Terms & Conditions of Purchase & Sale
TERMS AND CONDITIONS OF PURCHASE
1.1 This Agreement applies to the exclusions of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
DEFINITIONS AND INTERPRETATION
2.1 Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in England are open for business.
2.2 Confidential Information: any and all information and data of a confidential or proprietary nature in whatever form and on whatever media (whether written, oral, visual, electronic, magnetic or other media) which includes: commercial, financial, business, customer, supplier, marketing, third party, technical or other information (including, inventions, ideas, designs, formulae, strategies, software, know-how and trade secrets); the fact that discussions are taking place concerning this Agreement; any information that is identified as being of a confidential or proprietary nature; any information which at the time of disclosure is or should be regarded as confidential or proprietary having regard to the nature of the information and the circumstances of the disclosure; and any information, findings, data or analysis derived from the afore-mentioned.
2.3 Control: as defined in section 1124 of the Corporation Tax Act 2010.
2.4 Data Protection Legislation: (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018.
2.5 Deliverables: any documents, products and materials created or developed by or on behalf of the Supplier as part of or in connection with the provision of the Services.
2.6 Delivery Date: the date set out in the order.
2.7 Delivery Location: the address or addresses for delivery of the Goods as set out in the order or such other address as notified by KITE Projects to the Supplier.
2.8 Effective Date: the date that the order is accepted by the Supplier either expressly or by conduct.
2.9 Goods: the goods and related accessories, spare parts and documentation and other physical material set out in the Order or understood by the parties to be included in the goods and to be supplied by the Supplier to KITE Projects;
2.10 Goods Specification: any specification for the Goods, including related plans and drawings, agreed in writing by KITE Projects and the Supplier.
2.11 Intellectual Property Rights: patents, copyright, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, 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, 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.
2.12 KITE Projects: means KITE Engineering Supplies (Southern) trading as KITE Projects whose principal place of business is Littleton Lane, Near Sparsholt, Winchester, SO21 2LS.
2.13 KITE Project’s Materials: all documents, information, items and materials in any form (whether owned by KITE Projects or a third party), which are provided by KITE Projects to the Supplier in connection with the Services.
2.14 Mandatory Policies: the policies and codes of conduct of KITE Projects including relating to anti-bribery, modern slavery, ethics, corporate and social responsibility as notified by KITE Projects to the Supplier from time to time.
2.15 Payment Terms: the payment terms agreed by the parties and if no such terms are agreed, KITE Projects shall pay any invoice correctly and properly submitted to it, within 60 days of receipt of the invoice.
2.16 Order: the purchase order submitted by KITE Projects.
2.17 Price: the price specified in the order.
2.18 Services: the services, including any Deliverables, set out in the order or understood by the parties to be included in the services to be supplied by the Supplier to KITE Projects;
2.19 Services Commencement Date: the date set out in the order.
2.20 Supplier; the person, company or organisation supplying the Goods or Services to KITE Projects
2.21 Supplier Materials: all documents, information, items and materials in any form (whether owned by Supplier or a third party), which are used by the Supplier in connection with the provision of the Goods and/or Services.
2.22 Term: has the meaning set out in the order.
2.23 Clause and Schedule headings shall not affect the interpretation of this Agreement.
2.24 Unless the context otherwise requires, words in the singular shall include the plural and in the plural, shall include the singular.
2.25 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
2.26 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.
3 Commencement and Duration
3.1 This Agreement will come into effect on the Effective Date and will continue for the Term, unless terminated earlier by either party as set out in this Agreement.
4 Supply of Goods
4.1 The Supplier shall ensure that the Goods shall:
4.1.1 correspond with their description and any applicable Goods Specification;
4.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by KITE Projects, expressly or by implication, and in this respect KITE Projects relies on the Supplier’s skill and judgement;
4.1.3 where they are manufactured, be free from defects in design, materials and workmanship and remain so for 24 months after the Delivery Date; and
4.1.4 comply with all applicable laws, regulations, regulatory policies, guidelines or requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods including all relevant quality standards applicable to such Goods.
4.2 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 this Agreement in respect of the Goods.
4.3 KITE Projects 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 this Agreement.
4.4 If following such inspection or testing KITE Projects considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at clause 4.1, KITE Projects shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
4.5 KITE Projects may, at the Supplier’s expense, conduct further inspections and tests after the Supplier has carried out its remedial actions.
5 Delivery of Goods
5.1 The Supplier shall ensure that:
5.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
5.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the order, the order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), the weight of the Goods, any special handling or storage instructions and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
5.1.3 it states clearly on the delivery note any requirement for KITE Projects 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.
5.2 Unless otherwise notified to it by KITE Projects, the Supplier shall deliver the Goods:
5.2.1 on the Delivery Date:
5.2.2 to the Delivery Location; and
5.2.3 during KITE Projects’ normal hours of business.
5.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
5.4 Where Goods are delivered in instalments, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle KITE Projects to the remedies set out in clause 7.
5.5 Title and risk in the Goods shall pass to KITE Projects on delivery of the Goods (whether in full or in part if delivery is made by instalments) at the Delivery Location.
6 Supply of Services
6.1 The Supplier shall from the Service Commencement Date and for the duration of this Agreement supply the Services to KITE Projects in accordance with the terms of this Agreement.
6.2 The Supplier shall meet any performance dates for the Services and time is of the essence in relation to any of those performance dates.
6.3 In providing the Services, the Supplier shall:
6.3.1 co-operate with KITE Projects in all matters relating to the Services, and comply with all instructions of KITE Projects;
6.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
6.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Agreement;
6.3.4 ensure that the Services and Deliverables will conform with all descriptions and specifications and that the Deliverables shall be fit for any purpose that KITE Projects expressly or impliedly makes known to the Supplier;
6.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
6.3.6 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 KITE Projects, will be free from defects in workmanship, installation and design;
6.3.7 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
6.3.8 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply to the provision of the Services including all relevant quality standards applicable to such Services and the Mandatory Policies;
6.3.9 observe all health and safety rules and regulations and any other security requirements that apply at any of KITE Projects’ premises;
6.3.10 hold KITE Projects’ Materials in safe custody at its own risk, maintain KITE Projects’ Materials in good condition until returned to KITE Projects, and not dispose or use KITE Projects’ Materials other than in accordance with KITE Projects’ written instructions or authorisation; and
6.3.11 not do or omit to do anything which may cause KITE Projects to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that KITE Projects may rely or act on the Services.
7 Customer Remedies
7.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, KITE Projects shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
7.1.1 to terminate this Agreement with immediate effect by giving written notice to the Supplier;
7.1.2 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
7.1.3 to recover from the Supplier any costs incurred by KITE Projects in obtaining substitute goods and/or services from a third party;
7.1.4 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
7.1.5 to claim damages for any additional costs, loss or expenses incurred by KITE Projects 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 Delivery Date, KITE Projects 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 10% of the total price of the Goods. If KITE Projects 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 4.1, then, without limiting or affecting other rights or remedies available to it, KITE Projects shall have one or more of the following rights, whether or not it has accepted the Goods:
7.3.1 to terminate this Agreement with immediate effect by giving written notice to the Supplier;
7.3.2 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;
7.3.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
7.3.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
7.3.5 to recover from the Supplier any expenditure incurred by KITE Projects in obtaining substitute goods from a third party; and
7.3.6 to claim damages for any additional costs, loss or expenses incurred by KITE Projects arising from the Supplier’s failure to supply Goods in accordance with clause 4.1.
7.4 This Agreement shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
7.5 KITE Projects’ rights under this Agreement are in addition to its rights and remedies implied by statute and common law.
8 KITE Projects’ Obligations
8.1 KITE Projects shall:
8.1.1 provide such necessary information for the provision of the Goods and/or Services as the Supplier may reasonably request; and
8.1.2 provide access to KITE Projects’ premises or facilities as may reasonably be requested by the Supplier and agreed with the Supplier in writing in advance, for the purposes of this Agreement.
9 Pricing and Payment Terms
9.1 In consideration of the provision of the Goods and/or Services by the Supplier, KITE Projects agrees to pay the Price in accordance with the Payment Terms.
9.2 The Price shall be inclusive of the costs of packaging, insurance and carriage of the Goods and include all costs and expenses of the Supplier directly or indirectly incurred in connection with the performance of the Services.
9.3 Unless otherwise agreed by the parties in writing, the Supplier shall invoice KITE Projects after completion of delivery of the Goods and/or on completion of the Services (as applicable). All invoices shall be sent to KITE Projects at the address indicated on the order.
9.4 KITE Projects shall pay each invoice within 60 days of receipt of receipt, or such other date as agreed in writing between the parties, to a bank account nominated in writing by the Supplier from time to time.
9.5 The Price does not include any VAT or other governmental taxes, duties, fees and levies (“Taxes”). If Taxes are payable in respect of the Price, KITE Projects shall be liable for payment of such Taxes;
9.6 KITE Projects may at any time, without notice to the Supplier, set off any liability of the Supplier to KITE Projects against any liability of KITE Projects to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement. Any exercise by KITE Projects of its rights under this clause shall not limit or affect any other rights or remedies available to it under this Agreement or otherwise.
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 KITE Projects to inspect such records at all reasonable times on request.
10 Intellectual Property
10.1 KITE Projects will own any Intellectual Property Rights existing in the KITE Projects’ Materials and any Deliverables. KITE Projects grants the Supplier a personal, non-exclusive, non-transferable licence to use the KITE Projects Materials for the purposes of this Agreement.
10.2 The Supplier will own any Intellectual Property Rights existing in the Supplier Materials. The Supplier grants KITE Projects a personal, non-exclusive, non-transferable licence to use the Supplier Materials for the purposes of this Agreement.
11 Limitation on Liability
11.1 Nothing in this Agreement shall limit or exclude KITE Projects’ or the Supplier’s liability for:
11.1.1 death or personal injury caused by its negligence, or the negligence of its personnel, agents or sub-contractors;
11.1.2 fraud or fraudulent misrepresentation; or
11.1.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) any other liability which cannot be limited or excluded by applicable law.
11.2 Subject to clause 11.1, KITE Projects shall not have any liability to the Supplier whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profits, goodwill, business opportunities or anticipated savings or benefits, or for any loss of corruption of data or for any indirect or consequential loss arising under or in connection with this Agreement.
11.3 KITE Projects’ total aggregate liability to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Agreement shall be limited to the Price paid by KITE Projects under this Agreement in the 12 months preceding the date the liability arose.
12 Representations and Warranties and Undertakings
12.1 Each party represents, warrants and undertakes to the other that:
12.1.1 it has full capacity and authority to enter into and to perform this Agreement;
12.1.2 this Agreement is executed by a duly authorised representative of that party;
12.1.3 there are no actions, suits or proceedings or regulatory investigations pending or, to that party’s knowledge, threatened against of affecting that party before any court or administrative body that might affect the ability of that party to meet and carry out its obligations under this Agreement;
12.1.4 it conducts its business in a manner that is consistent with the Mandatory Policies; and
12.1.5 once duly executed this Agreement will constitute its legal, valid and binding obligations.
13.1 The Supplier shall indemnify KITE Projects 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 reasonable professional costs and expenses) suffered or incurred by KITE Projects arising out of or in connection with:
13.1.1 any claim made against KITE Projects 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 KITE Projects’ Materials);
13.1.2 any claim made against KITE Projects 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;
13.1.3 any claim made against KITE Projects by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services;
13.1.4 any breach of the Mandatory Policies.
14 Confidential Information
14.1 Each party undertakes at any time during this Agreement, and for a period of 5 years after termination, not to disclose, copy or use any Confidential Information except as permitted by clause 14.2.
14.2 Each party may disclose the other party's Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15 Data Protection
15.1 Both parties agree to comply with their obligations under the General Data Protection Regulation (GDPR) and Data Protection Act 2018 (and all other applicable statutes, directives, or regulations which may supplement, amend, or replace same and relate to data privacy) in respect of any Personal Data, which it supplies or receives under, or in connection with, this Agreement in its role as either Data Controller or Data Processor. Where a party is Data Controller it will ensure that it has obtained from all relevant Employees all consents which may be necessary in order for it, or the Data Processor, to lawfully process Personal Data about those Employees for the purposes of delivering the Services and Products.
15.2 Both parties warrant that they will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data.
16 Reporting and Audit
16.1 The Supplier shall:
16.1.1 maintain a complete set of records to trace the supply chain of all Goods and Services provided to the Customer in connection with this Agreement;
16.1.2 permit the Customer and its third party representatives, on reasonable notice during normal business hours, but without notice in case of any reasonably suspected breach of the Mandatory Policies, to have access to and take copies of the Supplier’s records and any other information and to meet with the Supplier’s personnel to audit the Supplier’s compliance with its obligations and with the Mandatory Policies.
17 Termination and Consequences of Termination
17.1 Without affecting any other right or remedy available to it, KITE Projects may terminate this Agreement:
17.1.1 with immediate effect by giving written notice to the Supplier if:
18.104.22.168 there is a change of Control of the Supplier; or
22.214.171.124 the Supplier's financial position deteriorates to such an extent that in KITE Projects’ opinion the Supplier's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy; or
126.96.36.199 the Supplier commits a breach of clauses 14,15 or the Mandatory Policies,
17.1.2 for convenience by giving the Supplier 30 days' written notice.
17.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement immediately on written notice to the other if:
17.2.1 the other party commits a material breach of this Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days of being notified in writing to do so;
17.2.2 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
17.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party;
17.2.4 an application is made to the court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party; or
17.2.5 the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
17.3 On termination of this Agreement, the Supplier shall immediately deliver to KITE Projects all Deliverables whether or not then complete and return all Customer Materials. If the Supplier fails to do so, then KITE Projects may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Agreement.
17.4 The expiry or termination of this Agreement shall not affect the accrued rights, remedies, obligations or liabilities of the parties under it existing at expiry or termination.
17.5 The following clauses shall continue in force: clause 10 (Intellectual Property), clause 11 (Limitation of Liability), clause 13 (Indemnity), clause 14 (Confidentiality), clause 15 (Data Protection), clause 17 (Consequences of Termination), clause 18 (Force Majeure), clause 19 (Insurance), clause 20(General) and any other provision of this Agreement which expressly or by implications is intended to continue.
18 Force Majeure
18.1 Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 20 Business Days or more, the party not affected may terminate this Agreement by giving 20 Business Days' written notice to the other party.
19.1 During the Term and for 6 years thereafter, the Supplier shall, at its expense, maintain in force with a reputable insurance company, adequate insurance covering the supply of the Goods and/or Services and its liabilities under this Agreement including as a minimum employer’s liability insurance for no less than £10,000,000, public liability insurance for no less than £5,000,000 and product liability insurance for no less than £5,000,000 in each case per event increasing annually in accordance with the UK retail prices index. The Supplier shall, on KITE Projects’ request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
20.1 Dispute Resolution: Subject to either party’s rights and remedies under this Agreement, the parties agree to use all reasonable efforts to negotiate and amicably resolve any disputes in relation to this Agreement by senior level negotiations.
20.2 Publicity: Neither party shall make any public announcement regarding the existence or subject matter of this Agreement without the prior written consent of the other party.
20.3 Notices: Any notice given in respect of this Agreement shall be deemed to have been given if delivered personally (including by courier) to either party at their respective addresses indicated on the order, or at such other address as may be notified by either party from time to time in writing, at the time of delivery or if sent by prepaid, recorded delivery, or first class post in the UK, 2 Business Days after posting or if outside the UK 7 Business Days after posting.
20.4 Assignment: The Supplier shall not assign nor in any manner transfer any interest or claim in this Agreement to any third party, unless authorised in advance in writing by KITE Projects, such authorisation not to be unreasonably withheld or delayed. KITE Projects may assign this Agreement to any of its group companies, affiliates or associates.
20.5 Sub-contracting: The Supplier may only sub-contract its rights or obligations under this Agreement with the prior written consent of KITE Projects.
20.6 Severability: If any provision of this Agreement (or part of any provision) is held by any competent authority to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this Agreement, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
20.7 Amendment: No amendment or variation of this Agreement shall be effective unless it is in writing and signed by an authorised representative of the parties.
20.8 Entire Agreement: This Agreement constitutes the whole Agreement between the parties and supersedes all previous Agreements between the parties relating to its subject matter.
20.9 No Partnership or Agency: Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise bind the other in any way.
20.10 Third Party Rights: A person who is not a party to this Agreement may not enforce any of its terms under this Agreement (Rights of Third Parties) Act 1999.
20.11 Costs: Each party shall pay their own costs and expenses incurred by it in connection with the entering into of this Agreement.
20.12 Counterparts: This Agreement may be executed in any number of counterparts. This has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
20.13 Law and Jurisdiction: This Agreement and any non-contractual rights or obligations arising out of or in relation to it, shall be governed by and construed in accordance with English law and the parties irrevocably submit to the exclusive jurisdiction of the English courts for any dispute arising in connection with this Agreement.
Terms and Conditions of Sale
In these terms and conditions of sale ("Terms and Conditions"), unless the context requires otherwise:
“Contract” means an agreement between Us and You for the supply of Goods and/or Services as more particularly described in the Order
“KITE/We/Us/Our” means Kite Engineering Supplies (Southern) trading as KITE Projects, whose principal place of business is Littleton Lane, Nr. Sparsholt, Winchester SO21 2LS
"Buyer/You/Yours" means the company, firm, body or person purchasing the Goods and/or Services;
"Goods" means the goods which We agree to supply in accordance with these Terms and Conditions;
“Intellectual Property Rights” means all vested, contingent and future rights of copyright and all rights in the nature of copyright in and all accrued rights of action and all other rights of whatever nature in and to the Technical Design Information, whether now known or in the future created, to which KITE is now or may at any time after the date of this Contract be entitled by virtue of or under any of the laws in force worldwide.
"Manufacturer" means the manufacturer of the Goods notified to You by Us from time to time;
"Order" means a purchase order in respect of the Goods and/or Services that you issue to Us;
"Services" means work and/or services or any of them to be performed by Us for You.
“Technical Design Information” means all the plans, drawings, models, specifications, reports, design documents and any other materials provided by KITE for the Purposes of this Contract;
1.1 These Terms and Conditions shall be incorporated into every contract ("the Contract") for the supply of Goods and/or Services by Us. The Contract will be subject to these Terms and Conditions alone.
1.2 Any variation of the Terms and Conditions must be expressly agreed in writing and signed by Us or Our authorised representative.
1.3 Any description contained in Our catalogues, samples, price lists or other advertising material is intended only to present a general picture of Our Goods or Services and will not form a representation or be part of the Contract.
1.4 Any quotation We issue may be amended or withdrawn at any time before We enter into a contract with You. Where a quotation is prepared based upon information You supply Us it is Your responsibility to check that the information is accurate.
1.5 Where Goods are to be supplied from stock, such supply is subject to availability of stock at the date of delivery.
2 SPECIFICATIONS, NON-STANDARD ORDERS, ALTERATIONS
2.1 If Goods and/or Services are supplied in accordance with Your specifications ("Specifications") You will be responsible for the Specifications and ensuring that they are suitable and accurate.
2.2 We reserve the right to make any changes in the Specification of the Goods which are required to conform with any applicable statutory, regulatory or other such requirements.
2.3 You will be responsible for supplying the Specifications and any necessary information relating to the Goods and/or Services within a sufficient time to enable Us to perform the Contract in accordance with its terms.
2.4 Prior to delivery, We shall be entitled at Our discretion to substitute for the Goods similar goods from the same or an alternative source, or to make modifications or alterations to the Goods provided that:
2.4.1 in the case of substituted Goods, the alternative goods supplied shall be of equivalent or better quality or performance to the substituted Goods;
2.4.2 in the case of modified and altered Goods, such modifications or alterations to the Goods shall not materially affect their quality or performance.
3 CANCELLATION OR VARIATION OF ORDERS
No contract may be cancelled, suspended or varied by You except with Our agreement in writing and on terms that You will indemnify Us in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by Us as a result of a cancellation, suspension or variation.
Packaging for the Goods shall be at Our discretion and We shall have the right to pack the Goods in such manner and with such materials and in such quantities as We think fit unless detailed packaging instructions are received from You and agreed in writing by Us prior to agreeing a price for the Goods.
5.1 Except as otherwise stated in any quotation or in Our price list, and unless otherwise agreed in writing, all prices are exclusive of delivery.
5.2 We reserve the right, by giving You notice at any time before delivery, to increase the price of the Goods and/or Services to reflect any increase in the cost to Us which is due to any factor beyond Our control, any change in delivery dates, quantities or specifications for the Goods and/or Services which is requested by You, or any delay caused by Your instructions or Your failure to give Us adequate information or instructions.
5.3 There shall be added to the price for the Goods or Services any cost of value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods or performance of the Services.
6 TERMS OF PAYMENT
6.1 Subject to any special terms agreed in writing between Us, liability for payment shall arise in respect of Goods, on delivery and in respect of Services, upon completion. We shall be entitled to invoice You for the price of the Goods and/or Services on or at any time after delivery or completion respectively, unless, in the case of Goods, these are to be collected by You or You fail to take delivery of the Goods, in which event We shall be entitled to invoice You for the price at any time after We have notified You that the Goods are ready for collection or (as the case may be) We have tendered delivery of the Goods.
6.2 When deliveries are spread over a period each consignment will be invoiced as despatched and each month's invoices will be treated as a separate account and be payable accordingly.
6.3 Unless otherwise agreed by Us, You will pay the price of the Goods (less any discount agreed in writing by Us, but without any other deduction or set-off) within 30 days of the date of Our invoice.
6.4 Time of payment shall be of the essence. If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to Us, We shall be entitled to:
6.4.1 cancel the Contract or suspend any further deliveries or performance under the Contract or any other contract so long as the default continues; and/or
6.4.2 withdraw or cancel immediately any discount for prompt payment which has been agreed with or has been granted to You or to which You are entitled and debit Your account accordingly.
7 DELIVERY AND COMPLETION DATES
7.1 Delivery shall take place when the Goods are unloaded at or delivered by Us or Our agent or contractor to Your premises or other delivery location agreed between Us except that:
7.1.1 if You collect or arrange collection of the Goods from Our premises or You nominate a carrier for the Goods, delivery shall take place when the Goods are loaded on to the collection or carrier's vehicle; or
7.1.2 if the Goods are ready to be despatched from Our premises to You and You have failed or refused to provide Us with detailed delivery instructions and/or the place for delivery has not been agreed in writing by Us the delivery shall take place when We have notified You that We are awaiting specific delivery instructions and/or that the place for delivery has not been agreed.
7.2 The dates for delivery of the Goods or for performance of the Services are approximate only and time is not of the essence for delivery or performance. We will use reasonable endeavours to complete delivery or performance on or before dates requested by You but will not be liable in any circumstances for the consequences of any delay in delivery or performance or failure to deliver or perform.
7.3 You shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which We may either: -
7.3.1 effect delivery by whatever means We think most appropriate; or
7.3.2 arrange storage at Your risk and expense pending delivery; or
7.3.3 resell or otherwise dispose of the Goods without prejudice to any other rights We may have against You for breach of contract or otherwise.
7.4 You shall indemnify Us against all costs, losses and expenses suffered or incurred as a result of Your failure to accept immediate delivery.
7.5 Where the Contract provides for delivery by instalments, each instalment shall constitute a separate contract and any delay, failure or defect in any one or more instalments delivered shall not entitle You to reject or cancel delivery or performance of any further instalment of the Contract or any other order from You or to repudiate the Contract.
7.6 You agree to provide to Us with access to such facilities, utilities and equipment as may be necessary to enable Us to fulfil Our obligations to You.
8 EXAMINATION; CLAIMS; RETURN OF GOODS
8.1 You shall examine the Goods upon delivery and You shall:
8.1.1 notify Us in writing where relevant within 24 hours of the delivery (or proposed delivery) of non-delivery or short delivery;
8.1.2 notify Us in writing within three working days of delivery or receipt of any apparent damage, defect or shortage;
8.1.3 notify Us in writing within three working days of delivery or receipt of any goods despatched by Us to You in error.
8.2 Notification under Clause 8.1 shall be first made by telephone then email unless We specify otherwise.
8.3 You shall comply with the carrier’s rules regulations and requirements so, when appropriate, We may make a claim against the carrier in respect of any damage or loss in transit.
8.4 If you do not notify Us correctly under the provisions of Clause 8, subject to any claim which You may have under Clause 9, We shall be deemed conclusively to have properly performed Our obligations under the Contract.
8.5 We shall be under no obligation to accept the return of Goods except in accordance with Clauses 8.1.2, 8.1.3, 9 and 11.
8.6 Any complaint regarding any Services provided by Us must be made in writing to Us within 7 days of the completion of the Services.
9 WARRANTY: LIMIT OF RESPONSIBILITY
9.1 In respect of Goods supplied but not manufactured by Us, the warranties given by Us will be equivalent to the warranty (if any) which We received from the manufacturer or supplier of such Goods but not so as to impose a liability greater than that imposed on Us by the warranty in Clause 9.2 and the warranties given under this Clause shall in any event apply only if You have given Us written notice and satisfactory proof of any relevant defect within the applicable period specified in Clause 9.2.
9.2 We warrant that (subject to the other provisions of this Contract) for a period of 12 months from the date of delivery, or such other period as stipulated in any quotation provided, the Goods will be free from defects in workmanship or material.
9.3 We shall not be liable for a breach of the warranty in Clause 9.2 unless
9.3.1 You give Us and the carrier (if the defect is as a result of damage in transit) written notice of the defect, within seven days of the time when You discover or ought to have discovered the defect and You show to Our satisfaction that the Goods are defective in workmanship or material; and
9.3.2 We are given a reasonable opportunity after receiving the notice of the defect to examine such Goods and You (if We ask you to ) return such Goods to Our place of business at Your cost for the examination to take place there.
9.4 We shall not be liable for a breach of the warranty in Clause 9.2 if:
9.4.1 You make any further use of such Goods after giving such notice; or
9.4.2 the defect arises because You failed to follow Our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
9.4.3 You replace, repair or fit parts to the Goods which were not supplied by Us, or without Our written consent;
9.4.4 if the Goods have been stored, handled or applied in such a way that damage is likely to occur;
9.4.5 if You have not paid by the due date for payment for all Goods or Services supplied whether under the Contract or under any other contract between Us and You;
9.4.6 in respect of any defect in the Goods arising from any free issue materials or any drawing, design or specification supplied by You.
9.5 Subject as expressly provided in Clauses 9.1, 9.2 and 9.3, all warranties, clauses or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.6 Subject to Clauses 9.3 and 9.4, if any of the Goods do not conform with the warranty in Clause 9.2, We shall at Our option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate or re-perform the Services provided that, if We so request, You shall at Your expense, return the Goods or the part of such Goods which is defective to us.
9.7 If We comply with Clause 9.6 We shall have no further liability for a breach of the warranty in Clause 9.2 in respect of such Goods.
9.8 Any Goods replaced will belong to the Company and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 12 month period.
9.9 Except for liability for death or personal injury arising from Our negligence and fraudulent misrepresentation or for any other liabilities that cannot be excluded or limited in law, Our option to repair, replace, re-perform or refund shall constitute the full extent of Our liability in respect of any loss or damage sustained by You (whether caused by any breach of the Contract or by misrepresentation (unless fraudulent) or by Our negligence, Our employees or agents or arising from any other cause whatsoever) and We shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct, indirect or consequential (including, without limitation, loss of profits) suffered by You.
9.10 To the extent permitted in law, Our maximum liability under or in connection with the Contract shall be limited to the price of the Goods or Services or £150,000 which ever is the lower.
10 TITLE TO GOODS
10.1 Unless the Contract otherwise stipulates, risk of damage to or loss of the Goods shall pass to You at the time of delivery of the Goods in accordance with Clause 7 or, if You fail to take delivery of the Goods, the time when We have tendered delivery of the Goods and You should insure the Goods accordingly.
10.2 Notwithstanding that risk in the Goods shall pass to You in accordance with Clause 10.1, legal and beneficial ownership of the Goods shall remain with Us until payment in full has been received by Us:
10.2.1 for those Goods;
10.2.2 for those Goods;
10.2.3 of any other monies due from You to Us on any account.
10.3 Until property in the Goods passes to You under Clause 10.2 You shall:
10.3.1 be bailee of the Goods;
10.3.2 keep the Goods separately and readily identifiable as Our property.
10.4 If Goods in which property has not passed to You are mixed with or incorporated into other goods, the property in those other goods shall be held on trust for Us.
11.1 Without limiting Our other right or remedies, We may terminate the Contract with you if:
11.1.1 You commit a material breach of any clause of these Terms and Conditions and if such a breach is remediable, You fail to remedy that breach within 14 days of Us requesting You to do so; or
11.1.2 You take any step or any step or action in connection with Your entering administration, provisional liquidation or any composition or arrangement with Your 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 Your assets or ceasing to carry on business; or
11.1.3 You take any step or action in connection with Your being made bankrupt, entering any composition or arrangement with Your creditors, having a receiver appointed to any of Your assets, or ceasing to carry on business; or
11.1.4 You suspend, or threaten to suspend, or cease or threaten to cease to carry on all or a substantial part of it Your business.
11.2 Termination of the Contract, howsoever arising, shall not affect any of Our or Your rights and remedies that have accrued as at termination.
11.3 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
12 DATA PROTECTION
12.1 We and You agree to comply with our respective obligations under the General Data Processing Regulation (GDPR) and Data Protection Act 2018 (and all other applicable statutes, directives, or regulations which may supplement, amend, or replace same and relate to data privacy)(“Data Protection Legislation”) in respect of any Personal Data, which we supply or receive under, or in connection with, this Contract in our respective roles as either Data Controller or Data Processor (as defined under Data Protection Legislation). Where a party is Data Controller it will ensure that it has obtained from all relevant Employees all consents which may be necessary in order for it, or the Data Processor, to lawfully process Personal Data about those Employees for the purposes of delivering the Services and Products.
12.2 Each party warrants that it will take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data and the accidental loss or destruction of, or damage to, Personal Data.
12.3 Each party undertakes at any time during this Contract, and for a period of 5 years after termination, not to disclose, copy or use any Confidential Information belonging to the other party except as permitted by clause 12.4.
12.4 Each party may disclose the other party’s Confidential Information to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connections with this Contract as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.5 For the purposes of clauses 12.3 and 12.4, “Confidential Information” shall mean any and all information and data of a confidential or proprietary nature in whatever from and on whatever media (whether written, oral, visual, electronic, magnetic or other media) which includes: commercial, financial, business, customer, supplier, marketing, third party, technical or other information (including inventions, ideas, designs, formula, strategies, software, know-how and trade secrets); any information which at the time of disclosure is or should be regarded as confidential or proprietary having regard to the nature of the information and the circumstances of the disclosure.
13 FORCE MAJEURE
13.1 A “Force Majeure Event” means any circumstances not within Our or Your reasonable control including but not limited to: acts of God, flood, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including without limitation imposing export or import restriction, quota or prohibition; collapse of buildings, fire, explosion or accident; interruption or failure of utility services.
13.2 Provided We or You have complied with clause 13.3, if We or You are prevented, hindered or delayed in or from performing any obligations under this Contract by a Force Majeure Event, the affected party (“Affected Party”) shall not be in breach of this Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 The Affected Party shall:
13.3.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than 14 days from its start, notify the other party of the Force Majeure Event and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract; and
13.3.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
13.4 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of 20 days, the party not affected by the Force Majeure Event may terminate this Contract by giving 20 days written notice to the Affected Party.
14 INTELLECTUAL PROPERTY
14.1 We grant you with effect from the delivery date, a non-exclusive, irrevocable, non-terminable and royalty-free licence to use the Technical Design Information, subject to the following licence conditions:
14.1.1 the licence includes the right to use and reproduce the Technical Design Information (and any designs contained therein) for any and all purposes whatsoever connected with this Contract only.
14.1.2 You shall not use the Intellectual Property Rights licensed under this clause 16 in any way that is not expressly permitted by this Contract. and not for any other purpose whatsoever.
14.2 You shall indemnify Us against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, unregistered design, design right, copyright, trademark or other industrial or intellectual property rights resulting from Our compliance with Your instructions, whether express or implied.
15.1 You agree to indemnify Us against all losses, damages, injury, costs and expenses of whatever nature suffered by Us to the extent that the same are caused by or related to:
15.1.1 designs, drawings or specifications You give Us in respect of the Goods and/or Services;
15.1.2 defective materials or products You supply Us and We incorporate into the Goods; or
15.1.3 the improper incorporation, assembly, use, processing, storage or handling of Goods by You.
16 ASSIGNMENT AND SUBCONTRACTING
16.1 None of Your rights or obligations under the Contract may be assigned or transferred in whole or in part without Our prior written consent.
16.2 We shall be entitled to subcontract any work relating to the Contract.
16.3 We shall be entitled to assign Our rights under this Contract provided that We give You prior written notice.
17.1 Any notice or other communication to be given under these clauses must be in writing and may be delivered or sent by pre-paid first-class letter post
17.2 Any notice or document shall be deemed served, if delivered, at the time of delivery 48 hours after posting
The invalidity, illegality or unenforceability of any provision of this Contract in whole or in part shall not prejudice the effectiveness of the rest of this Contract or the remainder of any part of a clause affected.
No waiver by Us of any breach of the Contract by You shall be considered as a waiver of any subsequent breach of the same or any other provision.
20 THIRD PARTY RIGHTS
A person who is not party to this Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
21 LAW AND JURISDICTION
The Contract shall be governed by and construed in all respects in accordance with English law and the parties submit to the non-exclusive jurisdiction of the English courts.