goods will comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods;
(g) the Supplier has and will continue to have the full right and title to grant to B&W, any and all of the rights granted or capable of being granted to B&W pursuant to clause 8.2;
(h) the Software will be free from viruses, worms, time locks or anything else, which would impair performance of the Software as it may reasonably be expected to operate in the Goods and/or any Products; and
(i) it, and any sub-contractors permitted under the Contract, will comply with all laws and regulations in the United Kingdom and in the country in which the Supplier or any sub-contractor is located, in relation to the health and safety of employees, payment of employees and working conditions of employees.
3.2 The Supplier will advise B&W on, and comply with, all relevant requirements as envisaged in the Specification, thus enabling the Goods to be freely sold and exported to those countries into which B&W distributes the Products as specified in the Appendix to this Purchase Agreement and which may be amended with the agreement of both parties in writing.
3.3 Notwithstanding 3.2 the Supplier prior to manufacture of the Goods shall notify B&W of any country in which the relevant requirements as envisaged in the Specification could not be satisfied.3.4 B&W shall have the right to inspect and test the Goods at any time before delivery. If following such inspection or testing B&W considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 3.1, B&W shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. 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 Contract, and B&W shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.5 The Supplier shall from the date set out in the Purchase Order and for the duration of the Contract provide the Services to B&W in accordance with the terms of the Contract.
The Supplier shall meet any performance dates for the Services specified in the Purchase Order or notified to the Supplier by B&W (Delivery Date).
3.6 In providing the Services, the Supplier shall:
(a) co-operate with B&W in all matters relating to the Services, and comply with all instructions of B&W;
(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 and Deliverables will conform with all descriptions and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by B&W;
(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, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to B&W, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
(h) observe all health and safety rules and regulations and any other security requirements that apply at any of B&W's premises; and
(i) not do or omit to do anything which may cause B&W to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that B&W may rely or act on the Services.
3.7 The Supplier shall comply with, and fully indemnify B&W against any loss, damages, costs, expenses and claims suffered or incurred by B&W as a result of any breach by the Supplier of any applicable health and safety regulations, environmental protection law and regulation and other applicable regulations.
3.8 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.9 The Supplier shall upon request provide B&W with such detailed schedules of manufacture and delivery of the Goods, together with subsequent progress reports, as B&W may reasonably require, in order to keep B&W properly informed about the performance of the Supplier's obligations under the Contract. The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow B&W to inspect such records at all reasonable times on request. The Supplier agrees to attend such review meetings as B&W may reasonably request.
3.10 B&W's representatives shall have the right to inspect all Goods at the Supplier's premises and the premises of all sub-contractors of B&W at all reasonable times. The Supplier's sub-contract conditions will permit such inspections by B&W. Any inspection, checking, stated or implied approval or acceptance given on behalf of B&W during such inspection shall not relieve the Supplier or its sub-contractors from any obligation under the Contract nor imply acceptance of the relevant Goods or prejudice any other rights of B&W under the Contract.
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Purchase Order, the number of the Purchase Order (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) if the Supplier requires B&W to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
(a) on the date specified in the Purchase Order, or, if no such date is specified the Supplier should confirm within 5 working days, (or such other date as may be agreed between the parties) (Delivery Date);
(b) to the location set out in the Purchase Order, or as instructed by B&W prior to delivery (Delivery Location);
(c) during B&W's normal business hours, or if different, as instructed by B&W; and
(d) under the following incoterm DDP to delivery address specified on the Purchase Order, unless otherwise agreed and defined on the Purchase Order.
4.3 The Supplier will notify B&W in writing on the date of despatch of the Goods (or as applicable, each instalment thereof).
4.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.5 The Supplier shall not deliver the Goods in instalments without B&W's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle B&W to the remedies set out in clause 5.
4.6 The Supplier shall be responsible for complying with any legislation and regulations governing the import of the Goods into the United Kingdom (or other agreed delivery destination) and for the payment (unless agreed otherwise by B&W in writing or in accordance with the agreed Incoterms) of any duties on the Goods.
4.7 Order placement, forecast and returns are determined and set out in the Logistics Agreement.
4.8 Title in all Goods shall pass to B&W on B&W accepting delivery, except that title in the Goods and (any part of them) passes to B&W upon payment if such payment is made before delivery or if the Supplier allocates specific Goods to a Purchase Order prior to shipment. Where title in any Goods passes to B&W before delivery, the Supplier must keep all such Goods separate from its other stock and clearly marked as “Property of B&W Group Limited”, and B&W shall be entitled at any time to enter the Supplier’s premises and take possession of them.
4.9 The Supplier must ensure that all Goods are adequately protected in transit, and must be clearly marked on the outside with their description, quantity, B&W’s part number and the number of the Purchase Order.
4.10 Where Goods have been delivered to the wrong location, B&W may recover from the Supplier any costs incurred by B&W in delivering them to the Delivery Location.
4.11 Where B&W has paid in advance for Goods which have not been delivered by the Supplier, the Supplier shall refund such sums to B&W
4.12 If the Supplier:
(a) delivers less than 90% of the quantity of Goods specified in the Purchase Order and has failed to remedy the situation within 10 Business Days, B&W may at its discretion return the delivered Goods; or
(b) delivers more than the quantity of Goods specified in the Purchaser Order, B&W may at its discretion return the excess delivered Goods,
and any returned Goods shall be returned at the Supplier's risk and expense. The Supplier shall immediately refund the price paid by B&W for any Goods which are rejected under this clause 4.12. If the Supplier delivers more or less than the quantity of Goods specified in the Purchaser Order, and B&W accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
5.1 If the Goods are not delivered on the Delivery Date in accordance with clause 4, or do not comply with the undertakings set out in clause 3.1 and/or if the Supplier fails to perform the Services in accordance with the Contract (in each case an “Instance of Breach”) then, provided that:
5.1.1 there have been at least 3 or more separate Instances of Breach in any 12 month period (whether or not remedied in accordance with anything in clause 5.1.2 and/or clause 5.1.3); or
5.1.2 in respect of any one Instance of Breach, but subject to any notice under clause 5.1.3 stipulating alternative remedial action, the Supplier has failed to remedy that breach within 10 Business Days of the Supplier’s receipt of B&W’s written notice of breach; or
5.1.3 in respect of any one Instance of Breach, the Supplier has failed to comply (in all respects) with the remedial action set out in B&W’s written notice of remedial action to the Supplier and in accordance with the time frame(s) stated in it;
B&W shall, without limiting any of its other rights or remedies, have the right to any one or more of the following remedies, whether or not it has accepted the Goods:
(a) to terminate the Contract with immediate effect by giving notice to the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed and return them to the Supplier at the Supplier's own risk and expense;
(c) 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);
(d) to refuse to accept any subsequent delivery of the Goods or performance of the Services which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by B&W in obtaining substitute goods and/or services from a third party;
(f) where the Goods have been delivered to the wrong location, to recover from the Supplier any costs incurred by B&W in delivering them to the Delivery Location;
(g) where B&W 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 such sums refunded by the Supplier; and
(h) to claim damages for any other costs, loss or expenses incurred by B&W which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
5.2 If the Supplier:
(a) delivers less than 90% of the quantity of Goods specified in the Purchase Order and has failed to remedy the situation within 10 Business Days, B&W may at its discretion return the delivered Goods; or
(b) delivers more than the quantity of Goods specified in the Purchase Order, B&W may at its discretion return the excess delivered Goods
(c) and any returned Goods shall be returned at the Supplier's risk and expense. The Supplier shall immediately refund the price paid by B&W for any Goods which are rejected under this clause 5.2. If the Supplier delivers more or less than the quantity of Goods specified in the Purchase Order, and B&W accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
5.3 None of B&W's rights under clauses 5.1 and 5.2 shall lapse or be deemed to have been waived as a result of any delay by B&W in exercising such rights or, in respect of late delivery, because the Supplier is given further time to deliver. For the avoidance of doubt, where there is more than one Delivery Date because the Goods are being delivered in instalments, the failure by the Supplier to deliver one instalment on time or at all or any defect in an instalment shall entitle B&W to exercise its rights under this clause 5 in respect of all instalments.
5.4 No signature obtained from B&W on delivery of any Goods shall be any evidence as to the quality, quantity or condition of the Goods delivered and nor shall it constitute any waiver by B&W of any rights of B&W under the Contract.
5.5 This Purchase Agreement and the Supporting Documents shall apply to any repaired or replacement Goods and/or any substituted or remedial Services supplied by the Supplier.
5.6 B&W's rights and remedies under this Purchase Agreement and/or under any Supporting Document are in addition to its rights and remedies implied by statute and common law.
6.1 The price of the Goods shall be the price set out in the Purchase Order, or, if no price is quoted, the last price notified to B&W by the Supplier. In the event that either the shipping invoice customs declaration or VAT invoice has a lower price to that set out in the purchase order or schedule the lower price shall apply in all circumstances and will be the maximum payable for the Goods received.
6.2 The price on the Purchase order will follow the incoterm DDP to delivery address specified on the Purchase Order, unless otherwise agreed and defined on the Purchase Order.
6.3 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. Unless otherwise agreed in writing by B&W, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
6.4 In respect of Goods, the Supplier shall invoice B&W on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice B&W on completion of the Services. Each invoice shall include such supporting information required by B&W to verify the accuracy of the invoice, including but not limited to the relevant number of the Purchase Order. If the Goods are received in advance of the Delivery Date, payment terms will commence from the original Delivery Date not the date of receipt. In respect of Goods, the Supplier shall deliver a VAT invoice to B&W on delivery. In respect of Services, the Supplier shall deliver VAT invoice to B&W on completion of the Services. Each invoice shall include such supporting information required by B&W to verify the accuracy of the invoice, including but not limited to the relevant number of the Purchase Order or Schedule Agreement. If the Goods are received in advance of the Delivery Date, payment terms will commence from the original Delivery Date not the date of receipt.
6.5 Value Added Tax and any other sales tax, where applicable, shall be shown separately on all invoices as a strictly net extra charge, at the rate ruling at the date of invoice.
6.6 In consideration of the supply of Goods and/or Services by the Supplier, B&W shall pay the invoiced amounts to a bank account nominated in writing by the Supplier within 60 days of the end of the month in which B&W receives an invoice correctly rendered in respect of such Goods and/or Services.
6.7 The Supplier will send a monthly statement of account by the 10th of the following month or such other date as has been mutually agreed between B&W and the Supplier, quoting the invoice numbers applicable to each item.
6.8 All payments will be made without prejudice to B&W’s rights under the Contract including, without limitation, in respect of any breach by the Supplier of its obligations under the Contract.
6.9 The price of the Goods includes the costs of packaging for the Goods. No extra charges shall be effective unless agreed in writing and signed by B&W.
6.10 B&W may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier against any amounts payable by it to the Supplier under the Contract or any other arrangement between the parties.
7.1 The Supplier shall not alter any of the Goods which are the subject of any Purchase Order, except as directed in writing by B&W, but B&W shall have the right, from time to time during the period of the Contract, by notice in writing to the Supplier, to add or to omit, or otherwise vary, the Goods which are the subject of any Purchase Order, and the Supplier shall carry out such variations and be bound by the same conditions, so far as is applicable, as though the said variations were stated in the original Purchase Order.
7.2 Where the Supplier receives any such direction from B&W which would require an amendment to the Contract price the Supplier shall, with all reasonable speed, advise B&W in writing to that effect giving details of the change to the Contract price (if any). B&W may, in its discretion, accept in writing such amendment. If B&W does not so accept such amendment, the Contract shall continue un-amended.
7.3 If, in the reasonable opinion of the Supplier, any such direction will prevent the Supplier from fulfilling any of its obligations under the Contract it shall so notify B&W and B&W shall decide whether or not the same shall be carried out and shall confirm its instructions in writing and modify the said obligations to such an extent as may be justified. Until B&W so confirms its instructions they shall be deemed not to have been given.
8.1 The Supplier represents and warrants that:
(a) No claim or proceedings have been made or threatened, either directly against the Supplier or against any customer or other third party, alleging that the Goods and/or the Software or any part or parts of either, or their Use (or use), sale, distribution or other commercial exploitation infringes the Intellectual Property Rights or other rights of any third party;
(b) The Supplier is not aware, having made all careful and reasonable enquiries both internally and externally, of any facts or circumstances which might indicate or give rise to the possibility that the Goods and/or the Software or any part or parts of either, or their Use (or use) by the Supplier or any third party including B&W as contemplated by the parties may infringe the Intellectual Property Rights of any third party;
(c) The supply of the Goods and/or the Software or any part or parts of either, and their Use (or use) by B&W, its direct and indirect distributors, agents, retailers and other customers and end users (each an Indemnified Person) will not infringe any Intellectual Property Rights belonging to any third party anywhere in the world nor will B&W be liable to any claim for payment of any licence, royalty or other fee related to or in respect of the Use (or use) of the Goods and/or the Software;
(d) In respect of the Goods, the Software and any goods that are transferred to B&W as part of the Services under the Contract, 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 that at the date of delivery of such items to B&W, it will have full and unrestricted rights to sell and transfer all such items to B&W.
(e) The Suppliers Warranty for non infringement of any Intellectual Property Rights shall not apply to any concept, designs, instructions, directions, or any other sources of third parties provided by B&W.
8.2 The rights in any New Intellectual Property meaning Patents (including utility models), and designs whether or not capable of registration,industrial Design, chip topography rights and other like protection, copyright,trademark and any other form of statutory protection of any kind and applications for any of the foregoing respectively as well as any trade secrets and any rights to apply for such patents etc, including product design or development (Foreground Works) arising from the execution of a Purchase order for Goods or Services, developed during the term of this contract (Foreground Works) shall belong to the Customer.
8.3 Upon request by B&W, and at B&W’s option, the Supplier will either:
(a) grant to B&W, a perpetual, irrevocable, royalty free license to B&W:
(i) to use (with full access to) the Software for development and/or any purposes B&W sees fit; and
(ii) to sub-licence the Software to its customers (including end users), without further charge, to Use (or use) the Software on and in relation to the Goods and/or Products, or
(b) execute any documents required to assign to B&W, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Goods or the Services, including for the avoidance of doubt the Deliverables and any Software.
8.4 In case Supplier Background Works are incorporated into the Deliverables and Supplier commits an act of bankruptcy or goes or is put into liquidation, or in the event of force majeure whereby Suppliers ability to fulfil this Agreement is not possible for a period of 60 days or more (and there is no mutually agreed recovery plan available), Supplier shall grant to B&W a perpetual, fully paid up, royalty-free, non-exclusive, non-transferable, worldwide license to use any Background Works of the Supplier included in or connected to the Deliverables in order to enable B&W to make or have made, amend, modify and further develop, as well as sell, distribute and manufacture the Products or otherwise use or commercialize the Product or any Update thereof.
8.5 The Supplier will use its best endeavours to ensure that none of the Intellectual Property is vested in any person other than the Supplier or Customer and to the extent that the Supplier involves any third party, the Supplier will take all the necessary steps to ensure that any intellectual property created by the third party is vested in the Supplier or Customer. In the event that the Supplier is unable,despite its best endeavours, to arrange for all the Intellectual Property to be vested in the Supplier or Customer, it will notify the Customer of that as soon as possible and in any case no later the 7 days after completion of the work.
8.6 The Supplier shall obtain waivers of all moral rights in respect of all Intellectual Property Rights in the Goods and/or Products and any goods that are transferred to B&W as part of the Services including without limitation, the Deliverables, to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
8.7 The Supplier shall, promptly at B&W's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as B&W may from time to time require for the purpose of securing for B&W the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned or granted to B&W in accordance with clause 8.2.
Any and all specifications general assembly drawing, Software and bills of material 2D and 3D drawings of all parts and product are to be provided at each Sample Submission including Realisation Phase of the Product development with the Supplier and finalised at Production Phase and at any further subsequent Engineering Change Update.
The Supplier acknowledges that all materials, equipment and Tooling, drawings, patterns, Specifications, B&W Software, and data supplied by B&W to the Supplier (B&W Materials) and all rights in B&W Materials are and shall remain the exclusive property of B&W. The Supplier shall use B&W Materials solely for the performance of its obligations under the Contract, keep B&W Materials in safe custody at its own risk, maintain them in good condition until returned to B&W, clearly mark them as the property of B&W, not dispose or use the same other than in accordance with B&W's written instructions or authorisation and deliver them up to B&W on demand.
The supplier will supply to B&W at the start of any project and annually thereafter until the Tooling are either returned to B&W or disposed of with B&W’s consent, a list of all Tooling purchased by, or for B&W including value location, remaining life shot expectancy and supplier.
11.1 Hazardous Goods shall be marked by the Supplier with the appropriate danger symbol(s) and display the name of the material in English. Transport and other documents must include declaration of the hazard and the name of the material in English. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings. The Supplier shall comply with all the current requirements of UK and International Agreements relating to the packing, labelling and carriage of hazardous Goods.
11.2 All information, including health & safety data, held by, or reasonably available to the Supplier regarding any potential hazards known or believed to exist in the transport, handling or use of the Goods supplied shall be promptly communicated to B&W and supplied with the Goods.
12.1 Where B&W chooses to return Packages to the Supplier it shall return such Packages (consigned 'carriage forward, ex-works' unless otherwise agreed) to the Supplier's supplying works or depot indicated by the Supplier. The Supplier shall credit B&W for the cost of such Packages.
12.2 Where Goods are delivered by the Supplier’s transport, the same vehicle may return available empty Packages.
12.3 Where Goods are delivered by container these will be emptied and returned to the Supplier.
13.1 The Supplier shall at a time specified by B&W repair or replace all Goods (to the Specification) which are or become defective during the period of 24 months from putting into service or 24 months from delivery, whichever shall be the longer. Repairs and replacements shall themselves be subject to the terms of the Contract for a period of 24 months from the date of delivery, reinstallation or passing of tests (if any) whichever is appropriate after repair or replacement.
13.2 The Supplier further Warrants that
(a) the Goods will conform to the quality, description and other particulars of the Goods stated in B&W’s Purchase Order or Schedule Agreement;
(b) the Goods will conform to any Specification and all samples, drawings and descriptions supplied to the Supplier by B&W or produced by the Supplier and agreed in writing by B&W;
(c) the Goods will conform to all industry, technical, testing, quality and other standards referred to on any part of the Goods and in any product packaging, technical specifications, or other documentation in, with or in relation to which the Goods are supplied;
(d) the Goods will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by B&W expressly or by implication, and in this respect B&W relies on the Supplier's skill and judgment;
(e) the Goods will, where applicable, be free from defects in design, material and workmanship and remain so for 24 months after delivery;
(f) the Goods will comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling, and delivery of the Goods;
(g) the Software whether included in the Goods or otherwise will be free from any malware, restrictions, back doors time locks or anything else, which would impair performance of the Software as it may reasonably be expected to operate in the Goods and/or any Products or which could lead to any Data breach.
14.1 In the event that B&W makes any advance payment to the Supplier, whether for Tooling or Software or otherwise, B&W may by giving notice in writing to the Supplier either before or after the advance payment has been made require the Supplier to provide to B&W an advance payment guarantee from a bank or insurance company acceptable to B&W and on such terms which B&W reasonably requires.
15.1 The Supplier shall keep B&W and each other Indemnified Person indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by each Indemnified Person as a result of or in connection with:
(a) any claim made against any Indemnified Person by a third party for death, personal injury or damage to property arising out of, or in connection with, manufacturing defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) any claim made against any Indemnified Person by a third party arising out of, or in connection with, the supply of the Goods 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
(c) any claim made against any Indemnified Person for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods and/or Software or the receipt, use or supply of the Services.
15.2 It is expressly agreed that the indemnity in this clause 15 is given for the benefit of and may be directly enforced by any Indemnified Person against the Supplier.
15.3 For the duration of the Contract and for a period of 6 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 Contract and shall, on B&W'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.
15.4 This clause 15 shall survive termination of the Contract.
16.1 In the event of the institution, or threat, of any claim, suit or proceeding (a Claim) against B&W arising out of Supplier’s sale of Goods, B&W shall promptly notify the Supplier of such Claim.
16.2 On the condition that the Claim is not solely and directly attributable to an act or omission of B&W (in which case B&W shall be responsible for defending itself from all reasonable costs and expenses properly incurred by B&W as a result of defending such Claim), the Supplier may, at its own expense and option, but subject to the prior written consent of B&W, defend or to settle any such Claim brought against B&W. Provided that the Supplier expeditiously defends any such Claim, the Supplier shall have sole control of any such action or settlement negotiations. Without prejudice to the scope of any indemnification obligation provided under any other clause in the Contract which obligation shall not be limited by this clause, the Supplier agrees to pay any final judgment entered against B&W. Where the parties agree in writing to jointly defend the Claim, then the costs and expenses, and any settlement or award shall be apportioned in the percentage agreed between the parties in writing.
16.3 On the issue of such Claim, and any settlement payment as a result of such negotiation conducted by or otherwise approved by the Supplier, in any such Claim defended by the Supplier, B&W agrees that it shall provide reasonable assistance to the Supplier (at the Supplier's cost and expense) in order to settle and/or defend any such Claim.
The Supplier shall keep in strict confidence the Contract and the subject matter thereof, all technical or commercial know-how, Specifications, CMF’s, Product Briefs, inventions, processes or initiatives which are disclosed to it by B&W, its employees, agents or subcontractors, and any other confidential information concerning B&W's business, its products or its services which the Supplier may obtain. The Supplier shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the Supplier's obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential. This clause shall survive termination of the Contract. The Supplier must not quote or supply parts made to B&W’s specification, design or drawing to any third party without B&W’s prior consent in writing as per the Mutual Confidentiality Agreement.
Any and all models or product from development and any pre- production runs retained by the supply for development testing should be accounted for and records maintained of their location and accountability. Upon completion of the required tests the products and models should be either returned to B&W for destruction or destroyed by the supplier with supporting evidence.
18.1 Without limiting its other rights or remedies (including without limitation the rights and remedies in clause 5), B&W may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(b) 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) 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;
(c) the Supplier 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 its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(d) 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) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(f) a creditor or encumbrancer of the Supplier 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;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
(i) a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
(j) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 18.1(b) to 18.1(i) inclusive;
(k) the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
(l) 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.
18.2 Without limiting its other rights or remedies, B&W may terminate the Contract:
(a) in respect of the supply of Services, by giving the Supplier 1 month’s written notice; and
(b) in respect of the supply of Goods, with immediate effect by giving written notice to the Supplier, in which case B&W shall pay the Supplier fair and reasonable compensation for any work in progress on any other Goods at the date of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
18.3 In any of the circumstances expressed in this Purchase Agreement in which B&W may terminate the Contract, where both Goods and Services are supplied, B&W may instead terminate part of the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
18.4 On termination of the Contract or any part of it for any reason:(a) where the Services are terminated, the Supplier shall immediately deliver to B&W all Deliverables, whether or not then complete, and return all B&W Materials and any Tooling. If the Supplier fails to do so, then B&W may without limiting its other rights or remedies 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; (b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
18.5 On termination of the Contract for any reason other than a termination under clause 5.1 or clause 18.1 and provided that the Supplier is not otherwise at fault, B&W may, by way of agreement with the Supplier in writing (but without prejudice to any of B&W’s rights in clause 18.4 and without duplication of any right of the Supplier under clause 18.2(b)), purchase any materials from the Supplier which the Supplier purchased in good faith in anticipation of its obligations under the Contract and not otherwise used in the production of, or incorporated into, any of the Goods already delivered to B&W and/or any of the Goods which B&W are entitled to have delivered to it.
18.6 Clauses which expressly or by implication have effect after termination shall continue in full force and effect.
19.1 The Supplier shall:
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with Masimo Consumer’s Supplier Code of Conduct and Conflict Minerals policy. Copies available upon request;
(d) have and shall maintain in place throughout the term of the Contract its own adequate policies and procedures, compliance with the Relevant Requirements and B&W's Ethical Business Practice Policy and will enforce them where appropriate;
(e) promptly report to B&W any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the Contract;
(f) immediately notify B&W in writing if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier and the Supplier warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Purchase Agreement;(g) within one month of the date of this Purchase Agreement, and, if requested by B&W thereafter, certify to B&W in writing signed by an officer of the Supplier, compliance with this clause by the Supplier and all persons associated with it under clause 19.2. The Supplier shall provide such supporting evidence of compliance as B&W may reasonably request.
19.2 The Supplier shall ensure that any person associated with the Supplier (including any subcontractor) who is performing services or providing goods in connection with the Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in this clause (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to B&W for any breach by such persons of any of the Relevant Terms.
19.3 Breach of this clause shall be deemed a material breach of the Contract for the purposes of clause 18 (Termination).
19.4 For the purpose of this clause, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
20.1 Assignment and subcontracting.
(a) B&W may at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Supplier may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without B&W's prior written consent. The restriction contained in this clause shall not apply to Purchase Orders for materials, for minor details, for any part for which the makers are named in the Contract or where the parties have agreed in writing that it should not apply. The Supplier shall be liable for all Goods supplied by all sub-contractors as if the Supplier itself supplied them. If B&W consents to sub-contracting by the Supplier, the Supplier shall, if requested by B&W, provide such information as B&W may require to satisfy B&W that appropriate orders have been placed with sub-suppliers to fulfil the Purchase Order.
(a) Any notice or other communication given to a party under or in connection with the Contract 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 to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 20.2 (a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting, or the seventh Business Day after posting if sent from outside the United Kingdom; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
20.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
20.5 Third party rights. Subject to clause 15.2, a person who is not a party to the Contract shall not have any rights under or in connection with it.
20.6 Force majeure: Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by Force Majeure, provided that the Supplier shall use all reasonable endeavours to cure any such Force Majeure and resume performance under the Contract as soon as possible. If any Force Majeure event or circumstance prevents the Supplier from carrying out its obligations under the Contract for a continuous period of more than 30 Business Days, B&W may terminate this Contract immediately by giving written notice to the Supplier.
20.7 Governing law and jurisdiction. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales PROVIDED THAT nothing shall limit the right of B&W or any Indemnified Person to take proceedings against the Supplier in any other court of competent jurisdiction.