ARTEMIS TECHNOLOGIES LIMITED STANDARD TERMS AND CONDITIONS GOODS/SERVICE CONTRACT This contracted is dated on the date of the PO to which these terms are attached and is made between:
ARTEMIS TECHNOLOGIES LTD a company incorporated in England with registered number 09412785 and with its registered address at Alexandra House, St John's St, Salisbury, SP1 2SB ("Customer");
AND
The Supplier named as the supplier on the PO to which these terms are attached (the "Supplier"), the Customer and the Supplier together the "parties" and each a "party".
In these Conditions the following definitions apply:
Affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Applicable Law means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction;
Bribery Laws means the Bribery Act 2010 and all Applicable Laws in connection with bribery or anti-corruption;
Conditions means the Supplier’s terms and conditions of sale set out in this document;
Confidential Information means any commercial, financial or technical information, information relating to the Deliverables, plans, software, data, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;
Contract means this agreement between the Supplier and the Customer for the sale and purchase of the Deliverables incorporating these Conditions and the Purchase Order, and including all schedules, attachments, annexures and statements of work that are issued with the Purchase Order and which relate to the scope of the Deliverables;
Control has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and Controls, Controlled and under common Control shall be construed accordingly;
Controller shall have the meaning given in applicable Data Protection Laws from time to time;
Customer Background IPRs: all Intellectual Property Rights that are owned by or licensed to the Customer and which are or have been developed independently of this Agreement (whether prior to this Agreement coming into force or otherwise).
Customer Materials: all plans, drawings, designs, documents, software programs, work product and other materials that are delivered to the Supplier by the Customer in the course of the supply of the Deliverables by the Supplier.
(a) Data Protection Laws means, as binding on either party or the Deliverables: the GDPR; the Data Protection Act 2018; any laws which implement any such laws; and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing;
Deliverables means the Goods or Services or both as the case may be.
Foreground IPRs: all Intellectual Property Rights created or developed by or on behalf of the Supplier for the Customer, or as the case may be created or developed jointly by the parties, in each case as part of supplying the Deliverables to the Customer according to the Specification for the Deliverables detailed in or referred to in this Agreement.
GDPR means the General Data Protection Regulation, Regulation (EU) 2016/679, as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time);
Goods means the goods (and any items related to the Goods (including documentation) set out in the Purchase Order and to be supplied by the Supplier to the Customer in accordance with the Contract; to be supplied by the Supplier to the Customer in accordance with the Contract;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case:
(a) whether registered or not
(b) including any applications to protect or register such rights
(c) including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
Location means the address or addresses for delivery of the Goods and performance of the Services as set out in the Purchase Order or such other address or addresses as notified by the Supplier to the Customer;
Purchase Order or PO means the Customer’s purchase order specifying the Deliverables;
Personal Data has the meaning given in the applicable Data Protection Laws from time to time;
Price has the meaning given in clause 2.1;
processing has the meaning given to it in applicable Data Protection Laws from time to time (and related expressions, including process, processed, and processes shall be construed accordingly);
Processor has the meaning given to it in applicable Data Protection Laws from time to time;
Services means the services set out in the Purchase Order and to be supplied by the Supplier to the Customer in accordance with the Contract. The description of the Services (and other relevant information related to the Services) may be set out in a separate services schedule, in which case, such schedule shall be attached to these Conditions and the PO and shall be incorporated into the Contract;
Specification means the description or documentation provided for the Deliverables set out or referred to in the Contract;
Supplier Background IPRs: all Intellectual Property Rights that are owned by or licensed to the Supplier and which are or have been developed independently of this agreement (whether prior to this agreement coming into force or otherwise).
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; and
VAT means value added tax under the Value Added Tax Act 1994 or any other similar sale or fiscal tax applying to the sale of the Deliverables.
1. Application of these conditions
1.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase or supply.
1.2 No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of Purchase Order, specification or other document shall form part of the Contract.
1.3 No variation of these Conditions or to a Purchase Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.
1.4 The Customer issues a PO to the Supplier when it accepts the offer to supply the Deliverables made by the Supplier. The Contract is formed on the issuing of the PO by the Customer. Up to the point of the Customer issuing the PO, the Customer may withdraw or change any element of its requirements upon which this Contract is based.
2. Price
2.1 The price for the Deliverables shall be as set out in the Purchase Order (the Price). No increase in the Price may be made by the Supplier after the Purchase Order is placed by the Customer.
2.2 The Customer will provide the Supplier with a PO number. A valid PO number must be stated on all invoices presented by the Supplier to the Customer for payment.
2.3 The Supplier shall invoice the Customer for: (a) the Goods on or after the completion of delivery of the Goods or, if later, the Customer’s acceptance of the Goods, (b) Services on or after the completion of performance of the Services.
2.4 The Customer shall pay each validly submitted and undisputed invoice of the Supplier within 60 days from the end of the month in which the invoice is received.
2.5 Time of payment is not of the essence. Where sums due under the Contract are not paid in full by the due date, to compensate the Supplier for all loss from the Customer’s breach, the Customer shall pay, on the sum overdue, interest (before and after judgment) on a daily basis until payment in full at the rate of 4 per cent per annum above the Official Bank Rate from time to time of the Bank of England. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
2.6 VAT shall be charged by the Supplier and paid by the Customer at the applicable rate at the time the invoice was issued.
3. Cancellation
3.1 The Customer shall have the right to cancel the Purchase Order for the Deliverables or for any part of the Deliverables which have not yet been, in the case of Goods, delivered and in the case of Services, performed for, the Customer.
3.2 In relation to any Purchase Order cancelled or part-cancelled under clause 3.1, on receipt of validly issued and properly documented evidence, the Customer shall pay for:
(a) in respect of any Goods, that part of the Price which relates to the Goods which at the time of cancellation have been delivered to the Customer; and
(b) in respect of any Goods, the costs of materials which the Supplier has purchased to fulfil the Purchase Order for the Goods which cannot be used for other Purchase Orders or be returned to the Supplier’s supplier of those materials for a refund; and
(c) in respect of any Services, that part of the Price that relates to the Services which, at the time of cancellation have been paid for or contractually committed by the Supplier and cannot be cancelled.
3.3 To the maximum extent possible, the Supplier shall mitigate all costs relating to the Purchase Order immediately upon receipt of cancellation under this clause 3.
4. Delivery and performance
4.1 The Goods shall be delivered by the Supplier, or its nominated carrier, to the Location on the date(s) specified in the Purchase Order.
4.2 The Goods shall be deemed delivered on completion of unloading only of the Goods at the Location by the Supplier or its nominated carrier (as the case may be).
4.3 The Services shall be performed by the Supplier at the Location on the date(s) specified in the Purchase Order.
4.4 The Services shall be deemed performed on completion of the performance of the Services as specified in the Purchase Order.
4.5 Time of delivery or performance (as the case may be) is of the essence. If the Supplier fails to deliver any of the Goods or perform any of the Services by the date specified in the Purchase Order, unless caused by the Customer, the Customer shall (without prejudice to its other rights and remedies) be entitled at its sole discretion:
(a) to terminate the Contract in whole or in part; (b) to purchase the same or similar Deliverables from another supplier; (c) to refuse to accept the delivery or performance (as the case may be) of any more Deliverables under the Contract; and/or (d) to recover from the Supplier all costs and losses resulting to the Customer from the failure in performance or delivery (as the case may be);
5. Rejection and inspection
5.1 The Customer shall be entitled to reject any Deliverables which are not in compliance with the terms and conditions of the Contract. Any acceptance of defective, late or incomplete Deliverables or any payment made in respect thereof, shall not constitute a waiver of any of the Customer’s rights and remedies, including its right to reject.
5.2 Any rejected Goods may be returned to the Supplier by the Customer at the Supplier’s cost and risk
5.3 The rights of the Customer in this clause 5 are without prejudice to the Customer’s other rights and remedies under the Contract including under clause 8.
6. Title and risk
6.1 Risk in the Goods shall pass to the Customer on delivery of the Goods to the Customer as set out in clause 4.
6.2 Title to the Goods shall pass to the Customer on payment by the Customer for the Goods under clause 2.
6.3 The Supplier warrants and represents that it:
(a) has at the time the Contract is made full, clear and unencumbered title to the Goods, and the full, clear and unencumbered right to sell and deliver them to the Customer; and
(b) shall hold such title and right to enable it to ensure that the Customer shall acquire a valid, unqualified title to the Goods and shall enjoy quiet possession of them.
7. Customer Materials
7.1 The the Customer provides any Customer Materials to the Supplier in order for the Supplier to provide the Goods or Services to the Customer, the following provisions shall apply:
(a) The Customer Materials shall at all times remain the Customer’s property, and the Supplier shall have no right, title or interest in or to the Customer Materials (save the right to possession and use of the Customer Materials subject to these terms and conditions; (b) The Supplier shall maintain at its own expense the Customer Materials in good repair as they were on the date that the Customer Materials were provided to the Supplier (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and the Supplier shall make good any damage to the Customer Materials; (c) The Supplier shall not make any alteration to the Customer Materials and shall not remove any existing part or component(s) from the Customer Materials; (d) The Supplier shall not, without the prior written consent of the Customer, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Customer Materials or allow the creation of any mortgage, charge, lien or other security interest in respect of them; (e) The Supplier shall ensure that at all times the Customer Materials remain identifiable as being the Customer’s property and the Supplier must not remove any visible signs to that effect that may be attached to the Customer Materials; (f) The Supplier shall not publish or disclose to third parties or seek to exploit or repeat any part of the Customer Materials for any purposes and/or reverse engineer, decompile or copy the Customer Materials; and (g) The Supplier shall be responsible for any loss of or damage to the Customer Materials arising out of or in connection with any negligence, misuse, mishandling of the Customer Materials or otherwise caused by the Supplier or the Supplier’s officers, employees, agents and contractors, and the Supplier shall maintain all necessary insurances covering the Supplier’s obligations under this clause 7.
8. Warranty
8.1 Where Supplier warrants and represents that it shall:
(a) have all consents, licences and authorisations necessary to deliver and perform the Deliverables; (b) ensure compliance and fulfilment of its obligations in accordance with the Purchase Order and the Contract; (c) where relevant, observe, and ensure that the Supplier Personnel observe all health and safety rules and regulations and any other security requirements that apply at any of the Customer’s premises including the Location; and (d) ensure that the Supplier Personnel use reasonable skill and care in the delivery and performance of the Deliverable (where Services).
8.2 The Supplier warrants and represents that:
(a) the Deliverables shall conform to the quality and description of the Specification; (b) the Deliverables shall be free from defects in design, material and workmanship; (c) the Deliverables shall, and the Supplier’s performance of the Contract shall, comply with all Applicable Laws, standards and best industry practice; (d) if Goods, the Deliverables shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and (e) if Services, the Deliverables shall be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13;.
8.3 The Customer may reject any Deliverables that do not comply with clause 8.2 and the Supplier shall, at the Customer’s option, if Goods, promptly remedy, repair or replace the Goods, or if Services, promptly correct or re-perform the Services or in either case refund the price of any such Deliverables, provided that the Customer serves a written notice on the Supplier that some or all of the Deliverables do not comply with clause 8.2.
8.4 The provisions of these Conditions shall apply to any Deliverables that are remedied, repaired, replaced, corrected or re-performed.
8.5 The Customer’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and conditions contained in the Supply of Goods and Services Act 1982, s 12 to 16 and the Sale of Goods Act 1979, s 13 to 15.
9. Anti-bribery
9.1 For the purposes of this clause 8 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
9.2 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 ensure that:
(a) all of that party’s personnel; (b) all others associated with that party; and (c) all of that party’s subcontractors;
involved in performing the Contract so comply.
9.3 Without limitation to clause 9.2, 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, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
9.4 The Supplier shall immediately notify the Customer as soon as it becomes aware of a breach by the Customer of any of the requirements in this clause 9.
10. Anti-Slavery
10.1 The Supplier shall comply with the Modern Slavery Act 2015.
10.2 The Supplier confirms that it has it has implemented due diligence procedures to ensure compliance with the Modern Slavery Act 2015 in its business and supply chain, and those of its officers, employees, agents or subcontractors, which will be made available to the Supplier on request at any time.
10.3 The Supplier shall notify the Customer 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 this clause 10, such notice to set out full details of the circumstances concerning the breach or potential breach.
11. Indemnity
11.1 The Supplier shall indemnify the Customer for any losses, damages, liability, costs and expenses (including professional fees) incurred by it as a result of any action, demand or claim:
(a) that use or possession of the Goods infringes the Intellectual Property Rights of any third party; or (b) made against the Customer by a third party (including an end-user of the Goods) arising from any defect in the Deliverables caused by the Supplier’s breach of this Agreement.
12. Liability
12.1 Notwithstanding any other provision of the Contract, the liability of the Parties shall not be limited in any way in respect of the following:
(a) death or personal injury caused by negligence; (b) fraud or fraudulent misrepresentation; (c) any other losses which cannot be excluded or limited by applicable law.
12.2 Subject to clause 12.1, the Customer’s total liability to the Supplier shall not exceed the Price.
13. Intellectual property rights
13.1 If the Customer is required to give to the Supplier any Customer Materials to assist or enable the Supplier to supply the Deliverables, the following terms shall apply:
(a) The Customer and its licensors shall retain ownership of all Customer Background IPRs and the Customer Materials. (b) The Customer grants to the Supplier, or shall procure the direct grant to the Supplier of, a fully paid-up, worldwide, non-exclusive, royalty-free licence to make use of the Customer Background IPRs and Customer Materials strictly for the purposes of completing the supply of the Deliverables to the Customer. The Supplier shall not make any other use of any Customer Materials. (c) The Supplier and its licensors shall retain ownership of all Supplier Background IPRs. The Supplier grants to Customer, or shall procure the direct grant to Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, transferable licence to use the Supplier Background IPRs to the extent necessary to enable the Customer to make full use of the Foreground IPRs and/or to enable the Customer to sell, use or operate the Deliverables. Other than as set out here, the Customer shall not have any other rights to the Supplier Background IPRs. (d) The Customer shall own all Foreground IPRs. To the extent that the Supplier owns any Intellectual Property Rights in the Foreground IPRs, the Supplier hereby assigns to the Customer, with full title guarantee and free from all third party rights, all such Intellectual Property Rights in the Foreground IPRs, together with the right to sue for and recover damages or other relief in respect of infringement of the Foreground IPRs. The Supplier shall not claim any right, title or interest in relation to any of the Foreground IPRs and the Supplier hereby acknowledges and agrees that any Intellectual Property Rights subsisting in or attaching to any Foreground IPRs shall belong to and vest in Customer irrevocably, unconditionally and to the fullest extent permitted by law. (e) The Supplier shall, promptly at ATL's request, do (or procure the doing of) all such further acts and things and execute (or procure the execution of) all such other documents as the Customer may from time to time require for the purpose of securing all rights, title and interest in and to the Foreground IPRs.
14 Confidentiality, announcements and PR
14.1 The Supplier shall keep confidential all Confidential Information of the Customer and of any Affiliate of the Customer and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
(a) any information which was in the public domain at the date of the Contract; (b) any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement; (c) any information which is independently developed by the Supplier without using information supplied by the Customer; or (d) any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
14.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination or expiry of the Contract.
14.3 The Supplier shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
14.4 The Supplier shall not be permitted to issue announcements, PR or marketing connected with this Contract or the relationship between the Customer and Supplier without the Customer’s consent.
15. Data Protection
15.1 Where the Contract involves any Personal Data, the parties agree that the Processor of such Personal Data shall at all times comply with all applicable data protection laws in connection with that processing of Personal Data as part of the performance of the Contract.
15.2 In particular, the Processor shall:
(a) co-operate with the Controller in order to enable the Controller to comply with its obligations under applicable data protection legislation; (b) implement and maintain appropriate technical and organisational measures against unauthorised and unlawful processing of Personal Data and against accidental loss and destruction of or damage to Personal Data; (c) process any Personal Data as part of the performance of the Contract only on the written instructions of the Controller or otherwise as required by Applicable Laws; (d) maintain complete, accurate and up to date written records of all categories of processing activities carried out on behalf of the Controller and make such records available to the Controller on request; (e) not transfer any Personal Data outside the UK and/or the European Economic Area (EEA) without the Controller’s prior written consent; (f) immediately notify the Controller of any data breach relating to Personal Data about which you become aware; and (g) delete or return Personal Data and any copies thereof to the Controller on termination of the Contract unless required by the data protection legislation to store the Personal Data. (h) Nothing in this Contract relieves either party of any responsibilities or liabilities under applicable data protection laws.
16. Termination
16.1 Without affecting any other right or remedy available to it, either party may terminate this agreement 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 14 days after being notified in writing to do so; (b) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; (c) the other party's financial position is such that either the other party, its directors, shareholders or creditors take or are entitled to take steps to institute formal insolvency proceedings with respect to that other party of a type provided for by the Insolvency Act 1986 (or any similar or analogous legislation, whether under English law or otherwise), including without limitation administration, liquidation, administrative receivership, receivership, voluntary arrangement, scheme of arrangement or bankruptcy, or if the other party is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.2 On termination or expiry of this Agreement, each party shall return, or procure the return, to the other party of all documents and materials (including any copies) containing, reflecting, incorporating or based on that other party’s confidential or proprietary information (excluding always Deliverables) and erase all such information from its computer systems (to the extent possible).
17. General Terms
17.1 A waiver of any right or remedy under this agreement 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 this agreement 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 this agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.2 This agreement 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.
17.3 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
17.4 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
17.5 This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
17.6 This agreement 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.
17.7 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 this agreement or its subject matter or formation.
17.8 The Supplier shall cooperate with the Customer and accommodate the Customer’s reasonable requests connected with the Customer’s securing of the regulatory approval of the Goods and/or Services by the relevant marine class society engaged by the Customer from time to time. This shall include but not be limited to facilitating a visit from the relevant marine class society engaged by the Customer from time to time to the Supplier’s facilities (including (where relevant) manufacturing facilities) and the provision of all reasonable access and information requested by them.