Terms and Conditions for the Supply of Goods and Services
1. INTERPRETATION
1.1
The definitions and rules of interpretation in this condition apply in these terms and conditions ("Conditions").
Company: Nottingham City Transport Limited.
Contract: these Conditions together with the Order, the Statement of Work and any annexes thereto.
Goods: any goods agreed in the Contract to be bought by the Company from the Supplier as set out in the Order.
Laws: all applicable law, statute, bye-law, regulation, order, regulatory policy (including any requirement or notice of any regulatory body), guidance or industry code of practice, rule of court or directives, delegated or subordinate legislation.
Order: any order document (including purchase orders) issued by the Company or any written acceptance by the Company of a quotation for the supply of Goods and/or Services in accordance with Condition 2.3.
Services: any services agreed in the Contract to be provided by the Supplier to the Company as set out in the Order.
Specification: any written specification for the Goods or Services as set out or attached to the Order or Statement of Work and agreed by the Company.
Statement of Work: any statement of work relating to the Services as agreed in writing by the Company.
Supplier: the person, firm or company identified in the Order.
1.2 A reference to any particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 A reference to one gender includes a reference to the other gender.
1.4 Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF CONDITIONS
2.1 These Conditions together with the Order (and any annexes thereto) shall form the Contract between the Company and the Supplier in connection with the Goods and/or Services.
2.2 These Conditions shall prevail over any terms or conditions contained, or referred to, in the Supplier1s quotation, confirmation of Order, or specification, or other document supplied by the Supplier or implied by trade custom, practice or course of dealing.
2.3 The Supplier's quotation for the Goods and/or Services constitutes an offer by the Supplier to supply those Goods or Services on these Conditions. No offer placed by the Supplier shall be accepted by the Company other than by the Company issuing an Order, at which point a contract for the supply and purchase of the Goods and/or Services on these Conditions will be established.
2.4 These Conditions apply to all the Company's purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by an authorised signatory of the Company.
3. COMMENCEMENT AND DURATION
3.1 Where Services are being provided under the Contract, they shall be provided by the Supplier from the date specified in the Order.
3.2 Subject to earlier termination in accordance with these Conditions, the Services supplied under the Contract shall continue to be supplied for the period specified in the Order. If no period is specified in the Order, such Services shall be provided unless and until the Contract is terminated in accordance with Condition 13.
4. SUPPLY OF GOODS AND SERVICES
4.1 The Supplier shall supply the Goods and/or Services in accordance with the terms set out in the Order.
4.2 The Supplier shall ensure that:
4.2.1 the Goods and/or Services supplied to the Company shall conform with the Specification, good industry practice and the highest standards prevailing in the Supplier's industry; and
4.2.2 where applicable, Services are supplied in accordance with the Statement of Work.
4.3 Any changes requested by either party to the Statement of Work, the Specification or the terms set out in the Order must be agreed in accordance with the procedure set out in Condition I 0.
5. QUALITY ASSURANCE
5.1 Goods shall be of the best available design, quality, material and workmanship and be without fault.
5.2 The Supplier shall ensure at all times that Goods and/or Services are provided in accordance with all applicable Laws from time to time in force and the Supplier will inform the Company as soon as it becomes aware of any changes to those Laws.
5.3 The Company's rights under these Conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 and any other statute.
5.4 At any time prior to delivery of Goods to the Company, the Company shall have the right to inspect and test the Goods.
5.5 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Supplier, the Company shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
5.6 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Supplier's obligations under the Contract.
5.7 If any of the Goods fail to comply with any of the provisions set out in this Condition 5, the Company shall be entitled to avail itself of any one or more remedies listed in Condition 14.
6. WARRANTY AND INDEMNITY
6.1 The Supplier warrants and represents to the Company that it will at all times and in every respect comply with all Laws applicable to the Supplier's performance of the Contract and the supply of Goods and/or Services to the Company.
6.2 The Supplier shall keep the Company indemnified in full against all direct, indirect or consequential liabilities ( all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
6.2.1 defective workmanship, quality or materials;
6.2.2 an infringement or alleged infringement of any intellectual property rights caused by the use or supply of the Goods and/or any deliverables supplied to the Company in connection with the Services;
6.2.3 any breach of the warranty at Condition 6.1; or
6.2.4 any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods and/or Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Supplier.
6.3 The provisions of this Condition 6 shall survive termination of the Contract, howsoever arising.
7. DELIVERY OF GOODS
7.1 Goods shall be delivered, carriage paid, to the Company's place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods. The Supplier shall off-load the Goods at its own risk as directed by the Company.
7.2 The date for delivery shall be specified in the Order, or if no such date is specified then delivery shall take place within 28 days of the Order.
7.3 Unless otherwise agreed, the Supplier shall invoice the Company upon, but separately from, despatch of the Goods to the Company.
7.4 The Supplier shall ensure that each delivery is accompanied by a delivery note which shows, among other things, the Order number, date of Order, date of delivery, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
7.5 Time for delivery shall be of the essence.
7.6 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Co1npany in normal business hours.
7.7 If the Supplier requires the Company to return any packaging material to the Supplier that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
7.8 Where the Company agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Supplier to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
7.9 If the Goods are delivered to· the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Supplier's risk and shall be returnable at the Supplier's expense.
7.10 The Company shall not be deemed to have accepted the Goods until it has had 30 days to inspect them following delivery. The Company shall also have the right to reject the Goods as though they had not been accepted for 30 days after any latent defect in the Goods has become apparent.
8. SUPPLIER’S RESPONSIBILITIES
8.1 The Supplier shall meet, and time is of the essence as to, any performance dates specified in the Order or Statement of Work.
8.2 If the Supplier fails to meet any due dates or performance dates in respect of the supply of Goods and/or Services, the Company may (without prejudice to any other rights it may have):
8.2.1 terminate the Contract in whole or in part without liability to the Supplier;
8.2.2 refuse to accept any subsequent delivery of Goods or any subsequent performance of the Services (as applicable) which the Supplier attempts to make;
8.2.3 recover from the Supplier any expenditure reasonably incurred by the Company in obtaining Goods or Services (as applicable) in substitution from another supplier; and/or
8.2.4 claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Supplier's failure to deliver the Goods or Services on the due date or performance date (as applicable).
8.3 The Supplier shall:
8.3.1 co-operate with the Company ( and its sub-contractors or agents) in all matters relating to the supply of the Goods and/or Services;
8.3.2 use reasonable care and skill in the performance of the Services and ensure that all necessary licences, work permits or other authorisations have been obtained;
8.3.3 (where applicable) observe, and ensure that all employees, consultants, agents and sub-contractors which it engages in relation to the supply of the Goods or Services observe, all health and safety rules and regulations and any security requirements that apply at the Company's premises;
8.3.4 notify the Company immediately if it becomes aware of any health and safety or security issues which arise in relation to the Goods, Services or the provision of the same to the Company.
8.4 The Company reserves the right to refuse access to the Company's premises to any of the Supplier's employees (or employees of any of its consultants, agents or subcontractors).
9. RISK
The Goods shall remain at the risk of the Supplier until delivery to the Company is complete (including off-loading and stacking) when ownership of the Goods shall pass to the Company.
10. CHANGE PROCEDURE
Any and all changes to the Contract, including any changes to an Order, Services, Specification or Statement of Work shall be agreed by the parties in advance and in writing.
11. CHARGES AND PAYMENT
11.1 The Company shall pay the charges for the Goods and/or Services ("Charges") at the rates and times as specified in the Order. Unless otherwise agreed in writing by the Company, the Charges shall be exclusive of value added tax but inclusive of all other charges.
11.2 The Company shall pay each invoice which is properly due and submitted by the Supplier within 60 days of receipt.
11.3 Where Services are provided on a time and materials basis:
11.3.1 the Charges shall be calculated in accordance with the Supplier's rates as set out in the Order or Statement of Work;
11.3.2 where applicable, the Supplier shall ensure that every individual whom it engages on the Services completes time sheets recording time spend on the Services and the Supplier shall use such time sheets to calculate the Charges payable;
11.3.3 unless otherwise agreed with the Company, the Supplier shall invoice the Company monthly in arrears for the Charges and shall provide a detailed breakdown of any expenses and materials ( accompanied by the relevant receipts);
11.3.4 the Supplier shall provide further information in relation to the Charges as requested by the Company from time to time; and
11.3.5 the Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services in such form as the Company shall approve. The Supplier shall allow the Company to inspect such records at all reasonable times on request.
11.4 No variation in the Charges nor extra fees shall be accepted by the Company.
11.5 Time for payment shall not be of the essence of the Contract.
11.6 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Supplier to the Company against any amount payable by the Company to the Supplier under the Contract or any other contract.
11.7 The Company shall have the right to suspend any payment obligation if the Supplier's performance does not conform with the Contract or if performance is delayed.
11.8 The Supplier is not entitled to suspend deliveries of the Goods or performance of the Services as a result of any sums being outstanding.
12. CONFIDENTIALITY
The Supplier 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 Supplier by the Company or its agents or sub-contractors and any other confidential information concerning the Company's business or its products which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Supplier's obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Supplier.
13. TERMINATION
13.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Supplier 7 days written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Supplier fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 Without prejudice to any other rights or remedies which the Company may have, the Company may terminate the Contract without liability to the Supplier immediately on giving notice to the Supplier if:
13.2.1 the Supplier commits a material breach of any of the terms and conditions of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified of the breach by the Company; or
13.2.2 the Supplier repeatedly breaches any of the terms of the Contract 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; or
13.2.3 any distress, execution or other process is levied upon any of the assets of the Supplier; or
13.2.4 the Supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Supplier or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act I 986), or a resolution is passed or a petition presented to any court for the winding-up of the Supplier or for the granting of an administration order in respect of the Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the Supplier; or
13.2.5 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 Condition 13.2.4 above; or
13.2.6 the Supplier suspends or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.2.7 the financial position of the Supplier deteriorates to such an extent that in the opinion of the Company the capability of the Supplier adequately to fulfil its obligations under the Contract has been placed in jeopardy.
13.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. The Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
13.4 On termination of the Contract the Supplier shall, not later than 7 days after the Company's request:
13.4.1 deliver to the Company (or as the Company shall direct) all quantities of the Goods in its possession which comply with the Contract;
13.4.2 return to the Company all documents provided to the Supplier by the Company; and
13.4.3 ensure that all documents containing any information of a technical nature relating to the Goods, the manufacture of the Goods and the provision of Services, or of a confidential nature and supplied by the Company to the Supplier, will be returned to the Company or destroyed by the Supplier at the Company's option.
14. REMEDIES IN RELATION TO GOODS
Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Contract, the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:
14.1 to rescind the Order;
14.2 to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by the Supplier;
14.3 at the Company's option to give the Supplier the opportunity at the Supplier's expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
14.4 to refuse to accept any further deliveries of the Goods but without any liability to the Supplier;
14.5 to carry out at the Supplier's expense any work necessary to make the Goods comply with the Contract; and/or
14.6 to claim such damages as may have been sustained in consequence of the Supplier's breach or breaches of the Contract.
15. REMEDIES IN RELATION TO SERVICES
Without prejudice to any other right or remedy which the Company may have, if any Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Contract, the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Services have been accepted by the Company:
15.1 to rescind the Order;
15.2 to reject the Services (in whole or in part) on the basis that a full refund for the rejected Services shall be paid forthwith by the Supplier;
15.3 at the Company's option to give the Supplier the opportunity at the Supplier's expense to remedy any defect in the Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
15.4 to refuse to accept any further Services but without any liability to the Supplier;
15.5 to carry out at the Supplier's expense any work necessary to make the Services comply with the Contract; and/or
15.6 to claim such damages as may have been sustained in consequence of the Supplier's breach or breaches of the Contract.
16. HAZARDS
16.1 The Supplier shall, and shall ensure that its staff and those of any sub-contractor shall, when working on any site in connection with the Contract, comply with all relevant environmental, occupational health and safety legislation and any other appropriate standards, policies and procedures notified by the Company.
16.2 The Supplier will provide applicable hazard information such as material safety data sheets and will inform the Company of all regulations and guidance (statutory or otherwise) which the Supplier knows or believes to be associated with the Goods and any combination of the Goods with another product.
16.3 The Supplier will indemnify the Company, and keep the Company indemnified, against all liability, loss, costs and expenses related to any third party claim which arises from the Supplier's or the Supplier's sub-contractors' actions resulting in any alleged release of any waste, hazardous substance or other pollutant.
17. RESPONSIBILITY AND INFORMATION
The Supplier shall be responsible for any errors or omissions in any drawings, calculations, packaging details or other particulars supplied by the Supplier, whether such information has been approved by the Company or not, provided that such errors or omissions are not due to inaccurate information furnished in writing by the Company.
18. SUPPLIER’S EMPLOYEES
18.1 For the duration of the period that any Services are being provided, the employment of any employee of the Supplier shall remain with the Supplier and shall not pass or otherwise transfer to the Company and nothing in the Contract shall be construed or have effect as constituting any relationship of employer and employee between the Company and the employees and/or sub-contractors of the Supplier. The Supplier agrees that it is performing the Services as an independent contractor and will retain all responsibility for payment of any Income Tax, National Insurance Contributions, and any other taxation that may arise fom the provision of the Services, and will indemnify the Company against any loss, cost or expense incurred by the Company as a result of the Company having to pay any tax, Income Tax or National Insurance Contributions and/or make any deductions at source in respect of the Services.
18.2 Notwithstanding the provisions of Condition 18.1, if and to the extent that the Transfer of Undertakings (Protection of Employment) Regulations 2006 or any other equivalent laws apply, such that the Company (or a successor supplier to the Supplier) incurs Employment Liabilities arising in relation to any Supplier personnel whose employment ( or any claim arising out of such employment, or arising as a result of its termination) transfers to the Company or to such successor supplier, the Supplier agrees to indemnify and hold the Company and any replacement supplier harmless from and against all such Employment Liabilities. For the purposes of this Condition 18.2, "Employment Liabilities" means any costs, claims, demands, fines, or expenses (including reasonable legal and other professional expenses) and all losses, damages, compensation and other liabilities incurred by, or attributed to, the Company (and including those incurred by or attributed to any successor or subcontractor of the Company), and shall include any incurred as a result of an indemnity or warranty given, or to be given, by the Company to, or any claim made by, a successor supplier or sub-contractor, in each case relating to the employment contracts of such Supplier personnel, or any claim under the Employment Rights Act 1996 or similar.
19. SOFTWARE DEFECTS
19.1 The Supplier warrants that any Goods comprising computer hardware or software, and supplied by the Supplier to the Company (the "Products"):
19.1.1 are free from viruses, defects, disabling codes, software routines or hardware components designed to permit (either automatically or through externally applied controls) unauthorised access or allow the Products to be disabled, have content erased, or otherwise be harmed (collectively, "Contaminants"), have been duly tested to ensure that there are no such Contaminants, and are subject to recognised and appropriate release procedures including the latest version of a proprietary virus detection software package approved by the Company, and the Supplier shall procure that corresponding obligations are imposed with its sub-contractors or agents;
19.1.2 Have been obtained from a reputable and reliable software developer and not through any interest group or multi-organisational software sharing scheme, and do not include any open source, freeware or shareware; and
19.1.3 will comply and function substantially in accordance with any related user documentation.
19.2 The Supplier warrants that the Products and its own systems are capable of being used normally such that neither the performance nor the functionality of the Products will be adversely affected by any changes caused by the advent of a particular calendar date.
19.3 The Supplier shall indemnify and hold the Company harmless against any and all losses, damages, costs, claims, proceedings, or expenses sustained or incurred by the Company as a result of Supplier's breach of this Condition 19.
20. ASSIGNMENT
20.1 The Supplier shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company. In the event that the Supplier appoints a subcontractor or other person to perform its obligations it shall remain liable to the Company for the performance of all its obligations and shall ensure that any such subcontractor or other person agrees to be bound by terms equivalent to those in this Contract.
20.2 The Company may assign the Contract or any part of it to any person, firm or company.
21. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts or threats of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), malicious damage, failure of a utility service or transport network, compliance with any Laws or governmental order, rule or regulation, accident, breakdown of plant or machinery, default of suppliers or sub-contractors, or inability or delay in obtaining necessary supplies or suitable materials.
22. GENERAL
22.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
22.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
22.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
22.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Supplier shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
22.5 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
22.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
22.7 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
[Note: These additional conditions may be relevant to particular services contracts eg for building/maintenance/engineering works.
23. ADDITIONAL TERMS
23.1 During the term of the Contract and for a period of [ ] years thereafter, the Supplier shall maintain in force with a reputable insurance company, professional indemnity insurance in an amount not less than £[ ] 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.
23.2 Company Materials shall at all times be and remain the exclusive property of the Company. The Supplier shall hold the Company Materials in safe custody and at its own risk and shall maintain and keep such materials in good condition until returned to the Company. The Company Materials shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation.
23.3 For the purpose of Condition 23.2, Company Materials includes:
23.3.1 all documents, information, specifications and materials provided by or on behalf of the Company relating to the Services including (without limitation) any co1nputer programs, data, reports or designs;
23.3.2 any equipment, systems, tools, cabling or facilities provided by or on behalf of the Company and used directly or indirectly in the supply of the Services.