General Terms and Conditions of Purchase
1. Definitions in this Contract, unless the context otherwise requires, have the following meanings:
- 1.1 “ Contract ” means the agreement between EPS and the Supplier comprising any Purchase Order, any Special Conditions referred to therein and the general terms and conditions set out in the agreement for the supply of goods or performance of the services described in the Purchase Order.
- 1.2 “Contract Price” means the sum or sums stated at the price in the Purchase Order.
- 1.3 “Completion Date” means the date for delivery of the goods or completion of the services as specified in the Purchase Order.
- 1.4“EPS UK LTD” is EPS UK Limited incorporated and registered inEngland and Wales with company number 1936300 whose registered office is at Units N&O, Freeth Street, Colwick, Nottingham, NG2 3GT (EPS), and is the entity purchasing the goods and/or services.
- 1.5 “Purchase Order” means a document issued by EPS to the Supplier specifying the goods, the Services, Contract Price and any Special Conditions.
- 1.6 “Specification “means any document supplied by EPS setting out details of EPS’s requirements and describing itself as such.
- 1.7“Supplier” means the person, firm or company to whom these terms and conditions of purchase apply.
- 1.8 “The Goods” means any such goods to be supplied by the supplier to EPS as detailed in this Contract.
- 1.9 “Services” means any such services to be provided by the Supplier, to EPS, as detailed in this Contract.
- 2 “Force Majeure” means any circumstances which could not have been contemplated and is beyond reasonable control of the Parties.
- 2.1 “Intellectual Property Rights” means all intellectual property whether registered or unregistered including without limitation, patents, patentable inventions, trademarks, trade names, know-how, copyrights, database rights, models, software, registered design, designs and trade secrets and all rights to use such intellectual property.
- 2.2 “Special Conditions” means any additions or alterations to the general terms and conditions of the contract as stated in the Purchase Order.
2. Commencement and Duration
The Contract shall be effective from the date first above written and shall continue in force until the parties have fully discharged all their obligations under its rules terminated by one of the parties under clause.
3. Time and Variations
- 3.1 The Goods and or Services shall be delivered or completed by the supplier to EPS not later than the date specified in the Purchase Order time to be of the essence of the contract.
- 3.2 If the Supplier is delayed in completing the Contract by any act or omission of EPS, then the Supplier shall promptly notify EPS of such delay. EPS shall grant the Supplier such extension of time as EPS considers reasonable.
- 3.3 EPS shall have the right before delivery of Goods or commencement of Services to issue the Supplier with written notification of any variation of this Contract. Any such variation shall he deemed to be included in and forming part of the Purchase Order.
- 3.4 If the Supplier is unable to accept such variation to the Contract the Supplier shall immediately notify EPS in writing who at its discretion shall have the right to terminate the Contract in accordance with the provision of Clause 17.
- 3.5 Either party will not be liable to the other for any delay in or failure to perform its obligations as a result of an event of Force Majeure. The Supplier shall inform EPS immediately upon learning of an event of Force Majeure which may result in any delay. The parties shall take all reasonable measures to mitigate the effects of any such delay or failure, including suspension of works by EPS as provided herein. If such delay continues for ninety (90) days, EPS shall be entitled to terminate the Contract by notice in writing, in which case neither party shall have a claim against either party regarding delay or failure.
4. Delays in Completion
If the Supplier fails to complete the Contract by the Completion Date or an extended date as may be granted by EPS, EPS shall be entitled to deduct as liquidated damages for delay as stated in the Purchase Order, or if not so stated, three per cent (3%) of the total Contract Price for every week’s delay up to a maximum of fifteen per cent (15%) of the total Contract Price. If such failure continues for more than five (5) weeks from the Completion Date, and EPS having notified the Supplier and notified a final delivery date, the Supplier is still unable to comply therewith then, EPS shall have the right to terminate the Contract by notice in writing, and to claim any extra costs directly or indirectly incurred in acquiring suitable replacement equipment for the Goods, or having the Services carried out.
5. Quality of Goods
- 5.1 The Goods supplied under this Contract shall be to EPS’s satisfaction and shall conform in all respects with the particulars of this Contract.
- 5.2 Specifically, but without limitation, the Goods shall:-
- 5.2.1 be fit for any purpose made known to the Supplier expressly or by implication and in this respect EPS shall rely on the Supplier’s skill, judgement and experience;
- 5.2.2 be of satisfactory quality;
- 5.2.3 be entirely safe when in use and properly operated. The Goods, whether supplied or used in connection with a Service must conform to all relevant British/European/International standards and/or legislation;
- 5.2.4 be new (unless otherwise specified in the Contract).
- 5.2.5 Correspond with their description on any representative samples, models, patterns, drawings, plans and specifications.
- 5.3 The Supplier shall ensure the Goods, at the time of delivery, for the duration of the Contract and for any period after delivery so specified in the Contract meet the homologation requirements from time to time in force in the UK for all normal uses of the Goods and any particular uses made known to the Supplier by EPS prior to delivery.
- 5.4 The Supplier shall upon request provide to EPS a paper copy of any homologation certificate it holds for the Goods.
6. Quality of Service
- 6.1 The Services supplied under this Contract shall be to EPS’s satisfaction and shall conform in all respects with the particulars of this Contract.
- 6.2 Specifically, but without limitation:-
- 6.2.1the Supplier shall at all times perform the Services with all due skill, care and diligence including, but not limited to, industry best practice and in accordance with the Supplier’s own established internal procedures;
- 6.2.2 the Supplier shall at all times make available sufficient personnel and any named persons in the Contract and all other resources as are required for the successful and timely completion of the Services;
- 6.2.3 the Services shall at all times be supplied by appropriately supervised, experienced, qualified, trained and competent personnel; and
- 6.2.4the decision of EPS as to whether any person is to be admitted to or is to be removed from EPS’s premises or is not to become involved in or is to be removed from involvement in the performance of the Contract shall be final and conclusive.
- 7.1 The Supplier shall deliver the Goods and Services to places and at the times described in the Contract or, if not described, as notified by EPS's authorised representative.
- 7.2 The Supplier shall deliver the Goods and Services in conformity with Clause 19.
- 7.3 The Supplier shall ensure that any vehicles delivering any Goods or Services will not reverse out of the Goods Inward Road located at EPS’s premises at Units N&O, Freeth Street, Colwick, Nottingham, NG2 3GT, UK, unless the Supplier:
- 7.3.1 has obtained the prior approval from a member of EPS's Site Services Staff and
- 7.3.2 ensures the reversing is carried out with all due skill care and attention and the vehicle is escorted at all times whilst in motion by appropriately qualified personnel.
- 7.4 If the Supplier fails to comply with Clauses 7.2 and 7.3, then:
- 7.4.1 EPS may terminate the Contract under Clause 18; and
- 7.4.2 the Supplier shall be liable for the full cost of any insurance policy invalidated, terminated or affected by such failure to comply and indemnify EPS against all actions claims proceedings demands damages losses liabilities (including any settlements) costs (including any legal costs) expenses or disbursements brought or made against EPS or incurred by EPS.
8. Acceptances, Inspection and Rejection
- 8.1 EPS shall inspect the Goods and may, within a reasonable time of delivery, issue a written notice to the Supplier, rejecting all or part of any Goods which fail to meet the requirements of this Contract.
- 8.2 If the Goods are rejected the Supplier shall remove them at the Supplier’s own expense within five working days of notification and shall within a reasonable period, replace the Goods or refund in respect of the value of the Goods.
- 8.3 For the avoidance of doubt EPS’s signature on the Supplier’s delivery note shall signify delivery rather than inspection and acceptance of the Goods.
9. Property and Risk
- 9.1 Title in the Goods shall pass to EPS on delivery.
- 9.2 Risk in the Goods shall pass to EPS upon inspection and acceptance of the Goods.
- 9.3 All tools, materials, drawings, specifications and other data or information provided by EPS, shall remain at all times EPS’s property, and EPS reserves the right of access to collect the same for the Supplier during the normal hours of business, and the Supplier will return such property to EPS undamaged on completion of the Services or delivery of the Goods (as the case may be).
10. Indemnity and Insurance
- 10.1 The Supplier shall indemnify EPS against all losses, damage, injury or expense, and injury to or death of any person, howsoever caused by or arising from, either directly or indirectly;
- 10.1.1 the Goods or Services not being fully in accordance with this Contract;
- 10.1.2 any act by the Supplier, the Supplier’s employees, agents or sub-contractors.
- 10.1.3 provable fraud or fraudulent misrepresentation or wilful default on the part of the Supplier, or
- 10.1.4 any matter for which it would be unlawful to exclude or restrict liability.
- 10.2 The Supplier shall fully indemnify EPS against any expenses arising from any alleged or actual infringement of any third party’s intellectual property Rights, howsoever arising from this Contract.
- 10.3 The Supplier shall maintain satisfactory insurance cover with a reputable insurer in respect of all liabilities, both statutory and contractual, arising from this Contract, to a minimum of £2million or such higher figure as EPS may specify. The Supplier shall produce evidence of such insurance and payment of the current premium to EPS on request.
- 10.4 EPS, its employees, agents or associated companies shall in no circumstances whatsoever be liable for any loss of profits or indirect or consequential loss howsoever arising from this Contract.
11. Intellectual Property Rights
- 11.1 All figures, drawings, models, samples, calculations, design drawings and other documents which have been made available to the Supplier or paid for by EPS for the performance of matters set out in the Purchase Order, shall remain its property and/or copyright and/or other industrial rights shall be reserved; the said documents shall only be used for work required for the performance of the Purchase Order and, without the express written approval of EPS, shall neither be reproduced nor disclosed to third parties. On completion of the Purchase Order they shall be returned to EPS without special request and free of charge. The Supplier shall be liable to EPS for any damage caused by culpable contravention.
- 11.2 The copyright, database right and all other Intellectual Property Rights in Goods and/or Services and any other materials, documentation, computer software developed, written, created or prepared by the Supplier in performing this Contract shall belong to EPS.
- 11.3 The Supplier shall provide EPS with copies of documents, drawings, computer software and/or anything in its possession or control which is referred to or relied upon by the Supplier in its supply of Goods and/or Services and the Supplier shall give EPS an unlimited licence to copy and use anything so provided without payment of fee.
- 11.4 All Intellectual Property Rights developed by the Supplier the use of which is necessary for the performance of the Contract which do not vest in EPS under condition 11.2 shall remain or be vested in the Supplier and EPS shall have and the Supplier hereby grants to EPS a royalty-free, world-wide, perpetual, irrevocable, non-exclusive licence to use the same.
- 11.5 For the avoidance of doubt all Intellectual Property Rights in all documentation and all other items supplied by the EPS to the Supplier in connection with the Contract shall remain the property of EPS.
- 11.6Unless EPS’s written consent is first obtained, Seller shall not in any manner advertise, publish or release for publication any statement mentioning EPS, or the fact that Seller has furnished or contracted to furnish any Goods or Services to EPS.
- 11.7The Supplier warrants, represents and undertakes that its provision of services and deliverables under the Contract will not infringe any Intellectual Property Rights of which a third party is the proprietor and that the Supplier is free to grant the licence set out in 11.3. The Supplier agrees to indemnify and hold harmless EPS against any and all liability, loss, damage, costs and expenses (including legal costs) which EPS may incur as a result of alleged or actual infringement of a third party’s Intellectual Property Rights by reason of either its or the Supplier’s possession or use in any manner of any such services or deliverables.
- 12.1 Payment for Goods received or Services completed to the satisfaction of EPS shall be made 60 days from the end of the month (unless otherwise agreed) in which the correct, itemised invoice had been presented. Value Added Tax where applicable will be shown separately on all invoices as a net extra charge.
- 12.2 The Supplier’s invoice must quote the full Purchase Order Number and be addressed as detailed on the front of the Purchase Order.
- 12.3 EPS shall not be responsible for any delays in payment arising from failure to comply with these invoicing instructions.
- 12.4 Payment by EPS shall be without prejudice to any rights or remedies available to it under this Contract, or otherwise, and shall not constitute any binding admission by EPS as to the suitability, quantity, quality or fitness for purpose of Goods received or satisfactory performance and completion of the Services.
- 12.5 EPS shall be entitled to withhold payment for Goods and /or Services pending receipt and acceptance of the Goods and /or Services.
13. Recovery of Sums Due.
EPS shall be entitled to deduct from any monies due or to become due to the Supplier any monies owing to EPS from the Supplier.
The Supplier shall not publish or reproduce or arrange press releases or make public statements in connection with this Contract or make use of the name of EPS in any manner without EPS’s prior written approval.
The Supplier shall keep confidential all information relating to EPS, acquired while supplying the Goods or carrying out the Services for EPS.
- 16.1 EPS may cancel the Contract at any time by giving the Supplier 7 day's written notice.
- 16.2 If such notice is given EPS shall indemnify the Supplier against any commitments liabilities or expenditure unavoidably incurred by the Supplier in respect of this Contract prior to notification of the cancellation but excluding loss of profit.
- 17.1 EPS may immediately terminate this Contract by written notice to the Supplier if:
- 17.2 The Supplier is in breach of any of the Conditions of this Contract; or
- 17.3 The Supplier becomes, or appears to become, insolvent or bankrupt or in any other way unable to meet its commitments under this or any other Contract; or
- 17.4 For whatever reason, the Supplier brings, or may bring, bad publicity or disrepute upon EPS.
- 17.5 The Supplier shall deliver to EPS on cancellation and/or upon termination all materials made or obtained by the Supplier under the Contract.
- 18.1 Failure on the part of EPS at any time to enforce any provision of this Contract shall in no way affect EPS’s rights at a later date to require performance of the Contract nor shall a waiver of any breach be taken or held to be a waiver of any subsequent breach of any provision.
19. Health and Safety
- 19.1 The Supplier shall comply at all times for the requirements of the Health and Safety at Work Act 1974 and all subsequent amendments thereto, EPS’s Health and Safety Guidance Notes and any health and safety or related instructions which may be issued to the Supplier by EPS at any time.
20. Assignment and Sub-contacting
- 20.1 The Supplier is prohibited from transferring, sub-contracting or assigning directly or indirectly to any person or persons whatsoever any portion of the Contract without prior written permission from EPS.
- 20.2 The granting of any consent to sub-contract shall not relieve the Supplier of any of its obligations under the Contract. Any failure to perform by a sub-contractor of the Supplier shall not constitute an event of Force Majeure.
- 21.1 All notices and communications require to be sent from the Supplier to EPS or from EPS to the Supplier under this Contract shall be made in writing and sent by first class mail or by email to the addresses first described in the Contract or such other addresses as notified from time to time. They will be deemed to have reached the party to whom it is addressed on the second business day following date of posting or transmission (as the case may be).
22. Contracts (Rights of Third Parties) Act 1999
This Contract is not made for the benefit of, nor shall any of its provisions be enforceable by, any person other than the parties to this Contract and their respective successors and permitted assignees.
23. Data Protection
The Supplier shall comply in all respects with the provisions of the Data Protection Act 1998 and all subsequent and supporting legislation made pursuant thereto and will indemnify EPS against all actions costs expenses claims proceedings and demands which may be brought or made against EPS for breach of statutory duty under the Act which arises from the use disclosure or transfer of personal data by the Supplier and its agents, assigns and/or sub-contractors.
- 24.1 The Supplier shall not unlawfully discriminate within the meaning and scope of any law, enactment, order or regulation relating to discrimination (whether in race, gender, religion, disability, sexual orientation or otherwise) in employment.
- 24.2 The Supplier shall take all reasonable steps to secure the observance of Clause 24.1 by all employees, agents, assigns or sub-contractors of the Supplier in the execution of the Contract.
25. Dispute Resolution
If any dispute arises in connection with this Contract, the parties will attempt to settle it with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
In the event that any provision of these Terms and Conditions shall be declared by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, the remaining provisions shall survive in full force and effect shall not in any way be affected or impaired thereby.
This Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Contract. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party's behalf.
28. Governing Law
This Contract shall be governed by and construed in accordance with English law and the Supplier hereby irrevocably submits to the jurisdiction of the English Courts.
29. Further Interpretation
- 29.1 Clause headings are for ease of reference and shall not affect the interpretation of the Contract.
- 29.2 Unless the context otherwise requires words in the singular shall include Plural and in the plural shall include the singular.
- 29.3 Unless the context otherwise requires a reference to one gender shall include a reference to other genders.