General Terms and Conditions of Goods and Services
Data Protection Privacy Notice:
Please note and make your employees, agents or other representatives aware that we will need to process their personal data in performing our obligations under this agreement. Generally, this will be contact names, email addresses and telephone numbers which are necessary to communicate details of the contract and manage our relationship with you. This will be processed by Moonpig.com Limited or one of our Affiliates and will be processed within the UK or the EEA. In rare circumstances we may need to share your personal data with third parties or transfer it to one of our Affiliates outside of the UK or the EEA – in these circumstances we will contact you to inform you of why this is necessary. Data subjects have certain rights under the Data Protection Legislation in relation to their Personal Data including the right to receive a copy and the right to make a complaint at any time to the competent authority, in the UK to the Information Commissioner’s Office (ICO). Should you require any more information, please ask for a copy of our privacy policy.
1. Definitions
1.1 The following definitions shall apply to these Terms:
“Affiliate” means any one or more legal entities (i) directly or indirectly owned or controlled by the Buyer, (ii) directly or indirectly owning or controlling Buyer; or (iii) directly or indirectly under common ownership of a legal entity with the Buyer. For the purposes of this definition a legal entity shall be deemed to own and/or to control another legal entity if more than 50% (fifty percent) of the voting stock of the latter legal entity, ordinarily entitled to vote in the meetings of shareholders of that entity, (or, if there is no such stock, more than 50% (fifty percent) of the ownership of or control in the latter legal entity) is held directly or indirectly by the owning and/or controlling legal entity;
"Business Day" means a day other than a Saturday, Sunday or public holiday in the country of delivery of the Goods or Services;
"Buyer" means Moonpig.com Limited or the member of the Moonpig group identified as the purchaser in the PO;
“Buyer IP Licence” means a royalty-free, revocable, non-exclusive, non-perpetual, non-sublicensable and non-transferable licence to use any materials for the sole purpose of enabling the Supplier to perform its obligations to Buyer under the Contract until termination or expiry of the same;
"Contract" means the contract between the Supplier and the Buyer for the purchase of Goods and/or Services on mutual acceptance by parties of the Order/PO/SOW and incorporating these Terms;
“Change of Control” means the occurrence of any of the following events (i) an acquisition of the Supplier by another entity by means of any transaction or series of related transactions (including, without limitation, any reorganization, merger or consolidation) or (ii) a sale of all or substantially all of the assets of the Supplier (collectively, a “Merger”), so long as in either case the Supplier’s shareholders of record immediately prior to such Merger will, immediately after such Merger, hold less than fifty (50%) of the voting power of the surviving or acquiring entity;
“Data Protection Legislation” means the UK Data Protection Legislation and the General Data Protection Regulation ((EU) 2016/679) and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data; and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party, and Data Controller, Data Processor, Data Subject, Personal Data and Process/Processing shall have the meaning given to them by the Data Processing Legislation;
“Delivery” has the meaning given in clause 3;
“Delivery Date” means the date identified in the Order (or otherwise notified to the Supplier) by which the Supplier must deliver the Goods or perform the Services to the satisfaction of the Buyer;
“Delivery Location” means the location specified by the Buyer in the PO where the Goods are to be delivered and/or the Services are to be performed;
“ESG” means environmental, social and governance laws and regulations;
"Force Majeure Event" means any circumstance not within a party’s reasonable control including, without limitation: (a) acts of God, flood, drought, earthquake or other natural disaster; (b) epidemic or pandemic (but not the current Covid-19 outbreak or any governmental measures implemented from time to time); (c) 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; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, fire, explosion or accident; (g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party); and (h) interruption or failure of utility service;
"Good(s)" means the goods purchased by Buyer from the Supplier in accordance with these Terms set out in the PO which may include Software (whether embedded into the items or supplied separately or over the internet) or other Intellectual Property Rights;
“Intellectual Property Rights” shall mean any patents, utility models, rights to inventions, processes and methods of performing processes, designs, copyright and related rights, Software code whether embedded in the Goods or hosted by a party or third party, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and the right to enforce such protections;
“Material Breach” shall mean a breach which is not minimal or trivial in its consequences to the Buyer;
"Order" means Buyer's order for the Goods and/or Services, as set out in the PO and incorporating any Product Specifications or Service Levels (as defined in clause 5.1) mentioned therein;
“Pre-existing Intellectual Property”
“PO” means a purchase order requesting or specifying a supply of Services or Goods;
Pre-existing Intellectual Property means any Intellectual Property Rights which: a) in the case of the Buyer, are owned by or licensed to the Buyer prior to the date of the Contract or after the date of the Contract otherwise than by or pursuant to the terms of the Contract; and b) in the case of the Supplier is identified in writing as being owned by or licensed to the Supplier on delivery of the same to Buyer;
"Product Specification" means the specification relating to Goods (including as to quantity, description and quality) provided by Buyer in writing to Supplier or vice versa;
“SOW” means a statement of work;
“Services” the services to be provided by Supplier to Buyer as set out in the Order which may include the use of Software and continuing Software support;
“Software” means applications, web browsers, operating systems, utility software or any software required in order to use any purchased hardware, together with any technical information and documentation necessary for the us e of such software;
"Supplier" means the party from whom the Buyer purchases the Goods and/or Services;
“Supplier Historic IP Licence” means a perpetual, royalty-free, irrevocable and non-exclusive licence (with a right to sub-license) to use (a) any Intellectual Property Rights vested in or licensed to the Supplier on the date of the Agreement; and (b) any Intellectual Property Rights created during the term of the Contract but which are neither created or developed pursuant to the Contract nor arise as a result of the provision of the Goods and/or Services, including any modifications to or derivative versions of any such Intellectual Property Rights, which Buyer reasonably requires in order to exercise its rights and take the benefit of the Contract including the Goods and/or Services provided;
“Supplier IP Licence” means the present assignment of future rights and immediately upon coming into existence, all such Intellectual Property Rights (with full title guarantee and free from all third party rights);
"Terms" the terms and conditions set out in this document as amended from time to time;
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
1.2 In these Terms, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) A reference to a party includes its personal representatives, successors or permitted assigns;
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) A reference to writing or written includes emails.
2. Contract Formation
2.1 In the absence of a written agreement to the contrary executed between Supplier and Buyer, these Terms shall apply to every purchase of Goods or Services by Buyer.
2.2 An Order constitutes an offer by Buyer to purchase the Goods or Services in accordance with these Terms. The Contract shall be formed at the time when Buyer’s Order/PO is confirmed in writing by Supplier or when the Supplier commences the supply of the Goods or Services detailed in the PO. Each accepted Order will be deemed to create a separate binding Contract incorporating these Terms.
2.4 Any terms and conditions proposed by Supplier or contained or referred to in any Order confirmation, invoice, or other document sent by Supplier are expressly rejected by Buyer and waived by Supplier.
2.5 The terms of master or framework agreement or any special conditions set out in Buyer’s Order shall override and prevail over any conflicting clauses in these Terms.
2.6 These Terms apply to the purchase of Goods or Services to the exclusion of any other terms that Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Delivery And Delay
3.1 The Supplier shall deliver the Goods, perform the Services and/or provide the Software during normal working hours by the Delivery Date.
3.2 The Supplier agrees that the Goods shall be properly packed and secured in such manner as to enable them to reach the Delivery Location in good condition and in accordance with clause 7.3. Delivery shall be completed on completion of unloading of the Goods at the Delivery Location.
3.3 The Supplier agrees to deliver the Goods, perform the Services and/or issue the Software at the Delivery Location (or at such other location as Buyer may instruct before delivery).
3.4 Title and risk in the Goods (including Goods delivered in instalments) passes to Buyer on completion of delivery. Passing of title shall be without prejudice to any right of inspection or rejection Buyer has under a PO, by operation of law or otherwise.
3.5 Title in Software shall pass to Buyer on:
(a) delivery of the licence key to the Software;
(b) Buyer’s receipt of login details to a cloud server to access the stored Software; or
(c) delivery of a CD with the Software stored on it.
4. Product Specification, Warranty and Supplier’s Liability for Defects
4.1 The Supplier warrants that the Goods shall:
(a) correspond to their description and any applicable Product Specification;
(b) be of satisfactory quality (with the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Buyer expressly or by implication, and in this respect the Buyer relies on the Supplier's skill and judgment;
(c) be free from defects in design, material and workmanship and remain so for at least twelve (12) months from the date, unless agreed otherwise by Buyer and Supplier in writing;
(d) comply with all applicable statutory and regulatory requirements relating to the health and safety, the environment, manufacture, labeling, packaging, storage, handling, export control and delivery of the Goods valid in the European Union, United Kingdom or other countries into which the Goods will be supplied;
(e) be free from any charges, mortgages, liens or other such third party rights;
(f) where the Goods incorporate Software, be free from viruses; include the highest security protocols as are standard within the industry; be provided with all such licences as are necessary for the Buyer and any end user to use the Goods in accordance with the Product Specification; and for the duration of the warranty period in clause 4.1(c) be subject to only such updates or modifications as are necessary to maintain or enhance the Software functionality.
4.2 Supplier shall not make any changes to the Product Specification without prior written notification to Buyer. If such changes are required to conform with any applicable statutory, UK or EU requirements, Supplier shall implement such changes in such a way that they do not materially affect the nature, performance, compatibility, scope of, or the charges for the Goods. Supplier shall inform Buyer immediately of each such change made to the Product and Buyer shall have the right to terminate the Contract. If the Supplier requests a change to the Goods for any other reason than regulatory compliance, this shall only be implemented if agreed in writing by the Buyer. If not agreed, Buyer shall be able to cancel its Contract without this granting any indemnification or compensation rights whatsoever for Supplier.
4.3 The Supplier shall ensure that at all times it has and maintains all the licenses, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract and shall, at its expense, maintain its facilities used for the manufacture of the Goods in compliance with all applicable state and regional rules and regulations, including but not limited to any applicable environmental, chemical control, health and safety laws.
4.4 The Supplier shall use commercially reasonable efforts to comply with applicable ESG laws and regulations and shall foresee any known or expected future changes in the requirements and take all reasonable actions to ensure compliance. The Supplier shall ensure that it adheres to and aligns its operations and strategies with Buyer’s Code of Conduct for suppliers.
4.5 Where Buyer gives notice in writing to Supplier during the warranty period set out in clause 4.1(c) above and within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in clause 4.1, the Supplier shall immediately use its best endeavours to take all remedial action and necessary steps to ensure compliance and provide support as quickly as possible to Buyer. Buyer (if asked to do so by Supplier) will return such Goods to Supplier's place of business at Supplier’s cost.
4.6 The Buyer shall have the right to assign the benefit of the warranty set out in clause 4.1(c) to its customers.
4.7 Both parties will be solely and individually responsible for any tax payments falling due to their respective tax authority or governmental bodies.
4.8This clause 4 shall survive termination of the Contract.
5. Services
5.1 The Supplier warrants that the Supplier shall:
(a) perform the Services with the care and skill expected of a competent professional within the industry and in accordance with all applicable statutory and regulatory requirements; and shall have and maintain all licences, consents, permissions, authorisations and permits that are necessary to perform the Services;
(b) ensure that, when providing the Services, it does so in accordance with any health, safety, environmental or security procedures, protocols or any other policies in force at any site at which the Services are performed; comply with any reasonable operational directions of the Buyer; and not interfere with Buyer’s activities;
(c) provide the Services on or before the dates specified in the Contract. If the Contract does not specify completion dates(s) for providing the Services, Supplier will provide the Services at such time as Buyer specifies (acting reasonably);
(d) where the Contract specifies, provide the Services in line with any service levels, uptime and repair or response deadlines, and key performance indicators the Buyer agrees with the Supplier (“Service Levels”). Where the Service Levels specify, the Buyer shall have the right to claim any liquidated damages or the right to terminate the Contract in accordance with the Service Levels;
(e) report any accidents or (security) incidents it becomes aware of and which occur during the performance of the Services. In particular The Supplier shall inform the Buyer immediately after it becomes aware of any matter which may affect Supplier’s ability to provide the Services in line with Contract, including meeting any Service Levels, milestones or completion dates and give Buyer details of any proposed alternative arrangements (which will be subject to Buyer’s prior approval).
6. Buyer’s Remedies
6.1 If the Supplier fails to deliver the Goods, perform the Services and/or issue the Software by the Delivery Date, Buyer shall, without limiting its other right or remedies, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by the end-customer in obtaining substitute Goods and/or Services from a third party;
(d) where Buyer has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered to the Supplier, to have such sums refunded by the Supplier; and
6.2 If the Supplier has delivered Goods that do not comply with the undertakings and warranties set out in clause 3, then, without limiting its other rights or remedies, the Buyer shall have one or more of the following rights, whether or not it has accepted the Goods:
(a) 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;
(b) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(c) To require the Supplier to repair or replace the rejected goods, or to provide a full refund of the price of the rejected Goods (if paid); and
(d) To refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make.
6.3 The Supplier shall ensure that each Delivery of the Goods are properly packed and secured in such a manner as to enable them to reach their destination in good condition in accordance with the applicable laws and regulations of the receiving country and is accompanied with a Delivery note which shows the date of the Order, the PO number (if any), the type and quantity of the Goods, special shipping and packaging instructions (if any), special storage instructions (if any. If requested by the Buyer a Certificate of Conformance and or Origin shall be furnished by the Supplier against each separate Contract. Where the Goods include any Intellectual Property Rights of the Supplier or any third parties, Supplier shall provide a letter of authority authorising the use of those Intellectual Property Rights. Supplier will give all such assistance as may be necessary to expedite and ensure that the Goods pass through customs or such other import or export authority.
6.4 All returnable packing materials will be returned to the Supplier if requested at its expense and at no cost for Buyer. All returnable packing materials shall be stamped with the Supplier’s name and address.
7. Charges And Payment
7.1 The charges for the Goods, Services and/or Software shall be as set out in the relevant Purchase Order or relevant Contract. Un
7.2 The charges are inclusive of any and all taxes (other than VAT, where applicable, which shall be charged at the relevant rate) and other duties (where applicable) and governmental charges, now imposed or hereafter becoming effective. Unless otherwise specified on a Purchase Order, Goods are sold DDP (as defined in INCOTERMS 2020) at Buyer’s point of delivery
7.3 In respect of the Goods and/or Software, the Supplier shall invoice the Buyer on or at any time after completion of delivery. In respect of the Services, the Supplier shall invoice the Buyer on completion of the Services. Each invoice shall include such supporting information required by the Buyer to verify the accuracy of the invoice, including the relevant PO number.
7.4 The Buyer shall pay any undisputed invoiced amounts within forty-five (45) days from the receipt of the invoice to a bank account nominated in writing by the Supplier.
7.5 If a party fails to make an undisputed payment due to the other party under the Contract by the due date for payment, the defaulting party shall pay interest at 2% a year above the Bank of England’s base rate from time to time on the overdue undisputed amount from the relevant due date until payment of the overdue undisputed amount.
The Supplier will not be entitled to assert any credit, set-off or counterclaim against Buyer in order to justify withholding payment.
8. Force Majeure
8.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from events, circumstances or causes beyond its reasonable control.
8.2 The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations including maintaining and implementing a business continuity and disaster recovery plan or sourcing raw materials or any components of the Goods from an alternative supplier.
8.3 In the event of a Force Majeure Event occurring, the affected party shall give notice within seven days to the other party. In the case of a Force Majeure Event each party will bear its own costs arising from this Force Majeure Event.
8.4 The party claiming to be prevented or delayed in the performance of any of its obligations under this Contract by reason of a Force Majeure Event will use all reasonable endeavours to bring the Force Majeure Event to a close or to find a solution in the event of continuance of the Force Majeure Event.
8.5 If a Force Majeure Event prevents, hinders or delays the Supplier's performance of its obligations for a continuous period of more than 30 Business Days, the Buyer may terminate the Contract immediately by giving written notice to the Supplier.
8.6 The Buyer shall not be liable for failure to take Delivery of the Goods if the Buyer is prevented from doing so by unforeseen governmental import restrictions or similar Force Majeure Event reasons.
9. Termination
9.1 Without limiting its other rights and remedies, each party may terminate the Contract by giving the Supplier 1 month’s written notice unless otherwise agreed in writing.
9.2 In the event of any Material Breach by the Supplier, the Buyer may give 30 (thirty) day notice to the Supplier to remedy the Material Breach.
9.3 Without prejudice to any other right or remedy it may have, the Buyer may terminate the Contract with the Supplier by written notice with immediate effect if the Supplier:
(a) Is in Material Breach of any obligation under the Contract which is not capable of remedy;
(b) Is in Material Breach of any obligation which is capable of remedy, and that breach is not remedied within 30 days of the Supplier receiving written notice requiring it to be remedied;
(c) Breaches clause 15.1 (Confidentiality);
(d) Has a Change of Control;
(e) Becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Supplier, or if an administrator or administrative receiver is appointed over the Supplier’s business.
9.4 Upon termination or expiry of the Contract, the Supplier shall give all reasonable assistance to the Buyer and any incoming supplier of the Services, and return all requested documents, information and data to the Buyer as soon as reasonably practicable.
9.5 The Buyer shall not be liable for any of the Supplier’s special, indirect or consequential loss, including but not limited to anticipated costs, losses or loss of profit or business arising out of or in relation to the termination of the Contract under this clause 9.
9.6 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect. Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
10. Liability
10.1 Neither party limits its liability for:
(a) Death or personal injury caused by its negligence, or that of its employees, agents or subcontractors (as applicable); or
(b) Fraud or fraudulent misrepresentation by it or its employees.
10.2 Subject always to clause 10.1, Buyer’s total aggregate liability in respect of all other claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with this Contract shall in no event exceed the value of the Contract for the Goods and/or Services by Buyer under this Contract.
10.3 Subject always to clauses 10.1 and 11.1, Supplier’s total aggregate liability in respect of all other claims, losses or damages, whether arising from contract, tort (including negligence) or otherwise under or in connection with this Contract shall in no event exceed 200% of the total Contract value for the Goods and/or Services by Buyer under this Contract.
10.4 Except in the case of claims arising under clauses 10.1 and 11.1, in no event will either party be liable to the other for any loss of profits, loss of business, loss of revenue, loss of or damage to goodwill, loss of savings (whether anticipated or otherwise) and/or any indirect, special, or consequential loss or damage, including loss of profit, loss of business and reputational damage.
11. Indemnity
11.1 The Supplier shall keep the Buyer indemnified against any and all liabilities, losses, damages, costs and expenses, damages and losses (whether direct or indirect) suffered or incurred by the Buyer as a result of or in connection with:
(a) A breach of the warranties specified in clause 4 by the Supplier;
(b) The Supplier’s failure to pay taxes, duties and other governmental charges specified in clause 7.2;
(c) any claim made against the Buyer for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the supply or use of the Goods or Services;
(d) any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods or performance of the Services, to the extent that the defects in the Goods or Services are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(e) any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods or Services, to the extent that such claim arises out of the breach, wilful, reckless or negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors;
(f) Any claim made against the Buyer by a third party (including any regulatory authority) arising out of or in connection with any data processing undertaken by the Supplier in accordance with clause 16 (Data Protection) or arising out of or in connection with non-compliance by the Supplier of clause 18 (Ethical Behaviour, Anti-Bribery and Anti Tax Evasion).
11.2 This clause 11 shall survive termination of the Contract.
12. Insurance
12.1 The Supplier shall maintain in force and provide details of cover and insurance certificates to Buyer, with a reputable insurance company: a) professional indemnity insurance at an amount not less than £2,000,000; b)public liability insurance, product recalls and public liability insurance at an amount not less than £5,000,000; and c) employers liability at an amount not less than £5,000,000 to cover such heads of liability as may arise under or in connection with the Contracts however in no circumstances will Buyer be obliged to apply directly to nor be limited to or required to accept the proceeds of any claim. 13. Intellectual Property Rights
13.1 Each Party will retail all Pre-existing Intellectual Property in any materials provided to the other Party for the purposes of the Contract.
13.2 The Buyer will grant the Supplier a Buyer IP Licence and the Supplier will grant the Buyer the Supplier Historic IP Licence.
13.3 All Intellectual Property Rights in any materials created or developed or arising from the Goods and or Services under the Contract will belong to the Buyer.
13.4 Where the Intellectual Property Rights in any materials still belong to the Supplier due to the operation of las pursuant to clause 13.3, the Supplier will grant the Buyer the Supplier IP Licence.
14. Insolvency/Change of Control
14.1 Either party shall have the right to terminate a Contract in the event that the other party is insolvent (or as applicable, bankrupt) according to the law, or has made any arrangements with its creditors or under the law with a view to avoiding an impending insolvency (or as applicable, bankruptcy), or has had any person appointed by its creditors or under law as a consequence of debts which have fallen, or which are about to fall, due and which the relevant party is unable to properly repay or there is in the reasonable opinion of the other party a material deterioration in the financial condition or creditworthiness of the relevant party.
14.2 If the Buyer has any serious concerns about a Change of Control of the Supplier, it can terminate the Contract with immediate effect.
15. Confidentiality
15.1 All non-public, confidential or proprietary information, including, but not limited to, technical or commercial know-how, specifications, inventions, samples, designs, plans, drawings, documents, data, processes, forecasts, initiatives, business operations, prices, financial performance, projects, potential or existing customers which are of a confidential nature and have been disclosed by one party (“Disclosing party”) to the other party (“Receiving party”), its employees, agents or subcontractors shall be kept in strict confidence, including any other confidential information concerning the Disclosing party's business, its Goods and services, conveyed orally or in written, electronic or other form or media, and whether or not identified as "confidential". The Receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving party's obligations under a Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract however the Receiving Party will remain primarily liable. The Receiving Party may also disclose such of the Disclosing Party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction however the Receiving Party will give all such notice and assistance to the Disclosing Party to challenge the validity of any such request save where it is prevented by law.
15.2 No party will use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract. The Supplier shall not use the name, symbol, trademark, trade name or logo of Buyer, or issue any press release or other public statement, whether oral or written, disclosing the existence of a Purchase Order without the prior written consent of Buyer.
15.3 This clause 15 shall survive termination of the Contract and shall remain in force for a period of five years after the parties have ceased to do business together.
16. DATA PROTECTION
16.1 Both parties will comply with all requirements of the Data Protection Legislation. This clause 16 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this clause 16 Applicable Laws means (for so long as and to the extent that they apply to the Buyer) the law of the European Union, the law of any member state of the European Union and/or Domestic UK law; and Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK.
16.2 The Supplier acknowledges that for the purposes of the Data Protection Legislation, the Buyer will be a Data Controller of its own data however, particularly where the Supplier is providing Services, the Supplier may be the Data Processor of Personal Data of employees, representatives or customers (and Data Subjects of the Buyer’s customers) of the Buyer (where Data Controller, Data Processor, Data Subject, Personal Data and Process have the meanings as defined in the Data Protection Legislation).
16.3 Without prejudice to the generality of clause 16.1 the Supplier will, where acting as a Data Processor of the other, ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the other for the duration and purposes of each Contract.
16.4 Without prejudice to the generality of 16.1 the Supplier shall, where acting as a Data Processor of the Buyer and in relation to any Personal Data processed in connection with the performance of its obligations under each Contract:
(a) Only process that Personal Data on behalf of the Buyer in accordance with and for the purposed set out in the Contract, or otherwise on the basis of Buyer’s written instructions unless an Applicable Law requires it to do something different, in which case the Supplier will immediately notify the Buyer before such processing;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data;
(c) ensure that all personnel who have access to and/or Process Personal Data have committed themselves to confidentiality and keep the Personal Data confidential; and
(d) not transfer or Process any Personal Data outside of the United Kingdom or the European Economic Area unless the following conditions are fulfilled:
(i) the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with the reasonable instructions notified to it by the Data Controller with respect to the processing of the Personal Data;
(e) assist the Buyer, at the Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Buyer without undue delay but in any event within 24 hours on becoming aware of a Personal Data breach involving Buyer or the Buyer’s representative or customer’s Personal Data;
(g) at the written direction of the Buyer, delete or return Personal Data and copies thereof to the Data Controller on termination of each Contract unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 16.
16.5 Buyer permits the Supplier to use any sub-processor that it is contracted with at the date of the Contract, but the Supplier will not appoint any other sub-processor without Buyer'’s consent. The Supplier will not use any sub-processor unless it has entered into a written agreement with that sub-processor which imposes the same obligations on the sub-processor as are imposed on the Supplier under these Terms. In any event, the Supplier shall be liable for the acts and omissions of its sub-processors as if they were its own acts and omissions.
17. ASSIGNMENT OF CONTRACT
17.1 The Supplier shall not assign, transfer, novate, sub-contract nor delegate, either in whole or in part, a Contract or any of its rights, duties, or obligations thereunder to any person without the prior written consent of Buyer, which will not be unreasonably withheld or delayed.
17.2 The Buyer enters into each Contract for the benefit of it and its Affiliates and Supplier acknowledges that Buyer may at any time assign, transfer, novate, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract or any part of a Contract to an Affiliate.
18. ETHICAL BEHAVIOUR, ANTI BRIBERY AND ANTI TAX EVASION
18.1 The Supplier shall ensure that the Goods and Services are ethically and legally sourced. Supplier acknowledges that it is aware of the prohibition of child work and warrants, represents and covenants to Buyer that its activities and supply chain are conducted in full compliance and respect of human rights and the UK Modern Slavery Act. Furthermore, the Supplier shall ensure that none of the Goods or Services or any components or materials thereto are manufactured, performed in or sourced from any person resident in or operating out of or otherwise associated with any country on any EU, UK, US or United Nations sanctioned or restricted list, nor contain any conflict materials.
18.2 The Supplier represents, warrants and covenants to Buyer, that in carrying out its responsibilities, neither the Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees or agents, shall, directly or indirectly, offer, pay, promise to pay, or authorise the payment of any money, or offer, give, promise to give, or authorise the giving of anything of value to (A) any official or employee of any government, or any department, agency, or instrumentality thereof, (B) any political party or official thereof, or to any candidate for political office, or (C) any official or employee of any public international organisation, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for Buyer or otherwise promoting the business interests of Buyer in any respect. Supplier further warrants, represents and covenants that in placing any orders or contracts with its own suppliers it has not received, requested, been offered or expects to receive any financial inducement or other benefit from its supplier or any third party. Buyer may, in addition to its other remedies, immediately terminate this business relationship and any Contracts with Supplier in the event Buyer receives information which it determines, in its sole discretion, to be evidence of a breach by the Supplier of any representation, warranty, covenant or undertaking set forth in this clause. In the event of such termination, Buyer shall have no liability to the Supplier for any fees, reimbursements or other compensation whatsoever, and the Supplier shall defend and indemnify Buyer for any third-party loss, costs, claims, fines, penalties or damage resulting from the breach of this clause.
18.3 The Supplier shall during the term of the Contract:
(a) not engage in any activity, practice or conduct which would constitute either:
(i) a UK tax evasion facilitation offence under section 45(5) of the Criminal Finances Act 2017; or
(ii) a foreign tax evasion facilitation offence under section 46(6) of the Criminal Finances Act 2017;
(b) establish, maintain and enforce its own policies and procedures as are both reasonable to prevent the facilitation of tax evasion by another person and to ensure compliance with clause 18.3(a);
(c) notify the Buyer in writing if it becomes aware of any breach of clause 18.3(a) or has reason to believe that it has received a request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017 in connection with the performance of this Contract;
(d) upon written request from the Buyer the Buyer shall certify to the Buyer in writing signed by an officer of the Supplier, compliance with this clause 18.3 by the Supplier and all persons referred to in clause 18.4 The Supplier shall provide such supporting evidence of compliance as the Buyer may reasonably request.
18.4 The Supplier shall ensure that any its agents, consultants, contractors, subcontractors or other persons engaged in performance of the Supplier's obligations under this Contract do so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in clause 18.3 (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms.
18.5 Breach of clause 18.3 shall be deemed a Material Breach.
18.6 For the purposes of clause 18.3, the meaning of reasonable prevention procedure shall be determined in accordance with any guidance issued under section 47 of the Criminal Finances Act 2017.
19. MISCELLANEOUS
19.1 A waiver of any right or remedy shall only be effective if given in writing and no waiver by Buyer of any breach of the Contract by Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision nor shall any delay in enforcing any of Buyer’s rights under any Contract constitute a waiver.
19.2 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
19.3 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, pre-contractual offers or representations, shall be effective unless it is agreed in writing and signed by the Buyer. If Buyer does not agree to the modifications to the Contract as suggested by Supplier, the terms of the Contract shall remain unchanged and continue to apply.
19.4 The Buyer and Supplier are independent contractors and nothing in these Terms will be construed to create a partnership or joint venture between them.
19.5 The Supplier acknowledges that damages may be an insufficient remedy including in particular but not limited to any breach of clauses 13 (Intellectual Property Rights), 15 (Confidentiality), or 16 (Data Protection) and that the Buyer will have the right to seek any other equitable remedy including but not limited to injunction or specific performance.
19.6 Any notice to be given in respect of any Contract shall be sent by first class post or by email to [email protected] and to the address stipulated in the PO or Order confirmation.
20. EXCLUSION OF THIRD PARTY RIGHTS
20.1 Save as specified in clause 17.2 no person other than Buyer and Supplier shall have any right to enforce any obligation under a Contract.
21. GOVERNING LAW AND JURISDICTION
21.1 The Contract and these Terms are governed by English law and will be subject to the exclusive jurisdiction of the English courts to which the parties irrevocably submit. The Parties hereby exclude the 1980 United Nation Convention on Contracts for the International Sale of Goods and all and any additions, amendments or changes thereto.