General Terms & Conditions of Purchase for Goods and/or Services
Table of Contents
1. DEFINITIONS
1.1 “Company” shall mean “Net Zero Technology Centre Limited” registered in Scotland under number SC531384 whose registered office is at W-Zero 1 Energy Transition Zone, Hareness Road, Aberdeen, United Kingdom, AB12 3LE.
1.2 “Conditions” means the General Terms and Conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Company and the Contractor.
1.3 “Consequential Loss” means any loss or anticipated loss of profit, loss or anticipated loss of revenue, business interruption, loss of use of any equipment, loss of any contract or other business opportunity and any other loss of a similar nature.
1.4 “Contractor’s Equipment” means any equipment, plant, tools, machinery, software, documentation or other items supplied by or on behalf of the Contractor for rental, hire, loan or temporary use by or for the benefit of the Company where clause 11 applies.
1.5 “Goods” means the items to be provided in accordance with the Purchase Order.
1.6 “Purchase Order” means the contract formed by the acceptance of the Purchase Order document and shall incorporate these Conditions and any special conditions referred to in the Purchase Order document.
1.7 “Contractor” means the person(s), firm or company named in the Purchase Order and engaged by Company for the supply of Goods and/or execution of Services defined in the Purchase Order and includes the Contractor’s legal personal representatives, successors and assignees.
1.8 “Services” means the services, if any, to be supplied by the Contractor in accordance with the Purchase Order.
1.9 “Specification” includes any plans, drawings, standards, data or other information relating to the Goods or Services.
1.10 Notwithstanding any contrary terms submitted by or on behalf of the Contractor, the Contractor shall be deemed to have accepted the Purchase Order and these Conditions as soon as it commences performance of any Services, delivers any Goods, delivers or makes available any Contractor’s Equipment where clause 11 applies, or otherwise commences performance of any obligation under the Purchase Order.
1.11 These Conditions shall prevail over any terms or conditions appearing in or referred to in any quotation, acknowledgement, acceptance, invoice, delivery note, hire terms, rental terms or other document issued by or on behalf of the Contractor. Any such Contractor document shall have effect only to the extent that it confirms the Contractor’s acceptance of the Purchase Order and these Conditions, unless otherwise expressly agreed in writing by the Company.
2. SPECIFICATIONS
2.1 The quantity, quality and description of the Goods and the Services shall, subject as provided in these Conditions, be as specified in the Purchase Order and/or in any applicable Specification supplied by the Company to the Contractor or agreed in writing by the Company.
2.2 Any Specification supplied by the Company to the Contractor, or specifically produced by the Contractor for the Company, in connection with the Purchase Order, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Company. The Contractor shall not disclose to any third party or use any such Specification except to the extent necessary to perform the Purchase Order, as required by applicable law, or where it is or becomes public knowledge through no fault of the Contractor.
3. PRICE OF GOODS AND SERVICES AND RENTAL CHARGES
3.1 The price of the Goods and Services, and any rental charges for Contractor’s Equipment where clause 11 applies, shall be as stated in the Purchase Order. Unless otherwise expressly agreed in writing by the Company, such price and rental charges shall be fixed and inclusive of all costs, charges and expenses incurred by the Contractor in performing the Purchase Order, including packaging, packing, shipping, carriage, insurance, delivery, mobilisation, demobilisation, collection and removal, but exclusive of any applicable value added tax, which shall be payable subject to receipt of a valid VAT invoice.
3.2 No additional charges, expenses, uplifts, variations, minimum charges, cancellation charges or other sums shall be payable by the Company unless expressly stated in the Purchase Order or agreed in writing by the Company in accordance with clause 16.1. Where clause 11 applies, rental charges shall also be subject to clause 11.6.
4. TERMS OF PAYMENT
4.1 Unless otherwise stated in the Purchase Order, payment of undisputed sums properly due shall be made within thirty (30) days after receipt by the Company of a valid and properly submitted invoice, provided that the Goods, Services and, where clause 11 applies, Contractor’s Equipment have been supplied, performed or made available in accordance with the Purchase Order and any required certification or supporting documentation has been received by the Company.
4.2 The Contractor’s invoice must detail the Purchase Order number, the amounts and descriptions specified in the Purchase Order, any applicable VAT, and any supporting information reasonably required by the Company. The Company may reject any invoice which does not comply with this clause or which relates to Goods, Services or Contractor’s Equipment that are defective, incomplete, non-compliant, disputed or not properly due.
4.3 The Company may set off against any invoice or other amount due to the Contractor any sums owed to the Company by the Contractor, whether under the Purchase Order or otherwise.
5. DELIVERY
5.1 Delivery of the Goods, performance of the Services and, where clause 11 applies, delivery or making available of Contractor’s Equipment shall be to the named destination on the Purchase Order. The delivery method shall be stated on the Purchase Order in accordance with Incoterms 2010. If a premium delivery charge is included on the Purchase Order, and the delivery date is not met, a standard delivery charge will replace the premium delivery charge.
5.2 Where the date of delivery is to be specified after placing the Purchase Order, the Contractor shall give the Company reasonable notice of the specified date.
5.3 If the Goods are to be delivered or the Services are to be performed by instalments, the Purchase Order will be treated as a single contract and not several.
5.4 The Company shall be entitled to cancel any Purchase Order without liability and reject any Goods, require the re-performance of any Services, or, where clause 11 applies, reject, suspend, return or require removal of any Contractor’s Equipment, in each case where not in accordance with the Purchase Order. If it is necessary to return any Goods or Contractor’s Equipment to the Contractor, then the cost of doing so will be met by the Contractor.
5.5 The Contractor shall supply the Company in good time with any instructions, letters of conformity, material certificates or other information required to enable the Company to accept delivery of the Goods, performance of the Services and, where clause 11 applies, delivery or use of Contractor’s Equipment.
5.6 If the Goods are not delivered, the Services are not performed or, where clause 11 applies, Contractor’s Equipment is not delivered or made available on the due date, without prejudice to any other remedy, the Company shall be entitled to deduct from the price or, if the Company has paid the price, to claim from the Contractor by way of liquidated damages for delay, 1% of the contract value attributable to the delayed Goods, Services or Contractor’s Equipment for every week’s delay, up to a maximum of 10% of such value. The parties acknowledge that the liquidated damages specified in this clause are a reasonable and proportionate protection of the Company’s legitimate interest in timely delivery, performance or availability and are not intended to operate as a penalty.
6. RISK AND TITLE
6.1 Risk of damage to or loss of the Goods shall pass to the Company upon delivery to the Company in accordance with the Purchase Order.
6.2 The property in the Goods shall pass to the Company upon delivery, unless payment for the Goods is made prior to delivery, when it shall pass to the Company once payment has been made and the Goods have been appropriated to the Purchase Order.
7. WARRANTIES AND LIABILITY
7.1 The Contractor warrants to the Company that the Goods will comply with all statutory requirements and regulations relating to the sale of the Goods.
7.2 During a period of 24 months after the time of dispatch or 18 months after installation, whichever period expires first, in respect of Goods, and 12 months after completion or acceptance by the Company, whichever is later, in respect of Services, the Contractor shall, at its own expense, repair or replace the Goods or re-perform the Services, or any part thereof, found to be defective due to faulty design, material, equipment or workmanship (other than design specified in detail by the Company) or to any act or omission of the Contractor. If the Contractor is not the manufacturer of the Goods, the Contractor shall ensure that the Company receives the benefit of any manufacturer’s, supplier’s or other third-party warranties, guarantees and remedies relating to the Goods, whether by assignment, pass-through or otherwise. The provision of any such third-party warranty, guarantee or remedy shall not limit or exclude the Contractor’s obligations or liabilities under the Purchase Order. If the Contractor is unable or refuses to undertake any repair, replacement or re-performance requested by the Company, the Company shall be entitled, without prejudice to any other rights and remedies it may have under the Purchase Order, to undertake such work itself or procure a third party to do so and, in either case, recover all costs, including incidental costs, from the Contractor. For substituted, repaired or re-performed items, the applicable warranty shall be extended from the date of replacement, repair or re-performance.
7.3 The Contractor shall indemnify and keep indemnified the Company against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
i) breach of any warranty given by the Contractor in relation to the Goods, Services or, where clause 11 applies, Contractor’s Equipment;
ii) any claim that the Goods infringe, or their importation, use or resale infringes the patent, copyright, design right, trademark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Company;
iii) any liability under the Consumer Protection Act 1987 in respect of the Goods;
iv) any act or omission of the Contractor or its employees, agents or sub-contractors in supplying, delivering or installing the Goods, performing the Services or, where clause 11 applies, supplying, delivering, installing, maintaining, repairing, replacing, removing or supporting Contractor’s Equipment; or
v) any defect in the Goods or Services provided.
7.4 The Contractor shall indemnify and keep indemnified the Company against all loss of or damage to property and all liability for personal injury, illness or death sustained by any person, including the Contractor’s and Company’s employees and third parties, arising out of or in connection with the Goods, Services and/or Contractor’s Equipment covered by the Purchase Order, including the delivery, installation, commissioning, use, operation, condition, defect, breakdown, maintenance, repair, replacement, removal or disposal of Contractor’s Equipment and any use or operation of Contractor’s Equipment by the Company, its employees, agents, contractors or any third party on the Company’s behalf.
7.5 Nothing in these Conditions shall prevent the Company from requiring the Contractor to enter into a separate project/site-specific mutual hold harmless and indemnity agreement in connection with the Purchase Order. Where such agreement is required by the Company, the Contractor shall enter into it as a condition of performance, and these Conditions shall continue to apply except to the extent expressly varied by that agreement.
7.6 The Contractor shall take out and maintain, with a first class insurance company, insurance adequate to cover its liabilities hereunder and to fulfil any requirements of local government or other appropriate bodies.
7.7 The Company shall not be responsible to the Contractor for Consequential Loss. The Contractor shall not be liable to the Company for Consequential Loss except to the extent such loss is recoverable under any insurance policy carried by the Contractor, or arises out of or in connection with the Contractor’s indemnity obligations, fraud, wilful default, breach of confidentiality, breach of clause 13, breach of clause 14, infringement of intellectual property rights, or liability for personal injury, illness or death.
8. FORCE MAJEURE
8.1 Neither the Contractor nor the Company shall be liable to the other or be deemed to be in breach of the Purchase Order by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods, Services or, where clause 11 applies, Contractor’s Equipment, if the delay or failure was beyond that party’s reasonable control.
9. TERMINATION
9.1 The Company shall be entitled to cancel the Purchase Order in respect of all or part only of the Goods, Services and, where clause 11 applies, Contractor’s Equipment by giving notice to the Contractor at any time, in which event the Company’s sole liability shall be to pay to the Contractor the price for the Goods or Services in respect of which the Company has exercised its right of cancellation, less the Contractor’s net saving of cost arising from cancellation. Where cancellation relates to Contractor’s Equipment under clause 11, rental charges shall cease from the date specified by the Company or, if earlier, when Contractor’s Equipment ceases to be available for safe and effective use, in accordance with clause 11.7.
9.2 The Company shall be entitled to terminate the Purchase Order without liability to the Contractor by giving notice to the Contractor at any time if:
i) The Contractor fails to comply with any of the terms of the Purchase Order;
ii) The Contractor makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or, being a company, becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
iii) An encumbrance takes possession of, or a receiver is appointed to, any of the property or assets of the Contractor;
iv) The Contractor ceases, or threatens to cease, to carry on business; or
v) The Contractor reasonably apprehends that any of the events mentioned above is about to occur in relation to the Contractor and notifies the Company accordingly.
10. CONFIDENTIALITY
10.1 The Contractor acknowledges and accepts that all information, documents, Specifications, drawings, data and materials provided by or on behalf of the Company in connection with the Purchase Order are confidential and shall not be divulged to any third party or used for any purpose other than the performance of the Purchase Order without the prior written consent of the Company.
10.2 The obligations in this clause 10 shall continue after expiry, cancellation or termination of the Purchase Order.
11. RENTAL OF CONTRACTOR’S EQUIPMENT
11.1 This clause 11 applies only where the Purchase Order expressly includes, or otherwise requires, the rental, hire, loan or temporary use of Contractor’s Equipment. If the Purchase Order does not do so, this clause 11 shall have no application. Contractor’s Equipment may be supplied either with Contractor personnel for operation as part of the Services or without Contractor personnel for use or operation by the Company or any person on the Company’s behalf, and in either case this clause 11 shall apply.
11.2 Where this clause 11 applies, Contractor’s Equipment shall, to the extent applicable, be treated as part of the Goods and/or Services for the purposes of the Purchase Order. However, clauses 6.1 and 6.2 shall not transfer risk or title in Contractor’s Equipment to the Company, and risk and title shall remain with the Contractor at all times.
11.3 The Contractor shall ensure that Contractor’s Equipment is safe, fit for purpose, properly maintained, tested, certified, free from defects and liens, and compliant with the Purchase Order, Specification, applicable law, industry standards and the Company’s reasonable instructions. The Contractor shall provide all manuals, certificates, records, safety information, operating instructions and training materials reasonably required by the Company or any person using or operating Contractor’s Equipment on the Company’s behalf.
11.4 Use or operation of Contractor’s Equipment by the Company, its employees, agents, contractors or any third party on the Company’s behalf shall not make the Company responsible for its condition, suitability, maintenance, certification, insurance, loss, damage, breakdown or performance. The Company shall not be required to inspect, maintain, insure, repair, store, clean, fuel, calibrate or certify Contractor’s Equipment, and any use, acceptance, payment or signing of delivery documentation by or on behalf of the Company shall not prejudice any Company right or remedy.
11.5 The Contractor shall, at its own cost and risk, deliver, install, commission, maintain, repair, replace, support, collect and remove Contractor’s Equipment as required by the Company. If Contractor’s Equipment is defective, unsafe, unsuitable, unavailable or non-compliant, the Contractor shall promptly repair or replace it. If the Contractor fails to do so, the Company may obtain alternative equipment or services and recover or set off all related costs in accordance with clause 4.3.
11.6 Rental charges shall be payable only for periods during which Contractor’s Equipment is available for safe and effective use by the Company or any person using or operating it on the Company’s behalf. Unless expressly stated in the Purchase Order, the rental charge shall include all costs relating to delivery, installation, commissioning, instructions, training materials, support, maintenance, repair, replacement, insurance, mobilisation, demobilisation, collection and removal. No additional charges shall be payable unless expressly agreed in writing by the Company in accordance with clause 16.1.
11.7 The Company may reject, suspend, return, require removal of, reduce or terminate the rental of Contractor’s Equipment at any time by notice to the Contractor. Rental charges shall cease from the date specified by the Company or, if earlier, when Contractor’s Equipment ceases to be available for safe and effective use. This is without prejudice to the Company’s rights and remedies under clauses 5, 7 and 9.
11.8 The Contractor shall maintain insurance adequate to cover its liabilities in respect of Contractor’s Equipment, including its use or operation by any person on the Company’s behalf, and shall provide evidence of such insurance on request. Without prejudice to clauses 7.3, 7.4 and 7.6, the Contractor shall indemnify and keep indemnified the Company against all liabilities, losses, damages, claims, costs and expenses arising out of or in connection with Contractor’s Equipment, including its delivery, installation, commissioning, use, operation, condition, defect, breakdown, maintenance, repair, replacement, removal or disposal.
11.9 Nothing in this clause 11 shall exclude or restrict liability to the extent that it cannot lawfully be excluded or restricted under Scots law. Subject to the foregoing, the Company shall not be required to assume responsibility for, insure, indemnify the Contractor in respect of, or accept risk or liability for, Contractor’s Equipment. To the extent of any conflict with Contractor terms, hire terms, delivery notes or similar documents, clauses 1.11 and 15.1 shall apply and this clause 11 and the Purchase Order shall prevail unless expressly agreed in writing by the Company.
12. GENERAL
12.1 Assignment
12.1.1 The Purchase Order is personal to the Contractor and the Contractor shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Purchase Order.
12.1.2 Sub-tier suppliers shall not be used without the prior consent of the Company. The Contractor shall ensure that the terms of the Purchase Order and any associated specifications are imposed on the sub-tier supplier.
12.2 Notices
12.2.1 Any notice required or permitted to be given by either party to the other in connection with the Purchase Order shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Such notices shall be deemed effective within 48 hours of despatch.
12.3 Waiver
12.3.1 None of the provisions of the Purchase Order will be considered waived by the Company unless such waiver is given in writing by the Company. No waiver by the Company shall be a waiver of any past, present or future default, breach or modification of any term, provision, condition or covenant of the Purchase Order unless expressly set out in such waiver.
12.3.2 If any provision of the Conditions of the Purchase Order is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Purchase Order and the remainder of the provision in question shall not be affected hereby.
12.4 Resolution of Conflict/Applicable Law
12.4.1 In the event of any dispute arising under or in connection with the Purchase Order or the supply of the Goods or Services or, where clause 11 applies, Contractor’s Equipment, then every effort shall be made to resolve and agree such a dispute by discussion between the parties. If, after a maximum period of 2 months, unless otherwise agreed by the parties, there is a failure to reach agreement, the dispute shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society of Scotland.
12.4.2 The Purchase Order shall be governed by and interpreted and construed in accordance with the laws of Scotland.
12.4.3 Unless otherwise specified, all quotations, contract documents, certification, data and drawings shall be supplied in the English Language.
13. DATA PROTECTION
13.1 Each party shall comply with all applicable data protection laws, including the UK GDPR and Data Protection Act 2018, in connection with the Purchase Order. The Contractor shall only process personal data on the Company’s documented instructions, shall implement appropriate technical and organisational measures to protect such personal data, shall not transfer personal data outside the United Kingdom without the Company’s prior written consent, and shall promptly notify the Company of any actual or suspected personal data breach.
14. BUSINESS ETHICS
14.1 In connection with the Purchase Order, the Contractor shall comply with all applicable anti-bribery, anti-corruption, anti-tax evasion, sanctions, export control and trade control laws, including the Bribery Act 2010 and the Criminal Finances Act 2017. The Contractor shall not, directly or indirectly, pay, give, offer, promise, request, receive or authorise any bribe, facilitation payment, kickback, improper advantage or other thing of value, whether to or from any person, including any Government Official, in connection with the Purchase Order.
14.2 The Contractor shall maintain adequate policies, procedures, training and controls designed to prevent bribery, corruption, facilitation of tax evasion, sanctions breaches and other unlawful or unethical conduct in connection with the Purchase Order.
14.3 The Contractor shall promptly notify the Company if it becomes aware of any actual or suspected breach of this clause 14, any investigation or request from a competent authority, or any matter which may affect the Contractor’s ability to comply with this clause 14.
14.4 The Company, itself or through its duly appointed representatives, may inspect and audit the Contractor’s books, records and procedures to the extent reasonably required to verify the Contractor’s compliance with this clause 14 and the Purchase Order.
14.5 The Contractor shall ensure that its Affiliates, subcontractors and its and their respective directors, officers, employees, consultants and agents comply with obligations equivalent to this clause 14 in connection with the Purchase Order.
14.6 If the Contractor breaches this clause 14, the Company may terminate the Purchase Order immediately by written notice without liability to the Contractor and without prejudice to any other rights or remedies available to the Company under the Purchase Order, at law or otherwise.
15. ENTIRE AGREEMENT
15.1 The Purchase Order and all documents referred to therein as varied by any amendment shall constitute the entire agreement between the parties and consequently supersede any previously agreed terms and conditions.
16. VARIATION
16.1 All amendments to Purchase Orders must be agreed in writing by both the Contractor and the Company.