PURCHASE TERMS AND CONDITIONS OF QA FLOORING SOLUTIONS LTD
1. INTERPRETATION
1.1 The following definitions apply in these Terms: Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business; Commencement Date: has the meaning set out in clause 2.1; Company: QA Flooring Solutions Ltd, a company incorporated in England no. 07870268 whose registered office is at Unit 2, Hurricane Drive, Liverpool, L24 8RL; Company Materials: has the meaning set out in clause 5.1.9; Contract: the contract between the Company and the Supplier for the supply of Goods and/or Services in accordance with these Terms, the Order, and any other document expressly incorporated into the Contract; Controller: the meaning given in applicable Data Protection Laws from time to time; Data Protection Laws: all applicable law relating to the processing, privacy and/or use of Personal Data, as applicable to either party or the Deliverables, including: the GDPR; the Data Protection Act 2018; any laws which implement any such laws; any laws that replace, extend, re-enact, consolidate or amend any of the foregoing; and all guidance, guidelines and codes of practice issued by any relevant Data Protection Supervisory Authority relating to such Data Protection Laws (in each case whether or not legally binding); Data Protection Supervision Authority: any regulator, authority or body responsible for administering Data Protection Laws; Data Subject: shall have the meaning given in applicable Data Protection Laws from time to time; 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 (and/or to the extent relevant, Goods) in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts); 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 between the Company and the Supplier; Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; Modern Slavery Policy:the Company’s anti-slavery and human trafficking policy in force and notified to the Supplier from time to time and available to the Supplier on request; MSA Offence: an offence under the Modern Slavery Act 2015; Order: the Company’s order for the supply of Goods and/or Services, as set out in the Company’s purchase order form or overleaf, as the case may be; Processor: the meaning given in applicable Data Protection Laws from time to time; Protected Data: Personal Data received from or on behalf of the Company, or otherwise obtained in connection with the performance of the Supplier’s obligations under the Contract; 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 between the Company and the Supplier; Sub Processor: any agent, subcontractor or other third party engaged by the Supplier (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data; Supplier: the person or firm from whom the Company purchases the Goods and/or Services; Supplier Personnel: all employees, officers, staff, other workers, agents and consultants of the Supplier, its Affiliates and any of their sub-contractors who are engaged in the performance of the Services from time to time; Termination: termination of this Contract, howsoever caused; Terms: these terms and Terms as amended from time to time in accordance with clause 21.9.
1.2 In these Terms: a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality); a reference to a party includes its successors or permitted assigns; a reference to a statute or statutory provision is a reference to such statute or statutory 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; 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; and a reference to writing or written includes faxes and e-mails.
1.3 If there is any conflict between these Terms and an Order or other document expressly incorporated into the Contract, the Order or other document’s terms shall prevail.
2. BASIS OF CONTRACT
2.1 The Company’s Order shall be deemed accepted on the earlier of: the Supplier issuing written acceptance of the Order; or any act by the Supplier consistent with fulfilling the Order, at which time and date the Contract shall come into existence (Commencement Date).
2.2 These Terms 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. They supersede any previously issued terms and conditions of purchase or supply. No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Company otherwise agrees in writing. All these Terms 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 warrants and represents that the Goods shall:
3.1.1 correspond with their description and any applicable Goods Specification;
3.1.2 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 the Company, expressly or by implication, and in this respect the Company relies on the Supplier’s skill and judgment;
3.1.3 be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier must at all times have and maintain all licences, permissions, authorisations, consents and permits necessary to carry out its obligations under the Contract in respect of the Goods.
3.3 The Company may vary the Order at any time from submitting the Order to the Supplier, but before delivery.
3.4 The Company may inspect and test the Goods at any time before delivery. If following such inspection or testing the Company considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Company shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 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 the Company shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. DELIVERY OF GOODS
4.1 The Supplier must:
4.1.1 properly pack and secure Goods in such manner as to enable them to reach their destination in good condition;
4.1.2 pack and label the Goods in accordance with any specification or instruction the Company may provide. If the packaging and/or the labelling do not adhere strictly to such specifications, the Supplier shall be liable for all costs the Company may incur as a result of changing the packaging or labelling;
4.1.3 procure that a delivery note accompanies each Goods delivery showing the Order date, the Order number, the Goods’ specification, type, and quantity (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.4 if the Supplier requires the Company to return any packaging material for the Goods to the Supplier, state that fact clearly on the delivery note. The return of to the Supplier of any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
4.2.1 on the date and time specified in the Order. If the Supplier delivers the Goods outside the time so specified, the Company may charge the Supplier for any additional labour costs, or any other reasonable costs incurred in dealing with the delivery; and
4.2.2 to the Company’s premises or such other location set out in the Order or as the Company has instructed before delivery (Delivery Location).
4.3 Delivery of the Goods shall be completed on completion of unloading of the Goods at the Delivery Location.
4.4 The Supplier must not deliver the Goods in instalments without the Company’s prior written consent. If agreed that the Goods are to be delivered by instalments, they shall be invoiced and paid for per instalment. If the Supplier does not deliver any one instalment on time or at all or if there is any defect in an instalment clause 6.1 shall apply.
4.5 Title and risk in the Goods shall pass to the Company on completion of delivery.
4.6 In this clause 4 time shall be of the essence.
5. SUPPLY OF SERVICES
5.1 The Supplier shall from the date set out in the Order and for the duration of this Contract provide the Services to the Company in accordance with the terms of the Contract. The Supplier shall meet any Service performance dates set out in the Service Specification. In providing the Services, the Supplier shall:
5.1.1 co-operate with the Company in all matters relating to the Services, and comply with all the Company’s reasonable instructions;
5.1.2 perform the Services in accordance with best practice in the Supplier’s industry, profession or trade;
5.1.3 use personnel suitably skilled and experienced to perform their role in providing the Services, and in sufficient number to meet the Supplier’s obligations;
5.1.4 conform the Services and Deliverables strictly to the Service Specification, and that the Deliverables shall be fit for every purpose expressly or impliedly made known to the Supplier by the Company;
5.1.5 provide all equipment, tools and vehicles and such other items required to provide the Services;
5.1.6 use the best quality goods, materials, standards and techniques, and at the time of deliver warrant and represent that that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Company, are free from defects in workmanship, installation and design;
5.1.7 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
5.1.8 observe all health and safety rules and regulations and any other security requirements that apply at any of the Company’s premises;
5.1.9 hold all materials, equipment and tools, drawings, specifications and data supplied by the Company to the Supplier (Company Materials) in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose or use the Company Materials other than in accordance with the Company’s written instructions or authorisation;
5.1.10 meet strictly all milestones and dates set out in the Service Specification, such being of the essence; and
5.1.11 not do or omit to do anything which may cause the Company to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Company may rely or act on the Services.
6. COMPANY REMEDIES
6.1 If the Supplier does not deliver the Goods and/or perform the Services by the applicable date, the Company may, without limiting its other rights or remedies:
6.1.1 terminate the Contract with immediate effect by giving written notice to the Supplier;
6.1.2 refuse to accept any further Service performance and/or Goods delivery;
6.1.3 recover from the Supplier all costs the Company incurs in obtaining substitute goods and/or services from a third party;
6.1.4 where the Company has paid in advance for Services not provided by the Supplier and/or Goods not delivered, impose liability for such amounts on the Supplier; and
6.1.5 claim damages for any additional costs, loss or expenses incurred by the Company in any way attributable to the Supplier’s not meeting such dates.
6.2 If the Supplier delivers Goods not complying with clause 3.1, then, without limiting its other rights or remedies, the Company may, including when it has accepted the Goods:
6.2.1 reject the Goods in whole or part return them to the Supplier at the Supplier’s risk and expense;
6.2.2 terminate the Contract with immediate effect by giving written notice to the Supplier;
6.2.3 require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
6.2.4 refuse to accept any subsequent delivery of the Goods;
6.2.5 recover from the Supplier all costs the Company incurs in obtaining substitute goods from a third party; and
6.2.6 claim damages for any additional costs, loss or expenses incurred by the Company arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3 These Terms apply to any substituted or remedial Services and/or repaired or replacement Goods.
6.4 The Company’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
7. COMPANY’S OBLIGATIONS
The Company shall provide the Supplier with reasonable access at reasonable times to the Company’s premises for the purpose of providing the Services and provide such information as the Supplier may reasonably request for the provision of the Services and the Company considers reasonably necessary for the purpose of providing the Services.
8. CHARGES AND PAYMENT
8.1 The price for the Goods shall be:
8.1.1 the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the date the Order is submitted to the Supplier; and
8.1.2 inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by the Company. No extra charges shall be valid or effective without the Company’s prior written agreement.
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 the Company otherwise agrees in prior writing, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with performing the Services.
8.3 Any estimated charges or prices shall be confirmed between the Company and the Supplier before the Commencement Date.
8.4 In respect of
8.4.1 Goods, the Supplier shall invoice the Company at any time from delivery; and
8.4.2 Services, the Supplier shall invoice the Company on Service completion. Each invoice shall include such supporting information required by the Company to verify the accuracy of the invoice, including but not limited to the relevant Order number, and breakdown of costs and materials.
8.5 The Company shall pay the invoiced amounts at the end of the month following the month in which the invoice is produced. Time of payment is not of the essence. All amounts payable by the Company under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Company, the Company shall, on receipt of a valid VAT invoice from the Supplier at the VAT rate applicable at the date of the invoice, pay the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment for the supply of the Goods and/or Services.
8.6 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing Services, and the Supplier shall allow the Company to inspect such records at all reasonable times on request.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 In respect of Goods, and any goods transferred to the Company as part of the Services, under this Contract, including 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 the Company, it will have full and unrestricted rights to sell and transfer all such items to the Company.
9.2 The Supplier assigns to the Company, with full title guarantee and free from all thirdparty 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 I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
9.4 The Supplier shall, promptly at the Company’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Company may from time to time require for the purpose of securing for the Company the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Company in accordance with clause 9.2.
9.5 All Company Materials are the exclusive property of the Company.
10. INDEMNITY
10.1 The Supplier shall keep the Company indemnified 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Company as a result of or in connection with:
10.1.1 any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
10.1.2 any claim made against the Company by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
10.1.3 any claim made against the Company by a third party arising out of or in connection with the supply of the Goods or the 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.
10.2 This clause 10 shall survive Termination.
11. INSURANCE
During the term of the Contract and for a period of two years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Company’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.
12. CONFIDENTIALITY
12.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall procure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.2 This clause 12 shall survive Termination.
13. TERMINATION
13.1 Without limiting its other rights or remedies, the Company may terminate the Contract:
13.1.1 in respect of the supply of Services, by giving the Supplier 30 days written notice; and
13.1.2 in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract. The Company shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract by giving the Company two months written notice.
13.3 If the Contract entails a supply of both Goods and Services, a party may in respect of its termination rights sever the Goods supply from the Services supply, and the Contract shall continue in respect of the remaining supply.
13.4 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Supplier if:
13.4.1 the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of receipt of notice in writing to do so;
13.4.2 the Supplier repeatedly breaches any of the Contract terms in such manner for the Company to reasonably take the view that the Supplier’s conduct is inconsistent with it having the intention or ability to give effect to the Contract terms;
13.4.3 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.4.4 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;
13.4.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
13.4.6 the Supplier (being an individual) is the subject of a bankruptcy petition or order;
13.4.7 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;
13.4.8 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
13.4.9 the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.4.10 a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
13.4.11 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 13.4.3 to clause 13.4.10 (inclusive);
13.4.12 the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
13.4.13 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation; and/or
13.4.14 the Supplier commits any breach of clause 16 or 17.
13.5 Termination shall not affect any of the parties’ rights and remedies that have accrued as at Termination.
13.6 Clauses which expressly or by implication survive Termination shall continue in full force and effect.
14. CONSEQUENCES OF TERMINATION
On Termination, the Supplier shall immediately deliver to the Company all Deliverables whether or not then complete and return all Company Materials. If the Supplier does not do so, the Company may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15. FORCE MAJEURE
15.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from events, circumstances or causes beyond its reasonable control.
15.2 The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
15.3 If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 15 Business Days, the Company may terminate the Contract immediately by written notice.
16. ANTI-BRIBERY
16.1 For the purposes of this clause 16 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it. Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to procure that:
16.1.1 all of that party’s personnel;
16.1.2 all others associated with that party; and
16.1.3 all of that party’s subcontractors; involved in performing the Contract so comply.
16.2 Without limitation to clause 16.1, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to procure that such bribes or payments are not made or received directly or indirectly on its behalf. The Supplier shall immediately notify the Company as soon as it becomes aware of a breach or possible breach by the Supplier of any of the requirements in this clause 16. Any Supplier breach of this clause 16 shall be deemed a material and irremediable breach of the Contract shall entitle the Company to immediately terminate the Contract by notice.
17. ANTI-SLAVERY
17.1 The Company shall comply with the Modern Slavery Act 2015 and its Modern Slavery Policy. The Supplier undertakes, warrants and represents that:
17.1.1 neither the Supplier nor any of its officers, employees, agents or subcontractors has:
(i) committed an MSA Offence; or
(ii) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(iii) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015.
17.1.2 it shall comply with the Modern Slavery Act 2015 and the Company’s Modern Slavery Policy; and
17.1.3 it has implemented due diligence procedures to procure compliance with the Modern Slavery Act 2015 and the Modern Slavery Policy in its business and supply chain, and those of its officers, employees, agents or subcontractors, which it shall make available to the Company on request at any time throughout the Contract.
17.2 The Supplier shall notify the Company immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors have breached or potentially breached any of the Supplier’s obligations under clause 17.1. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Supplier’s obligations. Any Buyer breach of either clause 17.1 or 17.2 shall be deemed a material and irremediable breach of the Contract and shall entitle the Company to terminate the Contract with immediate effect.
18. PLASTIC PACKAGING TAX
18.1 The Supplier warrants that all plastic used in packaging components (as such terms are defined in the Finance Act 2021, as amended (FA21)) consist of at least 30% recycled plastic, and undertakes to promptly provide such documentation and information as the Customer considers reasonable or desirable in evidence.
18.2 To the extent that the Supplier does not or cannot comply in full with [previous clause], the Supplier (A) if established in the UK (a) warrants that it is appropriately registered with HMRC in respect of plastic packaging tax (as defined in the FA21 (PPT)); (b) undertakes to pay all PPT; (c) undertakes to provide the Customer with returns evidencing to the Customer’s reasonable satisfaction that the Supplier has paid relevant PPT; and (d) indemnifies and will keep indemnified the Customer and hold the Customer harmless against all Customer secondary liability to pay PPT that may arise from the Supplier’s not paying relevant PPT; and (B) if not established in the UK (a) will provide all information and documentation that the Customer may consider reasonable or desirable for the Customer to calculate the PPT the Customer must pay to HMRC in respect of plastic packaging components that package Goods the Customer imports from the Supplier; and (b) to the extent that the Supplier does not do so, the Supplier indemnifies and will keep indemnified the Customer and hold the Customer harmless against all relevant PPT liability arising, and the Customer may set off any such liability against the Supplier’s future invoices.
19. PERSONAL DATA PROCESSING
The provisions of the Schedule shall have effect.
20. DISPUTE RESOLUTION
20.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 20. The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
20.2 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedure:
20.3 Within five Business Days of service of the notice, the contract managers of each of the parties shall meet to discuss the dispute and attempt to resolve it.
20.4 If the dispute has not been resolved within five Business Days of the first meeting of the contract managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority) of each of the parties. The chief executives (or equivalent) shall meet within five Business Days to discuss the dispute and attempt to resolve it.
20.5 Until the parties have completed the steps referred to in clause 20, and have failed to resolve the dispute, neither party shall commence formal legal proceedings except that either party may at any time seek urgent interim relief from the courts.
21. GENERAL
21.1 The Company may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
21.2 Notices.
21.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
21.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 21.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, the next Business Day after transmission.
21.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21.3 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
21.4 The Supplier recognises that any breach or threatened breach of the Contract may cause the Company irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages available to the Company, the Supplier acknowledges and agrees that the Company is entitled to the remedies of specific performance, injunction and other equitable relief without proof of special damages. The rights and remedies provided in the Contract for the Company only are cumulative and not exclusive of any rights and remedies provided by law.
21.5 The Company may set off any amount that the Supplier owes to the Company from any amount the Company owes to the Supplier under this Contract or otherwise, in either case: now or at any time in the future, whether liquidated or not and whether actual or contingent, present or future. Any Company exercise of its rights under this clause 21.5 shall not prejudice any other right or remedy available to it, whether under this Contract or otherwise. The Supplier shall pay all sums that it owes to the Company under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
21.6 A waiver of any right or remedy under the Contract or law 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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
21.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
21.8 A person who is not a party to the Contract shall not have any rights to enforce its terms.
21.9 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and Terms, shall be effective unless it is agreed in writing and signed by the Company.
21.10 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 the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
DATA PROCESSING SCHEDULE
1. DATA PROCESSING
1.1 The parties agree that the company is a controller and that the supplier is a processor for the purposes of processing protected data pursuant to the contract. The supplier shall and warrants and represents that its sub-processors and each of the supplier personnel shall, at all times comply with all data protection laws in connection with processing protected data and providing deliverables and shall not by any act or omission cause the company (or any other person) to be in breach of any of the data protection laws. Nothing in the contract relieves the supplier of any responsibilities or liabilities under data protection laws.
1.2 The Supplier shall indemnify and keep indemnified the Company against: all losses, claims, damages, liabilities, fines, interest, penalties, costs, charges, sanctions, expenses, compensation paid to Data Subjects (including compensation to protect goodwill and ex gratia payments), demands and legal and other professional costs (calculated on a full indemnity basis and in each case whether or not arising from any investigation by, or imposed by, a Data Protection Supervisory Authority) arising out of or in connection with any breach by the Supplier of its obligations under this clause 19; and
1.3 The Supplier shall not process (and warrants and represents that Supplier Personnel shall not process) the Protected Data other than in accordance with clause 19, the Contract and the Company’s written instructions from time to time (including when making any transfer to which clause 1.9 relates) except where otherwise required by applicable law (and in such case shall inform the Company of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). The Supplier shall immediately inform the Company if any instruction relating to the Protected Data infringes or may infringe any Data Protection Law. The Supplier shall retain records of all instructions relating to the Protected Data received from the Company.
1.4 The Supplier shall at all times implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. Such technical and organisational measures shall reflect the nature of the Protected Data.
1.5 The Supplier shall:
1.5.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its own employees that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the Company’s specific written authorisation of that Sub-Processor and only then subject to such conditions as the Company may require;
1.5.2 procure that access to Protected Data is limited to the authorised persons who need access to it to supply the Deliverables;
1.5.3 before the relevant Sub-Processor performs any processing activities in respect of the Protected Data, appoint each Sub-Processor under a binding written contract containing the same obligations as under this clause 17.2 in respect of Protected Data that (without prejudice to, or limitation of, the above):
(i) includes providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing of the Protected Data will meet the requirements of all Data Protection Laws; and
(ii) is enforceable by the Supplier,
and procure each such Sub-Processor complies with all such obligations.
1.5.4 remain fully liable to the Company under the Contract for all the acts and omissions of each Sub-Processor and each of the Supplier Personnel as if they were its own;
1.5.5 procure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are reliable and:
(i) adequately trained on compliance with this clause 17.2 as applicable to the processing;
(ii) informed of the confidential nature of the Protected Data and that they must not disclose Protected Data;
(iii) subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential; and
(iv) provide relevant details and a copy of each agreement with a Sub-Processor to the Company on request.
1.6 The Supplier shall (at its own cost and expense):
1.6.1 promptly provide such information and assistance (including by taking all appropriate technical and organisational measures) as the Company may require in relation to the fulfilment of the Company’s obligations to respond to requests for exercising the Data Subjects’ rights under Chapter III of the GDPR (and any similar obligations under applicable Data Protection Laws); and
1.6.2 provide such information, co-operation and other assistance to the Company as the Company requires (taking into account the nature of processing and the information available to the Supplier) to procure compliance with the Company’s obligations under Data Protection Laws, including with respect to:
(i) security of processing (including with any review of security measures);
(ii) data protection impact assessments (as such term is defined in Data Protection Laws);
(iii) prior consultation with a Data Protection Supervisory Authority regarding high-risk processing; and
(iv) any remedial action and/or notifications to be taken in response to any Personal Data Breach and/or any complaint or request relating to either party’s obligations under Data Protection Laws or relevant to the Contract, including (subject in each case to the Company’s prior written authorisation) regarding any notification of the Personal Data Breach to Data Protection Supervisory Authorities and/or communication to any affected Data Subjects.
1.7 The Supplier shall (at no cost to the Company) record and refer all requests and communications received from Data Subjects or any Data Protection Supervisory Authority to the Company which relate (or which may relate) to any Protected Data promptly (and in any event within two Business Days of receipt) and shall not respond to any without the Company’s express written approval and strictly in accordance with the Company’s instructions unless and to the extent required by applicable law.
1.8 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to any country or territory outside the United Kingdom or to any International Organisation without the prior written authorisation of the Company (which may be refused or granted subject to such conditions as the Company deems necessary).
1.9 The Supplier shall maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Company. Such records shall include all information necessary to demonstrate its and the Company’s compliance with this clause 17.2, the information referred to in Articles 30(1) and 30(2) of the GDPR and such other information as the Company may reasonably require from time to time. The Supplier shall make copies of such records available to the Company promptly (and in any event within ten Business Days) on request from time to time.
1.10 The Supplier shall (and shall procure all Sub-Processors shall) promptly make available to the Company (at the Supplier’s cost) such information as is [reasonably] required to demonstrate the Supplier’s and the Company’s compliance with their respective obligations under this clause 17.2 and the Data Protection Laws, and allow for, permit and contribute to audits, including inspections, by the Company (or another auditor mandated by the Company) for this purpose at the Company’s request from time to time. The Supplier shall provide (or procure) access to all relevant premises, systems, personnel and records during normal business hours for the purposes of each such audit or inspection upon reasonable prior notice (not being more than two Business Days) and provide and procure all further reasonable cooperation, access and assistance in relation to any such audit or inspection.
1.11 The Supplier shall promptly (and in any event within one Business Day):
(i) notify the Company if it (or any of its Sub-Processors or the Supplier Personnel) suspects or becomes aware of any suspected, actual or threatened occurrence of any Personal Data Breach in respect of any Protected Data; and
(ii) provide all information as the Company requires to report the circumstances referred to in clause 1.11(i) to a Data Protection Supervisory Authority and to notify affected parties under Data Protection Laws.
1.12 The Supplier shall (and shall procure that each of the Sub-Processors and Supplier Personnel shall) without delay (and in any event within two Business Days, at the Company’s written request, either securely delete or securely return all the Protected Data to the Company in such form as the Company reasonably requests after the earlier of:
1.12.1 the end of the provision of the relevant Deliverables related to processing of such Protected Data; or
1.12.2 once the Protected Data is no longer required for the purpose of the Supplier’s performance of its relevant obligations under the Contract, and securely delete existing copies (except to the extent that storage of any such data is required by applicable law and, if so, the Supplier shall inform the Company of any such requirement).
1.13 This clause 17.2 shall survive termination or expiry of the Contract for any reason.
1.14 The Supplier shall perform all its obligations under this clause 17.2 at no cost to the Company.
1.15 Nothing in this Contract affects the rights of Data Subjects under Data Protection Laws (including those in Articles 79 and 82 of the GDPR or in any similar Data Protection Laws) against the Company, the Supplier or any Sub-Processor.