DEFINITIONS
In this document the following words shall have the following meanings:
“Agreement” means these Terms and Conditions together with the terms of any applicable Specification Document
“Business Day” means any day excluding Saturdays, Sundays and bank or public holidays in England.
“Customer” means the organisation or person who purchases goods and services from the Supplier
“Data Protection Legislation” means all applicable data protection and privacy laws in force from time to time in any applicable jurisdiction including the following UK laws: 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)
“EU Model Clauses” means the model clauses set out in the European Commission Decision of 5 February 2010 on standard contractual clauses for the transfer of personal data to processors established in third countries
“Group” means in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, 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
“Specification Document” means a statement of work, quotation, estimate or other similar document describing the goods and services to be provided by the Supplier
“Supplier” means KCP Ltd (Co No 06660663) with registered office at Duke House, Downmill Road, Bracknell, Berkshire, England, RG12 1QS, or where the goods and or services are supplied by another member of KCP Ltd’s Group, that Group company (which will be identified in the relevant purchase order / order form).
“Supplier Materials” mean all materials, equipment, documents and other property of the Supplier used in the supply of the goods and services under the Agreement
A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
A reference to writing or written includes email.
GENERAL
These Terms and Conditions shall apply to all contracts for the supply of goods and services by the Supplier to the Customer to the exclusion of any other terms that the Customer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Before the commencement of the delivery of goods or services the Supplier shall submit to the Customer a Specification Document which shall specify the goods and services to be supplied and the price payable. The Customer shall notify the Supplier immediately if the Customer does not agree with the contents of the Specification Document.
All Specification Documents shall be subject to these Terms and Conditions. Once the Customer has provided their written confirmation of the terms of the Specification Document, a legal contract between the Customer and the Supplier is created incorporating these Terms and Conditions and the Specifications Document.
Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 60 Business Days from its date of issue.
PRICE AND PAYMENT
The prices for the supply of goods and services are as set out in the Specification Document. The Supplier shall invoice the Customer upon arrival of the goods or completion of the services (as applicable) or as otherwise agreed in the Specification Document.
Invoiced amounts shall be due and payable within 30 days after receipt of invoice. The Supplier shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at 4% above HSBC UK’s base rate.
If the Customer’s procedures require that an invoice be submitted against a purchase order, the Customer shall issue such purchase order before the goods and services are supplied. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
SPECIFICATION OF THE GOODS AND SERVICES
All goods and services shall only conform to the specification in the Specification Document. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the goods. services or illustrations or descriptions of the them contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the services and/or goods described in them. They shall not form part of the Agreement or have any contractual force.
The Supplier reserves the right to amend the Specification Document if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
DELIVERY
The date of delivery set out in the Specification Document or otherwise specified by the Supplier is an estimate only. Time for delivery shall not be of the essence of the Agreement and the Supplier shall not be liable for any loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the goods or services.
All risk in the goods shall pass to the Customer upon delivery.
Title in the goods shall pass to the Customer once the Supplier has been paid in full for the Goods.
CUSTOMER`S OBLIGATIONS
The Customer shall:
ensure that the terms of the Specification Document are complete and accurate; co-operate with the Supplier in all matters relating to the delivery of the goods and services; provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by the Supplier to deliver the goods and provide the services;
provide the Supplier with such information and materials as the Supplier may reasonably require in order to deliver the goods and supply the services, and ensure that such information is complete and accurate in all material respects;
prepare the Customer’s premises for the supply and installation of the goods and for the provision of the services;
comply with all applicable laws, including health and safety laws;
keep all Supplier Materials the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation; and comply with any additional obligations as set out in the Specification Document.
If the Supplier’s performance of any of its obligations under the Agreement is prevented or delayed by any act or omission by the Customer or any third party (not being a sub-contractor of the Supplier) including by any failure to comply with clause 6.1 (each a “Customer Default”) then:
without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default;
the Supplier shall have no liability in respect of any delay to the completion of any project caused by the Customer Default; if applicable, the timetable for the project will be modified accordingly;
the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations under the Agreement;
and the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
Without prejudice to any other rights to which the Supplier may be entitled, if the Customer terminates the Agreement or cancels an order for goods or services other than permitted under clause 10, upon the Supplier’s written request, the Customer shall compensate the Supplier for any loss including costs, expenses or otherwise any damage suffered or incurred as a result of such termination or cancellation, including but not limited to: any third party costs to which the Supplier may be committed; the full cost of any goods associated with a Specification Document; and any relevant Supplier Materials. If the Supplier is unable to deliver any goods or services due to Customer’s failure to comply with its obligations under clause 6.1, then such failure shall be deemed a cancellation of the goods and services in question and the Customer shall pay damages as set out in clause 6.3. The Customer shall indemnify the Supplier against all claims, costs, liabilities, fines and expenses which the Supplier may suffer or incur and which arise, directly or indirectly, from negligence or a breach of any terms of the Agreement by the Customer or its employees, contractors or agents.
ALTERATIONS TO THE SPECIFICATION DOCUMENT
Any alterations in the scope of goods and/or services to be provided under the Agreement must be agreed in writing between the parties and shall be set out in a new or revised Specification Document. The new or revised Specification Document shall reflect the changed goods, services and price and any other terms agreed between the parties.
The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 Business Days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price and any other terms already agreed between the parties.
Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 Business Days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed. Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties, and the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations and thereafter the Supplier shall perform the Agreement upon the basis of such amended terms.
WARRANTY
Subject to the provisions of clause 8.2, the Supplier warrants that for a period of 1 month following the date of delivery, the goods and all their component parts, where applicable, will be free from any defects in design, workmanship, construction or materials, and function substantially in accordance with the Specification Document.
The warranty described in clause 8.1 does not apply in respect of goods installed by any party other than by the Supplier or its appointed subcontractors. Any warranty associated with software shall be as set out in the Specification Document or as otherwise provided in respect of any software licences as the case may be.
The Supplier warrants that the services performed under the Agreement shall be performed substantially in accordance with the Specification Document, using reasonable skill and care, and will be of a quality conforming to generally accepted industry standards and practices.
Except as expressly stated in the Agreement, all warranties whether express or implied, by operation of law, custom of trade or otherwise, are hereby excluded in relation to the goods and services to the extent permitted by applicable law. Subject to clause 8.6, the Supplier shall, at its option, repair, re-perform or replace the defective goods or service, or refund the price of the defective goods or services if:
the Customer gives notice in writing within a reasonable time of discovery and, for goods, only during the warranty period that some or all of the goods or services do not comply with the warranty set out in clause 8.1 or 8.3; the Supplier is given a reasonable opportunity of examining such goods and/or service outputs and is able to verify the claim;
and the Customer (if asked to do so by the Supplier) returns any relevant Goods to the Supplier’s place of business at the Customer’s cost. The Supplier shall not be liable for a failure of goods or installations to comply with the warranty in clause 8.1 or 8.3 if:
the Customer makes any further use of such goods or installations after giving a notice in accordance with clause 8.5(a);
the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods or (if there are none) good trade practice; the defect arises as a result of the Supplier following any drawing, design or specifications supplied by the Customer;
the Customer alters or repairs such goods or installations without the written consent of the Supplier or has a third party alter or repair them; the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or the goods or installations differ from Specification Document as a result of changes made to ensure they comply with applicable statutory or regulatory standards. The Supplier shall have no liability to the Customer in respect of a failure to comply with the warranties set out in clauses 8.1 or 8.3 other than as set out in clause 8.5 The terms of this clause 8 shall apply to any repaired or replacement goods or services supplied by the Supplier. LIMITATION OF LIABILITY The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Agreement including liability in contract, tort (including negligence), misrepresentation, restitution, under any indemnities or otherwise. Nothing in the Agreement limits any liability which cannot legally be limited, including but not limited to liability for (a) death or personal injury caused by negligence or (b) fraud or fraudulent misrepresentation. Under no circumstances whatever shall the Supplier be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, for any:
loss of profits; loss of sales, customers or business; loss of agreements or contracts; loss of anticipated savings; loss of use or corruption of software, data or information; loss of or damage to goodwill; wasted expenditure; costs of procuring a replacement system; loss of use; and/or indirect or consequential loss.
The total liability of the Supplier to the Customer in respect of all other losses arising under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, shall in no circumstances exceed: in relation to any liability relating to the supply of goods, 125% of the price paid or payable for the goods;
and in relation to liability for the supply of services, 125% of the price paid or payable by the Customer under the Agreement during the 12 months preceding the event that gave cause to the liability in each case subject to an overall total cap for all liability under or in connection with the Agreement of 125% of the price paid or payable for the goods under the Specification Document in question.
TERMINATION
Either party may terminate the Agreement forthwith by notice in writing to the other if: the other party commits a material breach of the Agreement and, in the case of a breach capable of being remedied, fails to remedy it within 45 calendar days of being given written notice from the other party to do so; the other party commits a material breach of the Agreement which cannot be remedied under any circumstances;
the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; the other party ceases to carry on its business or substantially the whole of its business; or the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors;
or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
Without affecting any other right or remedy available to it, the Supplier may suspend the supply of services or all further deliveries of goods under the Agreement or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Agreement on the due date for payment, the Customer becomes subject to any of the events listed in clauses 10(s) to 10(u), or the Supplier reasonably believes that the Customer is about to become subject to any of them. CONSEQUENCES OF TERMINATION On termination of the Contract: the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of services and goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
and the Customer shall return all of the Supplier Materials and any goods or other deliverables which have not been fully paid for.
If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
Any provision of the Agreement that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising as a result of the performance of the Agreement shall, so far as not already vested, become the absolute property of the Supplier, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by the execution of appropriate instruments or the making of agreements with third parties.
Where the good or services comprise the delivery of software, use of such software may by subject to additional terms of use, as stated in the Specification Document or software licence as the case may be. To the extent that the goods or services are to be altered in accordance with specifications supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the specification from the Customer. DATA PROTECTION Both parties will comply with all applicable requirements of the Data Protection Legislation.
This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and the Supplier is the processor. The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to the Supplier for the duration and purposes of the Agreement. The Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under the Agreement:
process that personal data only on the documented written instructions of the Customer unless the Supplier is required by Data Protection Legislation to otherwise process that personal data; 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, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; not transfer any personal data outside of the European Economic Area unless the prior written consent of the Customer has been obtained (which may require execution of the EU Contract Model Clauses), provided that the Supplier shall be permitted to continue processing personal data in the UK even if and after the UK has left the European Union and, in this case, the parties shall add the EU Contract Model Clauses to the Agreement; assist the Customer, at the Customer’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; notify the Customer without undue delay on becoming aware of a personal data breach; at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by Data Protection Leggislation to store the personal data; and maintain complete and accurate records and information to demonstrate its compliance with this clause 13 and allow for audits by the Customer or the Customer’s designated auditor during ordinarty business hours and subject to 7 days’ prior written notice. The Customer consents to the Supplier appointing those third party processors that are set out in the Specification Document. The Supplier confirms that it has entered or (as the case may be) will enter with such third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 13. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by it pursuant to this clause 13.
The Customer shall not unreasonably withhold or delay consent to any changes or additions in the list of approved sub-processors. The Supplier will keep up to date a list of its third-party processers as applicable from time to time and upon request by the Customer, shall provide to the Customer details of the same. CONFIDENTIALITY Neither party shall disclose without the other party’s prior written consent any confidential information of the other party they may receive in connection with the Agreement save as required in legal proceedings or to its employees, professional advisers or contractors on a need-to-know-basis.
A disclosure by an employee, professional adviser or contractor shall be deemed to be a disclosure by the party who disclosed the information to them. The terms of this clause 14 shall be in addition to those of any confidentiality or non-disclosure agreements that the parties may have executed separately and which shall remain in force in accordance with their terms. FORCE MAJEURE Neither party shall be liable to the other in respect of the performance of any obligations (other than payment obligations) that it is prevented to perform by any cause or circumstance beyond its reasonable control.
ASSIGNMENT AND OTHER DEALINGS
Subject to the provisions of clause 16.2, this Agreement is personal to the parties. The Customer shall not be entitled to assign, transfer, mortgage, charge, subcontract, declare a trust over nor deal in any other manner with any of its rights and obligations under the Agreement without prior written consent from the other Supplier. The Supplier may subcontract as it may reasonably require through the course of providing the services and supplying the goods, in each case pursuant to the Agreement and or Specification Document as appropriate.
NOTICES
Any notice, approval, consent, request, instruction or document to be given or made under the Agreement shall be in writing and may be delivered by hand to the relevant party or sent by first class post, recorded delivery letter, registered airmail to the registered office for that party. GENERAL The Agreement (together with any separate confidentiality or non-disclosure agreements which the parties may have executed) constitutes the entire arrangement and understanding between the parties and supersedes and extinguishes all prior agreements, negotiations and discussions relating to the subject matter of the Agreement. Each party acknowledges that in entering into and performing the Agreement it does not do so on the basis of, and does not rely on any statement or representation (whether innocent or negligent, but excluding fraudulent representations) or warranty or understanding other than as expressly contained in the Agreement at the date hereof or subsequently included within the Agreement pursuant to Clause 18.2. Any variation to the Agreement must be in writing and signed on behalf of both parties.
If a court decides that any part of the Agreement cannot be enforced, that particular part of the Agreement will not apply, but the rest of the Agreement will. No party shall make, or permit any person to make, any public announcement, communication or circular concerning the Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), unless required by law or regulation.
A waiver by a party of a breach of any provision shall not be deemed a continuing waiver or a waiver of any subsequent breach of the same or any other provisions. Failure or delay in exercising any right under the Agreement shall not prevent the exercise of that or any other right. No person other than a party to the Agreement shall have any rights to enforce any terms of the Agreement.
Nothing in the Agreement shall create (or be deemed to create) a partnership or agency between the parties.
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
