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GILL RESEARCH & DEVELOPMENT LIMITED TERMS & CONDITIONS

TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES TO GILL GROUP COMPANIES

  1. INTERPRETATION

In these conditions the definitions and rules of interpretation set out in Schedule 1 shall have the meaning set out therein and the rules of interpretation in Schedule 1 shall apply.

  1. BASIS OF CONTRACT

2.1       The Order constitutes an offer by the Customer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.

2.2       The Order shall be deemed to be accepted on the earlier of:

(a)        the Supplier issuing written acceptance of the Order; or

(b)        any act by the Supplier consistent with fulfilling the Order,

            at which point and on which date the Contract shall come into existence (Commencement Date).

2.3       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.

2.4       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.

  1. SUPPLY OF GOODS

3.1       The Supplier shall ensure that the Goods shall:

(a)        correspond with their description and any applicable Goods Specification;

(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 the Customer, expressly or by implication, and in this respect the Customer relies on the Supplier's skill and judgement;

(c)        where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 24 months after delivery;

(d)       comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods; and

(e)        comply with any specific requirements for the Goods set out in the Order.

3.2       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 in respect of the Goods.

3.3       The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.

3.4       If following such inspection or testing the Customer considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5       The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.

  1. DELIVERY OF GOODS

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 show the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any), such other information as the Customer may require and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

(c)        it states clearly on the delivery note any requirement for the Customer to return any packaging material for the Goods to the Supplier. 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:

(a)        on the date specified in the Order or, if no such date is specified, then within 30 days of the Commencement Date;

(b)        to the Customer's trading address or such other location as is set out in the Order or as instructed by the Customer before delivery (Delivery Location); and

(c)        during the Customer's normal hours of business on a Business Day, or as instructed by the Customer.

4.3       Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.4       If the Supplier:

(a)        delivers less than the quantity of Goods ordered, the Customer may reject the Goods; or

(b)        delivers more than the quantity of Goods ordered, the Customer may at its sole discretion reject the Goods or the excess Goods,

and 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 the Customer accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.

4.5       The Supplier shall not deliver the Goods in instalments without the Customer's prior written consent. Where it is agreed that the Goods are 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 the Customer to the remedies set out in clause 7.1.

4.6       Title and risk in the Goods shall pass to the Customer on completion of delivery.

  1. SUPPLY OF SERVICES

5.1       The Supplier shall from the Commencement Date and for the duration of the Contract supply the Services to the Customer 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 that the Customer notifies to the Supplier and time is of the essence in relation to any of those performance dates.

5.3       In providing the Services, the Supplier shall:

(a)        co-operate with the Customer in all matters relating to the Services, and comply with all instructions of the Customer;

(b)        perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

(c)        use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;

(d)       ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that the Customer expressly or impliedly makes known to the Supplier;

(e)        provide all equipment, tools and vehicles and such other items as are required to provide the Services;

(f)         use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;

(g)       obtain and at all times maintain all licences and consents which may be required for the provision of the Services;

(h)       comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services and with the Mandatory Policies;

(i)         comply with its obligations under the Waste Electrical and Electronic Equipment Regulations 2013 (WEEE) and shall provide such assistance as the Customer may require to enable the Customer to comply with its obligations under WEEE;

(j)         observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer's premises;

(k)        hold all materials, equipment and tools, drawings, specifications and data supplied by the Customer to the Supplier (Customer Materials) in safe custody at its own risk, maintain the Customer Materials in good condition until returned to the Customer, and not dispose or use the Customer Materials other than in accordance with the Customer's written instructions or authorisation;

(l)         not do or omit to do anything which may cause the Customer 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 Customer may rely or act on the Services;

(m)       comply with any additional obligations as set out in the Service Specification.

  1. ACCEPTANCE TESTS

6.1       The Customer shall deliver to the Supplier proposed user acceptance criteria and test data for the Acceptance Tests for the Goods. These criteria and data shall be such as are reasonably required to show that the Goods comply with their Specification. The Supplier shall provide the Customer with reasonable assistance to prepare such user acceptance criteria and test data at the Customer's request. The parties shall use best endeavours to agree the Acceptance Tests for the Goods within ten days from the date of delivery to the Supplier of the proposed criteria and data.

6.2       The Supplier shall carry out the agreed Acceptance Tests for the Goods by the date specified in the Order or otherwise specified by the Customer.  The Supplier shall carry out the agreed Acceptance Tests for the Goods unless the Customer notifies the Supplier that it will carry out the Acceptance Tests. The party carrying out the Acceptance Tests shall give the other party at least 24 hours' notice of the start of the Acceptance Tests and permit the other party to observe all or any part of the testing.

6.3       If the Goods fail to pass the Acceptance Tests, the Customer shall, within 14 days from the completion of the Acceptance Tests or any part of these tests, provide a written notice to this effect, giving details of such failure(s). The Supplier shall remedy any defects and deficiencies in the Goods and the relevant test(s) shall be repeated within a reasonable time.

6.4       If the Goods fail to pass any repeated Acceptance Tests within four weeks from the date of its second submission to the Acceptance Tests, then the Customer may, by written notice to the Supplier, choose at its sole discretion:

(a)        to fix (without prejudice to the Customer's other rights and remedies) a new date for carrying out further tests on the Goods on the same terms and conditions. If the Goods fail such further tests then the Customer may request a repeat test under this Clause 6 or to proceed under Clause 6.4(b) or Clause 6.4(c);

(b)        to accept the Goods subject to such change of acceptance criteria, amendment of the Specification and/or reduction in the Price as, after taking into account all the relevant circumstances, is reasonable; or

(c)        if the Supplier is unable to correct defects within a period of three months from the commencement of Acceptance Tests under Clause 6.2, to reject the Goods as not conforming with the Contract, in which event the Customer may terminate the Contract.

6.5       Acceptance of the Goods shall be deemed to have occurred on whichever is the earliest of:

(a)        the Customer’s written certification that all the Acceptance Tests have been successfully completed;

(b)        the expiry of 14 days after the completion of all the Acceptance Tests, unless the Customer has given any written notice under Clause 6.3;

(c)        the use of the Goods by the Customer in the normal course of its business.

  1. CUSTOMER REMEDIES

7.1       If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Customer shall, without limiting or affecting other rights or remedies available to it, 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 the Customer in obtaining substitute goods and/or services from a third party;

(d)       to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and

(e)        to claim damages for any additional costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier's failure to meet such dates.

7.2       If the Goods are not delivered by the applicable date, the Customer may, at its option, claim or deduct 2% of the price of the Goods for each week's delay in delivery by way of liquidated damages, up to a maximum of 20% of the total price of the Goods. If the Customer exercises its rights under this clause 7.2 it shall not be entitled to any of the remedies set out in clause 7.1 in respect of the Goods' late delivery.

7.3       If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, the Customer shall have one or more of the following rights, whether or not it has accepted the Goods:

(a)        to terminate the Contract with immediate effect by giving written notice to the Supplier;

(b)        to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;

(c)        to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);

(d)       to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

(e)        to recover from the Supplier any expenditure incurred by the Customer in obtaining substitute goods from a third party; and

(f)         to claim damages for any additional costs, loss or expenses incurred by the Customer arising from the Supplier's failure to supply Goods in accordance with clause 3.1.

7.4       These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.

7.5       The Customer's rights under the Contract are in addition to its rights and remedies implied by statute and common law.

  1. CUSTOMER'S OBLIGATIONS

8.1       The Customer shall:

(a)        provide the Supplier with reasonable access at reasonable times to the Customer's premises for the purpose of providing the Services;

(b)        provide such necessary information for the provision of the Services as the Supplier may reasonably request; and

(c)        perform the obligations required to be performed by it as specified in the Order or otherwise agreed in writing by the Customer.

  1. CHARGES AND PAYMENT

9.1       The price for the Goods:

(a)        shall be the price set out in the Order, or otherwise agreed in writing by the Customer at the Commencement Date; and

(b)        shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Customer.

9.2       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 the Customer, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.

9.3       In respect of the Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice the Customer on completion of the Services. Each invoice shall include such supporting information required by the Customer to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.

9.4       In consideration of the supply of Goods and/or Services by the Supplier, the Customer shall pay the invoiced amounts within 30 days of receipt of a correctly rendered invoice to a bank account nominated in writing by the Supplier.

9.5       All amounts payable by the Customer 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 Customer, the Customer 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 at the same time as payment is due for the supply of the Goods and/or Services.

9.6       If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

9.7       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 the Customer to inspect such records at all reasonable times on request.

9.8       The Customer may at any time, without notice to the Supplier, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, the Customer may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Customer of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

  1. INTELLECTUAL PROPERTY RIGHTS

10.1     Subject to clause 10.3 and unless otherwise specified in the Order, the Supplier hereby assigns to the Customer, with full title guarantee and free from all third party rights, the Intellectual Property Rights and all other rights in the products of the Services (including the Deliverables).

10.2     The Supplier shall, promptly at the Customer's request, do or procure to be done all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of this agreement, including all right, title and interest in and to the Intellectual Property Rights and all other rights assigned to the Customer in accordance with Clause 10.1

10.3     All Background Intellectual Property shall remain the exclusive property of the party owning them (or, where applicable, the third party from whom its right to use the Background Intellectual Property has derived).

10.4     The Supplier shall notify the Customer in writing of, and identify to the Customer, any Background Intellectual Property owned by or licensed to the Supplier (Supplier Background Intellectual Property) that the Supplier wishes to use in connection with the Services (including the Deliverables).

10.5     The Supplier grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence (including the right to sub-licence) to use such Supplier Background Intellectual Property as may be required by the Customer for the purpose of receiving and using the Services and the Deliverables.

10.6     The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

10.7     All Customer Materials are the exclusive property of the Customer.

10.8     The Supplier warrants to the Customer that the use of the Services and the Deliverables in accordance with the Contract will not infringe the rights of any third party.

  1. INDEMNITY

11.1     The Supplier shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with:

(a)        any claim made against the Customer 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 (excluding the Customer Materials);

(b)        any claim made against the Customer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and

(c)        any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.

11.2     This clause 11 shall survive termination of the Contract.

  1. INSURANCE

12.1     During the term of the Contract and for a period of 2 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 Customer'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.

  1. DATA PROTECTION

13.1     Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

13.2     The parties acknowledge that unless otherwise specified in the Order, for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor. The Order sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.

13.3     Without prejudice to the generality of clause 13.1, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Contract:

(a)        process that personal data only on the documented written instructions of the Customer unless the Supplier is required by applicable laws to otherwise process that personal data. Where the Supplier is relying on the laws of a member of the European Union or European Union Law as the basis for processing personal data, the Supplier shall promptly notify the Customer of this before performing the processing required by the applicable laws unless those applicable laws prohibit the Supplier from so notifying the Customer;

(b)        ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);

(c)        ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and

(d)       not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:

(i)         the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;

(ii)        the data subject has enforceable rights and effective legal remedies;

(iii)       the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and

(iv)       the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data;

(e)        assist the Customer in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(f)         notify the Customer within 12 hours of becoming aware of a personal data breach;

(g)       at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by applicable law to store the personal data;

(h)       maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and allow for audits by the Customer or the Customer's designated auditor] and immediately inform the Customer if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation; and

(i)         indemnify the Customer against any loss or damage suffered by the Customer in relation to any breach by the Supplier of its obligations under this clause 13.

13.4     The Customer does not consent to the Supplier appointing any third party processor of personal data under the Contract. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 13.

13.5     The Customer may, at any time on not less than 30 days' notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme.

  1. CONFIDENTIALITY

14.1     Each party undertakes that it shall not at any time during the Contract and for a period of ten years after termination of the Contract, disclose to any person any Confidential Information of the other party, except as permitted by clause 14.2.

14.2     Each party may disclose the other party's Confidential Information:

(a)        to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's Confidential Information must comply with this clause 14; and

(b)        as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.3     Neither party shall use the other party's Confidential Information for any purpose other than to perform its obligations under the Contract.

14.4     All materials, equipment, tools, copyright, rights in designs and any other Intellectual Property Rights in all drawings, specifications and data supplied by the Customer to the Supplier shall at all times be and remain the exclusive property of the Customer, but shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Customer, and shall not be disposed of or used other than in accordance with the Customer's written instructions or authorisation.

  1. TERMINATION

15.1     Without affecting any other right or remedy available to it, the Customer may terminate the Contract:

(a)        with immediate effect by giving written notice to the Supplier if:

(i)         there is a change of control of the Supplier; or

(ii)        the Supplier's financial position deteriorates to such an extent that in the Customer's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or

(iii)       the Supplier commits a breach of clauses 5.3(h), 18.1 or 19.1

(b)        for convenience by giving the Supplier 30 days written notice.

15.2     Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a)        the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 7 days after being notified in writing to do so;

(b)        the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or

(c)        the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

  1. CONSEQUENCES OF TERMINATION

16.1     On termination of the Contract, the Supplier shall immediately deliver to the Customer all Deliverables whether or not then complete, and return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

16.2     Termination or expiry of the Contract shall not affect the parties' rights and remedies that have accrued as at termination or expiry, 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.

16.3     Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

  1. FORCE MAJEURE

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from events, circumstances or causes beyond its reasonable control. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate this agreement by giving 30 days' written notice to the affected party.

  1. ANTI-BRIBERY

18.1     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)        comply with the Customer's Anti-bribery and Anti-Corruption Policies (referred to in schedule 2) in each case as the Customer may update them from time to time (Relevant Policies).

(d)       have and shall maintain in place throughout the term of the Contract its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 18.1(b), and will enforce them where appropriate;

(e)        promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the Contract;

(f)         immediately notify the Customer (in writing) if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier and the Supplier warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of the Contract);

(g)       within 2 months of the Commencement Date, and annually thereafter, certify to the Customer in writing signed by an officer of the Supplier, compliance with this clause 18 by the Supplier and all persons associated with it under clause 18.2. The Supplier shall provide such supporting evidence of compliance as the Customer may reasonably request.

18.2     The Supplier shall ensure that any person associated with the Supplier who is performing services 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 18 (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 the Customer for any breach by such persons of any of the Relevant Terms.

18.3     Breach of this clause 18 shall be deemed a material breach under clause 15.

18.4     For the purpose of this clause 18, 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 18 a person associated with the Supplier includes any subcontractor of the Supplier.

  1. COMPLIANCE WITH ANTI-SLAVERY AND HUMAN TRAFFICKING LAWS

19.1     In performing its obligations under the Contract, the Supplier shall:

(a)        comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including the Modern Slavery Act 2015; and

(b)        not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015 if such activity, practice or conduct were carried out in the UK;

(c)        include in contracts with its direct subcontractors and suppliers provisions which are at least as onerous as those set out in this clause 19.

(d)       notify the Customer as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with the Contract.

(e)        maintain a complete set of records to trace the supply chain of all Goods and Services provided to the Customer in connection with the Contract; and permit the Customer and its third party representatives to inspect the Supplier's premises, records, and to meet the Supplier's personnel to audit the Supplier's compliance with its obligations under this clause 19.

19.2     The Supplier represents and warrants that at the Commencement Date it not has been convicted of any offence involving slavery and human trafficking; nor has it been the subject of any investigation, inquiry or enforcement proceedings regarding any offence or alleged offence of or in connection with slavery and human trafficking.

19.3     The Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of this clause 19.

  1. EXPORT CONTROL

20.1     Neither party shall export, directly or indirectly, any technical data acquired from the other party under this agreement (or any products, including software, incorporating any such data) in breach of any applicable laws or regulations (Export Control Laws), including United States export laws and regulations, to any country for which the United States or any other government or any agency thereof at the time of export requires an export licence or other governmental approval without first obtaining such licence or approval.

20.2     Each party undertakes:

(a)        contractually to oblige any third party to whom it discloses or transfers any such data or products to make an undertaking to it in similar terms to the one set out above; and

(b)        if requested, to provide the other party with any reasonable assistance, at the reasonable cost of the other party, to enable it to perform any activity required by any competent government or agency in any relevant jurisdiction for the purpose of compliance with any Export Control Laws.

  1. GENERAL

21.1     Assignment and other dealings.

(a)        The Customer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.

(b)        The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Customer.

21.2     Notices

(a)        Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number or sent by email to the address specified in the Order.

(b)        A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; 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 sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 21.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c)        This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

21.3     Severance. 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     Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.

21.5     No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

21.6     Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

21.7     Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.  The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

21.8     Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.

21.9     Translation.  These Conditions are drafted in the English language. If the Contract is translated into any other language, the English language version shall prevail.  Any notice given under or in connection with the Contract shall be in the English language. All other documents provided under or in connection with the Contract shall be in the English language, or accompanied by a certified English translation. If such document is translated into any other language, the English language version shall prevail unless the document is a constitutional, statutory or other official document.

21.10   Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

21.11   Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

 

Schedule 1    

definitions and interpretation

  1. The following definitions and rules of interpretation apply in these conditions.

1.1.              Definitions:

Background Intellectual Property: any Intellectual Property Rights that are used in the course of or in connection with the provision of the Services that were: (a) created and/or developed independently of the Contract; and/or (b) created and/or developed before the effective date of the Contract;

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 given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 21.8.

Confidential Information: information of commercial value, in whatever form or medium, disclosed by the party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, and, for clarity, including (in the case of the Customer’s information), information pertaining to customers, pricing and marketing information, specifications or other requirements relating to the Goods or the Deliverables, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by the Customer or its agents.

Contract: the contract between the Customer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Customer: The Gill group company named in the Order.

Customer Materials: has the meaning set out in clause 5.3(k).

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) (as amended) and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).

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 the Customer and the Supplier.

Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks,  business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.

Mandatory Policies: the Customer's business policies listed in the Schedule and as amended from time to time.

Order: the Customer's order for the supply of Goods and/or Services, as set out in the Customer's purchase order form, or in the Customer's written acceptance of the Supplier's quotation, or overleaf, as the case may be.

Services: the services, including 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 the Customer and the Supplier.

Supplier: the person or firm from whom the Customer purchases the Goods and/or Services.

1.2.              Interpretation:

(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 and permitted assigns.

(c)        A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

(d)       Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e)        A reference to writing or written includes fax and email.

(f)         References to Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures have the meanings given to them in the Data Protection Legislation.

Schedule 2

MANDATORY POLICY’S

The Mandatory Policies are:

  • Modern Slavery and Human Trafficking Policy.
  • Corporate and Social Responsibility Policy.
  • Anti-Bribery and Anti-Corruption Policy.
  • Ethics Policy.
  • Data and Privacy Policy.
 
 
 

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