Terms and Conditions
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Website Terms and Conditions
P C HENDERSON LIMITED (registered number 01188468) whose registered office is at BOWBURN NORTH INDUSTRIAL ESTATE, DURHAM ROAD, BOWBURN, DURHAM, DH6 5NG (“we” or “us”)
General
In these terms and conditions:-
“P C Henderson” means, P C Henderson Ltd and Companies and any other connected organisation that supplies the goods ordered by you and any successor to its business;
“We and Us” means P C Henderson Ltd either alone or together with you, as the context requires;
“Working day” means every day of the year except weekends, and English statutory and public holidays;
“You” means the person ordering goods subject to these terms and conditions;
We may at any time make changes to this site and the details displayed on it (including prices).
We shall not be liable to you where performance of any of our obligations to you is prevented, frustrated or impeded by reason of acts of God, war and other hostilities, civil commotion, accident, strikes, lock outs, trade disputes, acts or restraints of Government, imposition or restrictions of imports or exports or any other cause not within the reasonable control of P C Henderson Ltd.
If any part of these terms and conditions is found to be unenforceable as a matter of law, all other parts of these terms and conditions shall not be affected and shall remain in force.
We cannot guarantee that the appearance and/or colours of products shown on this site exactly reproduce the appearance and/or colours of the physical products themselves. All sizes quoted are approximate.
To the extent permitted by law, P C Henderson accepts no liability for any loss, damage or injury arising as a consequence of the advice provided.
These terms and conditions and any contract between us shall be governed by and construed in accordance with English law and the English Courts shall have jurisdiction over any disputes between us.
Copyright
The contents of the web site are copyright © 2016 P C Henderson Limited. All Rights Reserved.
P C Henderson Ltd or its licensors are the owners of the copyright (and database rights) in this site and all material on the site, including content, design, text, graphics, photographs, software compilations and underlying source codes.
Information on the web site, including but not limited to, text, images and sound, may not, except for strictly private purposes or where otherwise indicated, be reproduced, transferred, distributed or stored without prior written permission by PC Henderson Limited. Modifications to the contents of the web site are expressly prohibited.
You may download and print extracts from this site for the sole purpose of placing an order with P C Henderson Ltd or for your personal non-commercial use only. No right, title or interest in any downloaded materials or software is transferred to you by such downloading. You may not make any other use of material on this site (including reproduction except as above, publication, alteration, distribution, broadcast, or other commercial exploitation) without our written permission.
Some parts of the web site contain images that are subject to the copyright rights of their providers.
Trademarks
P C Henderson Ltd is the owner of the trade marks appearing on this site and all associated trade names, logos and devices unless indicated to the contrary. All other trade marks, logos and names appearing on this site are the property of their respective owners, as indicated.
No Warranties or Representations
INFORMATION ON THIS WEB SITE IS PROVIDED “AS IS”. IN NO EVENT WILL P C Henderson Limited BE LIABLE TO ANY PARTY OR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS WEB SITE, OR ON ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
P C Henderson Limited makes no warranties and/or representations whatsoever about any other web site which you may access through this one. Such are provided only as a convenience and does not mean that P C Henderson Limited endorses or accepts any responsibility for the contents or the use of such web site. In addition, it is up to you to take precautions and to ensure that whatever you select for your use is free of such items as viruses, worms, Trojan horses and other items of a destructive nature.
Information on this web site may contain technical inaccuracies or typographical errors. The information contained on this web sites may be changed at any time without prior notification or obligation.
Information that is published on the web site may contain references or cross references to P C Henderson Limited products, services etc. that are not announced or available in your country.
The accuracy of such information cannot be guaranteed, particularly since this information is subject to change, specific requirements or availability and such references do not imply that P C Henderson Limited intends to announce such products, services etc. in your country. Contact your local Henderson distributor for complete details regarding the products, services etc. which may be available to you and for ordering. Your local Henderson Installer/Distributor may be found using the “Find an Installer/Distributor” service on this website.
Legal notice
We constantly endeavour to keep this web site up to date; however some of the information published may not be correct due to product changes which may have occurred since it was last updated. Before ordering, please ask your Henderson Installer/Distributor for the latest information. P C Henderson Ltd reserves the right to make changes at any time, without notice, to prices, products and specifications.
Conditions of Sale v2.0 2025 WA
CONDITIONS OF SALE - NOTE: THESE CONDITIONS CONTAIN EXCLUSION CLAUSES
1.DEFINITIONS
In these Conditions:-
"Agreement for Sale” has the meaning given to it in Condition 2;
“Anti-Corruption Law” means any law, rule, regulation, or other legally binding measure of any jurisdiction that relates to bribery or corruption;
“Apple Wallet” means the Apple proprietary technology that enables end users to receive, store and use a mobile credential to perform an Access Transaction based on the Apple Specifications.
“Custom Charges” means any duties, customs, charges, tariffs, taxes or any other fees of any nature whatsoever imposed in any country or territory, either directly or indirectly, in respect of the sale or supply of the Goods, or payments for them.
“Economic Sanctions and Export Control Laws” means all economic sanctions and export control laws, regulations, rules or restrictive measures, including import and export restrictions on materials and items, adopted and enforced by governmental authorities of the EU, UK, UN or US or any other relevant governmental or regulatory authority, applicable P C Henderson or Purchaser;
“ECP Enabled Products means a product that has been enabled to support mobile credentials in Apple Wallet.
“Goods” means any goods or replacements therefore and any services supplied by the Seller to the Purchaser under the Agreement for Sale;
"Indemnitees” has the meaning given to it in Condition 13(h);
“Insolvency Event” has the meaning given to it in Condition 7(c)(ii);
“Listed Persons” means individuals and entities listed, or parties that are owned or controlled by one or more individuals or entities listed, in in Economic Sanctions and Export Control Laws;
“Military End-Use” means use of the Goods, in their entirety or in part, for any military end-use or by any military end-user, including for any purpose in connection with chemical, biological or nuclear weapons, military items or by any national armed services (army, navy, marine, air force, or coast guard), national guard and national police, government intelligence or reconnaissance organisations;
“Minimum Carriage Paid Order Value” means the minimum carriage paid order value as set out in the Seller’s price list in force from time to time;
“Minimum Invoice Charge” means the minimum invoice charge for the Goods as set out in the Seller’s price list in force from time to time;
“Official” means any official, employee, agent or representative of, or any other person acting in an official capacity for or on behalf of, any (i) government, including any entity owned or controlled thereby, (ii) political party, party official or political candidate, or (iii) public international organisation; or any individual who holds a legislative, administrative or judicial position of any kind or exercises a public function for or on behalf of a country, a public agency or a public enterprise;
“Order Acknowledgement” means the Seller’s order acknowledgement to which a copy of these Conditions is annexed; “Purchaser” means the person, firm or company from whom an order is accepted by the Seller;
“Retained Goods” has the meaning given to it in Condition 7(a);
"Relevant Indemnitees” has the meaning given to it in Condition 12(g);
“Seller” means P C Henderson Limited whose registered office is at Bowburn North Industrial Estate, Durham Road, Bowburn, Durham, DH6 5NG;
“Value Added Tax” means (a) any value added tax imposed by the Value Added Tax Act 1994; (b) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); (c) any other tax of a similar nature to that referred to in (a) or (b) above, whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, any tax referred to in (a) or (b); and (d) any other tax of a similar nature to that referred to in (a), (b) or (c) above imposed in any country in the world;
“Warranty Period” has the meaning given to it in Condition 9(a).
2.FORMATION AND PARTIES
a)The Purchaser’s order to the Seller is an offer to enter into a contract on these Conditions. Acceptance occurs and the contract is formed only upon the Seller despatching to the Purchaser its Order Acknowledgement. For the avoidance of doubt, the Seller is under no obligation to accept the Purchaser’s order. Any terms or conditions proffered at any time by the Purchaser are hereby excluded. These Conditions except as varied by express agreement in writing signed by a director or authorised person on behalf of the Seller shall be deemed to be incorporated in all contracts from time to time entered into between the Seller and the Purchaser which provide for the sale of any goods (including the Goods) by the Seller to the Purchaser. The agreements, warranties, conditions, representations and other items set out in the Order Acknowledgement and in these Conditions are together referred to in these Conditions as the “Agreement for Sale” and represent the complete agreement between the Seller and Purchaser with regard to the Goods and contain all agreements, warranties, conditions, representations and other terms agreed, made or relied upon by either party in connection with the Goods. A quotation by the Seller shall not constitute an offer.
b)The Seller shall not be in breach of the contract to the extent its failure to perform or delay or defect in performance of any obligations arises as a result of
i.any breach by the Purchaser of its obligations provided the Seller uses reasonable endeavours to perform its obligations notwithstanding the breach by the Purchaser; or
ii.where the Seller is complying with any instruction or request by the Purchaser or one of its employees.
c)The Contract is not a sale by sample.
3. GOODS AND SERVICES
a) The Seller will be entitled at any time prior to the supply of Goods to substitute any materials or parts which are used in the Goods and which are unavailable for any reason with alternative materials or parts to the extent that: (i) this does not materially adversely affect the quality or performance of that Good; or (ii) this is necessary to comply with applicable law, health and safety or other legal requirements. The Seller will use reasonable endeavours to give the Purchaser prior notice of any such variation or substitution.
b) The Seller warrants to the Purchaser that it will perform all services the subject of the Agreement for Sale with reasonable care and skill. The Seller will use reasonable endeavours to provide the services on the estimated performance date or within the timescales set out in Order Acknowledgement or as otherwise notified by the Seller to the Purchaser.
4. PRICE
a) The price for the Goods shall be as set out in the Seller’s price list in force from time to time except as otherwise provided for herein. The Seller reserves the right by written notice given to the Purchaser before delivery of the Goods to vary the price of Goods if, after the date of the Order Acknowledgement there is any increase in the Seller’s price list in respect of the same or similar description of Goods or by any amount attributable to a change in or insufficiency of the Purchaser’s instructions.
b) The Purchaser shall not be entitled to make any deduction from the price of the Goods in respect of any alleged rights to set off or counter-claims unless both the validity and the amounts thereof have been expressly acknowledged and admitted by a director or authorised person on behalf of the Seller in writing.
c) The price for the Goods will be inclusive of the costs of packaging and delivery charges within the United Kingdom, subject to the Minimum Carriage Paid Order Value at the relevant time, but shall be exclusive of any: (i) Custom Charges (including any Custom Charges that may be imposed in respect of the import or export of Goods to and/or from Northern Ireland), which shall be for the account of the Purchaser; and (ii) Value Added Tax, which shall be payable by the Purchaser in addition to the price for the Goods in the manner and at the rate prescribed by law from time to time. Where the net value of the Goods is less than the Minimum Carriage Paid Order Value, a surcharge of 100 per cent of such carriage costs will be imposed.
d) Subject to Condition 4(c) above, unless otherwise stated, the price for the Goods is exclusive of the costs of packaging, freight, insurance, delivery charges and all applicable Custom Charges which shall be payable by the Purchaser, and the Seller shall have no responsibility or liability for any Custom Charges in this regard. The Purchaser shall be fully responsible for ensuring that the importation, exportation, or transportation of Goods obtained from the Seller (including any import into, and any onward export from, Northern Ireland) complies with all relevant custom laws, regulations, guidelines, policies and procedures. The Purchaser shall also ensure that it:
i.obtains and maintains all relevant authorisations under the United Kingdom internal market scheme;
ii.provides all relevant information, including the relevant dataset, to HM Revenue and Customs or its chosen agent, where applicable;
iii.complies with and completes all necessary customs checks, particularly where required as part of an intelligence-led and risk-based approach;
iv.completes and submits any and all supplementary declarations or documentation that may be required;
v.complies with all European Union and international customs obligations where relevant, including completing any and all checks, controls, documentation and information for the movement of Goods;
vi.promptly pays all Custom Charges where required; and
vii.shares all appropriate information regarding the importation, exportation or other transportation of Goods obtained from the Seller in advance.
e) Where the value of the order is less than the Minimum Invoice Charge at the relevant time, the Minimum Invoice Charge will be imposed on all orders (except in the case of cut keys).
f) In the event of an obvious pricing error, where the goods are incorrectly priced, the Seller is not obliged to supply the goods at the incorrect price.
g) Where the Seller indicates that the any packaging is to be redeemed to the Seller, the Purchaser shall be responsible for returning such packaging as soon as reasonably practicable, carriage paid and in good condition.
(h)The Purchaser shall indemnify and hold harmless the Seller, its directors, officers, personnel, agents from any claims, liabilities, losses, damages, fines, penalties, costs and fees (including reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with the Purchaser’s failure to comply its obligations under this clause, 4(d) or any other non-compliance with relevant custom laws, import regulations and other relevant laws.
5. PAYMENT TERMS
a) Subject to satisfactory trade, bankers and other references which may be required by the Seller, and where no other terms of payment have specifically been agreed in the Order Acknowledgement or in this Condition, for domestic UK sales payment for the Goods shall be due in pounds sterling by the 25th of the calendar month following the month of issue of the Seller’s invoice, which may be issued at any time after the Goods are ready for despatch or collection from the Seller’s premises. Payment terms for export orders shall be offered subject to individual review, specifically agreed in writing and there is no guarantee that credit terms will be offered.
b) Time for payment of the price shall be of the essence of the Agreement for Sale and in the event of any payment becoming overdue, the Seller shall be entitled to charge interest at the rate of four per cent per month above the then current base rate of the Bank of England which shall be calculated and accrue on a day to day basis from the date on which payment fell due until payment (whether made before or after judgement has been obtained by the Seller against the Purchaser). The Seller reserves the right to suspend further deliveries and/or to cancel any allowance of further credit in the event of any payments not being made when due, or if the Seller in its sole discretion at any time considers the financial condition of the Purchaser has ceased to justify any such terms being permitted.
c) The Seller may at any time in its absolute discretion appropriate any payment made by the Purchaser in respect of Goods to such outstanding debt as the Seller thinks fit, notwithstanding any purported appropriation to the contrary by the Purchaser or the Seller. The Seller shall be entitled at any time and notwithstanding its acceptance of any order to cancel the Agreement for Sale or to postpone any delivery until payment has been received in the event that the Seller has reasonable doubts about the Purchaser’s ability or willingness to pay on the due date. The Seller reserves the right at any time at its discretion and notwithstanding its acceptance of any order to demand security for payment before continuing with an order or delivering Goods or any instalment.
d) The Purchaser shall submit any query relating to prices within twenty-one (21) days of the date of the invoice. In case such query is not received the Purchaser agrees that the invoice charges will be due and payable in full without set-off or deductions.
e) The Purchaser shall immediately notify the Seller in writing if : -
i.there is any change in the ownership, management or control of the Purchaser;
ii.there is any sale or transfer of a material part of the Purchaser's business or assets;
iii.the Purchaser, being a sole trader, entering into partnership with others; or
iv.the Purchaser, being a sole trader or a partnership, becomes incorporated or amalgamated with others.
f) If any of the events listed at 5(e) or an Insolvency Event occurs any credit facilities granted by the Seller shall automatically terminate and the balance of such account shall become immediately payable in full. The Seller will consider at its discretion a renewal of or adjustment to the credit facility taking into account the legitimate commercial interests of the Purchaser and Seller.
6. DELIVERY AND RISK
a) Unless otherwise expressly provided for in the Order Acknowledgement, delivery shall take place and risk shall pass on the earliest of the following:-
i.the Seller handing the Goods to the Purchaser or its agent at the Seller’s premises; or
ii.the Goods leaving the Seller’s premises; or
iii.on the eighth day following notification that the Goods are ready for despatch provided that the Seller has not exercised its right to repudiation of the Agreement for Sale pursuant to the provision of the following provision. If the Purchaser has failed to collect the Goods on the seventh day following notification of readiness for despatch, the Seller shall be entitled to treat the Agreement for Sale as repudiated by the Purchaser. Until the Agreement for Sale is so repudiated the Seller may, at its option either store the Goods itself or have them stored by third parties on such terms as it in its absolute discretion thinks fit. The cost of storage and any additional transportation will be added to and shall form part of the price. If the Seller elects to treat the Agreement for Sale as repudiated in accordance with this Condition it shall (without prejudice to its rights and remedies in respect of such repudiation) be entitled to sell the Goods and retain the proceeds of the sale.
b) Any claim for shortage, damage or for transport surcharges should be directed by the Purchaser to the carrier within seven days of such delivery and notification of any such claim should be made to the Seller. Any period or date for delivery stated in the Agreement for Sale or elsewhere is the Seller’s best estimate and is not to be deemed to be a contractual commitment. The Purchaser shall not be entitled to refuse to accept late delivery or to treat late delivery as a breach of the Agreement for Sale.
c) Unless otherwise agreed in writing, Goods included in each delivery (or part delivery) shall be deemed to be sold under a separate contract. Neither failure on the Seller’s part to make any delivery (or part delivery) in accordance with the Agreement for Sale, nor any claim by the Purchaser in respect of such delivery (or part delivery) shall entitle the Purchaser to reject the balance of the Goods agreed to be purchased by the Purchaser. The Seller may at its option deliver by instalments and each instalment shall constitute a separate contract on these Conditions.
d) Unless otherwise agreed in writing all export orders will be delivered Ex-works.
e) The Seller shall not be liable for loss or damage to Goods in transit unless:-
i.the Seller has agreed to effect delivery to a place other than the Seller’s premises; and
ii.the loss or damage occurs prior to arrival at the delivery point; and either
iii.damage or shortage is reported by the Purchaser within 7 days of arrival at the delivery point; or
iv.in the case of total loss, non-arrival is notified to the Seller within 7 days after despatch of advice note.
f) The Purchaser shall inspect the Goods immediately upon receipt and shall (unless such inspection cannot be carried out and the delivery note is marked “not examined”) subject to Condition 6(g) below be deemed to have accepted the Goods as delivered.
g) The Seller shall not be liable for defects or shortages discoverable on reasonable inspection unless the Purchaser notifies the Seller before the expiry of 5 working days after receipt, of any alleged defect or lack of conformity with the Agreement for Sale.
h) The Seller shall make good shortages notified to it under Condition 6(g) above as soon as reasonably practicable but shall not be liable for any other loss whatsoever arising from such shortage.
i) The Seller’s liability for Goods lost or damaged in transit shall in all circumstances be limited to (at the Seller’s option) the repair or replacement or credit to the Purchaser of the invoice value of the Goods in question.
j) Time for delivery is given as accurately as possible but is not guaranteed. The Purchaser shall have no right to damages or to cancel the order for failure for any cause to meet any delivery time stated nor shall the Purchaser be entitled to make, or to purport to make, time for delivery of the essence.
The Seller shall endeavour to comply with reasonable requests by the Purchaser for postponement of delivery of the goods but will be under no obligation to do so. Where delivery is postponed, otherwise than due to default by the Purchaser then, the Purchaser will pay all costs and expenses, including a reasonable charge for storage and transportation so occasioned.
k) The Seller shall not be liable for unloading the goods at the place of delivery or for placing them in position on site except by prior agreement in writing, and if the Seller or any of its agent does participate in the unloading (whether with or without such prior agreement) the Purchaser will indemnify the Seller in respect of claims brought against the Seller relating to its or its agents participation in such unloading.
l) The Seller shall not be liable for any demurrage costs incurred by the Seller if vehicles or any of its agent vehicles are unduly delayed at the place of delivery.
7. RETENTION OF TITLE
a) Until the Seller has received payment in full of all sums owed to it on any account by the Purchaser, whether arising out of this or any other contract, legal and beneficial title to the Goods shall remain in the Seller; such Goods are referred to in this Condition as “Retained Goods”.
b) Retained Goods:-
i.shall be at the Purchaser’s risk, insured by the Purchaser from the date of delivery at its own expense for their full replacement value against all usual risks; and kept safe in good condition and stored separately and clearly identifiable as the Seller’s property and with all identifying marks intact and legible; and
ii.may, subject to Condition 7(c) below be used or sold by the Purchaser in the ordinary course of its business on the basis that the proceeds of sale shall be held in trust by the Purchaser for the Seller absolutely.
c) The Purchaser’s powers of use and sale of Retained Goods shall terminate:-
i.forthwith on notice from the Seller if the Purchaser is in default of any of its obligations under this or any other contract with the Seller or if the Seller has reasonable doubts as to the ability or willingness of the Purchaser to pay any sum to it on the due date;
ii.automatically upon the occurrence of any of the following:-
a) if the Purchaser causes a meeting of or makes any arrangement or composition with its creditors; or
b) if the Purchaser, being an individual, becomes insolvent or appears to be unable to pay a debt or to have no reasonable prospect of paying a debt (within the meaning of Section 268 of the Insolvency Act 1986); or, being a company, appears unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986);
c) if the Purchaser gives notice under Section 84 of the Insolvency Act 1986 of or proposes or passes a resolution for, its winding up (otherwise than for the purposes of bona fide reconstruction or amalgamation of a solvent company);
d) if the Purchaser has a winding-up order made or a notice of striking off filed in respect of it;
e) if there is presented a petition for the winding up of the Purchaser, a notice for the appointment of an administrator of its undertaking filed in respect of it at any court or an administration order made in respect of it (whether it be a company or a partnership) or if the Purchaser is an individual on the presentation of a bankruptcy petition or an application for an interim order under Part VIII of the Insolvency Act 1986; or
f) if the Purchaser has a receiver, an administrator or administrative receiver appointed over any of its assets or undertaking or a winding up order made against it or it goes into voluntary liquidation (otherwise than for the purposes of bona fide reconstruction or amalgamation of a solvent company); or
g) if the Purchaser makes or is subject to a company voluntary arrangement, a composition with its creditors generally, an application to a court of competent jurisdiction for protection from its creditors generally, a scheme of arrangement under Part 26A of the Companies Act 2006, or a scheme of arrangement under Part 26 of the Companies Act 2006 (otherwise than for the purposes of bona fide reconstruction or amalgamation of a solvent company),
(each an “Insolvency Event”).
d) The Seller may, at any time on giving prior notice, enter the Purchaser’s premises for the purpose of inspecting Retained Goods and identifying them as the Seller’s property and the Purchaser irrevocably authorises the Seller to enter upon its premises for that purpose.
e) Upon suspension and revocation or determination of the Purchaser’s power of sale and use under this Condition the Purchaser shall place all the Retained Goods in its possession or under its control at the Seller’s disposal and shall be deemed irrevocably to authorise the Seller to enter upon any of the Purchaser’s premises, with or without vehicles, for the purpose of removing such Retained Goods.
f) The repossession of Retained Goods by the Seller in accordance with this Condition shall be without prejudice to all or any of the Seller’s other rights against the Purchaser under the Agreement for Sale.
8. LIABILITY
a) Nothing in these Conditions shall be interpreted as excluding or restricting any liability of a party:-
i.arising under Part 1 of the Consumer Protection Act 1987;
ii.for death or personal injury resulting from the negligence (as defined in Section 1 of the Unfair Contract Terms Act 1977) of the relevant party, its employees, agents or sub-contractors;
iii.for breach of its obligations arising under Section 12 of the Sale of Goods Act 1979;
iv.for breach of its obligations arising under Section 2 of the Supply of Goods and Services Act 1982;
v.for fraud or fraudulent misrepresentation; or
vi.for any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability.
Any liability of the Seller which falls within Condition 8(a) will not be taken into account in assessing whether the financial limit in Condition 8(b) has been reached.
b) Subject to the provisions of Condition 8(a) above, the Seller’s liability to the Purchaser in respect of the Goods shall not in any manner whatsoever (whether under law of contract, tort or otherwise) exceed either the price actually paid by the Purchaser for that part of the Goods in question or £10 (whichever figure is greater).
c) Subject to the provisions of Condition 8(a) above, the Seller shall, in no circumstances, be liable for:-
i.loss of profit;
ii.loss of revenue;
iii.loss of income;
iv.loss of anticipated savings or loss of margin;
v.loss of production;
vi.loss of goodwill;
vii.loss of reputation;
viii.any other economic loss; or
ix.any loss arising from any claim against the Purchaser by any third party,
x.(in each case whether direct, indirect or consequential); or
xi.any special, consequential or indirect loss, damage or expense of any kind howsoever caused or arising.
d) Save as provided in these Conditions and subject to the provisions of Condition 8(a) above, the Seller shall not be under any liability to the Purchaser (whether in contract tort or otherwise) for any defects in the Goods, materials supplied or workmanship performed by the Seller or for any damage, loss, death or injury resulting from such defects and the Purchaser shall indemnify the Seller against any claims in respect thereof.
e) References to liability in this Condition 8 shall apply to all liability arising under or in connection with these Conditions including liability in contract, tort (including negligence), misrepresentation, restitution, under statue or otherwise.
9. WARRANTY
a) The Seller warrants the Goods against defects in design, materials and workmanship which become apparent within the warranty period applicable to the Goods which shall be a period of twelve months (or such period as may be stipulated in the Order Acknowledgement) stipulated from the date of issue of the Sellers invoice (hereinafter called the “Warranty Period”).
b) The Seller’s liability for defective Goods under this warranty is limited to repairing or, at its option, replacing on an exchange basis, such Goods (or parts thereof) or crediting the Purchaser’s account to the invoice value and the Purchaser shall accept such of the aforementioned remedies as the Seller shall proffer as being fulfilment of the Seller’s obligation under the Agreement for Sale.
c) In the event of the Purchaser becoming aware of a defect in the Goods during the Warranty Period, the Purchaser shall within 14 days of discovering such defect supply the Seller with written particulars of such defect and at the Seller’s sole option either return the Goods to the Seller at the Purchaser’s expense and risk or permit the Seller to inspect the same at the Purchaser’s premises and use its best endeavours to provide to the Seller all necessary access and other reasonable facilities and all information, particulars and assistance required to enable the Seller to ascertain or verify the nature and cause of the defect claimed and to carry out its warranty obligations.
d) The above warranty shall not apply to any defect discoverable on inspection at time of receipt or caused in whole (or in part) by any alteration or addition to the Goods (other than by the Seller) or by use or storage of the Goods in a manner contrary to any written instructions of the Seller, or for purposes for which the Goods were not designed, or by faulty installation, maintenance or repair by the Purchaser or any third party, or where the defect was drawn to your attention before formation of the contract or the Good was examined by you before formation of the contract and the examination ought to have revealed the defect, or where the Purchaser makes further use of the relevant Good after discovering the defect.
e) The Seller shall be under no liability whatsoever to repair, replace or make good any loss, damage or defect which results from wear and tear, accident, neglect, misuse or events referred to in Condition 14 occurring after the physical delivery of the Goods to the Purchaser (or its agent).
f) When any defective Goods are replaced, the provisions of this Condition shall apply to the replacement Goods for the unexpired balance of the Warranty Period, or one-half of the applicable Warranty Period referred to in Condition 9(a) above, calculated from the date of replacement whichever is the longer.
g) The Purchaser shall accept the Seller’s liability under Conditions 6, 8, 9, 10 and 14 in lieu of all and every condition, warranty or representation whatsoever whether express or implied by statute, common law, trade usage, custom or otherwise as to the quality or fitness for any particular purpose of the Goods. The Purchaser acknowledges that all samples, illustrations, examples of installation methods, methods of assembly, specifications and details in catalogues, websites or other promotional materials, quotations and the Order Acknowledgement or any similar documents or by word of mouth and all forecasts of performances, however given, are for guidance only and do not form part of the Agreement for Sale and that in respect of such specifications details and forecasts the Seller shall be under no liability nor shall the Purchaser be entitled to any remedy under the provisions of the Misrepresentation Act 1967.
10. INSURANCE
The Purchaser agrees that it is best able to estimate the extent and nature of the insurance cover suitable for its business and property from time to time and can effect at more economic rates than the Seller such appropriate insurance cover (including cover against losses, damage, costs, claims and expenses referred to in Conditions 8, 9 or 11) and the Purchaser therefore acknowledges that it is reasonable for the Seller to sell the Goods and fix their purchase price on the basis of the exclusions and limitations of liability and the indemnity set out in these Conditions. The Purchaser agrees that it will be responsible for effecting insurance cover as above mentioned as may be appropriate to its business and property including any required insurance cover in respect of any loss or damage, of whatsoever kind or howsoever caused, whether by reason of the negligence of the Seller or otherwise to premises, plant or other physical property and the Seller shall have no liability in respect of any such loss or damage.
11. INDEMNITY - THIRD PARTY CLAIMS
The Purchaser shall indemnify and keep indemnified the Seller against all actions, claims, costs, damages, demands and expenses or other loss arising out of a defect in the Goods (including all liabilities incurred under the Consumer Protection Act 1987) to the extent occasioned or contributed to by any act or omission of the Purchaser its servants, agents, sub-contractors or persons under its control.
12. EXPORT CONTROL AND SANCTIONS
a) The Purchaser represents and warrants to the Seller that it at all times will act in compliance with Economic Sanctions and Export Control Laws, and that:-
i.the Purchaser will not sell or re-export the Goods without all requisite licenses and approvals under Economic Sanctions and Export Control Laws;
ii.the Purchaser shall not sell, export or re-export, the Goods, directly or indirectly, to the Russian Federation or Belarus for use in in the Russian Federation or Belarus (whether or not permitted under Economic Sanctions and Export Control Laws applicable to the Purchaser);
iii.the Purchaser shall undertake its best efforts to ensure that the purpose of this Condition 12 is not frustrated by any third parties further down the commercial chain, including by possible resellers;
iv.the Purchaser agrees to (i) cascade the contractual obligations set forth in this Condition 12 in contracts with third parties, including possible resellers, further down the commercial chain; and (ii) set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down the commercial chain, including by possible resellers, that would frustrate the purpose of this Condition 12;
(v) neither the Purchaser, its affiliates, or any of their respective directors, officers, employees nor, so far as the Purchaser is aware, any agents or other persons acting on behalf of any of the foregoing:-
(a)is, or has been, or will be, a Listed Person;
(b) has engaged (nor will engage) in any business dealings or activities that would reasonably be expected to result in it becoming a Listed Person;
(c) directly or indirectly, has conducted or is conducting any business dealings or activities with or for the benefit of, or is otherwise involved in any business with a Listed Person, or otherwise acting in violation of Economic Sanctions and Export Control Laws;
(d) has engaged or is engaging in any transaction that circumvents, evades or avoids, or has the purpose or effect of circumvention, evading or avoiding, or attempts to violate, any Economic Sanctions and Export Control Laws; or,
(e) is, or has been, in violation of, or subject to, any investigation or enquiry by, or on behalf of, any governmental or other regulatory body relating to Economic Sanctions and Export Control Laws;
b) The Purchaser covenants and agrees that (a) the representations and warranties set forth in this Condition 12 above shall remain true and correct at all times and (b) the Purchaser will provide written notice to the Seller, as promptly as possible and in any event within five business days, should any representation or warranty fail to be true or correct at any time.
c) The Purchaser covenants and agrees to not engage in any transaction for Military End-Use unless explicitly approved by the Seller.
d) The Purchaser will, to the best of its abilities, cooperate with the Seller to facilitate compliance with Economic Sanctions and Export Control Laws and will upon request, provide the Seller with copies of all documentation relating to any business dealings involving the Goods, including end-user certifications and other information as may be required by the Seller.
e) The Purchaser covenants and agrees to maintain complete and accurate records concerning all actions taken by, on behalf of, or at the direction of the Seller pursuant to the Agreement for Sale. The Purchaser shall also provide all information relating to requests for Goods, that the Purchaser suspects could violate or circumvent Economic Sanctions and Export Control Laws, including requests from or on behalf of a Listed Person or attempts to acquire Goods in violation of Economic Sanctions and Export Control Laws.
f) Notwithstanding any provision of the Agreement for Sale, the Seller shall not be obliged to make any payment or take any other action if the Seller believes in good faith that such action may constitute a violation, contribute to a violation, or constitute a circumvention of any Economic Sanctions and Export Control Laws.
g) The Purchaser shall indemnify the Seller and its affiliates, directors, officers, employees, advisors, principals and holders of its equity interests (collectively, the "Relevant Indemnitees") against, and shall hold each Relevant Indemnitee harmless from, any and all third party claims, damages and liabilities, including the reasonable fees, charges and disbursements of counsel, incurred by or asserted against any Relevant Indemnitee arising out of, in connection with, or as a result of: (a) any representation or breach of warranty set forth in Condition 12, (b) any breach by the Purchaser of any of its commitments in Condition 12 (a) to (f) above and (c) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory.
13. ANTI-CORRUPTION
a) The Purchaser represents and warrants to the Seller that:-
i.none of the Purchaser and its affiliates, nor any director, officer, employee, agent or shareholder of any such person, has (I) in order to assist in improperly obtaining or retaining business for or with any person, in improperly directing business to any person, or in securing any improper advantage, made, authorised, offered or promised to make any payment, gift or transfer of anything of value, directly, indirectly or through a third party, to or for the use or benefit of any other person, or (II) made any unlawful bribe, rebate, payoff, influence payment or kickback or has taken any other action that would violate any Anti-Corruption Law to which it is subject;
ii.the Purchaser has instituted and maintains policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with any Anti-Corruption Law to which it is subject;
iii.during the past five (5) years none of the Purchaser and its affiliates has received any written communication indicating or alleging that any such person is or may be in violation of any Anti-Corruption Law, or that any such person is or may be subject to any investigation or inquiry by a governmental authority related to any Anti-Corruption Law, and, to the knowledge of the Purchaser, no such investigation or inquiry is pending or threatened; and
iv.no Official holds any shares, partnership interests or other equity or ownership interests in the Purchaser or any of its affiliates, or is an officer, director, employee, contractor or agent of the Purchaser, and no Official has or will have a right to or interest in any payment or other thing of value provided by the Seller to the Purchaser.
b) The Purchaser covenants and agrees that (i) the representations and warranties set forth in Condition 13(a) above shall remain true and correct at all times and (ii) the Purchaser will provide written notice to the Seller, as promptly as possible and in any event within five business days, should any such representation or warranty fail to be true and correct at any time.
c) The Purchaser covenants and agrees to maintain complete and accurate records concerning all actions taken by, on behalf of, or at the direction of the Purchaser pursuant to these Conditions.
d) Notwithstanding any provision of these Conditions to the contrary, the Seller shall not be obligated to make any payment or take any other action under these Conditions if it believes in good faith that such action may constitute a violation, or contribute to any violation, of any Anti-Corruption Law; and the Seller shall not be liable to the Purchaser for any claims, losses or damages arising from the Seller’s exercise of its rights under this paragraph.
e) The Purchaser hereby agrees to answer in reasonable detail any written or oral inquiry by the Seller, and to facilitate the interview of staff employed by the Purchaser at any reasonable time specified by the Seller, in case in relation to the Purchaser's compliance with this Condition and with Conditions 13(b), (c) and (d) above. The Purchaser hereby agrees that the Seller, and any independent accountants appointed by the Seller, shall have the right to review and audit the Purchaser's books, records, accounts and internal accounting controls, and to provide to the Seller such analysis and reports with respect thereof as the Seller may direct. The Purchaser shall make all reasonable efforts to cooperate with any such review, audit, analysis and report. At the request of the Purchaser, the Seller shall select an independent third party to perform the audit.
f) The Purchaser shall provide to the Seller a certificate of a senior corporate officer of the Purchaser, not less often than once per calendar year, certifying that the Purchaser remains in compliance with all applicable Anti-Corruption Laws and with the representations and warranties in Condition 13(a) above.
g) Should the Purchaser fail to provide any notice required under Condition 13(b) above, or should the Seller determine, in its sole discretion, that any representation or warranty set forth in Condition 13(a) above has failed to be true and correct at any time, the Seller shall have the right to immediately terminate the Agreement for Sale by written notice to the Purchaser. Upon any such termination, the Agreement for Sale and all rights and obligations hereunder shall immediately terminate, provided that the Purchaser shall remain liable to the Seller for any breach of its obligations hereunder.
h) The Purchaser shall indemnify the Seller and its affiliates, directors, officers, employees, advisors, agents and holders of its equity interests (collectively, the “Indemnitees”) against, and shall hold each Indemnitee harmless from, any and all third party claims, damages and liabilities, including the reasonable fees, charges and disbursements of counsel, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) any representation or warranty set forth in Condition 13(a) above not being true and correct when made, (ii) any breach by the Purchaser of any of Conditions 13(b), (c), (d) or (e) above, or (iii) any claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory.
14. FORCE MAJEURE AND EVENTS BEYOND THE CONTROL OF THE SELLER
a) The Seller shall have no liability under the Agreement for Sale in respect of any failure or delay in fulfilling any of the Seller’s obligations to the extent that fulfilment thereof is prevented, frustrated, impeded and/or delayed as a consequence of any force majeure and or any occurrence whatsoever beyond the control of the Seller including without prejudice to the generality of the foregoing:-
i.compliance with any order, regulation request or control of any national or local authority, governmental department or other competent authority of any country whether or not legally enforceable; or
ii.any delays in, or cancellations of deliveries, or provision of services by third parties or shortages of Goods, materials or parts; or
iii.any strikes, lock-outs, or trade disputes whether involving the Seller’s employees or others, fire, explosion, accident, calamity or civil disturbance, action of elements, national calamity, or act of God; or
iv.failure in whole (or in part) of any power or energy supply.
b) The Seller undertakes however to make every reasonable endeavour within its power to overcome difficulties arising in connection therewith, but in the event of shortages of the Goods, or of available resources for their production, storage or delivery arising from any of the events or circumstances referred to in Condition 14(a), the Seller reserves the right to allocate as it may think fit its available goods and resources between customers with whom it has contractual obligations in respect thereof and shall not be obliged to purchase any goods from third parties to make good such shortages.
c) Should such contingency continue for more than three (3) months either party may (subject to the Seller repaying to the Purchaser any advance payments for undelivered goods and, where the force majeure situation has been notified by the Purchaser to the Seller, subject to the prior payment by the Purchaser to the Seller in respect of all or any part of the order already performed by the Seller up to and including the date of notification) cancel the contract without further liability to the other.
d) In case the Seller is affected by a Force Majeure Event the Purchaser shall continue to pay invoices in accordance with Condition 5 in respect of any Goods which the Purchaser continues to supply notwithstanding the occurrence of the Force Majeure Event.
15. LETTERS PATENT
The Purchaser shall promptly inform the Seller of any threatened claim as to the alleged infringement of letters patent, or other third party rights by or in connection with the Goods and shall, if so required by the Seller at the Seller’s expense, take all reasonable steps to enable the Seller to defend any such claim.
16. CONFIDENTIAL INFORMATION
a) The Purchaser shall treat all drawings, procedures, instructions, documents and other information of any kind whatsoever supplied by the Seller to the Purchaser as strictly confidential (except to the extent that any such information is available in the public domain) and shall not without the prior written consent of the Seller, disclose or part with possession of any such documents or information or extracts therefrom or copies thereof or use any such documents or information otherwise than in connection with the Goods to which they relate.
b) The Seller requires that the Purchaser shall not issue any press releases or make any public statements regarding Apple Wallet functionality (Seller ECP-Enabled Products) without the Seller’s express written permission.
c) Within ten days after the date of expiry or termination of the Agreement for Sale, the Purchaser will: (i) if requested to do so, return to the Seller all of the Seller’s confidential information (including all copies and extracts) in its possession or control; and (ii) cease to use the Seller’s confidential information.
d) Each party may retain any of the other party’s confidential information which it has to keep to comply with any applicable law or which it is required to retain for insurance, accounting or taxation purposes.
17. GOODS MANUFACTURED TO PURCHASER’S SPECIFICATION
a) The Seller accepts no responsibility for the accuracy of information, specifications, instructions and/or drawings supplied by the Purchaser.
b) The Seller does not guarantee the suitability of the materials or the design of goods especially to Purchaser requirements and differing from Sellers standard specifications even if the purpose for which the goods are required is known to the Seller.
c) The Seller does not accept responsibility for safe keeping and condition of any drawings, samples etc whilst they are in the Sellers’ possession. The Purchaser should make its own arrangements to insure these items.
d) The Purchaser shall indemnify the Seller from and against all actions, costs (including legal costs), proceedings and loss directly or indirectly arising out of any error in or omission from any such information, specifications, drawings and/or instructions, or where it is alleged that they involve an infringement of a patent, copyright, registered design or other exclusive right or the provisions of any statute, statutory instrument or regulation.
18. HEALTH AND SAFETY
The Purchaser agrees to pay due regard to any information or advice relating to the use of the Goods which the Seller may at any time furnish to it and agrees that before the Goods are used it will, if requested by the Seller, furnish the Seller with a written undertaking to take any steps which the Seller may specify with a view to ensuring that the Goods will be safe and without risk to health when used.
19. TERMINATION, CANCELLATION AND AMENDMENT
a) The Seller may terminate the Agreement for Sale immediately by giving written notice to that effect to the Purchaser if the Purchaser:
i.commits a material breach of the Agreement for Sale which cannot be remedied; or
ii.commits a material breach of the Agreement for Sale which can be remedied but fails to remedy that breach within 30 days of a written notice setting out the breach and requiring it to be remedied being given by the Seller.
b) The Seller may terminate the Agreement for Sale immediately by giving written notice to that effect to the Purchaser if an Insolvency Event occurs. The Purchaser will notify the Seller in writing immediately upon the occurrence of an Insolvency Event.
c) No cancellation or amendment to the Agreement for Sale shall be binding on the Seller unless agreed in writing by a director or other authorised person on behalf of the Seller and on the strict condition that all and any costs and expenses incurred by the Seller up to the time of the cancellation or arising out of the amendment and all loss of profits and other loss and damage resulting to the Seller by reason of such cancellation or amendment will be reimbursed by the Purchaser to the Seller forthwith. The Seller will not accept the cancellation of any orders for Goods which are made to order or bought in by the Seller specifically to fulfil the Purchaser’s order. This agreement may be terminated by the Seller in the event that either party’s ability to fulfil an obligation is materially affected by the imposition of restrictions in Economic Sanctions and Export Control Laws or where the Purchaser has misrepresented or failed to properly disclose any material fact, or to provide any documentation, certifications or information requested by the Seller, including to, the intended end-use/end-user or destination of the Goods. The Seller shall not be liable to the Purchaser for any claims, losses or damages arising from the Seller exercising its rights to termination in relation to Economic Sanctions and Export Control Laws.
d) Returned items may be subject to carriage and restocking charges in line with P C Henderson returns procedure and notified to the Purchaser in advance.
20. ASSIGNMENT
The Purchaser shall not assign, or otherwise transfer all or any of its rights, interests or obligations under the Agreement for Sale without the prior written consent of the Seller.
21. WAIVER
No waiver of any of the Seller’s rights under the Agreement for Sale shall be effective unless in writing signed by a Director or other authorised person on behalf of the Seller. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of the Seller’s right in relation to different circumstances or the re-occurrence of similar circumstances.
22. DESIGN ALTERATIONS
The Seller shall be entitled at any time to discontinue, alter or change the design, composition, dimensions or finish of its Goods as published in the Seller’s catalogues subject to reasonable prior notice of any such alteration or change being given to the Purchaser.
23. ATTENDANCE ON SITE
If the Seller attends, or arranges for an attendance to be made, at the Purchaser's premises or the premises of any third party for any reason connected with the order, the Purchaser shall indemnify the Seller in respect of all claims made or proceedings taken against the Seller (and associated legal costs incurred by the Seller) by any person, firm or company, including employees of the Seller, or of the Purchaser or of any contractor employed by the Purchaser (or their personal representatives), whether in respect of death, personal injury or damage to property arising directly or indirectly from the attendance at such premises.
24. ENGLISH LAW AND JURISDICTION
The formation, construction and performance of the Agreement for Sale shall be governed in all respects by English law and the Purchaser agrees to submit to the non-exclusive jurisdiction of the English courts.
25. INTERPRETATION
a) The headings of these Conditions do not form part of the Conditions and shall not affect the interpretation thereof.
b) Each of the Conditions and each paragraph hereof shall be construed as a separate condition. Should any provision hereof be found to be invalid or unenforceable or an unreasonable restriction of the Seller’s liability then such provision shall apply with such modification as may be necessary to make it valid and effective.
c) References to any legislation or legislative provision will include any subordinate legislation made under it and will be construed as references to such legislation, legislative provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted, restated and/or replaced and in force from time to time.
d) Any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
26. NOTICES
Notice under these Conditions shall be properly given if in writing and sent by first class post to the address of the intended recipient as stated in the Agreement for Sale or to such address as the Purchaser and Seller from time to time notified to each other as their respective addresses for service and shall be deemed served in the case of postal notice on the expiry of 48 hours from time of posting.
Conditions of Purchase ‘V02 2025’
1 INTRODUCTION
(a) These General Terms and Conditions (“Terms”) shall apply to any and all agreements for delivery of goods (“Products”) by a supplier (“Supplier”) to P.C. HENDERSON LIMITED (company number: 01188468) (“Purchaser”) unless otherwise explicitly agreed in writing between the parties.
(b) The Purchaser will be entitled to issue to the Supplier a written order form for the supply by the Supplier of any Products (“Order”). The Supplier will be deemed to have accepted such Order on the date of its receipt.
(c) An agreement will be entered into between the Purchaser and the Supplier when an Order submitted by the Purchaser is accepted by the Supplier in accordance with clause 1(b), such agreement to comprise the relevant Order and these Terms (“Purchase Agreement”).
2 DELIVERY AND PASSING OF TITLE
a) The Supplier shall deliver the Products as agreed in the Order (the “Delivery Terms”). Time is of the essence for this Purchase Agreement and delivery shall be made to such location as may be specified in the Order, at such time as specified in the Delivery Terms on the appropriate day between 8.00am and 4.00pm (Monday to Friday). Where Products are delivered at any time other than as specified in the Delivery Terms, they may be returned to the Supplier, or held at the place of delivery, in both cases at the expense and risk of the Supplier.
b) Where a delivery location is specified in the Delivery Terms, a party will be entitled to propose an alternative delivery location to the other party for its approval, provided that the proposing party bears all of the other party’s additional and expenses costs (if any) to make such delivery to the alternative delivery location. Risk of loss or damage to the Products, shall pass to the Purchaser in accordance with the Delivery Terms.
c) Legal and beneficial ownership of the Products shall pass to the Purchaser at the time when the Products are allocated by the Supplier to this Purchase Agreement or, if earlier, in accordance with the Delivery Terms.
d) The Products shall be appropriately packed in accordance with the Purchaser’s instructions, which will include, but are not limited to:
i) providing advice notes stating order number, Purchaser part number(s) and contents;
ii) where appropriate or where requested by Purchaser, providing suitable instructions and safety advice written in plain English. Without prejudice to the generality of the foregoing, all Products must carry clear indications as to any special care to be taken in handling or construction; and
iii) where the Products are to undergo any form of transit, packing and securing the Products in such a manner that they will be able to withstand the normal incidents of that transit. This duty is notwithstanding where part of the course or transit is undertaken by servants, agents or employees of the Purchaser or pursuant to any contract arranged by the Purchaser.
e) If the Supplier fails to meet a confirmed delivery date, the Purchaser may, at its sole discretion and without prejudice to any other remedies; (i) request that the Supplier expedite the delivery per the Purchaser’s instruction at no charge; and/or (ii) cancel the undelivered portion of such Order at no charge; and/or (iii) terminate this Purchase Agreement in accordance with clause 15(b) (iii). Furthermore, the Supplier shall be liable to pay liquidated damages to the Purchaser at the rate of five (5) % of the Order value for each commenced week of delay subject to a maximum aggregate equal to fifty (50) % of the Order value. Payment of the liquidated damages shall be made upon demand of the Purchaser or, at the Purchaser’s option, through set-off against amounts subsequently invoiced by the Supplier and shall not restrict the Purchaser from making other claims. The parties agree that such liquidated damages represent a proportionate amount to protect the interests of the Purchaser in respect of delivery of the Products and will not be regarded as penalty provisions.
f) Unless otherwise agreed in the Order, the Supplier will not be entitled to deliver the Products by separate instalments.
3 FORECASTS
a) The Purchaser may provide the Supplier with order forecasts setting out the Purchaser’s need of Products during a specified time period (the “Order Forecast”). The Supplier shall use its best efforts to maintain sufficient manufacturing capacity and stock of the Products to meet the requirements set out in the Order Forecast.
b) Order Forecasts shall not be binding on the Purchaser or give rise to any liability or obligation of the Purchaser to place any Orders for any Products, nor form any commitment to purchase a specific volume of the Products, or any part or material used to manufacture the Products. In addition, no Order Forecast shall give rise to any liability for the Purchaser due to the Supplier’s cost for stocking, etc.
4 PURCHASE PRICE AND INVOICING
a) The Purchaser shall pay the applicable purchase price for each Product as set forth in the Order or Exhibit 1 (Price and Products) of the Order. The purchase price shall be paid, in the currency stated in the Order, within ninety (90) days from the date of an invoice unless otherwise agreed, subject to correct and complete invoice documentation. Payment of an invoice shall not constitute acceptance of Products.
b) It is expressly agreed between the parties that time for payment under this Purchase Agreement is not of the essence.
c) The Supplier shall issue and date invoices upon each shipment of Products. All invoices shall refer to the relevant Order and include such information as is required by the Purchaser or otherwise required by law.
d) The prices in Exhibit 1 (Price and Products) of the Order shall be fixed during twelve (12) months from the date of the Order placed unless otherwise agreed in writing. The Purchaser and the Supplier shall in good faith review and agree on the applicable purchase price to apply after the expiration of the twelve (12) month period. The Supplier shall use open book calculation for this purpose. However, if the Purchaser and the Supplier cannot agree on the new purchase price before the end of the twelve (12) month period, this Purchase Agreement may be terminated in writing by either the Purchaser or the Supplier by giving six (6) months’ written notice to the other party. During the six (6) months’ notice period the then current purchase price shall continue to apply.
e)The parties agree that the price paid is deemed inclusive, except where the contrary has been agreed, of all costs of packaging, freight, delivery charges and all applicable taxes, duties, tariffs and other imposts whatsoever imposed in any country or territory, either directly or indirectly, in respect of the sale or supply of the Products or payments for them.
f) The Supplier and the Purchaser shall work together to achieve significant reductions in total costs. The Supplier commits to a reduction of minimum five (5) % of the Purchaser’s total spend per annum with respect to the Products delivered to the Purchaser. Performance against the five (5) % goal shall be tracked by the Supplier and reviewed by the Purchaser’s category manager and/or the site management of the Purchaser on a regular basis.
(g) In the event that the Purchaser fails to make any payment due to the Supplier under this Purchase Agreement by the due date for payment, then the Purchaser shall pay interest on the overdue amount at a rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount.
5 INTELLECTUAL AND INDUSTRIAL PROPERTY RIGHTS
a) Except to the extent expressly provided herein, each party shall continue to own its intellectual and industrial property rights without conferring any interests therein on the other party and neither the Supplier nor any third party shall acquire any right, title or interest in any intellectual or industrial property rights of the Purchaser.
b) Regardless of the above, all intellectual property rights with regard to and for the Products, including but not limited to, drawings, designs, models, calculations, tools etc. that are provided by the Purchaser or are created by the Supplier in connection with this Purchase Agreement, shall vest in and shall, where necessary, take all actions required to ensure that Purchaser receives the rights referred to herein.
c) The Supplier agrees that the Products shall not in any way cause or give rise to any claim or proceedings against the Purchaser by any third party that the use by the Purchaser of the Products infringes the intellectual property rights of that third party or another person.
d) To the extent that the Products may be protected by intellectual property rights owned by the Supplier, or the Supplier's licensors, the Supplier hereby grants to the Purchaser, a perpetual, worldwide, non-exclusive, irrevocable, fully paid-up, royalty-free license, including the right to grant sub-licenses, under allsuch intellectual property rights to: (i) use the Products; (ii) integrate the Products into Purchaser's own Products; (iii) sell, offer for sale, import and export the Products.
e) Without limiting the generality of clause 5(a) and except as may otherwise be expressly provided for herein, the Supplier agrees that it shall not without the prior written consent of the Purchaser use the trademark "P.C Henderson", “ASSA ABLOY” or any other trademark of any group company of the Purchaser.
f) To the extent the Products include software (“Software”), the Supplier hereby grants to the Purchaser in perpetuity (or for the maximum period foreseen by applicable law) a non-exclusive, royalty- free, world-wide, unlimited (also with respect to number of users) licence over the Software including without limitation any permanent or temporary reproduction or modification of the Software reasonably required for these purposes, at a charge included in the price of the Products for the purposes of installing, testing, configuring, putting into service, operating, using, developing, modifying, selling, maintaining, adjusting and repairing the Products. The Purchaser shall be permitted to create a reasonable quantity of back-up copies of the Software.
g) Where the Supplier has agreed to supply spare parts for the Products, the Supplier shall continue to maintain the Software and offer licences to the Software, in the same format and version as made available hereunder, to the Purchaser. During the same period of time, the Supplier will also free of charge offer to the Purchaser all updates offered to its other clients for the Products, including without limitation any related support, maintenance or consultancy services provided free of charge to such other clients. It is acknowledged that the Purchaser may accept or refuse the offer of such updates at its sole discretion without limiting any right or remedy available hereunder.
6 PURCHASERS’ GOODS, TOOLS AND DESIGN
a) All goods, tools and designs or any other property supplied by the Purchaser to the Supplier (the “Purchaser Property”) at the sole cost of the Purchaser, will be and remain the property of the Purchaser and shall be returned to the Purchaser upon request. The Supplier may not make use of the Purchaser Property for any purpose other than for fulfilling its obligations under this Purchase Agreement.
b) The Supplier will, at no extra cost for the Purchaser, store and maintain all Purchaser Property in good order and condition, upgrade the Purchaser Property (as required) and insure the Purchaser Property on commercially reasonable terms while in the Supplier’s care.
c) The Supplier shall keep the Purchaser Property clearly separated from its own property and the Purchaser Property shall be marked as property of the Purchaser.
d) The Purchaser shall have the right to enter or otherwise be allowed access to the Supplier’s premises at any time for the purpose of inspecting and/or removing the Purchaser Property from the premises. Such inspection, and anything said or done by the Purchaser in consequence of such inspection, will be without prejudice to any rights that the Purchaser has under this Purchase Agreement.
7 MANUFACTURING
a) The Supplier shall without limitation be responsible, at no additional cost to the Purchaser, for:
i) sourcing and procuring all raw materials for the Products;
ii) obtaining all necessary approvals, permits and licenses for the manufacturing of the Products;
iii) providing sufficient qualified staff and workers to perform the obligations under this Purchase Agreement;
iv) implementing and maintaining effective inventory and production control procedures with respect to the Products; and
v) handling other matters as reasonably requested by the Purchaser from time to time.
b) The Supplier shall not change any process, material, component, packaging or manufacturing location without the Purchaser’s express prior written approval.
c) Upon request by the Purchaser, the Supplier shall, within a reasonable timeframe, supply the Purchaser with the name, address and any other details the Supplier has, of any supplier to the Supplier of any products supplied to the Purchaser under this Purchase Agreement, or any component thereof, or of any material or ingredient used in the preparation or construction of any Product.
8 WARRANTIES
(a) Product warranty
The Supplier hereby represents and warrants on an ongoing basis that:
i) it has the right and authority to enter into this Purchase Agreement and to perform the obligations set out herein;
ii) all production and deliveries have been performed with the greatest possible care and in a timely and highly professional manner;
iii) the Product is free and clear of all charges or encumbrances and other restrictions or third party rights as to title and use that may affect the ownership in or right to any Product pursuant to this Purchase Agreement;
iv) any user, installation and maintenance documentation is complete, accurate and sufficient for the use, installation and maintenance of the Products and is in accordance with the requirements set forth in this Purchase Agreement;
v) the Purchaser has and will continue to have (including after the expiry and termination of this Purchase Agreement ) the rights as specified in this Purchase Agreement in and to the Product, granted or assigned under this Purchase Agreement (or any document or agreement made under or pursuant to this Purchase Agreement).
b) The Supplier warrants that all Products delivered to the Purchaser shall be free from defects, latent or otherwise, in material and workmanship, and be free from design defects, latent or otherwise, which could in any way render the Products harmful to person or property, conform to the specifications set out in the Order (“Specifications”) (if any) and suitable for the Purchaser’s intended purpose (as to which the Supplier agrees it was fully informed prior to the conclusion of this Purchase Agreement) and which are of a commercially acceptable durability.
c) The Supplier further warrants that the Product will comply with all applicable laws, regulations and standards and will not infringe in or violate any third party's intellectual property rights.
d) The Supplier further warrants that the Products have been manufactured and delivered in compliance with all applicable laws, regulations and standards.
e) All warranties shall survive acceptance and payment by the Purchaser in accordance with clause 8(b).
(b) Warranty period and remedies
a) The Supplier’s warranties hereunder shall extend to any defect or nonconformity arising or manifesting itself within twenty-four (24) months after delivery to the Purchaser, or eighteen (18) months after delivery to the Purchaser’s customers, whichever is the later. For repaired and replaced parts by the Supplier, a new warranty period according to the above shall apply.
b) If any Product does not conform to any of the warranties in clause 8(a), the Purchaser may require the Supplier to immediately correct or replace such Product at the Supplier’s risk and expense or refund the purchase price.
c) Any sums due from the Supplier to the Purchaser in accordance with clause 8(b)(b) above, shall be paid upon first demand by the Purchaser or, at the Purchaser’s option, through set-off against amounts subsequently invoiced by the Supplier.
d) The remedies stipulated in clause 8(b)(b) above shall be in addition to any other rights and remedies available under law.
e) If the Supplier fails to correct or replace a defective Product within a reasonable time, the Purchaser may correct or replace such Products and the Supplier agrees to reimburse the Purchaser for the costs incurred thereby.
(c) Epidemic Failures
If, during the warranty period, defects are reported in more than five (5) % of the total number of Products/units shipped in any consecutive thirty (30) day period (“Epidemic Failure”), the Supplier shall dedicate sufficient resources on a continuing basis, at its sole expense, to identify and eliminate the cause(s) of the Epidemic Failure and shall also, at the Purchaser’s written request, replace or update all Products delivered to the Purchaser with the potential for such Epidemic Failure and reimburse the Purchaser for its commercially reasonable expenses relating to any recalls or related actions taken by the
Purchaser. If replacement Products are not provided and/or an acceptable plan to resolve an Epidemic Failure is not provided to the Purchaser within thirty (30) days after it is reported, or such additional period as may be permitted by the Purchaser in its discretion depending on the nature of the Epidemic Failure, the Purchaser may terminate this Purchase Agreement without any liability to the Supplier for such termination. In the event of an Epidemic Failure, the Purchaser is entitled to request a refund or credit for the affected Products (and the Supplier shall provide such refund or credit on the Purchaser's request) and the Purchaser may also cancel any specific part of the Order pertaining to the affected Product.
(d) Spare parts
(a) During the term of this Purchase Agreement and for a minimum period of five (5) years after termination or expiration of this Purchase Agreement, the Supplier shall make compatible spare parts for all components of each of the Products available for sale to the Purchaser. The spare parts shall be available to the Purchaser at equivalent to the prices the Supplier offers to the Supplier’s other customers for such spare parts.
b) The Supplier warrants that the spare parts shall be free from defects in design, material and workmanship. This warranty shall apply for a period of twenty-four (24) months after delivery.
9 QUALITY ASSURANCE, AUDIT AND COMPLIANCE WITH LAWS
a) The Supplier shall maintain applicable ISO standard certification and/or such other quality systems and procedures as may be agreed from time to time.
b) The Supplier shall comply with the Purchaser sustainability program and processes as amended from time to time.
c) The Supplier shall comply with the Purchaser’s business partner code of conduct (“Business Partner Code of Conduct”) and the applicable supplier handbook, as amended from time to time, which upon request by the Supplier shall be delivered by the Purchaser to the Supplier and to ensure compliance with such policies by any subcontractors appointed by the Supplier.
d) For the purposes of monitoring compliance with this Purchase Agreement and the Purchaser Business Partner Code of Conduct, the Supplier shall, whether by prior arrangement or otherwise, allow access (or procure access) for the Purchaser and/or its agents and representatives to the Supplier’s manufacturing premises and otherwise to the areas of its and its subcontractors production facilities related to the Products, as well as its quality assurance system. Such access, and anything said or done by the Purchaser in consequence of such access, will be without prejudice to any rights that the Purchaser has under this Purchase Agreement.
e) The Supplier shall supply to the Purchaser upon request a certificate, signed by a senior member of the Supplier’s staff who is responsible for quality and inspection, to the effect that the Products have been checked by the quality assurance department as fully complying with the provisions of this Purchase Agreement.
f) The Supplier undertakes to the Purchaser that all Products shall be manufactured and/or supplied in compliance with:
i) all laws and regulations applicable to the Purchaser or Supplier, including all economic sanctions and export control laws, regulations, rules or restrictive measures;
ii) import and export restrictions on materials and items, adopted and enforced by governmental authorities ofthe European Union, the United Kingdom, the United Nations or the United States (“Economic Sanctions and Export Control Laws”), licensing rules and all relevant regulations and provisions relevant to safety and the environment. These shall also include agreements between forwarding agents and rules and regulations about the shipment of hazardous materials. In particular, the items to be delivered hereunder shall, where applicable, be marked in accordance with the provisions and regulations of the relevant jurisdiction on substances and preparations that are hazardous to health and the environment;
iii) general safety requirements, safety regulations and approved safety standards as laid down in the Consumer Protection Act 1987 or any successor thereto; and
iv) any other and/or additional standards and regulations in a Specification.
g) The Supplier shall keep the Purchaser fully aware and up to date of any safety issues affecting any Products supplied under this Purchase Agreement of which the Supplier is, or ought reasonably to be, aware. Notwithstanding anything to the contrary set out in this Purchase Agreement, the obligation set out in this clause 9(g) shall continue for an initial period of 10 years from the date of the supply of each Product, provided that such initial period may be extended for a further period of up to five years by the Purchaser issuing a written notice to the Supplier to that effect at any time before the initial period of 10 years has expired.
h) The Supplier warrants, represents and undertakes that it at all times will act in compliance with Economic Sanctions and Export Control Laws, and that neither the Supplier, nor any of its affiliates, nor any of their respective directors, officers, employees nor, so far as the Supplier knows, any agents or other persons acting on behalf of any of the foregoing:
(i) is, or has been, nor will be, or determined to be owned or controlled by one or more individuals or entities subject to sanctions measures under the Economic Sanctions and Export Control Laws (“Listed Person”);
(ii) has engaged, nor will engage, in any business dealings or activities that would reasonably be expected to result in it becoming a Listed Person;
(iii) directly or indirectly, has conducted or is conducting any business dealings or activities with or for the benefit of, or is otherwise involved in any business with a Listed Person, or otherwise acting in violation of Economic Sanctions and Export Control Laws;
(iv) has engaged or is engaging in any transaction that circumvents, evades or avoids, or has the purpose or effect of circumvention, evading or avoiding, or attempts to violate, any Economic Sanctions and Export Control Laws; or,
(v) is, or has been, in violation of, or subject to, any investigation or enquiry by, or on behalf of, any governmental or other regulatory body relating to Economic Sanctions and Export Control Laws.
(i) The Supplier will inform the Purchaser of any Economic Sanctions and Export Control Laws or restrictions applicable to any Product delivered under this agreement.
(j) The Supplier agrees that the representations and warranties set forth in clause 9(h) above shall remain true and correct at all times, and that the Supplier will provide written notice to the Purchaser, as promptly as possible and in any event within five business days, should any representation or warranty fail to be true or correct at any time.
k) The Supplier will, to the best of its abilities, cooperate with the Purchaser to facilitate compliance with Economic Sanctions and Export Control Laws and will upon request, provide the Purchaser with copies of all documentation relating to proof of compliance with the foregoing paragraphs of this clause 9 and the delivery of the Product, including but not limited to, relevant Product classifications under Economic Sanctions and Export Control Laws, as well as other relevant trade-related information, such as origin, classification and value under the customs laws in relevant jurisdictions, US origin content in the Product supplied, and information related to sourcing of materials and sub- suppliers. The Supplier shall also provide information and assistance in relation to licencing and authorisations as needed in relevant jurisdictions.
l) The Supplier will maintain complete and accurate records concerning all actions taken by, on behalf of, or at the direction of the Purchaser pursuant to this agreement. Supplier shall also provide all information related to any suspected violation or circumvention of Economic Sanctions and Export Control Laws in relation to Products.
m) Notwithstanding any provision of this agreement, the Purchaser shall not be obliged to make any payment or take any other action under this agreement if the Purchaser believes in good faith that such action may constitute a violation, contribute to a violation, or constitute a circumvention of any Economic Sanctions and Export Control Laws or that the funds provided may be made available to a Listed Person.
n) The Supplier warrants and represents that all Products, where applicable, are fully compliant with The Restriction on the use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive 2015/863/EU (“RoHS3”), amending Annex II to Directive 2011/65/EC (“RoHS2”), as implemented by EU Member States, or in compliance with any other regulations similar to RoHS3 and RoHS2 of the relevant jurisdictions reasonably acceptable to the Purchaser, except for relevant exemptions where they apply, and which shall be notified in writing to the Purchaser by the Supplier. Any incompliant Products may be rejected by the Purchaser and returned to the Supplier at the Supplier’s cost. The Supplier shall make available to the Purchaser records of its compliance, including a declaration of conformity, with RoHS2 and RoHS3 on the Purchaser’s request.
o) To the extent the Products or any of the substances contained in the Products falls within the scope of the European Community Regulation 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals or any corresponding regulations in other jurisdictions as agreed with the Purchaser (“REACH”), the Supplier warrants and represents that the Products and/or substances used as raw materials for the production of the Products shall comply with the requirements of REACH and the Supplier further represents that, to the extent required under REACH, the Products or any of the substances contained in the Products is or will be timely (pre-) registered and will remain (pre-)registered for the Purchaser’s use(s), so that the Purchaser is always considered as a downstream user according to REACH. To the extent the Products or any of the substances contained in the Products, require authorization under REACH, the Supplier shall ensure that an authorization is timely obtained and maintained. Upon request from the Purchaser, the Supplier will promptly provide the Purchaser with a written acknowledgement of pre- registration or, when relevant, of registration or authorization of the substances contained in the Products sold or to be sold to the Purchaser. The Supplier remains responsible for all information provided in relation with compliance of the Products sold or to be sold to Purchaser with REACH. Any incompliant Products may be rejected by Purchaser and returned to the Supplier at the Supplier’s cost.
p) The Supplier shall provide all information needed for the Purchaser to comply with applicable export control laws, including the re-export, of Products or software, data or technology supplied in relation to Products. This information shall include, without limitation: (i) relevant export control classification numbers in relevant jurisdictions; and (ii) Products’ origin and customs classification codes. Declarations of conformity with RoSH2, RoHS3 and REACH shall upon request be provided by the Supplier to the Purchaser within ten (10) business days.
q) The Supplier shall notify the Purchaser in writing if any Product or part of a Product that the Supplier provides to the Purchaser contains any material from time to time identified as a “conflict mineral” in accordance with the United States Dodd-Frank Wall Street Reform and Consumer Protection Act or any similar legislation in force from time to time. Any failure to present such written confirmation will constitute a representation from the Supplier that no conflict minerals are used in any Product, or part of a Product.
10 PRODUCT LIABILITY
The Supplier shall be responsible for all Products manufactured by the Supplier and shall effect and maintain sufficient and adequate insurance policies during the term of this Purchase Agreement and any warranty period covering the Products, as further set forth in clause 12 below.
11 INDEMNITIES AND LIMITATION OF LIABILITY
(a) General indemnification
Regardless of any other rights which the Purchaser may have under this Purchase Agreement or applicable laws, but subject to the limitations set out in clause 11.(c) below, the Supplier shall defend, indemnify and hold harmless the Purchaser from and against any third party claims and against any cost, damage, liability, loss (including but not limited to loss of profits), payment or expenses of any kind howsoever caused, and arising directly or indirectly, which the Purchaser incurs as a result of the Supplier's negligence or breach of warranty or representation or any other default under or in connection with this Purchase Agreement. This shall include, without limitation, compensation for any cost, expenses, loss or damage which a Purchaser incurs in connection with a product recall which the Purchaser reasonably performs because of the Supplier’s failure to supply the Products in accordance with this Purchase Agreement or which otherwise are deemed defective.
(b) Intellectual property rights indemnification
The Supplier shall defend, indemnify and hold harmless the Purchaser against any incurred costs, damages, liabilities, losses or expenses, whether direct or indirect, arising out of or relating to any legal actions, claims or demands brought against the Purchaser by a third party based on the allegation that the Purchaser’s (or its subcontractors’ or agents’) possession, use or sale of the Products constitutes an infringement of the intellectual or industrial property rights of a third party.
(c) Limitations
a) Except for claims arising under clauses 11.(b) above and 16 below, no party shall be liable under this Purchase Agreement for any indirect or consequential damage whatsoever.
b) Regardless of the foregoing, nothing in this Purchase Agreement shall exclude or restrict a party's liability for gross negligence, fraud, fraudulent misrepresentation, wilful misconduct, death, personal injury resulting from negligence (as defined in Section 1 of the Unfair Contract Terms Act 1977), or any matter for which it is not permitted by law to exclude or limit, or to attempt to exclude or limit, its liability. Any breach of any data processor agreement in place between the parties (“Data Processor Agreement”) and applicable laws on data protection by the Supplier shall always be regarded as gross negligence.
12 INSURANCE
a) The Supplier shall maintain comprehensive or commercial general liability insurance (including products liability, property damage and personal injury liability, and any other liability as may be requested by the Purchaser) for claims of bodily injury, including death, and any other damages that may arise from use of the Products or acts or omissions of Supplier under the Agreement.
b) The Supplier shall, where requested by the Purchaser, purchase and maintain an insurance policy to appropriately protect the Products during any transit pursuant to this Purchase Agreement, at such value and in accordance with such requirements as specified by the Purchaser from time to time. A copy of the insurance policy shall be issued by post by the Supplier to the Purchaser together with such further information as is reasonably requested by the Purchaser in relation to the insurance policy, and the Supplier undertakes that it shall, on request from the Purchaser, name the Purchaser as co-insured with any other party named on the insurance, each for their own separate rights and interests.
c) Such insurance policies in this clause 12 will be written with appropriately licensed and financially responsible insurers. Supplier shall inform the Purchaser of any cancellation or reduction in coverage with a minimum of 30 days prior written notice. Certificates of insurance evidencing the required coverage and limits and insurance policies shall be furnished to the Purchaser upon the Purchaser’s request.
13 DATA PROTECTION AND CYBER SECURITY
a) To the extent the Supplier is processing personal data on behalf of the Purchaser under this Purchase Agreement, what is set out in the Data Processor Agreement shall apply.
b) The Supplier shall maintain a comprehensive information security program, cyber security and data protection controls, policies and procedures, including oversight, access controls, encryption, technological and physical safeguard consistent with best industry standards and the Purchaser’s policy and requirements, that are designed to protect against and prevent breach, destruction, loss, unauthorized distribution, use, access, disablement, misappropriation or modification, or other compromise or misuse of or relating to any information technology system or Purchaser data, including but not limited to personal information. The Supplier's information security program shall include business continuity and disaster recovery plans that are consistent with best industry standards. The Purchaser, its auditors, and regulators will be entitled to audit the Supplier's systems used for the provision of the Products in order to fulfil any legal or regulatory requirement. This right to audit shall also apply to all third-party providers utilized by the Supplier for the provision of the Products.
14 FORCE MAJEURE
a) No party shall be liable to the other party for any delay or failure in performance due to an event of circumstances or occurrences which cannot reasonably be averted or controlled by the party concerned, including acts of God, war, civil unrest, riot, strikes, lockouts and any other forms of industrial action, fire, floods or exceptional weather conditions and excluding power shortages and energy black-outs (“Force Majeure”) and which substantially affects the performance of the obligations under this Purchase Agreement.
b) If an event of Force Majeure occurs, a party’s contractual obligations affected by the Force Majeure and the period for performing such obligations shall be extended, without penalty, for a period corresponding to the period the party is restricted by the Force Majeure event, provided that the party concerned has (i) without delay informed the other party about the Force Majeure event and the estimated duration and extent of disturbance to the services and (ii) taken all reasonable efforts to mitigate the effects of the Force Majeure.
c) Regardless of the foregoing, if the Force Majeure is expected to last for more than two (2) weeks, or if the Supplier may not be able to meet an agreed delivery date, the Purchaser may, at its discretion and by serving notice on the Supplier, suspend or terminate the part of the Order concerned that has not yet been delivered, with immediate effect. The Supplier shall not be entitled to any compensation for loss or damage as a result of such termination. In the event that the Purchaser suspends any part of the Order in accordance with this clause 14(c):
(i) the Supplier will suspend such part of the Order until such time as the Purchaser gives written notice to the Supplier to recommence the relevant part of the Order; and
(ii) the Supplier may subsequently terminate such part of the Order by serving notice on the Supplier if the Force Majeure is continuing at the time of serving such notice.
15 TERMINATION
a) Unless otherwise set forth in this Purchase Agreement, this Purchase Agreement may be terminated (in whole or in part) by the Purchaser at any time by giving three (3) months’ notice to the Supplier and by the Supplier by giving six (6) months’ notice to the Purchaser. Any accepted and outstanding Orders shall remain unaffected by the termination unless terminated in accordance with the below.
b) The Purchaser may terminate this Purchase Agreement with immediate effect if:
i) the Supplier commits a breach of any obligation or performance under this Purchase Agreement; or
ii) the Supplier repeatedly fails to deliver the Products in compliance with the terms and conditions of this Purchase Agreement; or
iii) the Supplier repeatedly fails to meet a confirmed delivery date; or
iv) the Supplier ceases to carry on its business or substantially the whole of its business; or
v) the Supplier files, or has filed against it, a petition for voluntary or involuntary bankruptcy, is generally unable to pay, or fails to pay, its debts as they become due, makes or seeks to make a general assignment for the benefit of its creditors, applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business or becomes insolvent; or
vi) the Supplier is in breach of the Purchaser Business Partner Code of Conduct and/or clause 13(b) and/or the Data Processor Agreement; or
vii) the Supplier or its owner(s), directors or officers becomes a Listed Person, or if the Supplier breaches any applicable sanctions or export control rules, or if a party’s ability to fulfill any obligation under this Purchase Agreement is materially affected by the imposition of sanctions or export control rules, or if either party's continued performance of any obligation under this Purchase Agreement poses material risk of exposing the party to any sanctions or secondary sanctions; or
viii) there is a change of control of the Supplier, whereby fifty percent (50%) or more of the equity ownership of the Supplier becomes owned or otherwise controlled by any one person or group of persons acting in concert (not being the persons holding such shares or exercising such control at the date of this Purchase Agreement).
c) The Supplier may terminate this Purchase Agreement with immediate effect if (i) the Purchaser commits a breach of a material obligation under this Purchase Agreement which, if capable of remedy, is not remedied within thirty (30) days of the Supplier notifying the Purchaser of said breach or (ii) the Purchaser files, or has filed against it, a petition for voluntary or involuntary bankruptcy, is generally unable to pay, or fails to pay, its debts as they become due, makes or seeks to make a general assignment for the benefit of its creditors, applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business or becomes insolvent.
16 CONFIDENTIALITY
a) Each party agrees that it shall not disclose any confidential information of the other party nor use any such information other than for purposes of performing its obligations and exercising its rights under this Purchase Agreement. “Confidential Information” means all non-public or proprietary information treated as confidential by a party to this Purchase Agreement, including, without limitation, any and all financial, technical, marketing, commercial, legal, production data or other information of whatever nature, irrespective of whether such information has been or will be disclosed in writing, verbally or in any other form, disclosed to the other party under this Purchase Agreement.
b) Regardless of the above, the term Confidential Information shall not include any information which the party receiving the information can clearly establish by documented evidence (i) was at the time of disclosure to it, in the public domain; (ii) was after disclosure of it, published or otherwise becomes part of the public domain through no fault or breach of the receiving party; (iii) was known to the receiving party prior to such disclosure, without any undertaking towards a third party to keep such information confidential; (iv) was provided to it from a third party who had a lawful right to disclose such information to it and which was disclosed by such third party without any obligation for the receiving party to keep such information confidential; or (v) was independently developed by the receiving party without use of the Confidential Information of the disclosing party.
c) Any party shall be entitled to disclose Confidential Information in response to a valid order of a court or any other governmental body having jurisdiction over the respective parties or this Purchase Agreement or if such disclosure is otherwise required by law or by any binding applicable stock exchange rules, provided that the party shall first, to the extent possible, notify the other party of the required disclosure and make reasonable efforts to reduce any damage to the other party resulting from such disclosure.
d) Each party shall ensure that any person to whom the receiving party gives access to Confidential Information of the disclosing party will comply with the confidentiality requirements set out in these Terms. The receiving party shall be responsible for any breach of such confidentiality requirements by such persons.
e) The Supplier shall upon termination of this Purchase Agreement, or upon written request from the Purchaser, immediately cease to use and return to the Purchaser, or destroy, all documents and data containing Confidential Information.
f) The Supplier shall provide to the Purchaser as soon as practicable a written certificate stating that it has destroyed or returned to the Purchaser all documents and other property and performed all acts referred to in clause 16(e).
g) The obligations in this clause 16 shall apply for the duration of this Purchase Agreement and for a period of ten (10) years thereafter
17 MISCELLANEOUS
(a) Assignment
The Supplier may not assign this Purchase Agreement, nor sub-contract its obligations hereunder, to any third party without the prior written consent of the Purchaser.
(b) Subcontracting
Any subcontracting by the Supplier in accordance with the provision of this Purchase Agreement may only be made to such subcontractors as has been approved in advance by the Purchaser in writing. Any such subcontracting shall not relieve the Supplier of any obligation or responsibility for the obligations so subcontracted. The Supplier shall thus be liable for any obligation or responsibility of the subcontracting party as if the Supplier had performed the obligations itself.
(c) Public announcements
All press releases, public announcements or public relations activities by the Supplier with respect to this Purchase Agreement or the transactions contemplated herein shall be approved by the Purchaser in advance of such release or announcement. The Supplier shall, however, not be prevented from, after reasonable consultation with the Purchaser, disclosing such information which is required under applicable law, rules or regulations (including any applicable stock exchange regulations) or order of a competent court.
(d) Set-off
The Purchaser shall be entitled to set off any amount owing at any time from the Supplier to the Purchaser against any amount payable at any time by the Purchaser to the Supplier.
(e) Survival
Expiry or termination of this Purchase Agreement does not affect a party’s accrued rights and obligations at the time of expiry or termination. Severability
If any provision of this Purchase Agreement or these Terms is held by any court or other competent authority to be void or unenforceable in whole or in part, the other provisions of this Purchase Agreement or these Terms and the remainder of the effective provisions shall continue to be valid. The parties agree to replace such a void or unenforceable provision by a provision that is valid and enforceable and that comes as close as possible to the common intention of the parties underlying the void or unenforceable provision.
(f) Entire agreement
This Purchase Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings (whether written or oral) between the parties with respect to the subject matter hereof.
(g) Amendments
Changes of, or amendments to, this Purchase Agreement shall be made in writing. Such changes or amendments shall be duly signed by the authorized representatives of the parties.
(h) Waivers
A party’s waiver of any of its rights under this Purchase Agreement must be in writing and duly executed by it. No single or partial waiver of any such right or remedy shall preclude any other or further exercise of that or any other such right or remedy. A waiver of any right, remedy, breach or default will only be valid in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default
(i) Notices
Any notice permitted or required to be given to a party under this Purchase Agreement shall be in writing and sent to its address as set forth in the Order or to such other address as such party has provided the other in writing for such purpose. Notices may be sent by post, courier, e-mail or fax. Notices shall be deemed to have been duly given (i) on the day of delivery when delivered in person, by courier, email or fax and (ii) three (3) business days after the day when the notice was sent when sent by post. In each instance, however, excluding Saturday, Sunday and public holidays.
(j) Governing law
This Purchase Agreement shall be governed by, and construed in accordance with English law.
(k) Dispute resolution
a) Any dispute, controversy or claim arising out of or in connection with this Purchase Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the London Court of International Arbitration rules. The arbitral tribunal shall be composed of three (3) arbitrators. The seat of arbitration shall be London, England, and the language to be used in the arbitral proceedings shall be English.
b) If there is more than one dispute, controversy or claim arising out of or in connection with this Purchase Agreement, and/or any other document made pursuant thereto, such disputes, controversies or claims, shall, unless deemed inappropriate by the arbitral tribunal in its sole discretion, be settled within the same arbitration proceedings, or, at least, by the same arbitrators.
c) The information concerning any dispute, controversy or claim arising out of or in connection with this Purchase Agreement, including any arbitral award, shall remain confidential, save that a party may disclose such information if necessary to exercise its rights under this Purchase Agreement, any arbitral award or due to regulatory requirements.
d) The United Nations Convention for the International Sale of Goods 1980 (CISG) shall not apply to this Purchase Agreement.