In these Conditions the following words and expressions shall have the following meanings:
Act means the Data Protection Act 1998;
Business Day means any and all days from Monday to Friday (inclusive) in any week but excluding English bank holidays or public holidays;
Commencement Date means the date on which the Contract comes into force, as more particularly defined in Condition 2.3;
Conditions means the terms and conditions of purchase set out in this document;
Confidential Information means any commercial or technical information in whatever form which is disclosed (whether before, on or following the date of the Order, and whether in writing or orally) by one party to the other
party and which is identified as being confidential at the time of disclosure or which would be regarded as being confidential by a reasonable business person, including, without limitation, all business, statistical, financial,
marketing and personnel information, customer or supplier details, know-how, designs, operations, processes, plans, intentions, product information, prices, market opportunities, transactions, affairs, trade secrets or
software of the disclosing party and/or its customers, suppliers, or clients;
Contract means any contract between the Customer and the Supplier for the purchase of the Goods by the Customer and/or the receipt of the Services by the Customer as more particularly defined in Condition 2;
Control means as defined in section 1124 of the Corporation Tax Act 2010;
Customer means the legal entity so described in the Order which shall include any successors and assigns;
Delivery Address means the address stated on the Order;
Goods means the goods (including any instalment of the goods or any part of them) specified on the Order to be supplied to the Customer by the Supplier;
Group means any and all Parent Undertakings or Subsidiary Undertakings of the Customer and each and any subsidiary of a Parent Undertaking of the Customer. Parent Undertaking and Subsidiary Undertaking shall
have the meanings given to them in section 1162 of the Companies Act 2006 and references to the Customer Group shall be construed accordingly;
Intellectual Property Rights means all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the
foregoing, unregistered design rights, unregistered trademarks, rights to prevent passing off for unfair competition, copyright, database rights, topography rights and any other rights in any invention, discovery or
process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
Normal Working Hours means 8.30am to 5.00pm on any Business Day;
Order means the Customer's purchase order (whether submitted via a portal, by email, paper form or otherwise) which is placed on the Supplier and to which these Conditions apply;
Price means the price payable for the Goods and/or Services as specified on the Order;
Product means the goods/services (if any) which the Customer receives from the Supplier and which are specified on the Order;
Supplier means the person so described on the Order;
Service Point means (if applicable) the place at which the Services are to be performed as specified on the Order;
Specification means those plans, drawings, data, requirements or other information as specified on the Order and with which the Goods and/or Services are required to comply and
Value Added Tax or VAT means value added tax as defined in the Value Added Tax Act 1994.
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
Any reference to writing or written excludes fax and email.
A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under
that statute or statutory provision, as amended or re-enacted;
ACCEPTANCE AND ORDERS
These Terms and Conditions (the "Conditions") are supplied by Waterfall & O’Brien Limited (the "Company") to the party to whom the Company's Purchase Order is addressed (the "Supplier") and shall be incorporated
into each Purchase Order to form a contract (the "Contract") for the purchase of goods and/or services (collectively the "Product"). In the event of a conflict between the Purchase Order and these Conditions, the Purchase Order shall prevail.
In the event of the Company entering into a bespoke agreement with the Supplier, including but not limited to a Statement of Work, Service Agreement or Collaboration Agreement, such bespoke agreement will prevail.
The Company shall be bound by an order only if it is issued on the Company's standard Purchase Order form and signed by a duly authorised representative. No addition, variation or exclusion shall be binding unless
agreed in writing and signed by a duly authorised representative of the Company.
The submission of a Purchase Order to the Supplier constitutes an offer by the Company to purchase the Product, subject to these Conditions. Accordingly, any acceptance of the Purchase Order by the Supplier shall
create an agreement between the parties pursuant to the Contract.
The execution and/or return of the Purchase Order form by the Supplier, or the commencement of work or delivery of the Product, constitutes acceptance of the Contract by the Supplier.
Prior to the Supplier's acceptance, the Company reserves the right to revoke the Purchase Order without liability to the Supplier.
The Company retains the right to amend or vary the Contract, at any time including, but not limited to quality, quantity, delivery and design.
In the event that an amendment is made, the Supplier will evaluate and immediately inform the Company of any consequences, including but not limited to, the cost and delay of delivery. The Supplier shall not action
any amendment until the Company has approved the consequences in writing.
DELIVERY
The Supplier shall deliver the Product on the date specified in the Purchase Order or, if no such date is specified, within 30 days of the date of the Purchase Order. Time is of the essence for the delivery of the
Product. If the Supplier does not comply with its obligations in respect of delivery the Company may: cancel the Contract in whole or in part without incurring liability to the Supplier; refuse to accept any subsequent
delivery of the Product which the Supplier attempts to make; purchase substitute or alternative Products elsewhere and recover from the Supplier any expenditure reasonably incurred by the Company in respect of
obtaining the Product elsewhere; and/or claim damages for any additional costs incurred by the Company as a result of the Supplier's failure to deliver the Product.
The Supplier shall ensure that the Product is properly packaged and secured to ensure delivery in good condition.
No charge shall be made for packaging or transportation materials unless specified in the Purchase Order. The Company shall not be responsible for returning any such materials.
Subject to the terms of the Purchase Order, the Product shall be delivered to the Company's premises or any alternative address specified in the Purchase Order. Delivery of the Product shall be subject to the Company's
inspection and approval and a Product which the Company rejects pursuant to the Contract, shall be returned at the Supplier's risk and expense.
INSPECTION
The Supplier shall test and inspect the Product prior delivery to ensure compliance with the Contract. The Company have the right to inspect, or appoint a third party to inspect the Product at the Supplier's workplace
or an alternative storage location. Any inspecting or testing carried out by the Company shall not relieve the Supplier from any of its responsibilities or liabilities under the Contract.
The Company shall not be deemed to have accepted the Products until it has had seven (7) days to inspect it after delivery.
RISK AND PROPERTY
The Product shall be at the risk, of the Supplier until delivery to the Company pursuant to clause 3.4.
Title in the Product shall pass to the Company on acceptance, except if the Product is paid for prior to delivery, title shall pass to the Company once payment has been made. The passing of ownership in the
Product is without prejudice to any right of rejection to which the Company may be entitled under the Contract or otherwise.
PRICE
In consideration of the rights and obligations set out in the Contract the Company shall pay the Supplier the price set out in the applicable Purchase Order. All prices are fixed and inclusive of all charges and duties, and
are not subject to adjustment save as specifically provided in these Conditions.
In the event that VAT is properly chargeable on the supply of the Product, the Company shall pay such VAT provided that the Supplier provides the Company a VAT invoice.
Unless otherwise stated in the Purchase Order, payment of invoices shall be made by the end of the calendar month following the month in which the Product is received by the Company; or, on receipt of the Supplier's
invoice (whichever is latest). Without prejudice to any other right or remedy, the Company reserves the right at any time to set off an amount owing to it by the Supplier, against any amount payable by it to the Supplier under the Contract.
WARRANTIES
The Supplier warrants that: the Product will conform with the quality, description, samples, drawings, specification and other particulars stated in the Purchase Order; that the Product shall be of satisfactory
quality and fit for any intended uses expressly or impliedly made known to the Supplier; and, will be free from all defects in materials, workmanship and installation.
This clause 7 shall survive any delivery, inspection, acceptance, payment or performance and shall extend to any replacement, repaired, substitute, or remedial equipment provided by the Supplier.
LIABILITY
The Supplier shall be liable for any damage caused by any omission or defect of the Product, including incidental damages such as removal, inspection and cost of return.
The Supplier will, at its own expense, indemnify and hold harmless the Company from and against all direct liabilities including but not limited to loss of profits, loss of business, depletion of goodwill and other reasonable
losses costs, proceedings, damages and expenses (including reasonable legal and professional fees) arising out of, or resulting from or occurring in connection with the Product.
CONFIDENTIALITY AND COMPANY'S PROPERTY
The Supplier shall keep in strict confidence the Company's confidential information. Such information includes that which is of a confidential nature and has been disclosed to the Supplier. The Supplier shall restrict
disclosure of and be responsible for the disclosure of such confidential information to its employees and agents only for the purpose of discharging the Supplier's obligations to the Company.
All intellectual property rights supplied by the Company to the Supplier shall at all times be and remain the exclusive property of the Company, and shall be held by the Supplier in safe custody at its own risk,
maintained and kept in good condition by the Supplier and returned immediately upon first written request. Such information shall not be disposed of or used other than in accordance with the Company's written instructions or authorisation.
All future intellectual property rights which are created as a result of the Supplier providing the Product to the Company, shall be the exclusive property of the Company and the Supplier agrees that it shall not exercise
any purported rights of ownership, demand payment or account of profit as a result of the creation of such intellectual property.
This clause 9 shall survive termination of the Contract, however arising.
INSURANCE
The Supplier shall effect and maintain at its own cost, all applicable insurances as required by law and to cover their responsibilities and liabilities under the Contract. Nothing contained in the clause shall serve in any
way to limit or waive the Supplier's responsibilities or liabilities under the Contract.
TERMINATION
The Company may terminate the Contract upon written notice to the Supplier and without liability to the Supplier if the Supplier: fails to perform or otherwise breaches this Contract.
The Company may terminate the Contract for any other reason upon 30 days written notice to the Supplier. The Supplier shall cease to provide the Product from the date set out in the termination notice.
In the event of such termination, the Company shall be liable to the Supplier only for the Product which has been satisfactorily performed or delivered to the Company up to the date of termination, less appropriate and
reasonable offsets, including any additional costs incurred by the Company resulting from termination.
Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect and termination shall not affect any
rights, remedies, obligations or liabilities the parties have accrued up to the date of termination.
FORCE MAJEURE
Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the
reasonable control of that party which by its nature could not have been foreseen or was unavoidable. If such event or circumstance prevents the Supplier from providing the Product within a reasonable period from the
anticipated delivery date, the Company shall have the right to terminate the Contract without liability with immediate effect by giving written notice to the Supplier.
ASSIGNMENT AND SUBCONTRACT
The Supplier shall not assign, transfer, subcontract or otherwise deal with its rights or obligations under the Contract without the prior written consent of the Company.
NOTICES
Any notice or other communication required to be given to the Company or Supplier in connection with the Contract shall be in writing and shall be delivered to the other to its principal place of business by hand or by
pre-paid first-class post or other next working day delivery service.
WAIVER
Any failure or delay by the Company to enforce the performance of its rights under the Contract or by law shall not be deemed to be a waiver of its rights, nor shall such failure or delay prevent or restrict the further exercise
of that or any other right or remedy.
SEVERANCE
If any provision or part-provision of this 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 par-provision shall be deemed deleted. Any modification to or deletion of a provision, the relevant provision or part-provision under this clause shall not affect the validity or enforceability of the rest of this agreement.
THIRD PARTY RIGHTS
No one other than a party to this agreement shall have any right to enforce any of its terms.
ENTIRE AGREEMENT
The terms and conditions set out in the Contract, together with any subsequent amendments made in writing by the Company represent the entire terms and conditions of the agreement between the Company and the Supplier.
APPLICABLE LAW AND JURISDICTION
The Contract and any dispute or claim arising out of or in connection with it shall be governed by the laws of England and Wales. The Supplier agrees to submit to the exclusive jurisdiction of the English Courts.