GARIC LIMITED – STANDARD TERMS AND CONDITIONS OF PURCHASE
1 Definitions and interpretation
1.1 In these Conditions the following definitions apply:
Applicable Law: means all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force;
Conditions: means Garic’s terms and conditions of purchase and hire set out in this document;
Confidential Information: means any commercial, financial or technical information, information relating to Garic, its customers and/or the Goods, Equipment and Services, plans, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by Garic in connection with or otherwise pursuant to the Contract;
Contract: means the agreement between the Supplier and Garic for the sale and purchase of the Goods and Services or the hire of Equipment (as the case may be), incorporating these Conditions and the Order, and including all its schedules, attachments, annexures, service level agreements (where relevant) and statements of work;
Documentation: means any descriptions, instructions, manuals, literature, technical details or other related materials to be supplied in connection with the Goods, Equipment and Services;
Equipment: means the items of equipment to be hired to Garic including all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it
Force Majeure: means an event or sequence of events beyond any party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving the Supplier’s or its suppliers’ workforce;
Garic: means Garic Limited incorporated and registered in England and Wales with company number 02220727;
Goods: means the goods and related accessories, spare parts and Documentation and other physical material to be supplied by the Supplier to Garic in accordance with the Contract;
Goods, Equipment and Services: means the Goods or Equipment or Services or all as the case may be;
Intellectual Property Rights: means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off, domain names and all other intellectual property rights and similar rights and, in each case whether registered or not, whether vested, contingent or future and including any applications to protect or register such rights and all renewals and extensions of such rights or applications to which the relevant party is or may be entitled in whichever part of the world existing;
Location: means the address or addresses for delivery of the Goods and Equipment and performance of the Services as set out in the Order or such other address or addresses as notified by Garic to the Supplier prior to delivery/performance;
Order: means Garic’s order for the Goods, Equipment and Services as set out in Garic’s purchase order form;
Rental Period: means the period of hire as set out in the Order.
Services: means the services set out in the Order and to be supplied by the Supplier to Garic in accordance with the Contract;
Specification: means the description or Documentation provided for the Goods, Equipment and Services set out or referred to in the Contract;
Supplier: means the named party in the Contract who has agreed to sell the Goods and Services or hire the Equipment to Garic and whose details are set out in the Order;
Supplier Personnel: means all employees, officers, staff, other workers, agents and consultants of the Supplier, and any of their sub-contractors who are engaged in the performance of the Services from time to time; and
VAT: means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods, Equipment and Services.
1.2 In these Conditions, unless the context otherwise requires:
1.2.1 any headings in these Conditions are included for convenience only and shall have no effect on the interpretation of these Conditions;
1.2.2 a reference to either the Supplier or Garic includes that party’s personal representatives, successors and permitted assigns;
1.2.3 words in the singular include the plural and vice versa;
1.2.4 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
1.2.5 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and includes all subordinate legislation made from time to time under that legislation; and
1.2.6 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
2 Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and Garic. They supersede any previously issued terms and conditions of hire, purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Supplier’s quotation, sales conditions, confirmation of order, specification or other document shall form part of the Contract except to the extent that Garic otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of Garic and the Supplier respectively.
2.4 Each Order by Garic to the Supplier shall be an offer to purchase Goods and Services or hire Equipment subject to the Contract including these Conditions.
2.5 An Order may be withdrawn or amended by Garic at any time before acceptance by the Supplier. If the Supplier is unable to accept an Order, it shall notify Garic promptly.
2.6 Acceptance of an Order by the Supplier shall occur when it is expressly accepted by the Supplier or by any other conduct of the Supplier which Garic reasonably considers is consistent with acceptance of the Order.
2.7 Garic shall have the right to cancel any Order or any part of an Order which has not yet been, in the case of Goods or Equipment, delivered, and in the case of Services, performed for Garic.
3.1 The price for the Goods, Equipment and Services shall be as set out in the Order (Price). Unless otherwise agreed by Garic in writing, no increase in the Price may be made by the Supplier after the Order is placed by Garic.
3.2 All Prices are fixed and the Price includes packaging, delivery, unloading, unpacking, shipping, carriage, insurance and all other charges or taxes related to the Goods, Equipment and Services.
4.1 The Supplier shall invoice Garic: (a) for the Goods on or after the completion of delivery of the Goods, (b) for Services on or after the completion of performance of the Services, (c) for Equipment in accordance with the payment schedule set out in the Order for the duration of the Rental Period or, (d) if later, the completion of the Acceptance Conditions.
4.2 Unless otherwise agreed by Garic in writing, Garic shall pay each validly submitted and undisputed invoice of the Supplier within 60 days following the end of the calendar month of receipt.
4.3 Without prejudice to any other remedy, Garic shall be entitled to set-off any liability which it has or any sums which it owes to the Supplier under the Contract.
4.4 The Supplier shall pay all sums that it owes to Garic under the Contract without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.
4.5 Time of payment is not of the essence. Where sums due under the Contract are not paid in full by the due date, to compensate the Supplier for all loss from Garic’s late payment, Garic shall pay on the sum overdue interest (before and after judgment) on a daily basis until payment in full at the rate of 2% per cent per annum above the Official Bank Rate from time to time of the Bank of England. The Supplier acknowledges that this is a substantial remedy for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998.
4.6 VAT shall be charged by the Supplier and paid by Garic at the applicable rate at the time the invoice was issued.
5.1 The Goods and Equipment shall be delivered by the Supplier, or its nominated carrier, to the Location no later than the date specified in the Order.
5.2 The Goods and Equipment shall be deemed delivered on completion of unloading of the Goods or Equipment at the Location by the Supplier or its nominated carrier (as the case may be).
5.3 The Services shall be performed by the Supplier at the Location on the date specified in the Order.
5.4 The Services shall be deemed performed on completion of the performance of the Services as specified in the Order.
5.5 The Goods and Equipment shall not be delivered and the Services shall not be performed in instalments unless otherwise agreed in advance in writing by Garic.
5.6 Each delivery of Goods and Equipment or performance of the Services shall be accompanied by a delivery note stating:
5.6.1 the date of the Order and Order number;
5.6.2 the relevant Garic and Supplier details;
5.6.3 if Goods or Equipment, the quantity of Goods or Equipment in the delivery;
5.6.4 if Services, the category, type and quantity of Services performed;
5.6.5 any special instructions, handling and other requests;
5.6.6 in the case of Services, details of the Supplier Personnel performing the Services;
5.6.7 in the case of Goods and Equipment, whether any packaging material is to be returned, in which case Garic shall, after the Goods are unpacked, make them available for collection by the Supplier at the Supplier’s expense for a period not exceeding 1 month; and
5.6.8 any additional information requested by Garic as set out in the Order.
5.7 Time of delivery or performance (as the case may be) is of the essence. If the Supplier fails to deliver any of the Goods or Equipment, or perform any of the Services by the date specified in the Order, Garic shall (without prejudice to its other rights and remedies) be entitled at Garic’s sole discretion:
5.7.1 to terminate the Contract;
5.7.2 to purchase or hire the same or similar Goods, Equipment and Services from another supplier;
5.7.3 to refuse to accept the delivery or performance (as the case may be) of any more Goods, Equipment and Services under the Contract;
5.7.4 to recover from the Supplier all costs and losses resulting to Garic from the failure in performance or delivery (as the case may be), including the amount by which the price payable by Garic to acquire those Goods, Equipment and Services from another supplier exceeds the price payable under the Contract and any loss of profit; and
5.7.5 all or any of the foregoing.
6 Acceptance, rejection and inspection
6.1 Garic shall not have accepted, or be deemed to have accepted, the Goods, Equipment and Services until the Acceptance Conditions are fulfilled and Garic has notified confirmation of such to the Supplier in writing.
6.2 The Acceptance Conditions are that:
6.2.1 for Goods, the Goods and delivery note have been delivered to or at the Location;
6.2.2 for Equipment, the Equipment and delivery note have been delivered to or at the Location;
6.2.3 for Services, the Services have been performed at the Location; and
6.2.4 all pre-delivery and post-delivery acceptance tests and inspections have been completed to the satisfaction of Garic at its sole discretion;
6.2.5 Garic has notified the Supplier in writing that the Goods, Equipment and Services have been delivered or performed (as the case may be) in full compliance with the Order and the Conditions of the Contract including this clause 6.
6.3 Garic shall be entitled to reject any Goods, Equipment and Services which are not in full compliance with the terms and conditions of the Contract. Any acceptance of defective, late, incomplete, or over-delivered Goods, Equipment and Services or any payment made in respect thereof, shall not constitute a waiver of any of Garic’s rights and remedies, including its right to reject.
6.4 Any rejected Goods and Equipment may be returned to the Supplier by Garic at the Supplier’s cost and risk. The Supplier shall pay to Garic a reasonable charge for storing and returning any of the Goods over-delivered or rejected.
6.5 Garic may inspect and test the Goods, Equipment and Services during performance or during manufacture or processing prior to despatch, and the Supplier shall provide Garic with access to and use of all facilities reasonably required.
6.6 Any inspection or testing of the Goods, Equipment and Services shall not be deemed to be acceptance of the Goods, Equipment and Services or a waiver of any of Garic’s other rights and remedies, including its right to reject.
6.7 The rights of Garic in this clause 6 are without prejudice to Garic’s other rights and remedies under the Contract including under clause 9.
7.1 The Rental Period shall start on the date of delivery of the Goods as set out in clause 5 and shall continue, unless and until terminated in accordance with these Conditions, for the period specified in the Order.
7.2 No extra amounts may be charged for the hire of the Equipment unless agreed in writing and signed by Garic.
7.3 The Lessor shall provide maintenance services to Garic for the Rental Period on Garic’s (or it’s customer’s) request and on such terms as the parties agree in writing.
8.1 Risk in the Goods shall pass to Garic on the later of:
8.1.1 delivery of the Goods to Garic as set out in clause 5; or
8.1.2 Garic’s acceptance of the Goods as set out in clause 6.
The Supplier shall unload the Goods in accordance with Garic’s directions and at the Supplier’s risk.
8.2 Title to the Goods shall pass to Garic on the sooner of:
8.2.1 payment by Garic for the Goods under clause 4; or
8.2.2 delivery of the Goods to Garic under clause 5.
8.3 Title to the Equipment shall at all times remain with the Supplier and Garic shall have no right, title or interest in or to the Equipment save the right to possession and use of the Equipment subject to the Contract.
8.4 Risk in the Equipment shall pass to Garic (or its customer) on the later of:
8.4.1 delivery of the Equipment as set out in clause 5; or
8.4.2 Garic’s (or its customer’s) acceptance of the Equipment as set out in clause 6;
The Equipment shall remain at the sole risk of Garic (or its customer) whilst in the possession, custody or control of Garic (or its customer) until such time that the Equipment is collected by the Supplier as agreed by Garic.
8.5 The passing of title shall not prejudice any other of Garic’s rights and remedies, including its right to reject.
8.6 Neither the Supplier, nor any other person, shall have a lien on, right of stoppage in transit or other rights in or to any Goods title to which have vested in Garic or any specifications or materials of Garic, and the Supplier shall ensure that relevant third parties accept the exclusion of such lien and rights.
8.7 The Supplier warrants and represents that it:
8.7.1 has at the time the Contract is made full, clear and unencumbered title to the Goods, and the full, clear and unencumbered right to sell and deliver them to Garic; and
8.7.2 shall hold such title and right to enable it to ensure that Garic shall acquire a valid, unqualified title to the Goods and shall enjoy quiet possession of them.
9.1 The Supplier warrants and represents that it shall:
9.1.1 have all consents, licences and authorisations necessary to deliver and perform the Goods, Equipment and Services;
9.1.2 ensure the Contract is executed by a duly authorised signatory on behalf of Supplier;
9.1.3 provide high quality Documentation for the Goods, Equipment and Services;
9.1.4 ensure compliance and fulfilment of its obligations in accordance with the Order and the Contract, including any applicable service level agreement;
9.1.5 observe, and ensure that the Supplier Personnel observe all health and safety rules and regulations and any other security requirements that apply at any of Garic’s premises including the Location;
9.1.6 ensure that the Supplier Personnel use reasonable skill and care in the delivery and performance of the Goods, Equipment and Services; and
9.1.7 keep Garic fully informed of all activities concerning the Goods, Equipment and Services and provide Garic with activity reports on request.
9.2 The Supplier warrants and represents that the Goods, Equipment and Services shall for a period of 24 months (or such other period as is stated in the Specification) from acceptance (the Warranty Period):
9.2.1 conform to any sample, and to the quality and description of the Specification;
9.2.2 be free from defects in design, material and workmanship;
9.2.3 comply with all Applicable Law, standards and best industry practice;
9.2.4 if Goods, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.2.5 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13;
9.2.6 if Equipment, be of satisfactory quality within the meaning of the Supply of Goods and Services Act 1982, Part I, s 9;
9.2.7 be fit for purpose and any purpose held out by the Supplier; and
9.2.8 any media on which the results of the Services are supplied shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
9.3 The Supplier agrees that the approval by Garic of any design or Specification provided by the Supplier shall not relieve the Supplier of any of its obligations under this clause 9.
9.4 Garic may reject any Goods, Equipment and Services that do not comply with clause 9.2 and the Supplier shall, at Garic’s option, promptly remedy, repair, replace, correct, re-perform or refund the Price of any such Goods, Equipment and Services provided that Garic serves a written notice on the Supplier within the Warranty Period that some or all of the Goods, Equipment and Services do not comply with clause 9.2.
9.5 The provisions of these Conditions shall apply to any Goods, Equipment and Services that are remedied, repaired, replaced, corrected or re-performed with effect from the date of the acceptance of the remedied, repaired, replaced, corrected or re-performed Goods, Equipment and Services.
9.6 Garic’s rights under these Conditions are in addition to, and do not exclude or modify, the rights and conditions contained in the Supply of Goods and Services Act 1982, s 12 to 16 and the Sale of Goods Act 1979, s 13 to 15.
9.7 Garic shall be entitled to exercise its rights under clause 9 regardless of whether the Goods, Equipment and Services have been accepted under the Acceptance Conditions and notwithstanding that the Goods, Equipment and Services were not rejected following their initial inspection under clause 6.3.
10.1 The Supplier shall indemnify, and keep indemnified, Garic from and against any losses, damages, liability, costs (including legal fees) and expenses which Garic may suffer or incur directly or indirectly as a result of any:
10.1.1 alleged or actual infringement by the Supplier of a third party’s Intellectual Property Rights or other rights in connection with the supply or performance or manufacture of the Goods, Equipment and Services under the Contract (IPR Claim);
10.1.2 claim made against Garic in respect of any losses, damages, liability, costs and expenses sustained by the employees or agents or any customer of Garic or any third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods, Equipment and Services or from a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier;
10.1.3 defects in materials, quality, workmanship or performance of the Goods, Equipment and Services.
10.2 If any IPR Claim is made or is reasonably likely to be made against Garic, the Supplier shall promptly and at its own expense either:
10.2.1 procure for Garic the right to continue using and possessing the relevant Intellectual Property Rights; or
10.2.2 modify or replace the infringing part of the Intellectual Property Rights and without adversely affecting the functionality of the Intellectual Property Rights as set out in the Contract so as to avoid the infringement or alleged infringement,
provided that if, having used reasonable endeavours, neither of the above can be accomplished on reasonable terms, the Supplier shall (without prejudice to the indemnity above) refund the Price paid by Garic in respect of the affected Intellectual Property Rights.
10.3 The Supplier shall have in place contracts of insurance with reputable insurers incorporated in the United Kingdom insuring the Goods, Equipment and Services and any of Garic’s materials in the Supplier’s possession against the usual risks, including accident, fire and theft, for their full replacement value until the risk in them passes to Garic (or its customer), and insuring against all other risks that a prudent Supplier should consider reasonable. On request, the Supplier shall supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Supplier shall on request assign to Garic the benefit of such insurance.
11.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 11.
11.2 Subject to clauses 11.6 and 11.7, Garic’s total liability shall not exceed a sum equal to the value of the Contract.
11.3 Subject to clauses 11.6 and 11.7, Garic shall not be liable for consequential, indirect or special losses.
11.4 Subject to clauses 11.6 and 11.7, Garic shall not be liable for any of the following (whether direct or indirect):
11.4.4 loss of commercial opportunity;
11.4.5 loss of savings, discount or rebate (whether actual or anticipated);
11.4.6 harm to reputation or loss of goodwill; and
11.5 Notwithstanding clauses 11.3 and 11.4, and without limiting Garic’s entitlement to recover other types of loss, the parties agree that Garic may recover the following from the Supplier as direct loss:
11.5.1 the cost of selecting, procuring, installing and testing replacement goods and/or services;
11.5.2 wasted expenditure or unnecessary charges incurred by Garic (including regulatory fines); and
11.5.3 liability to third parties (including customers).
11.6 The limitations of liability set out in clauses 11.2 to 11.4 shall not apply in respect of any indemnities given by the Supplier under the Contract.
11.7 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of the following:
11.7.1 death or personal injury caused by negligence;
11.7.2 fraud or fraudulent misrepresentation;
11.7.3 wilful misconduct; and
11.7.4 any other losses which cannot be excluded or limited by Applicable Law.
12 Intellectual property rights
All Specifications provided by Garic and all Intellectual Property Rights in the Goods, Equipment and Services made or performed in accordance with such Specifications shall vest in and remain at all times the property of Garic and such Specifications may only be used by the Supplier as necessary to perform the Contract. The Supplier assigns (or shall procure the assignment) to Garic absolutely, with full title guarantee, all right, title and interest in any such Intellectual Property Rights, and the Supplier shall do all such things and sign all documents necessary in Garic’s opinion to so vest all such Intellectual Property Rights in Garic, and to enable Garic to defend and enforce such Intellectual Property Rights.
13 Confidentiality and announcements
13.1 The Supplier shall keep confidential all Confidential Information provided (directly or indirectly) by Garic and shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
13.1.1 any information which was in the public domain at the date of the Contract;
13.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
13.1.3 any information which is independently developed by the Supplier without using information supplied by Garic;
13.1.4 any information provided (directly or indirectly) by Garic under a separate Non-Disclosure Agreement (NDA) entered into between Garic and the Supplier; or
13.1.5 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
13.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
14.1 The parties shall comply with the data protection requirements as set out in the Schedule to these Conditions (Data protection).
15.1 A party shall not be liable if delayed in or prevented from performing its obligations due to Force Majeure, provided that it:
15.1.1 promptly notifies the other of the Force Majeure event and its expected duration; and
15.1.2 uses best endeavours to minimise the effects of that event.
15.2 If, due to Force Majeure, a party:
15.2.1 is or shall be unable to perform a material obligation; or
15.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days;
the other party may, within 30 days, terminate the Contract on immediate notice.
16.1 Garic may terminate the Contract at any time by giving notice in writing to the Supplier if:
16.1.1 the Supplier commits a material breach of the Contract and such breach is not remediable;
16.1.2 the Supplier commits a material breach of the Contract which is not remedied within 14 days of receiving written notice of such breach;
16.1.3 any consent, licence or authorisation held by the Supplier is revoked or modified such that the Supplier is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled.
16.2 Garic may terminate the Contract at any time by giving notice in writing to the Supplier if the Supplier:
16.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so; or
16.2.2 takes or has taken against it (other than in relation to a solvent restructuring) any step or action towards its entering bankruptcy, administration, provisional liquidation or any composition or arrangement with its creditors, applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court), being struck off the register of companies, having a receiver appointed to any of its assets, or its entering a procedure in any jurisdiction with a similar effect to a procedure listed in this clause 16.2.2; or
16.2.3 Garic reasonably believes that any circumstance or event under this clause 16.2 is imminent or likely to occur.
16.3 If the Supplier becomes aware that any event has occurred, or circumstances exist, which may entitle Garic to terminate the Contract under this clause 16, it shall immediately notify Garic in writing.
16.4 This Contract shall terminate automatically if the Equipment is lost, stolen, seized, confiscated or, damaged beyond repair, as agreed between the parties.
16.5 On termination of the Contract for any reason or on expiry, the Supplier shall immediately deliver to Garic all Goods and Services whether or not then complete, and return any of Garic’s materials in the Supplier’s possession. If the Supplier fails to do so, then Garic may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
16.6 On termination of the Contract for any reason or on expiry, Garic shall make the Equipment available for collection by the Supplier at a date and time agreed by the parties. If the Supplier fails to remove the Equipment on the agreed date Garic shall be entitled to charge the Supplier reasonable storage costs.
16.7 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of Garic at any time up to the date of termination.
17.1 Any notice given by a party under these Conditions shall:
17.1.1 be in writing and in English;
17.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
17.1.3 be sent to the relevant party at the address set out in the Order.
17.2 Notices may be given, and are deemed received:
17.2.1 by hand: on receipt of a signature at the time of delivery;
17.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the second business day (in the place of receipt) after posting;
17.2.3 by email at the time of transmission, or, if this time falls outside normal business hours in the place of receipt, when business hours resume.
17.3 Any change to the contact details of a party as set out in the Order shall be notified to the other party in accordance with this clause 17.
17.4 All references to time are to the local time at the place of deemed receipt.
17.5 This clause does not apply to notices given in legal proceedings or arbitration.
The rights and remedies provided in the Contract for Garic only are cumulative and not exclusive of any rights and remedies provided by law.
The Supplier shall at the request of Garic, and at the Supplier’s own cost, do all acts and execute all documents which are necessary to give full effect to the Contract.
20.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
No variation of the Contract shall be valid or effective unless it is in writing, refers to the Contract and these Conditions and is duly signed or executed by, or on behalf of, each party.
22.1 The Supplier may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without Garic’s prior written consent, such consent not to be unreasonably withheld or delayed.
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
24.1 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
24.2 If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable but would be legal, valid and enforceable if some part of it was deleted or modified, the provision or part-provision in question shall apply with the minimum such deletions or modifications as may be necessary to make the provision legal, valid and enforceable. In the event of such deletion or modification, the parties shall negotiate in good faith in order to agree the terms of a mutually acceptable alternative provision.
25.1 No failure, delay or omission by Garic in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
25.2 No single or partial exercise of any right, power or remedy provided by law or under the Contract by Garic shall prevent any future exercise of it or the exercise of any other right, power or remedy by Garic.
26.1 The Supplier shall comply with Applicable Law and shall maintain such licences, authorisations and all other approvals, permits and authorities as are required from time to time to perform its obligations under or in connection with the Contract.
26.2.1 Without prejudice to the generality of clause 26.1, the Supplier shall:
(a) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, and will enforce them where appropriate;
(c) promptly report to Garic any request or demand for any undue financial or other advantage of any kind the Supplier receives in connection with the performance of the Contract;
(d) immediately notify Garic (in writing) if any of the Supplier’s officers or employees becomes a foreign public official and the Supplier warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of the Contract;
(e) on Garic’s request, certify in writing signed by an officer, compliance with this clause 26.2 by the Supplier and all persons associated with it.
26.2.2 The Supplier shall provide such supporting evidence of compliance as Garic may reasonably request.
26.2.3 The Supplier shall ensure that any person who is performing any services or providing goods in connection with the Contract does 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 this clause 26.2 (Relevant Terms). You shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to us for any breach by such persons of any of the Relevant Terms.
26.2.4 For the purpose of this clause 26.2, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 26.2 a person associated with the Supplier includes but is not limited to any sub-contractor.
26.3 Modern slavery
26.3.1 Without prejudice to the generality of clause 26.1, the Supplier shall comply with any anti-slavery policy adopted by Garic from time to time.
26.3.2 The Supplier shall implement due diligence procedures for its own suppliers, sub-contractors and other participants in its supply chains to ensure that there is no slavery or human trafficking in its supply chains.
26.3.3 The Supplier shall notify Garic as soon as it becomes aware of:
(a) any breach, or potential breach, of any anti-slavery policy adopted by Garic from time to time; and
(b) any actual or suspected slavery or human trafficking in a supply chain which has a connection with the Contract.
26.4 Tax evasion
26.4.1 Without prejudice to the generality of clause 26.1, the Supplier shall comply with any policy adopted by Garic from time to time regarding the prevention of the facilitation of tax evasion.
26.4.2 The Supplier shall implement due diligence procedures for its own suppliers, sub-contractors and other participants in its supply chains to ensure that they do not facilitate tax evasion, whether in the United Kingdom or elsewhere.
26.4.3 The Supplier shall notify Garic as soon as it becomes aware of:
(a) Any breach, or potential breach, of any policy adopted by Garic from time to time regarding the prevention of the facilitation of tax evasion; and
(b) Any actual or suspected facilitation of tax evasion in a supply chain which has a connection with the Contract.
If there is a conflict between the terms contained in the Conditions and the terms of the Order, Specification, schedules, appendices or annexes to the Contract, the terms of the Conditions shall prevail to the extent of the conflict.
The Supplier shall pay its own costs and expenses incurred in connection with the negotiation, preparation, signature and performance of the Contract (and any documents referred to in it).
A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
In this Schedule:
Garic Personal Data: means any personal data which the Supplier processes in connection with this Agreement, in the capacity of a processor on behalf of Garic.
Supplier Personal Data: means any personal data which the Supplier processes in connection with the Contract, in the capacity of a controller.
Data Protection Laws: means:
(a) To the extent the UK GDPR (as defined in the Data Protection Act 2018) applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data.
(b) To the extent the EU GDPR (the General Data Protection Regulation ((EU) 2016/679) applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.
1.1 For the purposes of this Schedule, the terms Commissioner, controller, data subject, personal data, personal data breach, processor and processing, shall have the meaning given to them in the UK GDPR, and supervisory authority shall have the meaning given to it in the EU GDPR.
1.2 Both parties will comply with all applicable requirements of the Data Protection Laws. This paragraph 1 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Laws.
1.3 Without prejudice to the generality of paragraph 1.2:
1.3.1 the Supplier shall process all Supplier Personal Data strictly in accordance with its privacy policy (Supplier Privacy Policy);
1.3.2 the Supplier hereby undertakes, warrants and represents that the Supplier Privacy Policy, and any amendments, will at all times comply with the Data Protection Laws and that it will not make any amendments to the Supplier Privacy Policy where this would be in contravention of the Data Protection Laws;
1.3.3 as between the parties, the Supplier is solely responsible for ensuring that the processing of Supplier Personal Data complies with Applicable Laws, including the Data Protection Laws, and in particular, that all required fair processing information is provided to the relevant data subjects; and
1.3.4 in the event of any inconsistency or conflict between the terms of the Supplier Privacy Policy and this Agreement, this Agreement will take precedence.
1.4 In relation to Garic Personal Data, the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject will be as set out in the Specification.
1.5 Without prejudice to the generality of paragraph 1.2 the Supplier shall, in relation to Garic Personal Data:
1.5.1 process that Garic Personal Data only on the documented instructions of Garic, unless the Supplier is required by Applicable Laws to otherwise process that Garic Personal Data. Where the Supplier is relying on Applicable Laws as the basis for processing Garic Processor Data, the Supplier shall promptly notify Garic of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying Garic on important grounds of public interest. The Supplier shall immediately inform Garic if, in the opinion of the Supplier, the instructions of Garic infringe Applicable Data Protection Legislation;
1.5.2 implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Garic Personal Data and against its accidental loss, damage or destruction, including inter alia as appropriate:
1.5.2.1 the pseudonymisation and encryption of Garic Personal Data;
1.5.2.2 the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
1.5.2.3 the ability to restore the availability and access to Garic Personal Data in a timely manner in the event of a physical or technical incident; and
1.5.2.4 a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. In assessing the appropriate level of security the Supplier shall take into account in particular of the risks that are presented by the processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Garic Personal Data transmitted, stored or otherwise processed.
1.5.3 ensure, and procure, that any personnel engaged and authorised by the Supplier to process Garic Personal Data keep the Garic Personal Data confidential;
1.5.4 promptly assist Garic in responding to any request from a data subject and in ensuring compliance with the Garic’s obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with the Commissioner, supervisory authorities or other regulators and, in particular, the Supplier shall promptly notify Garic if it receives any complaint, notice or communication (whether from the Commissioner, any data subject, supervisory authority or other third party) which relates to processing of Garic Personal Data;
1.5.5 notify Garic without undue delay (and no later than 24 hours) after becoming aware of a personal data breach and on suspecting the same, the Supplier shall promptly conduct an initial assessment to determine, with a reasonable degree of certainty, whether the event or incident qualifies for notification to Garic under this paragraph 1.5.5 and shall provide a copy of this initial assessment along with such notification;
1.5.6 at the written direction of Garic, delete or return to Garic all Garic Personal Data on termination or expiry of the agreement, and certify to Garic in writing it has done so, unless the Supplier is required by Applicable Law to continue to process that Garic Personal Data, in which case the Supplier shall promptly notify Garic, in writing, of what that Applicable Law is and shall only be permitted to process that Garic Personal Data for the specific purpose so-notified, and all other requirements set out in this Schedule shall continue to apply to such Garic Personal Data notwithstanding the termination or expiry of this Agreement for as long as such Garic Personal Data is processed by the Supplier. For the purposes of this clause 1.5.6 the obligation to “delete” data includes the obligation to delete data from back-up systems as well as live systems; and
1.5.7 maintain adequate records, and, on Garic’s request, make available such information as Garic may reasonably request, and allow for and submit its premises and operations to audits, including inspections, by Garic or Garic’s designated auditor, to demonstrate its compliance with the Data Protection Laws and this Schedule.
1.6 The Supplier shall not, without the prior written consent of Garic (and in any event subject to the Supplier providing Garic with reasonable evidence that such activity is being undertaking in full compliance with Applicable Data Protection Laws):
1.6.1 appoint or replace (or change the terms of the appointment of) any other processor in relation to Garic Personal Data or transfer any Garic Personal Data to the same; or
1.6.2 carry out, via itself or via any other processor, any processing of Garic Personal Data, or transfer any Garic Personal Data, outside of the UK, including processing Garic Personal Data on equipment situated outside of the UK.
1.7 Either party may, at any time on not less than 30 days’ notice, revise this Schedule by replacing it (in whole or part) with any applicable standard clauses approved by the EU Commission or the UK Information Commissioner’s Office or forming part of an applicable certification scheme or code of conduct (Amended Terms). Such Amended Terms shall apply when signed by the parties, but only in respect of such matters which are within the scope of the Amended Terms.
1.8 The Supplier hereby indemnifies, and shall keep indemnified, Garic from and against any and all costs, damages and expenses of any kind arising from any claim or demand brought by any person, data subject, Commissioner or supervisory authority as a result of any breach or alleged breach by Supplier of any Data Protection Law or its obligations under this Schedule. This indemnity shall not be subject to any limits or exclusions of liability that may otherwise apply, or be imposed, under this Contract.