These terms and conditions apply where USystems places an Order for Goods and/or Services with the Supplier.
Affiliate: means with respect to any entity any other entity directly or indirectly Controlling, Controlled by, or under common Control with such entity.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 16.8.
Contract: the contract between USystems and the Supplier for the supply of Goods and/or Services in accordance with these Conditions and an Order, including the Service Specification and statements and representations made by the Supplier in connection with the Goods and/or Services.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by USystems and the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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.
Mandatory Policies: USystems’ and any USystems Client’s business policies as provided from time to time.
Order: USystems’ order for the supply of Goods and/or Services, as set out USystems’ purchase order form, or in USystems’ written acceptance of the Supplier's quotation as the case may be.
Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services contained in the Order or as otherwise agreed in writing by USystems and the Supplier.
Supplier: the person or firm from whom USystems purchases the Goods and/or Services.
USystems Client: a customer of USystems that has agreed to purchase goods and/or services from USystems which includes (in whole or in part) the Goods and/or Services.
USystems: USystems Limited registered in England and Wales with company number 04616025.
USystems Materials: has the meaning set out in clause 5.3(j).
1.2 Interpretation. In these Conditions, the following rules apply:
(c) 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.
(d) 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.
(e) A reference to writing or written includes fax and email.
at which point and on which date the Contract shall come into existence (Commencement Date).
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Usystems or a USystems Client, expressly or by implication, and in this respect USystems relies on the Supplier's skill and judgement;
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
3.3 USystems may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.4 If following such inspection or testing USystems considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at clause 3.1, USystems shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) it states clearly on the delivery note any requirement for USystems to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
(b) to USystems’ premises at Systems House, 235 Ampthill Road, Bedford, MK42 9QG or such other location as is set out in the Order or as instructed by USystems before delivery (Delivery Location); and
and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and USystems accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without USystems’ prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle USystems to the remedies set out in clause 6.1.
5.1 The Supplier shall from the date set out in the Order and for the duration of the Contract supply the Services to USystems (or a USystems Client as directed by USystems) in accordance with the terms of the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that USystems notifies to the Supplier and time is of the essence in relation to any of those performance dates.
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that USystems (or a USystems Client) expressly or impliedly makes known to the Supplier;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to USystems, will be free from defects in workmanship, installation and design;
(j) hold all materials, equipment and tools, drawings, specifications and data supplied by USystems or a USystems Client to the Supplier (USystems Materials) in safe custody at its own risk, maintain USystems Materials in good condition until returned to USystems, and not dispose or use the USystems Materials other than in accordance with USystems’ written instructions or authorisation;
(k) not do or omit to do anything which may cause USystems or a USystems Client to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that USystems and a USystems Client may rely or act on the Services;
(m) where the Goods and or Services are intended for a USystems Client, be bound by and comply with any additional terms imposed on USystems under any contract between USystems and a USystems Client that are notified to it.
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, USystems shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
(e) to claim damages for any additional costs, loss or expenses incurred by USystems (including any costs incurred as a consequence of a USystems Client terminating its agreement with USystems or bringing a claim against USystems in respect of the failure to deliver the Goods and/or perform the Services) which are in any way attributable to the Supplier's failure to meet such dates.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, USystems shall have one or more of the following rights, whether or not it has accepted the Goods:
(f) to claim damages for any additional costs, loss or expenses incurred by USystems (including any costs incurred as a consequence of a USystems Client terminating its agreement with USystems or bringing a claim against USystems in respect of the Goods and or Services not meeting its requirements) arising from the Supplier's failure to supply Goods in accordance with clause 3.1.
8.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by USystems, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3 Unless expressly stated in the Order or otherwise prior agreed in writing by USystems, the Supplier shall not be entitled to any payment whatsoever in respect of the preparation or negotiation (with USystems or a USystems Client) of the specifications for goods and services to be supplied or in respect of the preparation or negotiation of amendments to Orders (prior to or post acceptance of Orders) or in respect of any travel, accommodation or other expenses in connection with site visits or otherwise.
8.4 In respect of the Goods, the Supplier shall invoice USystems on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice USystems on completion of the Services. Each invoice shall include such supporting information required by USystems to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
8.5 In consideration of the supply of Goods and/or Services by the Supplier, USystems shall pay the invoiced amounts which are not subject to a bona fide dispute within 60 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
8.6 All amounts payable by USystems under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to USystems, USystems 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 Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.7 If USystems fails to make a payment due to the Supplier under the Contract within 60 days of the due date, then USystems shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.8 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow USystems to inspect such records at all reasonable times on request.
8.9 USystems may at any time, without notice to the Supplier, set off any liability of the Supplier to USystems against any liability of USystems to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, USystems may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by USystems of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
9.2 The Supplier grants to USystems and its Affiliates and USystems Clients, or shall procure the direct grant to USystems and its Affiliates and USystems Clients of, a fully paid-up, worldwide, non-exclusive, sub-licensable royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding USystems Materials) for the purpose of receiving and using the Services and the Deliverables.
9.3 USystems grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by USystems to the Supplier for the term of the Contract for the purpose of providing the Services to USystems.
10.1 The Supplier shall indemnify USystems against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by USystems arising out of or in connection with:
(a) any claim made against USystems for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the USystems Materials);
(d) where the Goods and or Services are intended for a USystems Client, any claim or demand made against USystems by a USystems Client (including all claims for liquidated damages) in connection with the supply of the Goods, as delivered, the Services and any other claims made against USystems under the terms of the contract between USystems and the USystems Client that relate to the supply of the Goods or Services.
10.2 This clause 10 shall survive termination of the Contract.
11.1 Neither party excludes liabilities associated with the undertakings implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
11.2 Neither party excludes or limits liability to the other party in respect of any liability for death or personal injury resulting from a party's negligence, any liability for fraud or fraudulent misrepresentation by a party or to the extent such limitation or exclusion is not permitted by applicable law.
11.3 The Supplier agrees not to exclude or limit its liability to USystems in respect of the indemnities provided under this Contract.
11.4 Subject to clauses 11.1, 11.2 and 11.3, USystems will not be liable to the Supplier, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any:
(a) loss of profit,
(b) loss of sales or business;
(c) loss of agreements or contracts; or
(d) any indirect or consequential loss,
arising under or in connection with the Contract.
11.5 In respect of loss and damages not covered by clauses 11.1, 11.2 or 11.3, USystems’ entire liability to the Supplier, whether arising in contract, tort, negligence, misrepresentation, for breach of duty or otherwise, shall be limited to the total amount paid or payable in respect of this Contract in respect of each claim or series of related claims.
11.6 In the event that a USystems Client suffers loss or damage due to the acts or omissions of the Supplier, in addition to any amount USystems may be able to recover for itself, USystems may recover from the Supplier an amount equal to the amount that USystems would have been able to recover had the loss or damage been suffered by USystems rather than the USystems Client.
During the term of the Contract and for a period of 2 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on USystems’ request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
13.1 Each party undertakes that it shall not at any time during the Contract and for 2 years thereafter disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.
13.2 USystems may disclose Supplier confidential information to a USystems Client as USystems deems necessary in connection with its provision of goods and services to a USystems Client and each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information must comply with this clause 13; and
(ii) the Supplier's financial position deteriorates to such an extent that in USystems’ opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
(iv) the Supplier commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; or
(v) the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(b) with immediate effect by giving written notice to the Supplier if a USystems Client in connection with whom the Goods and/or Services are required terminates its agreement with USystems or otherwise cancels its order in respect of the Goods and/or Services (or goods and services that incorporate the same), or
14.2 Where USystems terminates the Contract under Clause 14.1(b) or Clause 14.1(c), the Supplier shall take all steps necessary to reduce the impact of termination immediately upon receiving notice and USystems’ sole liability shall be to pay the Supplier an equitable reduction in the charges set out in the Order based on the following principles:
(a) No amounts shall be due in respect of the Supplier’s loss of anticipated profit or any indirect or consequential loss;
(b) USystems will be under no obligation to pay any amounts to Supplier where a USystems Client has terminated its agreement with USystems or cancelled its order due to the fault or alleged fault of the Supplier unless and until any dispute is finally resolved;
(c) Supplier will provide such evidence to USystems of its costs incurred up to the date of termination and the steps taken/proposed to mitigate its further costs;
(d) Supplier will not charge USystems in respect of Goods and/or Deliverables that can be reused or resold by it;
(e) Any amounts already paid by USystems will be deducted from the total amounts calculated as payable by USystems;
(f) Supplier will notify USystems of any Goods or Deliverables which cannot be cancelled or reused by Supplier and USystems may decide if it wishes to receive delivery of the same; and
(g) In no event will the amount payable by USystems exceed the charges stated on the Order.
14.3 If the amount payable by USystems under Clause 14.2 is less than any amounts which the Supplier may have already been paid in respect of Goods and/or Services not provided or procured by Supplier, Supplier will promptly repay the difference to USystems.
14.4 Where USystems terminates the Contract other than under Clause 14.1(b) or Clause 14.1(c), Supplier shall promptly repay to USystems any amounts which the Supplier may have already been paid in respect of Goods and/or Services not provided and USystems shall have no liability to pay any further amounts to the Supplier and may pursue any remedy available to it under the Contract or applicable law.
15.1 On termination of the Contract, the Supplier shall immediately deliver to USystems all Deliverables whether or not then complete, and return all USystems Materials. If the Supplier fails to do so, then USystems 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.
15.2 Termination or expiry of the Contract shall not affect the parties' rights and remedies that have accrued as at 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.
15.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
(b) The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of USystems.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or sent by fax to its main fax number.
(b) A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 16.2(b), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
16.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.4 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
16.6 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
16.8 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
16.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
(a) Subject to Clause 16.10 (b) each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
(b) Nothing in this clause shall (or shall be construed so as to) limit the right of USystems to bring a claim against Supplier in the courts of any country in which Supplier has assets or in any other court of competent jurisdiction nor shall the bringing of any claim in any one or more jurisdictions preclude bringing a claim in any other jurisdiction (whether concurrently or not) if and to the extent permitted by applicable law.