Standard Conditions of Contract for The Purchase of Goods and Services
Comms Design Limited Version No: 1.0
Document Owner: Ben Thornton Date Published: 1 February 2021
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Anti-Slavery Laws: any and all statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws (including any common law, judgment, demand, order or decision of any court, regulator or tribunal) anywhere in the world which relate to anti-slavery or servitude, anti-forced or compulsory labor and/or anti-human trafficking, including the Modern Slavery Act.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Comms Design: Comms Design Limited incorporated and registered in England and Wales with company number 05057797 whose registered office
is at Unipart House, Cowley, Oxford OX4 2PG.
Comms Design Materials: has the meaning set out in clause 5.3(i).
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 21.6.
Contract: the contract between Comms Design and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
Defect: means any failure of the Goods to comply in any material respect with the requirements of these Conditions or to achieve their purpose whether in consequence of faulty or unsafe design, faulty materials, bad workmanship, or any other reason attributable to the Supplier or its subsuppliers.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Delivery: has the meaning given to it in clause 4.3 and Delivered shall be construed accordingly.
Delivery Location: has the meaning given to it in clause 4.2(b).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings that is agreed in writing by Comms Design and the Supplier.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Latent Defect: means either (i) a Defect in the Goods which by its nature is likely to occur in substantially all of the Goods or in substantially the whole of such part of the Goods which are of a similar type and/or (ii) a Defect in any part of the Goods which has occurred in at least 5% of the Delivered Goods which are of similar type and in at least 5 pieces.
Modern Slavery Act: the Modern Slavery Act 2015 (as it may be amended from time to time).
Modern Slavery Practice: any practice that amounts to (a) slavery or servitude (each as construed in accordance with Article 4 of the Convention for the Protection of Human Rights and fundamental Freedoms of 4 November 1950 as amended), (b) forced or compulsory labour (as defined by the International Labour Organisation’s Forced Labour Convention 1930
(No. 29) and Protocol), (c) human trafficking, or (d) the arranging or facilitation of the travel of another person with a view to that person being exploited.
Order: Comms Design’s order for the Goods and/or Services, as set out in Comms Design’s purchase order form or in Comms Design’s written acceptance (accompanied by its purchase order form) of the Supplier’s quotation.
Railway Group Standards: all and any of the Railway Group Standards,
Rail Industry Approved Codes of Practice, Guidance Notes and Rail Industry Standards issued from time to time by the Railway Safety and Standards Board Ltd.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by Comms Design and the Supplier.
Supplier: the person or firm from whom Comms Design purchases the Goods and/or Services.
Warranty Period: means either: (a) where the Goods are supplied for use by Comms Design, a period of 15 months following the date of Delivery; or (b) where the Goods are to be supplied by Comms Design to third parties, the shorter of (i) a period of 15 months following the date of delivery of the Goods to such third party; or (ii) a period of 36 months following the date of
Delivery and if the Goods are delivered in separate consignments, the periods specified in (i) and (ii) above shall be measured from the date on which each consignment is Delivered.
1.2 Construction. In these Conditions, unless the context requires otherwise,
the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or reenacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes but not e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by Comms Design to purchase Goods and/or Services in accordance with these Conditions.
2.3 Subject to clause 2.4 below, the Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Order; and
(b) the Supplier doing any act consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence.
2.4 The Order will lapse unless unconditionally accepted by the Supplier within 14 days of its date.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Comms Design are produced for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract nor have any contractual force.
2.6 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. SUPPLY OF GOODS
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Goods Specification or any modifications thereof as required by Comms Design for the duration of the Warranty Period;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Comms Design expressly or by implication, and in this respect Comms Design relies on the Supplier’s skill and judgement;
(c) be free from Defects and remain so for the Warranty Period; and
(d) comply with all applicable statutory and regulatory requirements (including, without limitation, Railway Group Standards) relating to the Goods, including, but not limited to, in relation to their
manufacture, labelling, packaging, storage, handling and delivery.
3.2 Notwithstanding the provisions of clause 3.1 above, in the event of any Latent Defect arising at any time within 5 years from the date of Delivery, the Supplier shall at Comms Design’s option and at the Supplier’s expense (including reimbursing Comms Design for any reasonable labour and/or administrative costs it incurs), either supply to Comms Design for Comms Design to retrofit replacement Goods or cause such retrofitting of replacement Goods and shall further implement any necessary material or design modifications to the Goods not yet delivered to Comms Design. Such supply of replacement Goods shall comply with clause 3.1 above. All supply of replacement Goods pursuant to this clause relating to any Latent Defect shall be done in a timely manner. The Supplier shall at its own risk and cost take such remedial steps as may be necessary to replace all of the Goods already supplied to Comms Design whether or not the Latent Defect shall have manifested itself in all such products.
3.3 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract and that it shall comply with all Comms Design standards, policies and procedures as notified to it from time to time.
3.4 The Supplier warrants that it has and shall maintain a documented quality management system certified in accordance with, or of an equivalent standard to ISO 9001 which shall demonstrate the recognition of the quality requirements of these Conditions, a structured management system and the methods for satisfying these requirements.
3.5 Comms Design shall have the right to enter the Supplier’s premises to:
(a) inspect and test the Goods at any time before delivery; and
(b) inspect the Supplier’s facilities and equipment used in the supply of the Goods and Services, including, but not limited to, auditing the Supplier’s processes, operations and conditions and any document and records relating to the foregoing.
3.6 If following any inspection or testing carried out pursuant to clause 3.5 Comms Design considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, Comms Design shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.7 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and Comms Design shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.8 If the Supplier stocks spare parts or consumables for the Goods or any of them at the time of Delivery, the Supplier shall ensure that identical spare parts and consumables for the Goods remain available for purchase by Comms Design at a fair and reasonable price for a period of at least 5 years following the date of Delivery. Prior to the Goods becoming obsolete, at least 12 months written notice shall be given to Comms Design.
4. DELIVERY
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed, and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the catalogue number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered and where specified in the Contract with copies of inspection and test certificates, certificates of conformity (which shall include, as a minimum, the name and address of the manufacturer; model and serial number (where applicable); catalogue number or supplier part number; a list of relevant directives (where applicable); a list of the standards used with dates and amendments (where applicable); a declaration statement; the name and position of the person making the declaration; and the signature of the person making the declaration and the date of the signature) and any other certification or documentation;
(c) where Comms Design is not the consignee of the Goods, a copy of the delivery note referred to in sub-clause (b) above is sent to Comms Design; and
(d) if the Supplier requires Comms Design to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order, or, if no such date is specified, within 7 days of the date of the Order; and to Comms Design’s premises at 40 Freemans Way, Harrogate Business Park, Harrogate, North Yorkshire, HG3 1DH or such other location as is set out in the Order, or as instructed by Comms Design prior to delivery (Delivery Location); and (b) during Comms Design’s normal business hours, or as instructed by Comms Design.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location (Delivery).
4.4 If the Supplier delivers less than or more than the exact quantity of Goods ordered, Comms Design may at its discretion reject the Goods or the excess Goods. Any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Comms Design accepts the delivery, a pro rata adjustment shall
be made to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in installments without Comms Design’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Comms Design to the remedies set out in clause 6.
4.6 In relation to all Deliveries of Goods, time shall be of the essence. The Supplier shall notify Comms Design within five (5) Business Days of any occurrence reasonably outside its control (including, without limitation, any delay or default by Comms Design), which it reasonably considers will delay the delivery of the Goods. Provided that the Supplier has notified Comms Design in accordance with this condition, Comms Design shall consider whether any extension of time is to be granted as a result thereof.
4.7 No information of a commercially confidential nature in any form whatsoever, including price information, shall accompany any Goods Delivery.
4.8 The Supplier shall ensure that all such Goods are suitably packaged to protect them from damage in transit and identified at the time of delivery with reference to the hazards attaching to them in accordance with statutory requirements.
4.9 In the event that the Supplier does not fulfil its responsibilities and obligations under the Contract and Comms Design thereby incurs costs to which it would not otherwise be liable due to any law or any order, bye-law or regulation having the force of law, the amount of such costs shall be reimbursed by the Supplier to Comms Design.
5. SUPPLY OF SERVICES
5.1 The Supplier shall from the date set out in the Order, or such other date as is notified by Comms Design, and for the duration of the Contract provide the Services to Comms Design in accordance with the terms of the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by Comms Design. Time shall be of the essence in relation to the provision of Services.
5.3 In providing the Services, the Supplier shall: (a) co-operate with Comms Design in all matters relating to the Services, and comply with all instructions of Comms Design; (b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade; (c) use personnel who are suitably skilled and experienced to perform
tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract; (d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification (e) and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by Comms Design; (f) provide all equipment, tools and vehicles and such other items as are required to provide the Services; (g) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Comms Design, will be free from defects in workmanship, installation and design; (h) obtain and at all times maintain all necessary licences, consents and permits, and comply with all applicable laws and regulations; (i) observe all health and safety rules and regulations and any other
security requirements that apply at any of Comms Design’s premises; (j) hold all materials, equipment and tools, drawings, specifications and data supplied by Comms Design to the Supplier (Comms Design Materials) in safe custody at its own risk, maintain Comms Design Materials in good condition until returned to Comms Design, and not dispose or use Comms Design Materials other than in accordance with Comms Design’s written instructions or authorisation; (k) not do or omit to do anything which may cause Comms Design to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Comms Design may rely or act on the Services; and (l) in relation to Services connected with (or which could reasonably be expected to be connected with) the United Kingdom railway network, comply with Railway Group Standards and Network Rail QA Standards.
6. REMEDIES AND INDEMNITY
6.1 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1 then, without limiting its other rights or remedies, Comms Design shall have the right at any time to any one or more of the following remedies, whether or not it has accepted the Goods: (a) to terminate the Contract; (b) to reject the Goods (in whole or in part) and return them to the
Supplier at the Supplier’s own risk and expense; (c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods; (d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make; (e) to recover from the Supplier any costs incurred by Comms Design in obtaining substitute goods from a third party; and (f) to claim damages for any other costs, loss or expenses incurred by Comms Design which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
6.2 If the Supplier fails to deliver the Goods and/or perform the Services by the date required by Comms Design, Comms Design shall, without limiting its other rights or remedies, have one or more of the following rights: (a) to terminate the Contract with immediate effect by giving written notice to the Supplier; (b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;(c) to recover from the Supplier any costs incurred by Comms Design in obtaining substitute goods and/or services from a third party;
(d) where Comms Design has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and (e) to claim damages for any additional costs, loss or expenses incurred by Comms Design which are in any way attributable to the Supplier’s failure to meet such dates.
6.3 If the Goods are not delivered on the due date Comms Design may at its option claim or deduct 1% of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 15% of the total price of the Goods. If Comms Design exercises it rights under this clause
6.3, it shall not be entitled to any of the remedies set out in clause 6.2 in respect of the Goods’ late Delivery (but the remedies set out in clause 6.1 shall be available in respect of the Goods’ condition).
6.4 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier and/or to any substituted or remedial services and, for the avoidance of doubt but without limitation, Goods replaced or repaired under clause 6.1 shall be subject to a full Warranty Period commencing on the actual date of Delivery of the repaired or replaced Goods and clause 6.1 shall
apply and continue to apply for the Warranty Period.
6.5 The Supplier shall keep Comms Design indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by Comms Design as a result of or in connection with:
(a) any claim made against Comms Design for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the supply or use of the Goods, or receipt, use or supply of the Services; (b) any claim made against Comms Design by a third party arising out of, or in connection with, the supply of the Goods or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; (c) any claim made against Comms Design by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; (d) any claim made against Comms Design by any person resulting from or in any way connected with actions taken by Comms Design pursuant to its rights under clause 17.9 below; (e) any claim made against Comms Design resulting from any environmental damage which exists as a result of the activities of the Supplier, its directors, employees, servants, agents and subcontractors; and (f) any breach by the Supplier of the terms of the Contract.
6.6 Nothing in these Conditions shall limit or exclude Comms Design’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; or (c) any matter in respect of which it would be unlawful for Comms Design to exclude or restrict liability.
6.7 Subject to clause 6.6: (a) Comms Design shall under no circumstances whatever be liable to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and (b) Comms Design’s total liability to the Supplier in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods/charges for the Services.
6.8 Where Goods are rejected by Comms Design in accordance with clause 6.1(b) above, no payment for them shall be due from Comms Design. Comms Design may impose a reasonable charge for handling, storing and returning any rejected Goods. If Comms Design rejects but does not return Goods then the Supplier may remove the Goods at its own expense and risk within 14 days of receipt by it of notice of rejection. If not removed within this period Comms Design shall be entitled to dispose of the Goods without having to account to the Supplier for any proceeds of disposal.
6.9 Comms Design’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6.10 This clause 6 shall survive termination of the Contract.
7. TITLE AND RISK
7.1 Except as otherwise provided in this clause 7, title and risk in the Goods shall pass to Comms Design on completion of Delivery.
7.2 If payment for the Goods is made prior to Delivery then title shall pass to Comms Design on payment for the Goods and risk shall pass to Comms Design on Delivery.
7.3 If Comms Design has supplied any materials to be incorporated in the Goods then title to the Goods shall pass to Comms Design on the date of commencement of their manufacture.
7.4 Where the Supplier has possession of any Goods title to which has vested in Comms Design, the Supplier shall set aside and clearly identify those Goods as being the absolute property of Comms Design and such Goods shall not be removed from the Supplier’s premises without the written consent of Comms Design other than for the purposes of making Delivery.
7.5 In each case the Goods shall be at the Supplier’s risk until delivery has been accepted by Comms Design notwithstanding that payment may have already been made and/or title passed to Comms Design, and the Supplier shall be responsible for any loss thereof or damage thereto and for arranging and paying for the storage, handling and insurance of the same, which insurance
shall be endorsed in the name of and protect the interests of Comms Design on an “all risks” basis and shall so provide cover for loss or damage in transit, and if required produce to Comms Design a copy of any relevant insurance policy and receipts for premiums paid. All monies received under such policies shall be applied in or towards the replacement or reparation of the Goods lost, destroyed or damaged but this provision shall not affect the Supplier’s liabilities under the Contract.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, at the price agreed in writing between the parties.
8.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by Comms Design, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3 The Supplier agrees that if at any time it sells the Goods or Services to another customer for less than the price for which it sells those Goods or Services to Comms Design, it shall reduce the relevant price to match the lower price and shall refund Comms Design the difference between the price it charged Comms Design for the Goods or Services and the lower price in respect of Comms Design’s purchases.
8.4 All amounts payable by Comms Design under the Contract are exclusive of amounts in respect of any value added tax (VAT) chargeable from time to time, but include the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by Comms Design.
8.5 Comms Design shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services.
8.6 The Supplier may invoice Comms Design for the Goods on or at any time after the completion of Delivery. In respect of Services, the Supplier shall invoice Comms Design on completion of the Services. All invoices for Goods shall be accompanied by a proof of delivery in respect of the Goods to which the invoice relates. All invoices shall include such supporting information required by Comms Design to verify the accuracy of the invoice, including but not limited to the relevant purchase order number. Invoices submitted in respect of Goods which are rejected in accordance with clause 6.1(b) shall be deemed not to be correctly rendered and shall not be payable by Comms Design.
8.7 Comms Design shall pay correctly rendered invoices no later than 60 days of the date the invoice was received. Payment shall be made to the bank account nominated in writing by the Supplier.
8.8 If a party fails to make any payment due to the other under the Contract by the due date for payment (due date), then the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above the Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.
8.9 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow Comms Design to inspect such records at all reasonable times on request.
8.10 Comms Design may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier against any amounts payable by it to the Supplier under the Contract.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 In respect of the Goods and any goods that are transferred to Comms Design as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Comms Design, it will have full and unrestricted rights to sell and transfer all such items to Comms Design.
9.2 The Supplier assigns to Comms Design, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
9.3 The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part 1 of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
9.4 The Supplier shall, promptly at Comms Design’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as Comms Design may from time to time require for the purpose of securing for Comms Design the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to
Comms Design in accordance with clause 9.2.
10. COMMS DESIGN PROPERTY
10.1 The Supplier acknowledges that all materials, samples, patterns, gauges, jigs, tools, dies, equipment, tools, drawings, Goods and/or Services Specifications, templates, data or other items supplied by Comms Design to the Supplier (Comms Design Materials) and all rights in Comms Design Materials are and shall remain the exclusive property of Comms Design. The Supplier shall
keep Comms Design Materials in safe custody at its own risk, maintain them in good condition until returned to Comms Design, and not dispose of or use the same other than in accordance with Comms Design’s written instructions or authorization. The Supplier shall ensure that all Comms Design Materials supplied to it by Comms Design are properly labeled as the property of Comms Design and are kept separate from and not mixed with any materials owned or in possession of the Supplier or with any materials supplied to it by a third party. In the event of the Contract allowing the Supplier to mix Comms Design Materials with other materials no items incorporating Comms Design Materials shall be vested in any third party or the Supplier.
10.2 The Supplier shall be liable for and shall indemnify Comms Design against loss or damage to all Comms Design Materials and the Supplier shall maintain adequate insurance for full replacement value of all Comms Design Materialsagainst loss, damage or destruction at all times including when they are in transit. All monies received under such insurance shall be applied in or
towards the replacement or reparation of the Comms Design Materials lost destroyed or damaged but without prejudice to the Supplier’s liabilities under the Contract.
10.3 If any Comms Design Materials are supplied to the Supplier by Comms Design for use in connection with any Contract they will be sent to the Supplier carriage paid and when requested by Comms Design the Supplier shall return them carriage paid and at the Supplier’s risk to the address nominated by Comms Design. The Supplier shall be responsible for their safe custody and return and for any loss of or damage to them, however caused, excepting fair wear and tear.
11. ADVERTISING
11.1 The Supplier shall not without the written consent of Comms Design advertise or announce that it is a supplier to Comms Design or any Comms Design customer, such consent will not be unreasonably withheld.
11.2 The Comms Design logo, any Comms Design customer’s logo(s) and the Supplier’s Logo are all subject to copyright and as such may not be used without respective prior written permission.
12. INSURANCE
12.1 During term of the Contract and for a period of 12 years thereafter the Supplier shall maintain in force the following insurance policies with reputable insurance companies and shall, on Comms Design’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance: (a) public liability insurance for not less than £5,000,000 per claim; and (b) product liability insurance for not less than £10,000,000 for claims arising from any single event and not less than £10,000,000 in aggregate for all claims arising in a year; (c) and professional indemnity insurance for not less than £5,000,000 for claims arising from any single event and not less than £5,000,000 in aggregate for all claims arising in a year.
12.2 The Supplier shall ensure that any subcontractors also maintain adequate insurance having regard to the obligations under the Contract which they are contracted to fulfil.
12.3 The Supplier’s liabilities under the Contract shall not be deemed to be released or limited by the Supplier taking out the insurance policies referred to in clause 12.1.
13. CONFIDENTIAL INFORMATION
13.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, Goods and/or Services Specifications, inventions, processes, prices, costs or initiatives which are disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products or its services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.
13.2 The Supplier shall not disclose the existence and terms of this Contract nor shall it make any disclosure of its commercial relationship with Comms Design without the prior written consent of Comms Design.
14. TERMINATION
14.1 Comms Design may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Comms Design shall pay the Supplier fair and reasonable compensation for work-inprogress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
14.2 Comms Design may terminate the Contract with immediate effect by giving notice in writing to the Supplier if the Supplier commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within a period of 7 days after receipt of notice in writing requiring it to do so.
14.3 Comms Design may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier becomes subject to any of the following events: (a) the Supplier suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts
within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; (b) the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors; (c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier, other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier; (d) (being an individual) the Supplier is the subject of a bankruptcy petition or order; (e) a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier; (g) (being a company) a floating charge holder over the Supplier’s assets has become entitled to appoint or has appointed an administrative receiver; (h) a person becomes entitled to appoint a receiver over the Supplier’s assets or a receiver is appointed over the Supplier’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.3(a) to clause 14.3(h) inclusive; (j) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or substantially the whole of its business; (k) the Supplier’s financial position deteriorates to such an extent that in Comms Design’s opinion the Supplier’s capability to adequately fulfill its obligations under the Contract has been placed in jeopardy; or (l) (being an individual) the Supplier dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
14.4 On termination of the Contract or any part of it for any reason: (a) where the Services are terminated, the Supplier shall immediately deliver to Comms Design all Deliverables, whether or not then complete, and return all Comms Design Materials. If the Supplier fails to do so, then Comms Design may without limiting its other rights or remedies enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; (b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and (c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15. FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract. If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than 5 Business Days, Comms Design may terminate this Contract immediately by giving written notice to the Supplier.
16. ETHICAL TRADING
16.1 The Supplier shall maintain and operate an ethical trading policy in respect of
the provision of the Goods and/or the Services, and in respect of any goods,
works, services or materials which it purchases from others to carry out its
obligations.
16.2 The Supplier shall and shall procure that its servants, agents, suppliers and
subcontractors shall comply at all times in the provision and manufacture,
repair, replacement and provision of goods and/or services to the Supplier
with the local, European, national and any international laws or regulations
applicable to such suppliers or subcontractors in respect of:
(a) child labour, and in any event the Supplier shall not and shall procure
that any of its servants, agents, suppliers or subcontractors shall not
employ any person below the age of 14 in the provision of the goods
and/or services; and
(b) forced labour, and for the purposes of these Conditions forced labor
includes all forms of slavery or practice similar to slavery, serfdom or
compulsory labour; and
(c) minimum wage and working hours relating to its employees, servants,
agents and subcontractors, together with their employees and any
persons retained by them.
The Supplier shall not discriminate against any person on the grounds of race,
creed, gender, gender reassignment, pregnancy and maternity, religion or
belief, marital status, disability, sexual orientation or age or on any other
grounds within the meaning and scope of the Equality Act 2010.
17. CORRUPTION AND ANTI-SLAVERY
17.1 The Supplier shall:
(a) comply with all applicable laws, statutes, regulations, and codes
relating to anti-bribery and anti-corruption including but not limited to
the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute
an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such
activity, practice or conduct had been carried out in the UK;
(c) have and shall maintain in place its own policies and procedures,
including but not limited to adequate procedures under the Bribery
Act 2010, to ensure compliance with the Relevant Requirements and
clause 17.1(b), and will enforce them where appropriate;
(d) promptly report to Comms Design any request or demand for any
undue financial or other advantage of any kind received by the
Supplier in connection with the performance of this agreement.
17.2 The Supplier shall ensure that any person associated with the Supplier who is
performing services or providing goods in connection with the Contract does
so only on the basis of a written contract which imposes on and secures from
such person terms equivalent to those imposed on the Supplier in this clause
17 (Relevant Terms). The Supplier shall be responsible for the observance
and performance by such persons of the Relevant Terms, and shall be directly
liable to Comms Design for any breach by such persons of any of the
Relevant Terms.
17.3 Breach of this clause 17 shall be deemed a material breach of this agreement.
17.4 For the purpose of this clause 17, the meaning of adequate procedures and
foreign public official and whether a person is associated with another person
shall be determined in accordance with section 7(2) of the Bribery Act 2010
(and any guidance issued under section 9 of that Act), sections 6(5) and 6(6)
of that Act and section 8 of that Act respectively. For the purposes of this
clause 17 a person associated with the Supplier includes but is not limited to
any subcontractor of the Supplier.
17.5 The Supplier shall not engage in any Modern Slavery Practice.
17.6 The Supplier will:
(a) comply at all times with any anti-slavery policy which Comms Design
may have or put in place from time to time and will procure that its
officers, employees, agents, sub-contractors and any other persons
who perform services for or on behalf of it in connection with the
Contract will comply with the same at all times;
(b) conduct proper and detailed checks on any agency or person used by
the Supplier to provide labor, employees, contractors, subcontractors or other persons to undertake tasks for the Supplier (in
each case whether on a permanent or temporary basis) to ensure that
any such agency or person does not engage in any Modern Slavery
Practice;
(c) provide Comms Design (at the Supplier’s cost) with such reasonable
assistance and information as it may require from time to time to
enable Comms Design to:
(i) perform any activity required by any government, regulatory
entity or agency in any relevant jurisdiction for the purpose of
compliance with any applicable anti-slavery laws or as required
by Comms Design;
(ii) prepare a slavery and human trafficking statement as required
by section 54 of the Modern Slavery Act and to include the
matters referred to in section 54(5) of that Act;
(iii) identify any non-compliance with any codes or policies of
Comms Design that relate to its supply chains or business
partners; and
(iv) conduct due diligence and to measure the effectiveness of the
steps Comms Design is taking or wishes to take to ensure that
Modern Slavery Practices are not taking place in its business or
supply chains;
(d) permit Comms Design, and any person nominated by it for this
purpose, to have such access on demand to the Supplier’s premises,
personnel, systems, books and records as Comms Design may require
to verify the Supplier’s compliance with this Clause 17.
17.7 The Supplier warrants to Comms Design that its responses to any antislavery due diligence questionnaire that may be issued by Comms Design are
and/or will be complete and accurate.
17.8 The Supplier will immediately give written notice to Comms Design:
(a) upon a breach, or suspected breach, of any of its obligations referred
to in clauses 17.5 or 17.6 occurring;
(b) upon becoming aware of a breach of its warranty set out in clause
17.7; and
(c) of any non-compliance by it or its officers, employees, agents or subcontractors with any anti-slavery policy which Comms Design may
have or put in place, including a failure to meet any standard set out in
that policy.
The notice will set out full details of the breach or suspected breach or noncompliance.
17.9 Without prejudice to the other terms and conditions of the Contract,
Comms Design may terminate the Contract immediately by giving written
notice to that effect to the Supplier if the Supplier is in breach of any of its
obligations under clauses 17.5 or 17.6 or its warranty under clause 17.7. The
parties agree that a breach by the Supplier of any of its obligations or
warranties under this clause 17 is a material breach of the Contract,
irrespective of the level of financial loss, depravation of benefit, or exposure
to liability that such breach would or potentially would give rise to.
17.10 Comms Design will be entitled, by giving written notice to that effect to the
Supplier, to require the Supplier to:
(a) remove from the performance of the Contract any of the Supplier’s
officers, employees, agents or sub-contractors whom Comms Design
believes to be engaging in any Modern Slavery Practice; or
(b) take such action as Comms Design requires to ensure that the
Supplier fully complies with any Anti-Slavery Law and any anti-slavery
policy which Comms Design may have or put in place.
17.11 The Supplier shall keep Comms Design indemnified in full against all costs,
expenses, damages and losses (whether direct or indirect), including any
interest, fines, legal and other professional fees and expenses awarded against
or incurred or paid by Comms Design as a result of or in connection with
any claim brought or threatened against Comms Design in each case arising
out of or in connection with:
(a) any breach by the Supplier of any of its obligations under this clause
17 (including any failure or delay in performing, or negligent
performance or non-performance of, any of those obligations);
(b) any breach by the Supplier of any of its warranty under clause 17.6;
and
(c) any breach by any contractor of the Supplier of any equivalent
provisions to this clause 17 contained in the relevant contract
(including any failure or delay in performing, or negligent performance
or non-performance of, any obligations).
including the costs of procuring the Goods or Services from a person other
than the Supplier and the costs of any interim service provision, the costs of
any re-tender and the amount by which any new supplier’s charges exceed
the charges payable to the Supplier under the Contract and including where
such losses, liabilities, costs, damages or expenses arise from the negligence
or failure of Comms Design. However, the Supplier will have no liability to
Comms Design under this clause 17.11 for any loss, liability, cost, damage,
expense, claim or proceeding to the extent that it would not have been
incurred or suffered but for Comms Design’s criminal liability.
18. ALCOHOL DRUGS HEALTH & SAFETY
18.1 The Supplier shall ensure that no directors, employees, servants, agents, or
subcontractors of the Supplier shall at any time attend Comms Design’s
premises or any Delivery Location:
(a) having consumed alcohol within the previous 8 hours; and/or
(b) under the influence of illegal drugs; and/or
(c) in an unfit state due to the use of alcohol or illegal drugs; and/or
(d) while in possession of alcohol or illegal drugs; and/or
(e) and consume alcohol or illegal drugs.
18.2 The Supplier shall comply in full with Comms Design’s drugs and alcohol
policy, which is available upon request.
18.3 If the Comms Design suspects that any person referred to in clause 18.1 is in
breach of clause 18.1 Comms Design may require:
(a) that such person is immediately tested for alcohol and/or illegal drugs,
at the sole cost of the Supplier; and
(b) the immediate removal and replacement of such person from Comms
Design’s premises and/or any Delivery Location notwithstanding the
result or non-performance of any test; and
(c) the Supplier to immediately provide replacement personnel.
18.4 While present on any Comms Design premises and/or any Delivery Location
the Supplier will ensure that its personnel observe at all times all rules and
safety requirements applicable to and/or notified to the Supplier by Comms
Design in relation to the supply of Goods and/or Services.
18.5 The Supplier will ensure that it complies with all the requirements of any Act
of Parliament, statutory instrument or any other regulation having the force
of law or bye-law and all regulatory requirements relevant to the Supplier’s
business and/or Comms Design’s business from time to time in force which
are or may become applicable to the Goods or the Services. The Supplier
shall promptly notify Comms Design if the Supplier is required to make any
change to the Goods or the Services for the purposes of complying with its
obligations under this clause 18.5.
18.6 In addition to the general requirements of clauses 18.4 and 18.5, the Supplier
shall comply and shall ensure the compliance of its sub-contractors with all
health and safety law applicable in supplying the Goods or performing the
Services and will enable and assist Comms Design to comply with all relevant
health and safety law applicable to Comms Design. In particular, but without
limitation, the Supplier shall ensure any of its personnel who are or may be
engaged in providing Goods or Services in close proximity to the railway
network shall have undertaken comprehensive training in personal track
safety with an approved provider and all of its personnel shall be equipped
with appropriate personal protective equipment.
19. DISPUTE RESOLUTION
19.1 Before resorting to litigation, the parties shall attempt to negotiate a
settlement to any dispute between them arising out of or in connection with
this Contract.
19.2 If the parties are unable to resolve the dispute, either party may, at any time,
refer the dispute to mediation by a neutral advisor or mediator (“the
Mediator”). If the parties are unable to agree on a Mediator within 7 days of
the request by one party to refer the dispute to mediation, they shall apply to
the Centre for Dispute Resolution (“CEDR”) to appoint a Mediator. The
parties shall seek to agree directions as to how the mediation is to be
conducted and, failing agreement, they shall seek and adhere to directions
from the Mediator.
19.3 If the parties reach agreement on the resolution of their dispute the
agreement shall be reduced to writing and shall be binding.
20. SAFETY CRITICAL PRODUCT
20.1 Where Comms Design indicates that the Goods are safety critical, the
Supplier is required to comply with the requirement of ATOC ACOP
EC/01003 – Approved Code of Practice – Supplier Accreditation scheme as a
minimum. Other accreditation schemes may be suitable as alternatives, in the
discretion of Comms Design (such as RISAS, IRIS, UTD).
21. GENERAL
21.1 Assignment and subcontracting.
(a) Comms Design may at any time assign, transfer, charge, subcontract
or deal in any other manner with any or all of its rights or obligations
under the Contract.
(b) The Supplier may not assign, transfer, charge, subcontract or deal in
any other manner with any or all of its rights or obligations under the
Contract without Comms Design’s prior written consent.
21.2 Notices.
(a) Any notice or other communication given to a party under or in
connection with the Contract shall be in writing, addressed (i) in the
case of Comms Design to FAO Legal Director, Comms Design
Limited, Jupiter Building, First Point, Balby Carr Bank, Doncaster,
DN4 5JQ; and (ii) in the case of the Supplier to its registered office (if
it is a company) or its principal place of business (in any other case) or
such other address as the Supplier may have specified to Comms
Design in writing in accordance with this clause, and shall be delivered
personally, or sent by pre-paid first class post, recorded delivery,
commercial courier or fax.
(b) A notice or other communication shall be deemed to have been
received: if delivered personally, when left at the address referred to
in clause 21.2(a); if sent by pre-paid first class post or recorded
delivery, at 9.00 am on the second Business Day after posting; if
delivered by commercial courier, on the date and at the time that the
courier’s delivery receipt is signed; or, if sent by fax, one Business Day
after transmission.
(c) The provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action.
21.3 Severance.
(a) If any court or competent authority finds that any provision of the
Contract (or part of any provision) is invalid, illegal or unenforceable,
that provision or part-provision shall, to the extent required, be
deemed to be deleted, and the validity and enforceability of the other
provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would
be valid, enforceable and legal if some part of it were deleted, the
provision shall apply with the minimum modification necessary to
make it legal, valid and enforceable.
21.4 Waiver. A waiver of any right or remedy under the Contract is only
effective if given in writing and shall not be deemed a waiver of any
subsequent breach or default. No failure or delay by a party to exercise any
right or remedy provided under the Contract or by law shall constitute a
waiver of that or any other right or remedy, nor shall it preclude or restrict
the further exercise of that or any other right or remedy. No single or partial
exercise of such right or remedy shall preclude or restrict the further
exercise of that or any other right or remedy.
21.5 Third party rights. A person who is not a party to the Contract shall not
have any rights under or in connection with it.
21.6 Variation. Except as set out in these Conditions, any variation to the
Contract, including the introduction of any additional terms and conditions,
shall only be binding when agreed in writing and signed by Comms Design.
21.7 Records and audit. The Supplier will, and will procure that its subcontractors and sub-suppliers will, maintain a true and correct set of
documents and records pertaining to all activities relating to their
performance of or compliance with the Contract and a complete
documentary record of all transactions entered into by the Supplier for the
purposes of the Contract including copies of any documentation generated by
or in the possession of the Supplier, all sub-contracts and all such other
information reasonably required by Comms Design. The Supplier agrees, and
will procure that its sub-contractors and sub-suppliers agree to maintain and
retain such documentation and records for a period of not less than twelve
years (or such other longer period as may be required by law) after
completion of performance under the Contract. Comms Design will have
the right to inspect and audit any and all such records at any time during
performance of the Contract and during the twelve year period (or such
longer period as may be required by law) following completion of
performance under the Contract.
21.8 Comms Design may from time to time undertake any inspection or audit
pursuant to clause 21.7 and shall have the right to audit or check any and all
information and any documents and records regarding any matter related to
the Supplier’s or any sub-contractor’s or sub-supplier’s performance of
or compliance with the Contract including without limitation any
aspect of the Supplier’s or sub-contractor’s or sub- supplier’s operations,
costs and expenses, sub-contracts, claims related to variations and financial
arrangements. Comms Design may in its absolute discretion inform the
Supplier of the objective of the audit prior to its commencement. Any audit
referred to in clauses 21.7 and 21.8 shall be conducted on an open book
basis. The Supplier shall undertake any obligations and exercise any rights
which relate to the performance of the Contract on an open book basis.
21.9 Data protection. The parties shall at all times comply with the provisions
and obligations imposed by the Data Protection Act 1998 in storing and
processing personal data.
21.10 Governing law and jurisdiction. The Contract, and any dispute or claim
arising out of or in connection with it or its subject matter or formation
(including non-contractual disputes or claims), shall be governed by, and
construed in accordance with, English law, and the parties irrevocably submit
to the non-exclusive jurisdiction of the courts of England and Wales.
Notwithstanding the foregoing, the Supplier shall not be entitled to bring any
proceedings, disputes or claims against Comms Design in any jurisdiction
other than the jurisdiction of the courts of England and Wales.
Standard Conditions of Contract for The Supply of Goods and Services
Unipart Rail Limited Version No: 1.0
Document Owner: Ben Thornton Date Published: 7 December 2020
1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Approved Goods: goods or materials which are not customised and
which have been approved by Network Rail Infrastructure Limited
pursuant to Network Rail standard NR/L2/RSE/100/05.
Business Day: a day (other than a Saturday, Sunday or public holiday)
when banks in London are open for business.
Charges: the charges payable by the Customer for the supply of Services
in accordance with clause 10.
Conditions: the terms and conditions set out in this document as
amended from time to time in accordance with clause 19.8.
Consumable Goods: Goods which are deemed to be consumable
goods by CDL.
Contract: the contract between CDL and the Customer for the sale
and purchase of the Goods and/or Services in accordance with these
Conditions.
Customer: the person or firm who purchases the Goods and/or
Services from CDL.
Deliverables: the deliverables set out in the Order produced by CDL
for the Customer.
Design or Endemic Defect: a defect to a Good either:
(i) in the original design;
(ii) in the Specification; and/or
(iii) caused by a change in the use of the railway vehicle to which
the Good is fitted.
Force Majeure Event: has the meaning given in clause 16.
Goods: the goods (or any part of them) set out in the Order.
IPR: all patents, rights to inventions, utility models, copyright and
related rights, trade marks, service marks, trade, business and domain
names, rights in trade dress or get-up, rights in goodwill or to sue for
passing off, unfair competition rights, rights in designs, rights in computer
software, database right, topography rights, rights in confidential
information (including know-how and trade secrets) and any other
intellectual property rights, in each case whether registered or
unregistered and including all applications for and renewals or extensions
of such rights, and all similar or equivalent rights or forms of protection
in any part of the world.
Order: the Customer’s order for the Goods and/or Services, as set out
in the Customer’s purchase order form, the Customer’s written
acceptance of CDL’s quotation, or overleaf, as the case may be.
CDL: Comms Design Limited incorporated and registered in England
and Wales with company number 05057797 whose registered office is at
Unipart House, Garsington Road, Cowley, Oxford OX4 2PG.
CDL Materials: has the meaning set out in clause 9.1(g).
Railway Group Standards: all and any of the Railway Group
Standards, Rail Industry Approved Codes of Practice, Guidance Notes
and Rail Industry Standards issued from time to time by the Railway
Safety and Standards Board Ltd.
Repairable Goods: Goods which are deemed to be repairable goods
by CDL.
ROSCO: means Angel Trains Limited, Eversholt Rail (UK) Limited,
Porterbrook Maintenance Limited and/or Porterbrook Leasing Company
Limited and/or any of them.
Services: the services, including the Deliverables, supplied by CDL to
the Customer as set out in the Specification.
Specification: any description or specification for the Goods and/or the
Services, including any related plans and drawings, that is provided or
requested by the Customer and agreed in writing by the Customer and
CDL.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated
body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives,
successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to
such statute or provision as amended or re-enacted. A reference
to a statute or statutory provision includes any subordinate
legislation made under that statute or statutory provision, as
amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in
particular or any similar expression shall be construed as
illustrative and shall not limit the sense of the words preceding
those terms.
(e) A reference to writing or written includes faxes but not e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other
terms that the Customer seeks to impose or incorporate, or which are
implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods
and/or the Services in accordance with these Conditions. The Customer
is responsible for ensuring that the terms of the Order and any applicable
Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when CDL issues a
written acceptance of the Order or begins to perform the Contract
(whichever is the earlier), at which point the Contract shall come into
existence.
2.4 The Contract constitutes the entire agreement between the parties. The
Customer acknowledges that it has not relied on any statement, promise
or representation made or given by or on behalf of CDL which is not set
out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by
CDL and any descriptions or illustrations contained in CDL’s catalogues,
brochures or website are produced for the sole purpose of giving an
approximate idea of the Goods and/or Services described in them. They
shall not form part of the Contract nor have any contractual force.
2.6 Any quotation given by CDL shall not constitute an offer. A quotation
shall only be valid for a period of 30 Business Days from its date of issue.
3. SUPPLY OF GOODS
3.1 The Goods are described in the Specification, which shall be provided by
the Customer in the Order.
3.2 The Customer shall indemnify CDL against all liabilities, costs, expenses,
damages and losses (including any direct, indirect or consequential losses,
loss of profit, loss of reputation and all interest, penalties and legal and
other reasonable professional costs and expenses) suffered or incurred
by CDL in connection with any claim made against CDL for actual or
alleged infringement of a third party’s intellectual property rights arising
out of or in connection with CDL’s use of the Specification supplied by
the Customer. This clause 3.2 shall survive termination of the Contract.
3.3 CDL reserves the right to amend the Specification if required by any
applicable statutory or regulatory requirements.
4. DELIVERY OF GOODS
4.1 CDL shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery manifest
which shows details to include, the date, Order number, the type
and quantity of the Goods and special storage instructions (if any);
and
(b) if CDL requires the Customer to return any packaging materials to
CDL, that fact is clearly stated on the delivery note provided that
pallets, collars, stillages, cradles and other specialist equipment shall
at all times remain the property of CDL. The Customer shall make
any such packaging materials available for collection at such times
as CDL shall reasonably request. Returns of packaging materials
shall be at CDL’s expense. Failure by the Customer to make such
packaging materials available for collection in accordance with this
clause shall entitle CDL to levy a reasonable charge on the
Customer in respect of the cost of CDL having to purchase
replacement materials.
4.2 CDL shall deliver the Goods to the location set out in the Order or such
other location as the parties may agree (Delivery Location) at any time
after the Goods are ready.
4.3 Delivery of the Goods shall be completed on the Goods’ arrival at the
Delivery Location. The Customer shall be responsible for the offloading
of all deliveries from delivery vehicles.
4.4 Any dates quoted for delivery are approximate only, and the time of
delivery is not of the essence. CDL shall not be liable for any delay in
delivery of the Goods that is caused by a Force Majeure Event or the
Customer’s failure to provide CDL with adequate delivery instructions
or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to take delivery of the Goods on their arrival at the
Delivery Location, then, except where such failure is caused by a Force
Majeure Event or CDL’s failure to comply with its obligations under the
Contract:
(a) delivery of the Goods shall be deemed to have been completed at
9.00 am on the third Business Day after the day on which CDL
notified the Customer that the Goods were ready; and
(b) CDL shall store the Goods until delivery takes place, and charge
the Customer for all related costs and expenses (including
insurance).
4.6 If 10 Business Days after the day on which CDL notified the Customer
that the Goods were ready for delivery the Customer has not taken
delivery of them, CDL may resell or otherwise dispose of part or all of
the Goods and, after deducting reasonable storage and selling costs,
account to the Customer for any excess over the price of the Goods or
charge the Customer for any shortfall below the price of the Goods.
4.7 CDL may deliver the Goods by instalments, which shall be invoiced and
paid for separately. Each instalment shall constitute a separate Contract.
Any delay in delivery or defect in an instalment shall not entitle the
Customer to cancel any other instalment.
4.8 CDL may, by giving notice to the Customer at any time before delivery,
increase the price of the Goods to reflect any increase in the cost of the
Goods that is due to:
(a) any factor beyond CDL’s control (including foreign exchange
fluctuations, increases in taxes and duties, and increases in labour,
materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s),
quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of
the Customer to give CDL adequate or accurate information or
instructions.
5. QUALITY OF GOODS
5.1 CDL warrants that on delivery the Consumable Goods shall conform in
all material respects with their Specification.
5.2 CDL warrants that on delivery and for such period as CDL has the
benefit of a warranty from its supplier (if any) (Warranty Period), the
Repairable Goods shall:
(a) conform in all material respects with their Specification; and
(b) be free from material defects in material and workmanship.
5.3 Subject to clause 5.4, if:
(a) the Customer gives notice in writing to CDL during the Warranty
Period within three Business Days of discovery that some or all of
the Repairable Goods do not comply with the warranty set out in
clause 5.2;
(b) CDL is given a reasonable opportunity of examining such
Repairable Goods; and
(c) the Customer (if asked to do so by CDL) returns such Repairable
Goods to CDL’s place of business at CDL’s cost.
CDL shall, at its option, repair or replace the defective Repairable Goods,
or refund the price of the defective Repairable Goods in full.
5.4 CDL shall not be liable for Repairable Goods’ failure to comply with the
warranty set out in clause 5.2 in any of the following events:
(a) the Customer makes any further use of such Repairable Goods
after giving notice in accordance with clause 5.3;
(b) the defect arises because the Customer failed to follow CDL’s oral
or written instructions as to the storage, commissioning, installation, use and maintenance of the Repairable Goods or (if
there are none) good trade practice regarding the same;
(c) the defect arises as a result of CDL following any drawing, design
or Specification supplied by the Customer or where the
Specification is inadequate;
(d) the defect arises as a result of the Customer’s fitting of, alterations
to or repairs to such Repairable Goods;
(e) the defect arises as a result of fair wear and tear, wilful damage,
negligence, or abnormal storage or working conditions;
(f) the Repairable Goods differ from their description as a result of
changes made to ensure they comply with applicable statutory or
regulatory requirement or Railway Group Standards;
(g) the Repairable Goods are used outside of their historic usage;
(h) the Repairable Goods have been used in breach of clause 6;
(i) the defect arises as a result of a Design or Endemic Defect; or
(j) the defect arises as a result of the failure of another Good.
5.5 Except as provided in this clause 5, CDL shall have no liability to the
Customer in respect of the Repairable Goods’ failure to comply with the
warranty set out in clause 5.2.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979
are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods
supplied by CDL.
6. PERMITTED USE OF REPAIRABLE GOODS
6.1 The Customer shall be entitled to take possession of and use the
Repairable Goods supplied under a Contract to comply with its
obligations in respect of the maintenance and repair of railway vehicles.
The right to use the Repairable Goods expressly excludes the right to
carry out or procure any repairs, modifications or additions to the
Repairable Goods and the Customer shall not part with possession of,
nor purport to lease the Repairable Goods or any of them, charge,
pledge, mortgage or otherwise dispose of or deal in the Repairable
Goods. The Customer hereby acknowledges and agrees that it shall not
contract nor procure the repair or overhaul of any Repairable Goods
other than with CDL.
6.2 The Customer acknowledges that there is a limited supply of float of
Repairable Goods (the “Float”) and that from time to time the Float may
be in a shortage of supply. The Customer agrees that it shall not
unreasonably refuse a request by CDL to deliver up to CDL such of the
Repairable Goods in the Customer’s possession as have not been used
or fitted to a railway vehicle or are not intended for immediate use. CDL
shall pay the Customer an amount equal to the value of the price paid
for the Repairable Good, once it is returned to CDL, subject to the
condition of the Good when loaded by the Customer on CDL’s vehicles
being commensurate with that when delivered by CDL to the Customer,
in default of which CDL shall pay a reasonable amount to the Customer.
6.3 Upon delivery of a Repairable Good to the Customer, the Customer
shall immediately make a failed Repairable Good available for collection
by CDL. Under no circumstances shall the Customer be entitled to
disassemble any Repairable Good and use it for the repair of other
Goods.
6.4 Without prejudice to the other rights of CDL, if the Customer uses a
Repairable Good other than in accordance with this clause 6, CDL may
at its discretion and upon reasonable notice charge the Customer either
for the cost of a replacement Repairable Good of the same type or for
the value of the benefit to the Customer of the use of the Good, but in
any event, title in and ownership of any non-returned Repairable Good
shall always remain with CDL and/or a ROSCO (as the case may be) and
in the event that the Customer subsequently locates any such nonreturned Repairable Good such shall immediately be made available free
of charge for collection by CDL.
6.5 Should CDL determine that a returned Repairable Good is incomplete
or damaged (an “Incomplete or Damaged Repairable Good”), CDL may
carry out such work as is necessary to return that Good to a condition
such that repair, overhaul and maintenance work can begin and the cost
of such work shall be charged to the Customer.
6.6 The Customer shall indemnify CDL on demand against:
(a) any reasonable costs, losses, claims and expenses incurred by CDL
as a result of the return of an Incomplete or Damaged Repairable
Good, including CDL’s liability to third parties for liquidated
damages for late delivery; and
(b) any reasonable costs and expenses incurred by CDL as a result of
the failure by the Customer properly to label and identify a failed
Repairable Good.
7. TITLE AND RISK (GOODS)
7.1 The risk in the Goods shall pass to the Customer on completion of
delivery.
7.2 Title to the Consumable Goods shall not pass to the Customer until
CDL has received payment in full (in cash or cleared funds) for:
(a) the Consumable Goods; and
(b) any other goods or services that CDL has supplied to the
Customer.
(c) Until title to the Consumable Goods has passed to the Customer,
the Customer shall:
(d) hold the Consumable Goods in a fiduciary capacity on trust for
CDL;
(e) store the Consumable Goods separately from all other goods held
by the Customer so that they remain readily identifiable as CDL’s
property;
(f) permit and facilitate CDL at any time to enter any premises of the
Customer or of any third party where the Consumable Goods are
stored in order to inspect them;
(g) not remove, deface or obscure any identifying mark or packaging
on or relating to the Consumable Goods;
(h) maintain the Consumable Goods in satisfactory condition and keep
them insured against all risks for their full price from the date of
delivery and on request allow CDL to inspect the insurance policy;
(i) notify CDL immediately if it becomes subject to any of the events
listed in clause 11.2; and
(j) give CDL such information relating to the Consumable Goods as
CDL may require from time to time.
7.3 If the Customer becomes subject to any of the events listed in clause
11.2, or CDL reasonably believes that any such event is about to happen
and notifies the Customer accordingly, then, provided that title to the
Goods has not passed to the Customer and that the Goods have not
been resold, or irrevocably incorporated into another product, and
without limiting any other right or remedy CDL may have, CDL may at
any time require the Customer to deliver up the Goods and, if the
Customer fails to do so promptly, enter any premises of the Customer
or of any third party where the Goods are stored in order to recover
them.
7.4 Title to Repairable Goods shall at all times remain vested in CDL or the
relevant ROSCO and shall at no time pass to the Customer.
8. SUPPLY OF SERVICES
8.1 CDL shall supply the Services to the Customer in accordance with the
Specification in all material respects.
8.2 CDL shall use its reasonable endeavours to meet any performance dates
specified in the Order or the Specification (as the case may be), but any
such dates shall be estimates only and time shall not be of the essence
for performance of the Services.
8.3 CDL shall have the right to make any changes to the Services which are
necessary to comply with any applicable law or safety requirement, or
which do not materially affect the nature or quality of the Services, and
CDL shall notify the Customer in any such event.
8.4 CDL warrants to the Customer that the Services will be provided using
reasonable care and skill.
9. CUSTOMER OBLIGATIONS (SERVICES)
9.1 The Customer shall:
(a) ensure that the terms of the Order for Services and any
information it provides in the Specification are complete and
accurate;
(b) co-operate with CDL in all matters relating to the Services;
(c) provide CDL, its employees, agents, consultants and
subcontractors, with access to the Customer’s premises, office
accommodation and other facilities as reasonably required by CDL;
(d) provide CDL with such information and materials as CDL may
reasonably require in order to supply the Services, and ensure that
such information is accurate in all material respects;
(e) prepare the Customer’s premises and/or the location at which the
Services are to be performed for the supply of the Services
including the obtaining of railway possessions, the positioning of
vehicles and equipment and suitable site access if applicable;
(f) obtain and maintain all necessary licences, permissions and
consents which may be required before the date on which the
Services are to start; and
(g) keep and maintain all materials, equipment, documents and other
property of CDL (CDL Materials) at the Customer’s premises in
safe custody at its own risk, maintain CDL Materials in good
condition until returned to CDL, and not dispose of or use CDL
Materials other than in accordance with CDL’s written instructions
or authorisation.
9.2 If CDL’s performance of any of its obligations under the Contract is
prevented or delayed by any act or omission by the Customer or failure
by the Customer to perform any relevant obligation (Customer
Default):
(a) CDL shall without limiting its other rights or remedies have the
right to suspend performance of the Services until the Customer
remedies the Customer Default, and to rely on the Customer
Default to relieve it from the performance of any of its obligations
to the extent the Customer Default prevents or delays CDL’s
performance of any of its obligations;
(b) CDL shall not be liable for any costs or losses sustained or incurred
by the Customer arising directly or indirectly from CDL’s failure
or delay to perform any of its obligations as set out in this clause
9.2; and
(c) the Customer shall reimburse CDL on written demand for any
costs or losses sustained or incurred by CDL arising directly or
indirectly from the Customer Default.
10. PRICE AND PAYMENT
10.1 The price of the Goods shall be the price set out or confirmed in CDL’s
written acceptance of the Order.
10.2 Unless otherwise expressly stated in CDL’s written acceptance of the
Order, for all deliveries to the UK mainland, the price of the Goods is
inclusive of the costs and charges of packaging, insurance and transport
of the Goods. For deliveries to destinations outside the UK mainland
additional charges will apply. For deliveries where CDL is providing
specialist delivery vehicles or offloading equipment, additional charges
will apply.
10.3 Unless otherwise specified in the Contract, the Charges for the Services
shall be on a time and materials basis:
(a) the Charges shall be calculated in accordance with CDL’s hourly
fee rates, as set out in CDL’s quotation or if no quotation has been
provided, as otherwise incorporated in an accepted Order;
(b) CDL’s standard hourly fee rates for each individual are calculated
on the basis of a normal working day from 8.00 am to 5.00 pm
worked on Business Days;
(c) CDL shall be entitled to charge an enhanced fee rate for any time
worked by individuals whom it engages on the Services outside the
hours referred to in clause 10.3(b);
(d) CDL shall be entitled to charge the Customer for any expenses
reasonably incurred by the individuals whom CDL engages in
connection with the Services including, but not limited to, travelling
expenses, hotel costs, subsistence and any associated expenses,
and for the cost of services provided by third parties and required
by CDL for the performance of the Services, and for the cost of
any materials; and
(e) Materials and sub-contracted work shall be charged at the cost of
acquiring them plus a mark-up. The mark-up will be as specified in
the quotation, and if none is so specified then twenty per cent
(20%).
10.4 CDL reserves the right to increase its standard fee rates for Services,
provided that such charges will not be increased more than once in any
12 month period. CDL will give the Customer written notice of any such
increase at least one month before the proposed date of the increase. If
such increase is not acceptable to the Customer, it shall notify CDL in
writing within one week of the date of CDL’s notice and CDL shall have
the right without limiting its other rights or remedies to terminate the
Contract by giving two weeks’ written notice to the Customer.
10.5 The price of the Goods and the Charges for the Services are exclusive
of amounts in respect of value added tax (VAT). The Customer shall, on
receipt of a valid VAT invoice from CDL, pay to CDL such additional
amounts in respect of VAT as are chargeable on the supply of the Goods
and/or Services.
10.6 CDL may invoice the Customer for the Goods on or at any time after
the completion of delivery and for the Services monthly in arrears.
10.7 Except where the Customer has previously agreed in writing with CDL
particular credit terms in which event, those credit terms will apply, the
Customer shall pay the invoice in full and in cleared funds by the end of
the month following the month the invoice was dated. Payment shall be
made to the bank account nominated in writing by CDL. Time of payment
is of the essence.
10.8 The Customer shall notify CDL in writing within ten (10) days of the date
of the invoice if the invoice is to be disputed, stating the reason for the
dispute (supported by documentary evidence), the amount of the dispute
and the invoice number in dispute. The Customer is precluded from
disputing any invoice after such ten (10) day period has expired.
10.9 Where an invoice is partially disputed, CDL shall have the right to require
the Customer to pay the balance of the invoice in accordance with clause
10.7.
10.10 If the Customer fails to make any payment due to CDL under the
Contract by the due date for payment (due date), then, without limiting
CDL’s other rights or remedies:
(a) the Customer shall pay interest on the overdue amount at the rate
provided for by the Late Payment of Commercial Debts (Interest)
Act 1998. Such interest shall accrue on a daily basis from the due
date until the date of actual payment of the overdue amount,
whether before or after judgment and the Customer shall pay the
interest together with the overdue amount; and/or
(b) CDL may suspend the performance of any or all of its obligations
under the Contract.
10.11The Customer shall pay all amounts due under the Contract in full
without any deduction or withholding except as required by law and the
Customer shall not be entitled to assert any credit, set-off or
counterclaim against CDL in order to justify withholding payment of any
such amount in whole or in part. CDL may at any time, without limiting
any other rights or remedies it may have, set off any amount owing to it
by the Customer under the Contract or under any other agreement with
the Customer against any amount payable by CDL to the Customer.
10.12Where the price of a component used or contracted for by CDL to
manufacture the Goods increases above the price payable as at the date
of this Contract then CDL may increase the price payable by the
Customer by a commensurate amount calculated by CDL acting
reasonably and taking into account that increase and the proportionate
amount of that element within the total manufacturing cost of the Goods.
CDL shall notify or e-mail the Customer of the said increase in the price
of the Goods. If the Goods are Approved Goods, the Customer may
terminate this Contract by giving notice to CDL promptly after receipt
of any such notice or e-mail. Where (i) the Goods are not Approved
Goods or (ii) the Customer does not terminate this Contract promptly
after receipt of any such notice or e-mail and in any event twenty four
(24) hours before the time that the Goods are scheduled to leave CDL’s
premises, the Customer shall be bound to accept the delivery of the
Goods at the new price.
11. INSOLVENCY INCAPACITY AND TERMINATION
11.1 If the Customer becomes subject to any of the events listed in clause
11.2, or CDL reasonably believes that the Customer is about to become
subject to any of them and notifies the Customer accordingly, then,
without limiting any other right or remedy available to CDL, CDL may
cancel or suspend all further deliveries and/or Services under the
Contract or under any other contract between the Customer and CDL
without incurring any liability to the Customer, and all outstanding sums
in respect of Goods delivered and/or Services provided to the Customer
shall become immediately due.
11.2 For the purposes of clause 11.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its
debts, or is unable to pay its debts as they fall due or admits inability
to pay its debts, or (being a company) is deemed unable to pay its
debts within the meaning of section 123 of the Insolvency Act 1986,
or (being an individual) is deemed either unable to pay its debts or
as having no reasonable prospect of so doing, in either case, within
the meaning of section 268 of the Insolvency Act 1986, or (being a
partnership) has any partner to whom any of the foregoing apply;
(b) the Customer commences negotiations with all or any class of its
creditors with a view to rescheduling any of its debts, or makes a
proposal for or enters into any compromise or arrangement with
its creditors other than (where the Customer is a company) where
these events take place for the sole purpose of a scheme for a
solvent amalgamation of the Customer with one or more other
companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution
is passed, or an order is made, for or in connection with the
winding up of the Customer, other than for the sole purpose of a
scheme for a solvent amalgamation of the Customer with one or
more other companies or the solvent reconstruction of the
Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy
petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes
possession of, or a distress, execution, sequestration or other such
process is levied or enforced on or sued against, the whole or any
part of its assets and such attachment or process is not discharged
within 14 days;
(f) (being a company) an application is made to court, or an order is
made, for the appointment of an administrator or if a notice of
intention to appoint an administrator is given or if an administrator
is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer’s
assets has become entitled to appoint or has appointed an
administrative receiver;
(h) a person becomes entitled to appoint a receiver over the
Customer’s assets or a receiver is appointed over the Customer’s
assets;
(i) any event occurs, or proceeding is taken, with respect to the
Customer in any jurisdiction to which it is subject that has an effect
equivalent or similar to any of the events mentioned in clause
11.2(a)to clause 11.2(h) (inclusive);
(j) the Customer suspends, threatens to suspends, ceases or
threatens to cease to carry on all or substantially the whole of its
business;
(k) the Customer’s financial position deteriorates to such an extent
that in CDL’s opinion the Customer’s capability to adequately fulfil
its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or
incapacity (whether mental or physical), is incapable of managing
his or her own affairs or becomes a patient under any mental health
legislation.
11.3 Without limiting its other rights or remedies, CDL may terminate the
Contract with immediate effect by giving written notice to the Customer
if:
(a) the Customer commits a material breach of the Contract and (if
such a breach is remediable) fails to remedy that breach within 7
days of being notified in writing of the breach;
(b) the Customer becomes subject to any of the events listed in clause
11.2.
11.4 Without limiting its other rights or remedies, CDL may terminate the
Contract with immediate effect by giving written notice to the Customer
if the Customer fails to pay any amount due under this Contract on the
due date for payment.
11.5 Without limiting its other rights or remedies, the Customer shall have
the right to terminate the Contract, but only in relation to the provision
of Services, by giving CDL three months’ written notice, provided that
the Customer shall reimburse CDL on demand for any costs, expenses
or other liabilities incurred by CDL in connection with the Contract
(whether arising before or after the date of termination).
11.6 Without limiting its other rights or remedies, CDL shall have the right
to terminate the Contract, but only in relation to the provision of
Services, by giving the Customer one week’s written notice.
11.7 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to CDL all of CDL’s
outstanding unpaid invoices and interest and, in respect of Services
supplied but for which no invoice has been submitted, CDL shall
submit an invoice, which shall be payable by the Customer
immediately on receipt;
(b) the Customer shall return all of the CDL Materials and any
Deliverables which have not been fully paid for. If the Customer
fails to do so, then CDL may enter the Customer’s premises and
take possession of them. Until they have been returned, the
Customer shall be solely responsible for their safe keeping and will
not use them for any purpose not connected with this Contract;
(c) at CDL’s option, the Customer shall be obliged to make full
payment for or to make available for collection within five (5) days
any and/or all Repairable Goods which have been delivered but not
paid for;
(d) the accrued rights, remedies, obligations and liabilities of the parties
as at expiry or termination shall not be affected, including the right
to claim damages in respect of any breach of the Contract which
existed at or before the date of termination or expiry; and
(e) clauses which expressly or by implication have effect after
termination shall continue in full force and effect.
12. LIMITATION OF LIABILITY
12.1 Nothing in these Conditions shall limit or exclude CDL’s liability for:
(a) death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act
1979;
(d) breach of the terms implied by section 2 of the Supply of Goods
and Services Act 1982;
(e) defective products under the Consumer Protection Act 1987; or
(f) any matter in respect of which it would be unlawful for CDL to
exclude or restrict liability.
12.2 Subject to clause 12.1:
(a) CDL shall under no circumstances whatever be liable to the
Customer, whether in contract, tort (including negligence), breach
of statutory duty, or otherwise, for any loss of profit, or any
indirect or consequential loss arising under or in connection with
the Contract; and
(b) CDL’s total liability to the Customer in respect of all other losses
arising under or in connection with the Contract, whether in
contract, tort (including negligence), breach of statutory duty, or
otherwise, shall in no circumstances exceed 100% of the price of
the Goods and/or Services.
13. INDEMNITY
13.1 The Customer shall indemnify and keep indemnified CDL against all and
any claims, liabilities, costs, expenses, damages and losses howsoever
arising (including any direct, indirect or consequential losses and all
interest, penalties and legal and other reasonable professional costs and
expenses) arising from:
(a) injury (including death) to any persons and any loss and/or damage
as a result of any act, default or negligence by the Customer or its
employees, agents and sub-contractors with respect to the use or
handling of the Goods and/or the Deliverables including any related
damages, proceedings, costs and expenses;
(b) injury (including death) to any persons and any loss and/or damage
as a result of any act, default or negligence by the Customer or its
employees, agents and sub-contractors in connection with the
supply or use of the Services including any related damages,
proceedings, costs and expenses; and
(c) any breach by the Customer of the Contract.
14. CONFIDENTIAL INFORMATION
14.1 A party (receiving party) shall keep in strict confidence all technical or
commercial know-how, Specifications, inventions, processes, prices,
costs or initiatives which are disclosed to the receiving party by the other
party (disclosing party), its employees, agents or subcontractors, and
any other confidential information concerning the disclosing party’s
business, its products or its services which the receiving party may
obtain. The receiving party shall only disclose such confidential
information to those of its employees, agents or subcontractors who
need to know the same for the purpose of discharging the receiving
party’s obligations under the Contract, and shall ensure that such
employees, agents or subcontractors shall keep such information
confidential.
14.2 The Customer shall not disclose the existence and terms of this
agreement, nor shall it make any disclosure of its commercial relationship
with CDL without the prior written consent of CDL.
15. INTELLECTUAL PROPERTY
15.1 In respect of the Goods, CDL grants to the Customer a revocable, nonexclusive, non-transferable licence to use CDL’s IPRs only to the extent
necessary and then solely for the purpose of using and operating the
Goods.
15.2 The Customer shall not without the prior written consent of CDL use
any of CDL’s IPRs other than for reasonable and proper purposes in
connection with the provision of Goods under the Contract.
15.3 The licence in clause 15.1 is without any warranty or obligation on CDL’s
part in respect of the validity of the IPRs or the non-infringement of the
rights of any other person.
15.4 The Customer will not do anything or act in any way that is or may be
inconsistent with or prejudicial to CDL’s ownership of its IPRs.
15.5 In respect of the Services, all IPRs in or arising out of or in connection
with the Services shall be owned by CDL. All CDL Materials are the
exclusive property of CDL.
15.6 The Customer hereby grants CDL an irrevocable royalty free licence
(with the power to grant sub-licences on the same terms) to use all
Customer’s IPRs in connection with Goods and/or Services provided
under the Contract (including all designs drawings, software,
Specifications and other documents in respect of those Goods and/or
Services) for all reasonable and proper purposes in connection with the
Contract.
15.7 Except as expressly provided herein, nothing in the Contract shall grant
or be deemed to grant to either party any right, title or interest in the
other party’s IPR and except as expressly stated in the Contract, neither
party shall have any right to use the other party’s trade marks, service
marks or logos without the prior written consent of the other party.
16. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its
obligations under the Contract to the extent that such failure or delay is
caused by a Force Majeure Event. A Force Majeure Event means any
event beyond a party’s reasonable control, which by its nature could not
have been foreseen, or, if it could have been foreseen, was unavoidable,
including strikes, lock-outs or other industrial disputes (whether
involving its own workforce or a third party’s), failure of energy sources
or transport network, failure or paralysis of banking systems, acts of God,
war, terrorism, riot, civil commotion, interference by civil or military
authorities, national or international calamity, armed conflict, malicious
damage, breakdown of plant or machinery, nuclear, chemical or biological
contamination, sonic boom, explosions, collapse of building structures,
fires, floods, storms, earthquakes, loss at sea, epidemics or similar events,
natural disasters or extreme adverse weather conditions, or default of
suppliers or subcontractors.
17. CORRUPTION
17.1 The Customer shall:
(a) comply with all applicable laws, statutes, regulations, and codes
relating to anti-bribery and anti-corruption including but not
limited to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would
constitute an offence under sections 1, 2 or 6 of the Bribery Act
2010 if such activity, practice or conduct had been carried out in
the UK;
(c) have and shall maintain in place its own policies and procedures,
including but not limited to adequate procedures under the Bribery
Act 2010, to ensure compliance with the Relevant Requirements
and clause 17.1(b), and will enforce them where appropriate;
(d) promptly report to CDL any request or demand for any undue
financial or other advantage of any kind received by the Customer
in connection with the performance of the Contract.
17.2 The Customer shall ensure that any person associated with the
Customer who benefits directly or indirectly from the Contract does so
only on the basis of a written contract which imposes on and secures
from such person terms equivalent to those imposed on the Customer
in this clause 17 (Relevant Terms). The Customer shall be responsible
for the observance and performance by such persons of the Relevant
Terms, and shall be directly liable to CDL for any breach by such persons
of any of the Relevant Terms.
17.3 Breach of this clause 17 shall be deemed a material breach of this
agreement.
17.4 For the purpose of this clause 17, the meaning of adequate procedures
and foreign public official and whether a person is associated with
another person shall be determined in accordance with section 7(2) of
the Bribery Act 2010 (and any guidance issued under section 9 of that
Act), sections 6(5) and 6(6) of that Act and section 8 of that Act
respectively.
18. DISPUTES AND MEDIATION
18.1 Before resorting to litigation, the parties shall attempt to negotiate a
settlement to any dispute between them arising out of or in connection
with this Contract.
18.2 If the parties are unable to resolve the dispute, either party may, at any
time, refer the dispute to mediation by a neutral advisor or mediator
(Mediator). If the parties are unable to agree on a Mediator within 7
days of the request by one party to refer the dispute to mediation, they
shall apply to the Centre for Dispute Resolution (CEDR) to appoint a
Mediator. The parties shall seek to agree directions as to how the
mediation is to be conducted and, failing agreement, they shall seek and
adhere to directions from the Mediator.
18.3 If the parties reach agreement on the resolution of their dispute the
agreement shall be reduced to writing and shall be binding.
19. GENERAL
19.1 Assignment and subcontracting.
(a) CDL may at any time assign, transfer, charge, subcontract or deal
in any other manner with all or any of its rights or obligations under
the Contract.
(b) The Customer may not assign, transfer, charge, subcontract or deal
in any other manner with all or any of its rights or obligations under
the Contract without the prior written consent of CDL.
19.2 Notices.
(a) Any notice or other communication given to a party under or in
connection with the Contract shall be in writing, addressed (i) in
the case of CDL to FAO Legal Director, Unipart Rail Limited,
Jupiter Building, First Point, Balby Carr Bank, Doncaster, DN4 5JQ;
and (ii) in the case of the Customer to its registered office (if it is
a company) or its principal place of business (in any other case) or
such other address as the Customer may have specified to CDL in
writing in accordance with this clause, and shall be delivered
personally, sent by recorded delivery or commercial courier or fax.
(b) A notice or other communication shall be deemed to have been
received: if delivered personally, when left at the address referred
to in clause 19.2(a); if sent by pre-paid first class post or recorded
delivery, at 9.00 am on the second Business Day after posting; if
delivered by commercial courier, on the date and at the time that
the courier’s delivery receipt is signed or, if sent by fax, one
Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any
proceedings or other documents in any legal action.
19.3 Severance.
(a) If any court or competent authority finds that any provision of the
Contract (or part of any provision) is invalid, illegal or
unenforceable, that provision or part-provision shall, to the extent
required, be deemed to be deleted, and the validity and
enforceability of the other provisions of the Contract shall not be
affected.
(b) If any invalid, unenforceable or illegal provision of the Contract
would be valid, enforceable and legal if some part of it were
deleted, the provision shall apply with the minimum modification
necessary to make it legal, valid and enforceable.
19.4 Waiver. A waiver of any right or remedy under the Contract is only
effective if given in writing and shall not be deemed a waiver of any
subsequent breach or default. No failure or delay by a party to exercise
any right or remedy provided under the Contract or by law shall
constitute a waiver of that or any other right or remedy, nor shall it
preclude or restrict the further exercise of that or any other right or
remedy. No single or partial exercise of such right or remedy shall
preclude or restrict the further exercise of that or any other right or
remedy.
19.5 Minor errors. A minor or administrative error by CDL shall not be a
breach of the Contract and if the Customer is aware of such an error it
shall forthwith notify CDL which shall use its reasonable endeavours to
rectify the error.
19.6 Data protection. The parties shall at all times comply with the
provisions and obligations imposed by the Data Protection Act 1998 in
storing and processing personal data.
19.7 Third party rights. A person who is not a party to the Contract shall
not have any rights under or in connection with it.
19.8 Variation. Except as set out in these Conditions, any variation to the
Contract, including the introduction of any additional terms and
conditions, shall only be binding when agreed in writing and signed by
CDL.
19.9 Governing law and jurisdiction. The Contract, and any dispute or
claim arising out of or in connection with it or its subject matter or
formation (including non-contractual disputes or claims), shall be
governed by, and construed in accordance with, English law, and the
parties irrevocably submit to the non-exclusive jurisdiction of the courts
of England and Wales. Notwithstanding the foregoing, the Customer
shall not be entitled to bring any proceedings, disputes or claims against
CDL in any jurisdiction other than the jurisdiction of the courts of
England and Wales.