1.1. This Agreement is made between us Agri Industry Solutions Ltd and you, the person named in the Schedule under which we agree to purchase the goods or services which you will provide or perform (together the “Work”) as detailed in the Order set out in the Schedule (the “Order”) on the terms and conditions set out below. No variation or addition of these terms and conditions will form part of this Agreement unless made or specifically accepted by us in writing. These terms and conditions will override and take the place of any other terms and conditions contained in any document or other communication used by you.
2.1 The price for the Work as set out in the Order is fixed and exclusive of VAT but inclusive of all other levies, duties, taxes, charges and expenses (including packaging, carriage and insurance, attendance at meetings and other disbursements). The price is inclusive of delivery to the location specified in the Order (the “Location”) or which may be advised to you from time to time.
2.2 You will invoice us for the Work at any time after the later of the due date for completion of the supply of the Work and the actual date of such completion and Payment as stated in our contractual agreement.
2.3 We may set off against payments due any other amounts owed to us by you.
3.1 The Work shall be provided in the quantities, by the times and at the Location strictly in accordance with the Order or otherwise agreed with us and we shall not be obliged to accept any incomplete delivery or any Work in excess of the amounts ordered. If the Work requires the carrying out of tests or the instalment of goods, after receipt by us, delivery shall not be deemed to be complete until such tests have been passed or any goods installed to our unconditional satisfaction and you shall provide us upon request of with copies of all test reports and all data discovered as a result of testing.
3.2 Time for provision of the Work shall be of the essence. You shall notify us if any delivery or performance is likely to be delayed beyond the specified date. Failure by you to notify any likely delay shall entitle us to terminate without liability for all or part of the contract and/or to compensation for any losses resulting from such failure and delay. If any delay so notified does or is likely to exceed 30 days, we shall be entitled to terminate without liability on our part for all or part of the contract and/or (unless the delay is due to Force Majeure) to compensation for any resulting losses.
3.3 In addition to any other right we may have under this Agreement or any other contract between us, we shall be entitled to postpone the date of delivery for whatever period we think fit upon giving notice in writing to you provided that we pay you your reasonable additional charges as in the circumstances we shall in our reasonable discretion think fit.
3.4 You must ensure all goods delivered as part of the Work are suitably packaged and we shall not be obliged to return any packaging materials for any goods whether or not they are accepted by us.
3.5 If the Work is delivered or performed in instalments, the Agreement shall be treated as a single contract and not severable.
3.6 You shall liaise with us (and any third parties designated by us) regularly and at our request in connection with the Work. You shall provide to us access to the Work at all key stages in its development. You shall not depart from the Order for the Work unless you have obtained our written approval. You shall make all and any amendments to the Work required by us and unless agreed in writing by us, any such amendments shall not increase the price.
3.7 If an inspection at any time after delivery by us establishes that all or any part of the Work supplied does not comply with all the requirements of these terms and conditions we may (without limitation) reject the Work supplied return it to you and require a replacement or rectification, or require reperformance of the Work and in each case recover its loss, costs and expenses from you.
3.8 If we install any Work supplied to us, you shall supply in advance of delivery a functional description of each part of the Work, together with sufficient drawings and instructions to allow us to install, operate and maintain the Work including details of any special environmental controls required to ensure that the Work meets any relevant specification.
3.9 You shall remit a certificate of conformance with any relevant specification confirming conformance with all appropriate regulatory approvals and health and safety requirements.
4.1 You shall accept any reasonable variation in scope, specification, quantity or delivery in relation to the Work requested by us. The price shall be adjusted and agreed in writing by us to reflect the variation having regard to the rates and prices used in the contract or, where these are not relevant, to what is fair and reasonable.
4.2 Neither party shall be bound by any variation to the Order unless and until it is confirmed by an official Order amendment issued by us.
5.1 The risk in any goods which form all or part of the Work shall pass to us when delivered in accordance with the terms of the Order provided delivery is acknowledged by an authorised member of our staff.
6.1 If within the period after delivery specified in the Order (hereinafter called the “Guarantee Period”) we give notice in writing to you of any defect or failure in the Work then you shall with all possible speed replace or repair the Work so as to remedy the defects without cost to us.
6.2 We shall use our reasonable endeavours and, as soon as reasonable practicable after discovery of any such defect or failure, return the defective Work or parts of it to you at your risk and expense unless it has been agreed between us that the necessary replacement or repair shall be carried out by you on our premises.
7 Intellectual Property
7.1 All intellectual property rights (including without limitation copyright in any software delivered) which are created as part of the Work shall be and become our exclusive property with effect from their creation and we shall have full and free right to use those intellectual property rights and any matters to which they relate as we see fit. You may use those intellectual property rights only as properly and reasonably required in connection with the supply of the Work for us.
7.2 You grant us a non-exclusive, worldwide, perpetual, transferable, royalty-free licence (including the ability to grant sub-licences) in respect of all intellectual property rights (including without limitation copyright in any software) in the Work and which do not belong to us under clause 7.
7.3 You shall obtain all releases, waivers and authorisations including of any applicable rights, throughout the world necessary for us to make full and free use of the Work.
7.4 You shall and shall procure that your agents, employees and sub-contractors shall execute any documents or do anything else reasonably required by us to obtain, maintain, defend, enforce and secure full and free right to use those intellectual property rights referred to in clause 7, to secure the licences referred to in clause 7 and to confirm those releases, waivers and authorisations referred to in clause 7.
7.5 You will indemnify and hold us harmless against any damages (including costs) that may be awarded or agreed to be paid in respect of any claim or action that any goods supplied by you infringe any patent, copyright, registered design, trade secret, trade mark or any other proprietary right of a third party.
- Hazardous Goods
8.1 If any Work to be supplied under any Order contains any hazardous substances or requires any special precautions to be taken to ensure safety in handling, transport, storage or use, you shall prior to delivery furnish us with written details of the nature of those substances and the precautions to be taken and shall ensure that before despatch appropriate instructions and warnings are clearly and prominently marked or securely attached to any containers into which they are packed.
8.2 In particular (but without limitation) you shall provide to us in writing all such data, instructions and warnings as are required to comply with applicable legislation relating to health and safety and shall indemnify us against any and all liabilities, claims and expenses which may arise as a result of your failure to do so.
9.1 You warrant that all of the Work supplied by you:
(i) will be of satisfactory quality, in full accordance with any specification in the Order or which we may provide you with from time to time and will be fit for any purpose stated by us prior to or in the Order or held out by you;
(ii) will be free from all defects in design, material and workmanship;
(iii) will correspond with any samples provided;
(iv) will not infringe any intellectual property rights or other rights of any third party anywhere in the world;
(v) any services supplied by you as part of the Work will be performed by appropriately qualified and trained personnel with all due skill, care and diligence and to such high standards of quality stated in the Order or (if none are so stated) as it is reasonable for us to expect.
9.2 The Work will comply with all applicable laws, standards, codes of practice (whether voluntary or mandatory), statutory requirements or other regulations.
10.1 You shall indemnify us for:
(i) all loss, liability, damage, cost, claims or expense suffered by us because of any breach of the Order by you, these terms and conditions or any representation, warranty or condition (express or implied) given by you;
(ii) any act or omission of you (including your employees, agents and sub-contractors) in supplying the Work; and
(iii) any liability which we may incur whether by court proceedings or by a bona fide out-of-court settlement as a result of a claim against us under the Consumer Protection Act 1987 in respect of an alleged defect in the Work.
10.2 You shall not be liable to us for any damage or injury to the extent that the same is caused by or arises out of our acts or omissions.
- Conduct of Claims
11.1 We shall notify you in the event of any claim being made against us in relation to the Work. You shall at your own expense conduct all negotiations for the settlement of the same and any litigation that may arise as a result. We shall not unless and until you shall have failed to take over the conduct of the negotiations or litigation make any admission which might be prejudicial to the claim.
11.2 The conduct by you of any such negotiations or litigation shall be conditional upon you having first given to us such reasonable security as shall from time to time be required by us to cover the amount ascertained, or agreed, or estimated as the case may be of any compensation, damages, expenses and costs for which we may become liable. We shall use our reasonable endeavours to afford all available assistance at your written request for any such purpose and shall be repaid any out of pocket expenses incurred in so doing.
12.1 You shall maintain with an insurance company of good repute insurance (including product liability and/or professional indemnity insurance where appropriate) providing cover consistent at least with the best industry practice of suppliers of work of the type to be supplied by you to us and in an amount of not less than £1,000,000 for any claim or series of related claims
13.1 We may terminate all or any part of the Order without any liability immediately by notice to you, and without limitation in the following circumstances:
(i) if you breach any term of the Order and (where in our reasonable opinion the breach can be remedied without any delay to the time for supply under Clause 3) fail to remedy the breach by that time for supply or (if earlier) within 7 days of us so requiring; or
(ii) if you cease to or threaten to cease to carry on business, have a receiver or administrative receiver appointed over all or part of your assets, compound with your creditors, become subject to an administration order or a bankruptcy order or go into liquidation or suffer similar proceedings under any competent jurisdiction;
13.2 Clauses 7, 10, 11, 12 and 14, shall survive termination or completion of all or any Order.
13.3 If this Agreement is terminated for any reason all rights granted under this Agreement will terminate except for our continued right to use the Work supplied under this Agreement.
14.1 You shall keep confidential and not use except for any of our Orders all confidential information obtained by you in connection with the Order. You shall inform your employees, agents and sub-contractors of the requirement of confidentiality and indemnify us against any unauthorised use or disclosure by any of them of such confidential information.
14.2 Confidential information includes information about us or any subsidiary undertakings of ours or regarding the business, finances or affairs of all of any of them. These confidentiality obligations shall not apply to information in the public domain at the time of its disclosure or otherwise than as a result of breach of this term.
14.3 We do not grant permission to you to use materials and/or confidential information supplied by us for any purpose other than the supply of the Work under the Order. You shall not without our prior written consent make any public announcement regarding your work or relationship with us or exhibit, display or make available to third parties any of the Work.
14.4 At our request you shall promptly make available for collection by us all materials in your possession or control which are our property or which are required for the supply of the Work and all material embodying any confidential information covered by clause 14.2 and where such information is stored in electronic or magnetic form you shall erase the same.
- Force Majeure
15.1 We shall have no liability to you, or be deemed to be in breach of this Agreement, as a consequence of any of the following events, where the event is outside our reasonable control:
(a) flood, storm, severe weather conditions or other natural events;
(b) war, terrorist action, hostilities, revolution, riot or civil disorder;
(c) any destruction, breakdown (permanent or temporary) or malfunction of, or damage to any premises, plant, equipment, materials (including any computer hardware or software or any records) unless by an act or omission of our employees, agents or sub-contractors;
(d) the introduction of, or any amendment to, a law or regulation, or any change in the interpretation or application by any authority;
(e) any strike, lockout or other industrial action;
(f) any obstruction of any public or private highway or road or any event which prevents or obstructs access to the Location;
(g) any breach of contract or default by, or insolvency of, a third party (including an agent or sub-contractor) other than a company in the Agri Industry Solutions group of companies or an officer or employee of Agri Industry Solutions or of the group company; or
(h) any other event outside our reasonable control, whether similar or not to any of the foregoing.
16.1 You engage us as an independent contractor. Nothing in this Agreement shall create a partnership or the relationship of principal and agent or employer and employee.
16.2 If any provision of this Agreement is found by any court or administrative body or competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability shall not affect the other provisions of this Agreement and all provisions not affected by the invalidity or unenforceability shall remain in full force and effect.
16.3 A waiver of our rights shall not operate as a waiver of any subsequent breach. No right, power or remedy conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and the rights, power or remedy available to that party and the rights, powers and remedies shall be cumulative.
16.4 You shall not transfer this Agreement or any of your rights and obligations under it, whether in whole or in part, without first obtaining our prior written consent.
16.5 All notices which are required to be given under this Agreement shall be in writing and shall be sent to the address of the recipient set out in this Agreement or such other address as the recipient may designate by notice given in accordance with the provisions of this clause.
16.6 Notices should be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when despatched.
16.7 Headings to clauses are for ease of reference only and shall not affect the interpretation or construction of this agreement.
16.8 For the purposes of Section 1(2) of the Contracts (Rights of third Parties) Act 1999 the parties state that they do not intend any term of this Agreement to be enforced by third parties.
16.9 Any forecasts of requirements which may be given by us to you will be given in good faith, but are for information purposes only. In no circumstances should a forecast be considered an Order and any advance manufacture or procurement shall be at your sole risk.
16.10 This Agreement shall be governed by and construed in accordance with English law and the parties agree to the exclusive jurisdiction of the English Courts.