1.1 In this document the following words and expressions shall have the following meanings:-
"Applicable Laws" means all laws, common laws, statutes, bye laws, EU directives, regulations, orders or rules of court or delegated or subordinate legislation whether now or hereafter in effect which in any way affects or impinges upon the maters referred to in the Contract, the Goods or Services or the performance by the Supplier of its obligations under the Contract including but not limited to those relating to health and safety, product recall and environmental protection and safety;
"Business Day" means any day other than a Saturday, Sunday or bank or other public holiday in Scotland;
"Buyer" means Flexcon Europe Limited, a company registered in Scotland with number SC170245 and having its registered office at Whitworth Road, Southfield Industrial Estate, Glenrothes, Fife, KY6 2TF;
"Buyer Materials" means materials, equipment and tools, drawings, specifications and data supplied by the Buyer to the Supplier;
"Change Procedure" means the procedure set out in Condition 11 of these Conditions;
"Charges" means the charges payable for the Goods or Services by the Buyer as set out in the relevant Purchase Order (calculated in accordance with any price lists or charge rates set out in any Supplier Side Agreement);
"Conditions" means the terms and conditions set out in these supplier conditions (including the attached Schedule);
"Contract" means a contract for the provision of any Goods or Services by the Supplier which shall comprise:
(i) any Purchase Order;
(ii) these Conditions; and
(iii) any applicable:
a) Supplier Compliance Requirements;
b) Supplier Side Agreement;
c) Specification agreed separately to any specifications set out in the Purchase Order; and/or
d) Quality Agreement;
"Controlling Interest" means an Interest in shares comprising 25% (twenty five percent) or more of the shares in the Party (or any holding company of the Party) for the time being in issue or otherwise conferring in aggregate of 25% (twenty five percent) or more of the total voting rights of the Party (or any holding company of the Party) conferred by all the shares in the relevant company for the time being;
"Delivery Address" means the address for delivery of the Goods as set out in the relevant Purchase Order or as otherwise agreed in writing;
"Employees" means the employees of the Buyer;
"Goods" means the goods detailed in the relevant Purchase Order (including any goods provided as part of, or as a product of, the provision of Services);
"Group" means in relation to a company, that company, that company's holding companies, subsidiaries and subsidiaries of such holding companies (as the terms "holding company" and "subsidiary" are defined in Section 1159 of the Companies Act 2006 (as amended from time to time));
"Intellectual Property Rights" means any and all existing and/or future intellectual or industrial property rights, (including but without prejudice to the foregoing generality, all existing and future copyright, design rights (whether registered or unregistered), database rights, patents, trade marks (whether registered or unregistered), semi-conductor topography rights, plant varieties rights, internet rights/domain names, rights in relation to goodwill, know how and confidential information and any and all applications for any of the foregoing) wherever such rights may arise;
"Interest" for the purposes of determining Controlling Interest means an interest in any of the shares in a Party and/or the right to exercise the votes attached to such share(s);
"Insolvency Event" means any of the following: an order is made or a resolution is passed for the winding up of the Supplier, or an order is made for the appointment of an administrator to manage the affairs, business and property of the Supplier, or such an administrator is appointed or notice of intention to appoint an administrator is given by the Supplier or its directors, or a receiver or manager or administrative receiver is appointed in respect of all or any of the Supplier's assets or undertaking or circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or administrative receiver or which entitle the Court to make a winding-up or bankruptcy order, or the Supplier takes or suffers any similar or analogous action in consequence of a debt, or the Supplier ceases to carry on business, or any event analogous to any of the foregoing occurs in respect of the Supplier in any foreign jurisdiction;
"Party" means a party to these Conditions;
"Purchase Order" means the Buyer's written purchase order in relation to the purchase of Goods or Services by the Buyer from the Supplier;
"Quality Agreement" means any written agreement between the Buyer and the Supplier relating to the quality of the Goods and/or Services, any testing requirements which the Supplier must comply with in providing specific Goods and/or Services and any regulatory requirements including any requirements to provide certificates of compliance as may be varied by written agreement of the Parties from time to time;
"Services" means the services detailed in the relevant Purchase Order;
"Site" means the Buyer's premises at Whitworth Road, Southfield Industrial Estate, Glenrothes, Fife, KY6 2TF or any other premises as notified by the Buyer to the Supplier in writing;
"Specification" means the specification setting out the Buyer's requirements in respect of the Goods or Services agreed in writing (including email) between the Parties including without limitation:
(i) any technical data sheet in relation to the Goods; and
(ii) any specification set out in the Purchase Order.
"Supplier" means any person or persons, firm or firms, company or companies, authority or authorities named in Contract and shall include his or their successors, executors and personal representatives;
"Supplier Compliance Requirements" has the meaning given to it in Condition 6; and
"Supplier Side Agreement" means any supplier side agreement agreed in writing which forms part of the Contract and sets out any payment terms, price lists and lead times and/or any other terms and conditions applicable to the provision of the relevant Goods or Services.
1.2 Save to the extent that the context or the express provisions of these Conditions require otherwise, in these Conditions: references to any statute or statutory provision (including any delegated or subordinate legislation, EU directives or regulations) include any statute or statutory provision which amends, extends, consolidates or replaces the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute; any phrase introduced by the words "including", "include", "in particular" or any cognate expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and the words "other" and "otherwise" shall not be construed ejusdem generis with any foregoing words where a wider construction is possible.
1.3 The headings to Conditions shall not affect the interpretation of these Conditions.
2 ORDERING GOODS AND SERVICES
2.1 The Buyer may issue Purchase Orders to the Supplier by email, fax or post.
2.2 The Supplier will provide an acknowledgement of receipt of the Purchase Order issued by the Buyer within two (2) Business Days of receipt.
2.3 No Purchase Order shall be binding on the Buyer unless a written and unqualified acknowledgement and acceptance of such Purchase Order is received by the Buyer from the Supplier within seven (7) Business Days of the date of issue of the Purchase Order. Notwithstanding the foregoing, the Buyer reserves the right at its total discretion to accept an unqualified acceptance and acknowledgement from the Supplier even though it is received by the Buyer outwith the seven (7) Business Day period of acceptance. Any such acceptance by the Buyer after such seven (7) Business Day period shall be subject to the written agreement of the Buyer.
2.4 If the Supplier does not provide:
(a) an acknowledgement of receipt within two (2) Business Days as set out in Condition 2.2; or
(b) an acceptance or refusal within seven (7) Business Days as set out in Condition 2.3,
the Supplier agrees to comply with any requirements of the Buyer's non-conformance procedures as reasonably required by the Buyer, including without limitation completing any form provided by the Buyer requiring the Supplier to set out steps it will take to prevent a repeat of the failure to comply with Condition 2.2 or 2.3 (as applicable).
2.5 Subject to Condition 2.3, any Purchase Order shall be accepted by means of the Supplier's written acknowledgement or by performance.
2.6 The Buyer's Purchase Order number, as set out on the Purchase Order, must be clearly stated by the Supplier on all acknowledgements, advices, invoices, delivery notes and correspondence.
2.7 No request for a quotation by the Buyer shall constitute an offer to purchase Goods or Services.
2.8 The Buyer shall not be bound by any terms or any conditions set out in the Supplier's acknowledgement and the Contract shall prevail to the exclusion of all other terms or conditions.
2.9 No previous correspondence, writings, facsimiles, telexes, telegrams or verbal communications between the Supplier and the Buyer regarding the Goods or Services shall form any part of or be incorporated into the Contract unless specifically referred to on the Purchase Order or agreed between the Parties. For the avoidance of doubt, nothing in the Contract shall exclude or limit liability for fraudulent misrepresentation.
2.10 Each Purchase Order agreed in accordance with this Condition 2 shall be deemed to be an individual legally binding Contract between the Buyer and the Supplier and shall be subject to these Conditions.
2.11 The Parties may agree a:
(a) Supplier Side Agreement;
(b) Quality Agreement; and/or
which, along with any Supplier Compliance Requirements provided to the Supplier by the Buyer in accordance with Condition 6.2, will form part of each Contract in relation to the relevant Goods or Services.
3 CHARGES AND PAYMENT
3.1 The Charges shall be payable in accordance with this Condition 3 and the provisions set out in the Purchase Order or otherwise agreed in writing between the Parties, including any changes to the terms of this Condition 3 which may be agreed in a Supplier Side Agreement.
3.2 The Charges payable under each Contract shall be as set out in the relevant Purchase Order.
3.3 The Charges will be calculated in accordance with any price lists, rates list or payment terms set out in any applicable Supplier Side Agreement.
3.4 The Supplier shall not make any alteration to the agreed Charges and any purported alteration shall not be binding on the Buyer unless agreed by the Buyer in writing.
3.5 All invoices shall be paid by the Buyer within sixty (60) days of the date the invoice is received by the Buyer. Time for payment shall not be of the essence of the Contract and the Buyer will have no liability to pay any invoice which does not quote the relevant Purchase Order number.
3.6 Any and all expenses, costs and charges incurred by the Supplier in the performance of its obligations under the Contract shall be paid by the Supplier.
3.7 All sums payable to under or in respect of the Contract are exclusive of Value Added Tax ("VAT") or other applicable sales taxes. If applicable and subject to delivery to the Buyer of a valid VAT notice, VAT will be paid in addition at the rate in force in the United Kingdom at the due date for payment.
4 PACKAGING OF GOODS
4.1 The Goods will be packaged in accordance with any requirements set out in the relevant Contract or as otherwise agreed by the Parties in writing from time.
4.2 All packaging materials are non-returnable and non-chargeable.
5 DELIVERY OF GOODS AND SERVICES
5.1 Unless otherwise stipulated by the Buyer in the relevant Purchase Order:
(a) if the Supplier is incorporated in, or (in the case of a Supplier which is not incorporated) its principal place of business is, a Member State of the European Union, the relevant Goods will be delivered at the Delivery Address DAP (Delivered At Place, Incoterms 2010);
(b) otherwise, the relevant Goods will be delivered at the Delivery Address DDP (Delivered Duty Paid, Incoterms 2010);
in accordance with the timescales and/or delivery schedule set out in the Purchase Order.
5.2 The Supplier will contact the Buyer to confirm delivery arrangements for deliveries of the Goods, or to arrange the provision of the Services, at least two (2) Business Days before the timescale or delivery time set out in the Purchase Order.
5.3 The Supplier will promptly provide in advance of the delivery date set out in the Purchase Order all documents, including any customs clearance documents (including supplier invoices), as required in accordance with any Applicable Law or as notified by the Buyer to the Supplier.
5.4 Each delivery of the Goods will be accompanied by a delivery note which shows the date of the Purchase Order, the Purchase Order number, the type and quantity of the Goods (including the lot, batch or serial number of the Goods and/or the Buyer's part number (where applicable)) and special storage instructions.
5.5 Acceptance of the Goods or Services by the Buyer, including any acknowledgement of receipt of the Goods or provision of the Services, shall be without prejudice to the Buyer's rights and remedies under the Contract or otherwise.
5.6 The Buyer shall not be liable for the Supplier's commitments or production arrangements and costs in advance of the time necessary to meet the delivery schedule under the Purchase Order.
5.7 Should any Goods be rejected by the Buyer then the Supplier will be obliged to remove them at the Supplier's own cost.
5.8 The Supplier waives any right to any lien or right of retention which the Supplier may have on the Goods in its possession.
5.9 The Services shall be provided to the Buyer at the place and on the dates in accordance with the timescale set out in the Purchase Order (or otherwise agreed in writing).
5.10 Time shall be of the essence in respect of the Supplier's compliance with its obligations under the Contract.
5.11 In the event of any delay in delivery of the Goods or performance of Services or any alteration in the Specification, the Supplier must notify the Buyer in writing of any such delay or alteration (along with an explanation for such delay or alteration) as soon as the Supplier becomes aware of the delay or alteration. The Buyer shall, without prejudice to any other remedies available to it, be entitled to reject the Goods or Services and rescind the Contract without any further obligations thereunder but without prejudice to any rights it may have thereunder.
6 SUPPLIER COMPLIANCE REQUIREMENTS
6.1 The Buyer will notify the Supplier of any additional requirements applicable to the Goods or Services including the Buyer's internal policy compliance requirements, which may include requirements in respect of conflict minerals, and any laws or regulations of foreign jurisdictions which the Buyer requires the Goods to comply with, as notified by the Buyer to the Supplier in writing from time to time (the "Supplier Compliance Requirements").
6.2 The Parties acknowledge and agree that any Supplier Compliance Requirements agreed in writing (including agreement by email), or provided in writing (including email) by the Buyer to the Supplier, will form part of the relevant Contract.
7 RISK, TITLE AND INSURANCE
7.1 The risk of loss, damage or destruction of the Goods shall pass to the Buyer on delivery.
7.2 The Supplier warrants that it has good and marketable title to the Goods.
7.3 Except as provided in this Condition 7, property and title in the Goods shall pass to the Buyer immediately upon receipt of the Goods by the Buyer or the Buyer's nominee or customer. If payment of the Charges is made prior to receipt of the Goods to the Buyer property and title in the Goods shall pass to the Buyer on such payment, and the Supplier shall at its own risk separate, identify and hold the Goods on behalf of the Buyer, subject to the Buyer's right of rejection upon delivery as set out in Condition 13 and the return of the Charges paid together with any loss arising in connection with the breach of the Contract.
7.4 The Supplier shall have adequate insurance to cover:
(a) the provision of the Services; and
(b) the risk of loss, damage or destruction of the Goods during the entire time that risk in the Goods lies with the Supplier,
and shall notify the Buyer of the nature and value of such insurance if so requested by the Buyer. If requested by the Buyer the Supplier shall have the Buyer included on all such insurance policies as an additional insured. The Supplier shall produce evidence of such insurance if so requested by the Buyer.
7.5 The Supplier shall:
(a) do nothing to invalidate any insurance policy maintained under Condition 7.4 or to prejudice the Buyer's entitlement under it; and
(b) notify the Buyer of any policy that is (or will be) cancelled or if its terms are (or will be) subject to any material change.
7.6 If any employee or representative of the Supplier enters the Site or any other premises of the Buyer, the Supplier warrants and undertakes that such employee or representative shall comply with any and all applicable policies of the Buyer as notified in writing to the Supplier (including, without limitation, any policies relating to health and safety and Applicable Laws).
8.1 The Buyer or its nominee may at its discretion supply to the Supplier or fund in whole or in part the purchase by the Supplier of materials, tooling or other equipment for use in the manufacture of the Goods and/or the supply of the Services ("Equipment"). All Equipment shall be and remain the property of the Buyer or such nominee.
8.2 The Supplier shall check upon receipt of any Equipment that it conforms in all respects to any relevant specification and meets any agreed quality standard and the Supplier shall be deemed to have accepted the Equipment as such if the Supplier does not return the same within seven (7) Business Days of receipt. The Supplier shall maintain all Equipment in good order and condition (including without limitation, in accordance with any relevant manufacturer's instructions). The Supplier shall use any Equipment only for the purpose of implementing the Contract. Waste of, damage to or loss of any Equipment arising from bad workmanship or negligence of the Supplier shall be made good at the Supplier's expense. The Supplier shall mark all Equipment as the property of the Buyer or its nominee (as advised by the Buyer) and separate all Equipment from the Supplier's and any third party's property and hold such Equipment on behalf of the Buyer (or such nominee) at all times.
8.3 The Supplier shall not place any order on any third party for the purchase of any Equipment which is to be funded in whole or in part by the Buyer without prior written approval of the Buyer or its nominee and without having received a written Purchase Order from the Buyer or its nominee.
8.4 In the event of termination of the Contract for any reason, the Supplier shall deliver to the Buyer or the Buyer's nominee any Equipment, in accordance with the instructions of the Buyer or its nominee.
9. THE BUYER'S RIGHTS
9.1 The Buyer's rights under these Conditions are in addition to any conditions implied in favour of the Buyer, including without limitation, the Sale of Goods Act 1979 and the Sale and Supply of Goods and Services Act 1982.
9.2 Upon or after delivery of the Goods to the Buyer, the Buyer shall have the right to inspect the Goods.
9.3 If the results of any inspection under Condition 9.2 cause the Buyer to be of the opinion that the Goods do not conform, or are unlikely to conform, with the requirements of the Contract, the Buyer shall inform the Supplier, and the Supplier shall immediately take, such action as is necessary to ensure conformity and in addition the Buyer shall have the right to require and witness further inspection.
9.4 Notwithstanding any inspection under Condition 9.2, the Supplier shall remain fully responsible for the Goods and any such inspection shall not diminish or otherwise affect the Supplier's obligations under the Contract.
9.5 The Supplier will allow the Buyer (or its representatives) access to the Supplier's premises and any and all information, documents, plans, specifications and other things relating to the Goods or Services reasonably requested by the Buyer to allow the Buyer to audit the Supplier's compliance with the Contract in accordance with Condition 18.4.
9.6 If any of the Goods or Services fail to comply with the provisions set out in the Contract the Buyer shall be entitled to any one or more remedies listed in Condition 13.
10. THE SUPPLIER'S WARRANTIES AND LIABILITY FOR DEFECTS
10.1 The Supplier warrants and undertakes that the Goods will:
(a) 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 the Buyer, expressly or by implication, and in this respect the Buyer relies on the Supplier's skill and judgment. The Supplier undertakes that it will provide, at its own expense, all assistance required by the Buyer in respect of ensuring that any goods in which the Goods are incorporated are accepted by a third party purchaser from the Buyer;
(b) be manufactured in accordance with good manufacturing practice in accordance with the Contract and in accordance with the exercise of that degree of skill and care which would be considered best practice by a prudent and properly qualified and competent person engaged in the same or similar circumstances; and
(c) comply with all Applicable Laws.
10.2 The Supplier warrants and undertakes that in providing the Services, the Supplier shall:
(a) provide the services using reasonable skill and care, including taking all reasonable skill and care to ensure that the Services shall comply with all of the requirements set out in the Contract;
(b) ensure that the Services will conform with all descriptions and specifications set out in the Specification;
(c) 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 the Contract;
(d) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(e) co-operate with the Buyer in all matters relating to the Services and comply with all instructions of the Buyer; and
(f) ensure that any goods and materials supplied and used in the Services or transferred to the Buyer, will be free from defects in workmanship, installation and design.
10.3 In providing the Goods and Services, the Supplier warrants and undertakes that:
(a) the Goods and Services will be provided in accordance with all applicable terms of any:
(i) any Supplier Compliance Requirements which have been provided to the Supplier in accordance with Condition 6.2;
(iii) Supplier Side Agreement; or
(iv) Quality Agreement. Without prejudice to any other rights or remedies of the Buyer under these Conditions, the Supplier acknowledges that any breach of the Quality Agreement shall be deemed to be a material breach of the Contract.
(b) it shall comply with all Applicable Laws, including without limitation:
(i) notifying the Buyer of any and all hazardous materials comprised in the Goods or used in the provision of the Services; and
(ii) providing all information and notices required under any Applicable Laws in relation to the Goods and Services, including notices regarding the contents and/or composition of the Goods and the handling requirements of the Goods to ensure its safe handling by the Buyer, which may include the provision of a material safety data sheet;
(c) it 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 the Contract in respect of the Goods and Services;
(d) it shall take reasonable care to ensure that it does not or they do not interfere with the operations of the Buyer at the Site or any other premises of the Buyer or those of its agents, sub-contractors and nominees;
(e) it shall at all times comply with the Buyer's Statements Policy, a copy of which is set out in the Schedule to these Conditions (as may be amended from time to time), and any other policies as may be provided by the Buyer to the Supplier in writing from time to time;
(f) it shall comply with all health and safety rules and regulations and any other security requirements that apply at the Site or any other premises of the Buyer or those of its agents, sub-contractors and nominees;
(g) it shall hold all Buyer Materials in safe custody at its own risk, maintain the Buyer Materials in good condition, return the Buyer Materials to the Buyer promptly upon the Buyer's written request and not dispose or use the Buyer Materials other than in accordance with the Buyer's written instructions or authorisation;
(h) it shall not do or omit to do anything which may cause the Buyer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Buyer may rely or act on the Services;
(a) it will at all times comply with the Buyer's standard operating procedures as these may be notified to the Supplier from time to time; and
(b) it will promptly deliver all documents and information in relation to the Goods or Services specified in the Contract or otherwise reasonably required by the Buyer including without limitation certificates of origin, material safety data sheets, certificates of conformity and certificates of analysis.
11 CHANGES TO A CONTRACT
(a) the Supplier wishes to make any change to the place or site of manufacture of the Goods or make any changes that could reasonably be expected to impact:
(i) the form, fit, function or material of the Goods; or
(ii) the process by which the Goods are manufactured or packaged or labelled which could reasonably be expected to affect the safety or quality of the Goods; or
(b) the Buyer wishes to wishes to make any change to the Specification or the Quality Agreement(s),
the relevant Party may request such change only in accordance with this Condition 11.
11.2 The Party requesting a change under this Condition 11 (the "Originator") will forward to the other Party (the "Recipient") a change request ("Change Request") which will include at least the following information:
(a) the name and title of the representative of the Originator making the request;
(b) the date of the Change Request;
(c) a full description of the proposed change including any specifications;
(d) the reason for the proposed change;
(e) the impact (if any) of the proposed change on the Charges; and
(f) a timetable for implementation together with any proposals for acceptance of the proposed change,
provided that the Supplier will provide the Buyer with 12 months' notice of any proposed changes to the Goods, subject at all times to the Buyer's agreement in writing.
11.3 The Recipient will promptly respond to the Change Request.
11.4 The Supplier acknowledges and agrees that, the Supplier will not make any changes or variations to the nature, content or composition of the Goods (including any changes which result in any failure of the Goods to comply with any relevant Supplier Compliance Requirements, Specification, Quality Agreement or Supplier Side Agreement) unless such change is in accordance with this Condition 11.
11.5 If the Parties agree in writing to proceed with the Change Request and any necessary amendments to the Goods, any Specification and any Quality Agreement(s), these Conditions will automatically be amended to take into account the agreed changes.
11.6 A Party shall not unreasonably withhold or delay its agreement to any Change Request proposed by the other Party. Subject to this Condition 11, any agreed Change Request shall be implemented as soon as reasonably practicable.
11.7 Until such time as any change is made in accordance with this Condition 11, the Supplier shall continue to supply the Goods as if the relevant request had not been made.
11.8 The Buyer shall be entitled to vary the terms of any Specification or any Quality Agreement(s) (in so far as the Buyer is a party to it) by providing ninety (90) days' notice in writing to the Supplier and provided that such variation arises as a result of any change in any Applicable Law.
11.9 The Parties shall, at the Buyer's request, meet or correspond to discuss and, acting reasonably and in good faith, agree any changes required to any Supplier Side Agreement.
12.1 The supplier shall keep the Buyer and any companies within the Buyer's Group indemnified 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 incurred by the Buyer as a result of or in connection with:
(a) 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 manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
(b) 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 the Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods or the Services, including without limitation in relation to product liability, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
12.2 The Supplier shall keep the Buyer and any companies within the Buyer's Group indemnified against all liabilities, costs, expenses, damages and losses suffered incurred by the Buyer as a direct result of (including all costs incurred in purchasing equivalent alternative goods or services and any related penalties and legal or other professional costs) any failure by the Supplier to deliver the Goods, or to provide the Services, within timescales agreed in the relevant Purchase Order or otherwise under the Contract.
12.3 Conditions 12.1 and 12.2 create legal rights for the benefit of and enforceable by the Buyer's Group companies against the Supplier under Scots law. In the circumstances set out in Conditions 12.1 and 12.2 the relevant member of the Buyer's Group may recover such losses directly from the Supplier by way of court action in its own name, to the extent that such loss has not previously been recovered from the Supplier by the Buyer.
12.4 This Condition 12 shall survive termination of the Contract.
13 TERMINATION AND REMEDIES
13.1 Without prejudice to any other right or remedy which the Buyer may have, if any Goods or Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Contract the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods or Services have been accepted by the Buyer or its customer (in particular without limitation pursuant to Condition 5):
(a) to terminate the Contract;
(b) to reject the Goods or Services (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods or Services so returned shall be paid forthwith by the Supplier;
(c) to destroy any such rejected Goods, and to invoice the Supplier for reasonable costs incurred by the Buyer in arranging such destruction. Any such invoice shall be payable by the Supplier within 30 days of receipt. The Buyer shall provide any documentary evidence of such costs reasonably requested by Supplier;
(d) at the Buyer's option to give the Supplier the opportunity at the Supplier's expense either to remedy any defect in the Goods or Services or to supply replacement Goods or Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
(e) to refuse to accept any further deliveries of the Goods or Services under the Contract or any other contract between the Buyer and Supplier but without any liability to the Supplier;
(f) to carry out at the Supplier's expense any work necessary to make the Goods or Services comply with the Contract; and
(g) to claim such damages as may have been sustained in consequence of the Supplier's breaches of the Contract
13.2 If an insolvency Event occurs in respect of the Supplier, the Buyer shall be entitled to terminate the Contract with immediate effect and without compensation to the Supplier.
13.3 Upon the termination of any Contract, the Supplier or the Supplier's receiver, administrator, liquidator or trustee in sequestration or bankruptcy shall deliver up to the Buyer: (i) any Goods for which the Buyer has paid; and (ii) any Buyer Materials, that are in the possession or control of the Supplier and or its subcontractors, employees, agents or representatives and shall be liable to the Buyer for failure to do so.
13.4 The Buyer shall be entitled to terminate the Contract in whole or in part on thirty (30) days' written notice to the Supplier.
14.1 The Supplier represents, warrants and undertakes to fully comply with all applicable laws relating to: taxation; exchange controls; customs matters; anti-corruption; anti-trust; anti-money laundering; trade sanctions; and criminal matters. In particular, the Supplier warrants and undertakes that:
(a) it has in place adequate procedures to prevent any act of bribery (as that term is defined in the Bribery Act 2010) being committed by it, its employees, workers, contractors, agents, advisors and any other service providers ("Associated Persons");
(b) the procedures referred to in Condition 14.1 (a) will be maintained throughout the term of any Contract;
(c) it and its Associated Persons will not, during the term of any Contract, do anything which could contravene the Bribery Act 2010 or cause the Buyer to contravene the Bribery Act 2010; and
(d) during the term of any Contract, it will comply with any anti-bribery policies, procedures or guidelines which the Buyer may provide to the Supplier in writing from time to time.
15 ASSIGNMENT AND SUBCONTRACTING
15.1 The Supplier shall not assign, charge, sub-contract or delegate its rights or obligations under the Contract in whole or in part without the prior written consent of the Buyer.
15.2 In the event of the Buyer agreeing to allow work to be done by a sub-contractor the Supplier shall ensure that such sub-contractor complies with the terms of the Contract and the Supplier shall send to the Buyer a copy of any sub-orders as shall be entered into immediately they are issued to the sub-contractor. The Supplier shall be responsible for all work done and Goods or parts thereof supplied or Services provided by all sub-contractors. The Supplier shall indemnify the Buyer against all loss (including consequential loss or any loss of profit) or damage incurred by the Buyer as the result of any act or omission on the part of the sub-contractor.
15.3 The Buyer shall be entitled to assign, charge, sub-contract or delegate its rights and obligations under the Contract without the consent of the Supplier.
16 INTELLECTUAL PROPERTY RIGHTS
16.1 The Supplier hereby grants to the Buyer a perpetual, irrevocable, worldwide non-exclusive licence to use, copy, modify and amend any and all Intellectual Property Rights comprised in the Goods for the purposes of developing, manufacturing, distributing and selling products containing the Goods or as otherwise required in the Buyer's business. The Buyer shall be entitled to sub-license the foregoing licence to its sub-contractors, agents and other third parties involved in the development, manufacture, distribution or sale of products containing the Goods.
16.2 All Intellectual Property Rights in any specifications, plans, drawings, process information, patterns or designs supplied by the Buyer to the Supplier in connection with these Conditions or any Contract shall remain the property of the Buyer or its licensors, and any information derived therefrom or otherwise communicated to the Supplier in connection with the Contract or these Conditions shall constitute Confidential Information and be subject to the terms of Condition 17. The Supplier undertakes that it shall not assert any rights or register or apply to register any rights in respect of any Intellectual Property Rights which belong to the Buyer or any member of the Buyer's Group.
16.3 If required by the Buyer, the Supplier shall enter into an escrow agreement with the Buyer and a third party nominated by the Buyer pursuant to which technical information or source code relating to the Goods which is specified by the Buyer shall be placed in escrow and released and made available for the Buyer's use in accordance with the terms of such escrow agreement. Any breach of any such escrow agreement by the Supplier shall be deemed to be a material breach of these Conditions.
17.1 Each Party agrees and undertakes that (notwithstanding expiry or termination of the Contract) it shall keep confidential and shall not use for its own purposes, nor without the prior written consent of the other Party disclose to any third party, all information of a confidential nature (including trade secrets and information of commercial value) which may become known to that Party from the other Party ("Confidential Information"), unless the information is public knowledge or already known to that Party at the time of disclosure or subsequently becomes public knowledge other than by breach of these Conditions or subsequently comes lawfully into the possession of that Party from a third party or where disclosure is required by law or by a court or recognised stock exchange or regulatory body.
17.2 To the extent necessary to perform its obligations or exercise its rights under the Contract, each Party may disclose Confidential Information to those of its employees, agents and permitted sub-contractors as may be reasonably necessary or desirable, provided that before any such disclosure each Party shall make those employees aware of its obligations of confidentiality under these Conditions and shall at all times procure compliance by those employees with them.
17.3 This Condition is without prejudice to any confidentiality agreement (non-disclosure agreement) ("Existing NDA") entered into between the Parties in writing, which shall continue to apply to any information or materials disclosed under that Existing NDA.
18 REPORTING, INFORMATION AND AUDIT
18.1 The Supplier will provide reports in connection with progress of the provision of the Services or the manufacture or supply of the Goods as reasonably requested by the Buyer from time to time, or as otherwise agreed by the Parties in writing from time to time.
18.2 The Supplier will within five (5) Business Days of receipt of a request from the Buyer make available to the Buyer, its nominated representative and its internal and external auditors and any relevant regulator any file, correspondence and document relating to the performance of its obligations under any Contract.
18.3 In addition, the Supplier will comply with all reasonable requests from the Buyer for any documentation, explanations, management reports and information which the Buyer requires to monitor and appraise the performance of the Supplier under any Contract.
18.4 The Buyer may enter the Supplier's premises at all reasonable times. The Buyer will give the Supplier a minimum of five (5) Business Days' notice except where the Buyer believes (acting reasonably) that its requirement to enter the Supplier's premises is urgent. The Buyer will be provided with access to all information, documents, plans, specifications and other things relating to the Goods and/or Services and the performance of the Supplier's obligations under any Contract reasonably required by the Buyer. Additionally the Supplier will give the Buyer reasonable help to understand the information provided by the Supplier and the Buyer will be allowed to have access to the personnel working on the development and supply of the Goods and/or Services.
18.5 The Supplier will allow the Buyer to audit the Supplier's security arrangements and its compliance with the terms of these Conditions generally (but not more than once in each calendar year except as otherwise agreed). The Buyer will give the Supplier a minimum of five (5) Business Days' notice of such audit. The Supplier will co-operate with the Buyer and provide assistance reasonably requested by it during the course of such audits and inspections.
18.6 Any file, correspondence, document or information provided by the Supplier will be treated as Confidential Information in terms of Condition 17 except to the extent that it relates to the business or affairs of the Buyer.
18.7 In addition to using its own employees, the Buyer may exercise its rights under this Condition 18 using external auditors or other agents. The Supplier will also permit representatives of any regulator to exercise these rights.
18.8 The Supplier shall use all reasonable endeavours to procure for the Buyer rights of access, audit and inspection in respect of the Supplier's suppliers in substantially the same terms as this Condition 18.
18.9 The Buyer's rights pursuant to this Condition 18 are in addition to and without prejudice to any rights of audit contained in the Quality Agreement(s).
19 CHANGE OF CONTROLLING INTEREST OF THE SUPPLIER
The Supplier warrants and undertakes that it will immediately notify the Buyer of any change in the Controlling Interest of the Supplier.
20 FORCE MAJEURE
20.1 If performance of any Contract by the Supplier shall be delayed by war, fire, storm, flood or Act of God ("Force Majeure Event") then the Supplier's obligation under the Contract shall be suspended for the period of such delay, subject to the Supplier using all reasonable endeavours to mitigate the impact of such Force Majeure Event.
20.2 If performance of the Contract by the Supplier shall be delayed by any such Force Majeure Event for a period of one (1) month, then the Buyer shall be entitled to terminate the Contract.
21 SECURITY AND STAFF VETTING
21.1 The Supplier will:
(a) use all reasonable efforts to ensure that all personnel who will perform its obligations under any Contract are honest, law-abiding and have no known links to any entity, group or network which participates in, encourages or supports unlawful activities;
(b) conduct reasonable recruitment and security vetting procedures in relation to all personnel which it proposes to employ or engage in connection with the performance of its obligations under any Contract. The Supplier will not employ or engage anyone to perform its obligations under any Contract who has not passed the Supplier's recruitment and security vetting procedures; and
(c) subject to its obligations under the Data Protection Act 1998, for so long as these Conditions continues, and for not less than six (6) years afterwards, maintain written records of the recruitment and security vetting procedures carried out for anyone employed or engaged to perform its obligations under any Contract. These records will include the responses to all recruitment and security checks carried out and copies of all references obtained.
21.2 The Buyer may deny any personnel of the Supplier access to the Buyer's (or its nominee's) premises if it believes that the person concerned is not trustworthy or is otherwise unsuitable. The Buyer may insist that the Supplier removes such a person from the premises and replaces him or her with someone who is suitable, if the Buyer asks the Supplier to do so in writing.
The Supplier agrees that it will not, directly or indirectly, employ or engage or otherwise solicit, entice or induce any of the Employees with whom the Supplier has had dealings in the course of providing the Goods or Services under these Conditions to become employed or engaged by the Supplier or any other person, firm or organisation, and the Supplier will not approach such Employees to canvass the possibility of employment or offer employment or otherwise induce such Employees to terminate their employment during the continuance of these Conditions and for a period of twelve (12) months following its termination, without the prior consent of the Buyer.
23.1 Any notice to be given under, or in connection with the Contract shall be in writing and signed by or on behalf of the Party giving it and shall be served by delivering it personally or sending it by facsimile or pre-paid recorded delivery or registered post (or registered airmail in the case of an address for service outside the United Kingdom) to the registered office or principal place of business of the Party (or as otherwise notified by that Party hereunder). Any such notice shall be deemed to have been received:-
(a) if delivered personally, at the time of delivery;
(b) in the case of pre-paid recorded delivery or registered post, forty eight (48) hours from the date of posting;
(c) in the case of registered airmail, five (5) days from the date of posting;
(d) in the case of fax, at the time of transmission; and
(e) in the case of electronic mail, forty eight (48) hours after the time of sending,
provided that if notice is given by fax or electronic mail a copy of such notice shall be sent by pre-paid recorded delivery or registered post within forty eight (48) hours of the date of transmission of the relevant fax or electronic mail.
If receipt occurs before 9am on a business day the notice shall be deemed to have been received at 9am on that day and if receipt occurs after 5pm on a business day, or on a day which is not a business day, the notice shall be deemed to have been received at 9am on the next business day. For the purpose of this Condition 23.1 "business day" means any day which is not a Saturday, a Sunday or a public holiday in the place at or to which the notice is left or sent.
The Supplier shall not issue any public document containing, or make any public statement containing, or otherwise disclose to any third party information which relates to or is connected with or arises out of a Contract, the matters contained in it or these Conditions, without the prior written approval of the Buyer except as and only to the extent required by the rules of any recognised stock exchange or other recognised regulatory body. Neither Party will use, or authorise others to use, any trade marks, trade names or business names of the other Party in any advertising or publicity material or make any form of representation or statement with regard to a Contract which would constitute an express or implied endorsement by the other Party of any commercial product or service without that other Party's prior written approval.
25.1 No failure or delay by any Party in exercising any right, power or privilege under the Contract shall operate as a waiver nor shall any single or partial exercise preclude any further exercise of any right, power or privilege under the Contract or otherwise.
25.2 Conditions 12.1 and 12.2 are intended to create legal rights for third parties. Other than as set out in Conditions 12.1 and 12.2 these Conditions do not create any legal rights, benefits, or causes of action for any party other than the Buyer and/or the Supplier.
25.3 If any provision of these Conditions shall be found by any court of competent jurisdiction to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall not affect the other part of that provision or the other provisions of these Conditions which shall remain in full force and effect.
25.4 The Buyer shall be entitled but not obliged at any time or times without notice to the Supplier to set-off any liability of the Supplier to the Buyer against any liability of the Buyer to the Supplier in either case howsoever arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination and may for such purpose convert or exchange any currency and whether or not either liability arises under these Conditions. Any exercise by the Buyer of its rights under this Condition shall be without prejudice to any other rights or remedies available to the Buyer under the Contract or otherwise. The Supplier may not set off any liability of the Buyer to the Supplier under these Conditions or otherwise against any liability of the Supplier to the Buyer under these Conditions or otherwise.
25.5 The Contract and these Conditions shall be governed by the laws of Scotland and each Party agrees that all disputes arising out of or in connection with the Contract and these Conditions, and/or with its negotiation, validity or enforceability, and/or the relationship between the parties, (in each case whether or not regarded as contractual claims) shall be exclusively governed by and determined in accordance with the law of Scotland. Each Party expressly submits to the exclusive jurisdiction of the Scottish Courts.
This is the Schedule attached to and forming part of the foregoing Conditions
Buyer's Statements Policy
All references to "FLEXcon" in this document are references to "the Buyer" for the purposes of these Conditions.
Social Accountability and Sustainability
FLEXcon, an ISO 9001:2008 and L.I.F.E certified manufacturer, is dedicated to conducting business with integrity. While this value has rewarded us with long-standing customer relationships, it has brought forth an evolving sustainability initiative that maintains our role as a responsible corporate steward of the environment and, whenever possible, encourages eco-friendly business practices. As a global manufacturer of pressure-sensitive films and adhesives, FLEXcon recognizes the potential impact on the environment from our manufacturing processes and our products. Therefore, it is our policy to minimize environmentally adverse operations by striking a balance between environmental factors and our manufacturing processes to sustain the quality of life for our employees and our neighbours in the communities where we operate. Sustainability means meeting the needs of the present without compromising the ability of future generations to meet their own needs. It also means living within the limits by understanding the interconnections between economy, society and the environment. Customer and employee satisfaction, commitment to excellence, integrity, taking responsibility for environmental sustainability and providing a safe workplace are the hallmarks of FLEXcon’s mission and culture. Along with initiatives around enhancing our reputation as a strong corporate citizen, we believe being a good steward of our environmental resources will make us a stronger, more competitive company, better able to support and satisfy our broad customer base.
Ethics and Business Conduct
For more than 50 years, FLEXcon has been providing solutions to customers seeking competitive advantages in performance, cost-effectiveness, and availability. At FLEXcon, we are committed to delivering the highest quality products and base our business on ethical practices which are built on a foundation of trust with our partners, suppliers, customers and employees. Integrity, customer and employee satisfaction, commitment to excellence, taking responsibility for environment sustainability, and providing a safe workplace are the hallmarks of the company. Employees are expected to adhere to guidelines for appropriate personal conduct and business ethics and thrive in a culture of respect, employee fairness, and continuous improvement. Although there are no formal processes in place, FLEXcon expects our products, and components of our products (and, therefore, the Goods and Services) to be produced and/or provided to high standards of quality and safety throughout our supply chain by people who are well-treated and compensated fairly for their work in accordance with all applicable national and international laws.