1.1 In these PowerMark PTs the following words and phrases shall have the following meanings:
Acceptance has the meaning given to it in Schedules 1 or 2 (as appropriate);
Agreement means an agreement between PowerMark and Supplier made via a PO;
Bespoke IPR means any and all new IPRs created by or on behalf of Supplier, or jointly by or on behalf of Supplier and PowerMark, in the performance of its obligations under an Agreement;
Change of Control means any change in control of the Supplier, “control” having the meaning attributed to it in Section 840 of the Income and Corporation Taxes Act 1988;
Charges means charges payable for the Deliverables as agreed between the parties;
Confidential Information has the meaning given to it in clause 26;
PowerMark means the company in whose name a PO (by which an Agreement is made) is placed;
PowerMark IPR means any and all IPRs owned or controlled by PowerMark that exist prior to the date of this Agreement or are created after the date of this Agreement from developments unconnected with an Agreement;
PowerMark Policies means all policies as may be provided by PowerMark upon request
and/or other relevant policies as advised by PowerMark from time to time;
PowerMark Premises means premises belonging to or in the control of PowerMark or such other premises as may be agreed between the parties;
PowerMark PTs means these PowerMark purchasing terms as the same may be varied from time to time pursuant to clause 2, a copy of which appears on the PowerMark Website;
PowerMark Website means https://www.cpspoweruk.com
Data Protection Legislation means all laws relating to the processing of personal data, privacy and security, including, without limitation and to the extent applicable from time to time: (a) national laws implementing the EU Data Protection Directive (95/46/EC) and the EU Provacy and Electronic Communications Directive (2002/58/EC); (b) the GDPR; and (c) all other applicable international, regional, federal or national data protection laws and regulations;
Defect means a material error, omission, failure, inefficiency or inconsistency in a Deliverable (and “Defective” is construed accordingly);
Deliverables means Goods and/or Services (as the context requires);
Delivery Date(s) means dates set for the delivery and/or provision of Deliverables in the PO, an Agreement, or as otherwise agreed by the Parties;
Documentation means documentation, if any, required for the proper use of the Deliverables;
EFM means an event of force majeure being one or more of the following: riot; civil unrest, military action, terrorism, earthquake, storm, flood, inability to obtain supplies of power, fuel, or transport; exercise of emergency powers by any governmental authority;
Employment Liabilities means losses, costs, claims, demands, awards, fines, liabilities or expenses (including reasonable legal expenses) arising from the employment of any person, the termination of such employment, the operation and/or termination of any collective agreement, any dispute which relates to such employment or collective agreement or their termination and any failure to discharge in full any obligation to inform or consult appropriate representatives or any person about the transfer of employees under TUPE;
GDPR means the EU General Data Protection Regulation (2016/679);
Goods means goods to be supplied under an Agreement, and where relevant includes any Documentation supplied to aid use of such goods;
Group means in respect of a Party, any company which is a subsidiary or a holding (including ultimate holding) company of that Party, and any company which is a subsidiary of such holding company, (the terms subsidiary and holding company having the meanings given in Section 1159 of the Companies Act 2006 as amended);
IPRs means any (and any rights subsisting in any) patents, designs, trade marks and trade names (whether registered or unregistered), copyright and related rights, moral rights, database rights, know-how and Confidential Information; (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognised in the future; and (iii) applications, extensions and renewals in relation to any such rights;
Manufacturer means the manufacturer of Goods (whether or not Supplier);
Party means either PowerMark or Supplier and “Parties” shall mean both of them;
PO means a PowerMark purchase order;
Services means the services to be provided under an Agreement;
Specifications means the description or specification of the Deliverables as agreed between PowerMark and Supplier in writing and signed on behalf of both parties (an original signed copy of which has been provided to PowerMark);
Supplier means the supplier named in the PO;
Supplier IPR means any and all IPRs owned or controlled by Supplier that exist prior to the date of this Agreement or are created after the date of this Agreement from developments unconnected with an Agreement;
Supplier Personnel means any person used by Supplier (whether directly or indirectly) to perform any of its obligations under an Agreement;
TUPE means the Transfer of Undertakings (Protection of Employment) Regulations 2006 as re-enacted, amended or consolidated from time to time;
VAT means VAT chargeable under the VAT Act 1994 and any subsequent amendments;
Warranties means the warranties provided by Supplier in relation to the Deliverables and those set out in Schedules 1 and/or 2 (as appropriate), and “Warranty” shall mean each of them;
Warranty Period has the meaning given to it Schedules 1 and/or 2, (as appropriate); and
Working Day means between the hours of 0900 and 1730 on any day (other than a Saturday or Sunday) on which the clearing banks are open for normal banking business in England.
1.2 In these PowerMark PTs (unless the context requires otherwise): (a) any reference to a clause is to the relevant clause of these PowerMark PTs, (b) any reference to a Schedule is to a schedule of these PowerMark PTs, (c) headings are included for convenience only and shall not affect the construction or interpretation of these PowerMark PTs, (d) any reference to “persons” includes natural persons, firms, partnerships, bodies corporate, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether incorporated and whether or not having separate legal personality), and (e) references to any statute, statutory provision or statutory instrument include a reference to that statute, statutory provision or statutory instrument together with all rules and regulations made under it all as from time to time amended, consolidated or re-enacted.
2. INCORPORATION OF TERMS AND ORDER OF PRECEDENCE
These PowerMark PTs are incorporated into and shall govern (to the exclusion of all other terms which relate to the same subject matter, including without limitation any terms appearing on Supplier’s invoices or other paperwork) each and every Agreement unless the parties agree and sign up to separate terms and conditions. No conduct by PowerMark shall be deemed to constitute acceptance of any terms put forward by Supplier or any other terms. PowerMark shall be entitled to vary the terms and conditions set out herein from time to time and any such variation shall be binding upon Supplier with effect from the date at which the PowerMark PTs, as set out on the PowerMark Website, are updated to reflect the relevant variation. It shall be the Supplier’s responsibility to visit the PowerMark Website periodically for the purpose of familiarising itself with the then current PowerMark PTs. Where a change to the PowerMark PTs (a) has a direct, material and significant impact on the Supplier’s provision of the Services; and (b) will unduly and unreasonably prejudice the Supplier, such change will be subject to mutual agreement. If the parties cannot reach mutual agreement, the Supplier shall be entitled to terminate the Agreement upon 30 days’ written notice to PowerMark. PowerMark hereby agrees to buy, and Supplier hereby agrees to supply the Deliverables in accordance with and subject to this clause. PowerMark shall be entitled to resell the Deliverables either on a standalone basis or as part of a package along with other goods and services. To the extent that any of the terms agreed and set out in a PO is inconsistent with any provision of these PowerMark PTs (other than in respect of Charges which shall be those as are agreed between the parties in an Agreement), the variable details set out in a PO shall prevail. In the event of any inconsistency between an Agreement and another agreement which has been entered into between PowerMark and Supplier which relates to the same subject matter and which has been signed by authorised signatories of both Parties, the terms of such agreement shall prevail. For the avoidance of doubt, Supplier’s Agreement is with PowerMark and nothing contained herein shall amount to a guarantee of PowerMark’s obligations by any other member of the PowerMark Group.
3. CHANGES IN REQUIREMENTS
3.1 Acting reasonably, PowerMark may at any time direct, by prior notice in writing, changes to an Agreement. If any such change causes an increase or decrease in the cost of or timing required to provide the Deliverables, either Party (acting reasonably) shall be entitled to request an equitable adjustment to the Charges or Completion Date or both. Any request by Supplier for adjustment under this clause must be made within 15 days from the date of receipt by PowerMark of the notification of change.
3.2 Supplier shall not change Specifications of Deliverables without prior written consent of PowerMark (such consent not to be unreasonably withheld).
4. RELEVANCE OF SCHEDULES
4.1 These PowerMark PTs (including the Schedules) shall apply to the sale and purchase of Deliverables as follows:
– The supply of Goods shall be subject to the additional terms of Schedule 1.
– The provision of Services shall be subject to the additional terms of Schedule 2.
4.2 For the avoidance of doubt, Schedules 1 and 2 are not mutually exclusive. Accordingly, one or more of Schedules 1 and 2 may apply to the supply of each Deliverable (or part thereof).
4.3 If an Agreement does not relate to either Goods or Services, then the above referenced schedule(s) shall not apply to that Agreement.
5. PowerMark POLICIES
5.1 In providing Deliverables, Supplier shall use its best endeavours to observe the PowerMark Policies in all material respects.
5.2 If so required by PowerMark, the Supplier will demonstrate to PowerMark that it maintains policies which align with the requirements of the PowerMark Policies.
5.3 PowerMark may terminate any Agreement immediately by notice in writing by PowerMark if Supplier is in material or continuing breach of the PowerMark Policies.
6. CHARGES AND PAYMENT TERMS
6.1 Subject to clause 3.1 Charges shall be as set out in an Agreement and shall remain fixed until completion of an Agreement. Except as expressly stated herein, all Charges are exclusive of VAT (if any) but otherwise fully inclusive including without limitation: (a) all royalties, licences fees or other expenses arising from the use or sub-licence (if permitted) by PowerMark, any member of the PowerMark Group, their employees, sub-contractors or agents of any IPRs supplied by Supplier for the purpose of performing an Agreement, (b) supply and, where applicable delivery, off-loading and installation, (c) customs, duties and all other taxes or import levies, and (d) in the case of Goods, delivery DDP to PowerMark’s premises per Incoterms 2000 (as may be renewed or replaced). Supplier shall, following Acceptance of any Deliverables, be entitled to submit an invoice for the appropriate Charge. Each VAT invoice shall contain the particulars required by statute in respect of VAT, the PO number and any other particulars prescribed in the PO and shall be sent to the invoice address specified in the PO. Payment of a correct invoice submitted in accordance with this clause shall be processed by PowerMark within 30 calendar days (or such number of calendar days as is specified on the PO or in an Agreement) from the date of receipt of invoice. PowerMark reserves the right to refuse payment of part or all of any invoice which is not submitted in accordance with these PowerMark PTs. If either party fails to pay any amount due on time, the other party shall be entitled to charge and receive interest at a rate of 4% per annum above the base lending rate from time to time of Barclays Bank plc. Such interest shall accrue from the due date until the date of payment and shall be calculated on a daily basis.
6.2 PowerMark and the Supplier agree that the remedies set out in an Agreement and/or the PO (Liquidated Damages) (if any) are a genuine pre-estimate of the loss that PowerMark will suffer in the event of a failure or delay in delivery by the Supplier.
6.3 The PO may refer to an amount which exceeds the charges agreed between the parties and those set out in an Agreement. For the avoidance of doubt, and in the event of inconsistency, the agreed Charges shall take precedence over the amount set out in a PO.
7.1 Any Agreement may be terminated immediately by notice in writing by either Party if the other Party commits a material breach of any term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within 30 days after being notified in writing to do so.
7.2 Any Agreement may be terminated by either Party if any of the following events occurs in respect of the other Party (or any event analogous to any of the following occurs in respect of the other Party in a jurisdiction other than England and Wales): (a) a proposal is made for a voluntary arrangement within Part I of the Insolvency Act 1986 or of any other composition scheme or arrangement with, or for the assignment for the benefit of, its creditors; (b) a shareholder’s meeting is convened for the purpose of considering a resolution that it be wound up or a resolution for its winding-up is passed (other than as part of, and exclusively for the purpose of, a bona fide reconstruction or amalgamation); (c) a petition is presented for its winding up (which is not dismissed within fourteen (14) days of its service) or for the making of an administration order, or an application is made for the appointment of a provisional liquidator or a creditor’s meeting is convened pursuant to s.98 of Insolvency Act 1986; (d) a receiver, administrative receiver or similar officer is appointed over the whole or any part of its business or assets; or (e) it is or becomes insolvent within the meaning of s.123 Insolvency Act 1986.
7.3 In the case of an Agreement related to Goods, PowerMark shall be entitled without cost or liability to terminate an Agreement in respect of all or part of a PO at any time up to 5 Working Days prior to the agreed date for shipping of the Goods on giving written notice to the Supplier. In the case of an Agreement relating to Deliverables other than Goods, PowerMark shall be entitled without cost or liability to terminate the Agreement in respect of all or part of a PO at any time on giving 5 Working Days’ notice to the Supplier. In the event that PowerMark terminates an Agreement or any part of an Agreement pursuant to this Clause and without limiting clause 7.5 below, PowerMark shall pay the reasonable costs and expenses incurred by the Supplier in connection with the Agreement or part which has been terminated up to the date of termination provided always that the Supplier shall have an obligation to mitigate such costs and expenses and to demonstrate to PowerMark’s reasonable satisfaction that the same have been incurred.
7.4 If at any time during the term of an Agreement the Supplier is subject to a Change of Control, PowerMark shall be entitled to terminate absolutely that Agreement without penalty immediately by notice in writing.
7.5 If an Agreement is terminated for any reason: (a) any sums due to PowerMark shall become immediately payable by Supplier without set-off or deduction; (b) Supplier shall return to PowerMark all tangible property and Confidential Information belonging to PowerMark in its possession, custody or control and PowerMark shall return to Supplier all of its tangible property and Confidential Information in its possession, custody or control; (c) each Party will cease use of the other Party’s Confidential Information and IPR (save to the extent required by PowerMark to complete any customer order which rely on Goods supplier by the Supplier and held in stock by PowerMark); and (d) each Party will, at its sole option, either return or destroy all records, documentation, data, and any other information and all copies thereof which are owned by or licensed to the other Party, and on the other Party’s request, a director of the returning/destroying Party shall certify in writing that the Party has complied with this clause.
7.6 Termination will not prejudice or affect any right of action or remedy already accrued to either Party.
7.7 Notwithstanding any termination of an Agreement the provisions which by their nature are intended to survive such termination will remain in full force and effect including without limitation the obligations of confidentiality.
7.8 If a Party (the first Party) is prevented from performing its obligations under an Agreement by an EFM which continues for more than 30 days then the other Party will be entitled to terminate that Agreement without liability to the first Party forthwith on giving written notice of termination to the first Party.
8. FORCE MAJEURE
8.1 Subject to the remaining provisions of this clause, to the extent that either Party is prevented from performing its obligations under an Agreement by an EFM beyond such Party’s reasonable control, such Party’s obligation to perform its obligations under that Agreement will (during the continuation of the EFM) be read and construed as an obligation to perform such obligations to the best level reasonably achievable in the circumstances.
8.2 Notwithstanding clause 8.1, if Supplier claims that it is affected by an EFM, such claim shall be valid only to the extent that a prudent supplier operating to standards expected of a leading supplier of the Deliverables in question could not have foreseen and prevented or avoided the effect of such event or occurrence.
8.3 A Party claiming to be affected by an EFM will not be entitled to invoke the provisions of clause 8.1 unless it performs fully the following obligations: (a) on becoming aware of any EFM it shall have notified the other Party by the most expeditious method then available, giving details of the EFM, the obligations on its part which are affected and its reasonable estimate of the period for which such failure or delay will continue; and (b) it takes all reasonable steps to prevent, avoid, overcome and mitigate the effects of such EFM.
9.1 Supplier shall be liable to PowerMark for (and in respect of any third party claims against PowerMark, shall indemnify PowerMark and hold PowerMark harmless against): (a) all claims, liability, demands, proceedings, costs and expenses arising as a result of any act or omission of Supplier in the performance or purported performance of its obligations under an Agreement, except to the extent such claims, liability, demands, proceedings, costs or expenses are directly attributable to the negligence of PowerMark; and (b) any costs, damages, liabilities, losses or expenses (including legal expenses) incurred by PowerMark and arising from any legal actions, claims or demands brought against PowerMark by any third party which state that PowerMark’s (or its sub-contractor’s or agent’s) possession and/or use of the Deliverables or Documentation (or any part thereof) infringes any IPRs of a third party (a “Claim”). If a Claim is made: (A) PowerMark shall: (i) inform Supplier of it; (ii) provide Supplier (at Supplier’s expense) with such assistance as Supplier may reasonably require in connection with defending the same; and (iii) make no admission of liability without Supplier’s prior written consent (such consent not to be unreasonably withheld); and (B) Supplier shall (i) replace the infringing material with non-infringing material that functions and performs at least as well as the infringing material and complies with any relevant Specification or other requirements of an Agreement, or (ii) obtain the right for PowerMark lawfully to possess and use in accordance with the provisions of these PowerMark PTs all the relevant Deliverables and/or documentation and to exercise the rights granted under an Agreement. In the event that Supplier is unable to provide either of the remedies set out in B(i) or B(ii) above to PowerMark’s satisfaction, Supplier shall refund to PowerMark all amounts paid to Supplier under the applicable Agreement.
9.2 The following matters shall be excluded from the indemnity contained in clause 9.1 above (except to the extent that such matters are contemplated and agreed by the Parties having regard to the provisions of an Agreement, and Supplier’s actual knowledge of PowerMark’s intentions as to the use of Deliverables): (i) infringements arising directly from the use of Confidential Information supplied by PowerMark, where Supplier’s use of such Confidential Information in the performance of an Agreement and in accordance with the terms of the Agreement is the sole and direct cause of such infringement; (ii) infringements arising from the modification of the Deliverables or Documentation by PowerMark where such modification is not authorised by or within the reasonable contemplation of Supplier and the claimed infringement arises solely and directly from such modification; (iii) infringements arising from the combination, operation or use of the Deliverables with any goods not supplied by the Supplier that is outside their intended purpose; and (iv) infringements arising from PowerMark’s failure to promptly implement an update or modification to the Deliverable which has been communicated by the Supplier to PowerMark in writing.
10. CAP ON LIABILITY
10.1 Nothing shall exclude or limit the liability of either Party for death or personal injury caused by its negligence, or for fraud, fraudulent misstatement or for any other liability that may not be excluded or limited by law.
10.2 Except for the liability of the Supplier under clause 9, the aggregate liability of either Party to the other under an Agreement for all losses, damages, costs, claims or expenses suffered by the other arising out of or in connection with any breach by such Party of the terms of an Agreement or any tort or breach of statutory duty in connection with such Party’s obligations under an Agreement shall be limited in the following ways: (a) the amount recoverable shall be no more than the greater of £1,000,000 (one million GBP) or 125% of the total of all sums paid or due to Supplier for Deliverables in any 12 month period in which the circumstances giving rise to such claim(s) arise(s), and (b) neither Party shall be liable to the other in respect of any indirect or consequential loss, irrespective of whether such loss was foreseeable or whether the Party has been advised of the possibility that such loss may be incurred.
11. ENTIRE AGREEMENT
11.1 Each Agreement (including the terms of any relevant PO) sets out the full extent of the Parties’ obligations and liabilities arising out of or in connection with such Agreement, and there are no conditions, warranties, representations or terms, express or implied, that are binding on the Parties except as specifically stated or contemplated in such Agreement.
11.2 Any condition, warranty, representation or other term which might otherwise be implied into or incorporated or any collateral contract, whether by statute, common law or otherwise, is hereby expressly excluded. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the Parties prior to entering into an Agreement, except as expressly stated in each Agreement.
11.3 Neither Party shall have any remedy in respect of any untrue statement made by the other upon which that Party relied in entering into an Agreement (unless such untrue statement was made fraudulently) and that party’s only remedies shall be for breach of contract as provided herein.
If any of the provisions of an Agreement is judged to be invalid, illegal or unenforceable, the continuation in full force and effect of the remainder of that Agreement will not be prejudiced but such provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties as set out in such Agreement.
No failure or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
14. RELATIONSHIP OF THE PARTIES
The relationship between PowerMark and Supplier is that of purchaser and supplier. Nothing in an Agreement is intended to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other. Save where expressly so stated in an Agreement neither Party will have authority to act in the name of or on behalf of or otherwise to bind the other.
15. ASSIGNMENT AND SUB-CONTRACTING
15.1 Subject to clause 15.2, neither Party shall be entitled to assign, novate or otherwise to transfer any of its rights and/or obligations under an Agreement without the prior written consent of the other Party (not to be unreasonably withheld).
15.2 PowerMark shall be entitled to assign, novate or otherwise to transfer any or all of its rights and/or obligations under an Agreement to any member of the PowerMark Group provided that it shall give written notification to Supplier of any exercise of its rights under this clause.
15.3 For the avoidance of doubt, the Supplier shall not sell, assign, novate or otherwise transfer (including by way of power of attorney) its present and/or future rights of payment under this Agreement without the prior written consent of PowerMark.
16. THIRD PARTY RIGHTS
Save as expressly set out in an Agreement, the Parties intend that a person who is not a Party to an Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of an Agreement.
Any notice given under an Agreement by either Party to the other must be in writing and must be delivered either personally or by recorded delivery post or first class post. In the case of notices to PowerMark a copy of any notice shall also be sent by email to: info@PowerMark-generators.com. In the case of post such notice will be deemed to have been given 2 Working Days after the date of posting. Notices will be delivered or sent to the addresses of the Parties on the PO or to any replacement address notified in writing by either Party. Each Party may specify by notice in writing to the other a particular individual or office holder to whom any notices served on it are to be addressed in which event a notice will not be validly given unless so addressed.
Supplier shall provide PowerMark with all information required in order to enable PowerMark to understand and operate the Goods (including, but not limited to installation, commissioning, operation and maintenance). PowerMark shall have the right to copy, reproduce and generally use the Documentation for PowerMark’s business purposes and the implementation and operation of the Goods. The right to copy, reproduce and use the Documentation shall also extend to the PowerMark’s third party suppliers provided that such use is required for the purposes of providing services to PowerMark or PowerMark’s customers.
19.1 Supplier shall ensure that Supplier Personnel conform to all security, safety and works regulations and such other local instructions, as may be notified by whilst on any PowerMark Premises or customer premises. PowerMark may (a) remove from and refuse entry and re-admission to any PowerMark Premises, any person who is, in the reasonable opinion of PowerMark, not conforming with these requirements or is otherwise not a fit person to be allowed on premises; and/or (b) search any Supplier Personnel, their vehicles, or Goods upon any PowerMark Premises or upon entry to and departure from any PowerMark Premises.
19.2 Supplier shall use its best endeavours to ensure that Supplier Personnel are aware of and comply with these requirements and that no Supplier Personnel unwilling to comply will be employed on any PowerMark Premises.
20.1 Supplier shall, subject to agreeing confidentiality terms substantially similar to those in an Agreement, permit PowerMark (and its agents) to inspect, review, verify and take copies of any associated records and documentation in the control or possession of Supplier relating to the provision of the Deliverables for the purpose of auditing the work provided for under an Agreement. PowerMark shall provide 30 days’ written notice to the Supplier prior to conducting an audit. PowerMark shall have the right to audit the Supplier once in any 12 month period, unless otherwise required by law, regulation or an investigation.
20.2 If an audit reveals that there has been any overpayment of the Charges, the amount of the overpayment shall be reimbursed (including interest accrued at rate set out in Clause 6) by the Supplier within 30 days of receipt of PowerMark’s invoice for such sum. This is without prejudice to PowerMark’s other rights in relation to such breach. Where the audit reveals a significant overpayment by PowerMark (in excess of 5% of the Charges properly due in the period covered by the audit), the Supplier will also reimburse the costs and expenses incurred by PowerMark in conducting the audit
21. EMPLOYMENT LIABILITIES
If at any time during the course of an Agreement or following the termination or expiry of an Agreement it is found or alleged that any Supplier Personnel is or has become an employee of PowerMark or a Future Supplier pursuant to TUPE or otherwise then Supplier shall indemnify PowerMark (for itself and as trustee for any Future Supplier) and keep it indemnified in full against any and all Employment Liabilities arising out of or in connection with any claim or demand by such Supplier Personnel or any trade union, staff association, worker’s committee or any other worker representative who represents or purports to represent any or all of the Supplier Personnel.
22.1 Neither Party shall be entitled to set off any liability owed to it by the other Party against any liability it may owe to such other Party.
23. ANNOUNCEMENTS AND PUBLICITY
Supplier shall not make any announcement relating to an Agreement or its subject matter without the prior written approval of PowerMark except as required by law or regulatory authority.
24. GOVERNING LAW AND JURISDICTION
Each Agreement and any issues or disputes arising out of or in connection with it (whether such disputes are contractual or non-contractual in nature, such as claims in tort, for breach of statute or regulation, or otherwise) shall be governed by and interpreted in accordance with English Law and the Parties submit to the exclusive jurisdiction of the English Courts provided that PowerMark may apply to any court of competent jurisdiction to defend its IPRs.
25. COMPLIANCE WITH LAWS, DATA PROTECTION AND INFORMATION RETENTION
25.1 In performing its obligations under an Agreement, Supplier shall comply with all applicable laws, rules and regulations of governmental entities, having jurisdiction over such performance, including any health and safety legislation and environmental legislation.
25.2 For the purposes of an Agreement, both parties may receive personal data. Where the parties receive Personal Data as Data Controllers each party agrees to comply with Data Protection Legislation. Neother party is permitted to process the personal data of the other party as a processor pursuant to the terms of the PowerMark PTs or an Agreement.
25.3 Where applicable the Supplier shall comply with all payment card scheme rules and regulations and required certifications as such rules and regulations apply to the provision of the Services, including but not limited to the most recent version of the Payment Card Industry Data Security Standard as promulgated by the PCI Security Standards Council as updated from time to time (“PCI DSS”). PowerMark may request Supplier to provide written proof of such compliance which Supplier shall provide within one (1) month of PowerMark’s request. The Supplier shall perform annual reviews of their card holder environments in accordance to the PCI DSS requirements, reporting to PowerMark any identified vulnerability or non-compliance as per the PCI DSS standard.
25.4 In addition to and without prejudice to clause 25.1, the Supplier and PowerMark each agree and undertake to the other that in connection with an Agreement and the transactions contemplated by an Agreement, they will each respectively comply with all applicable laws, rules, regulations of the United Kingdom relating to anti-bribery and anti-money laundering and preventing the facilitation of tax evasion.
25.5 In the event that PowerMark has any basis for a good faith belief that the Supplier may not be in compliance with the undertakings and/or requirements set out in clause 25.4, PowerMark shall advise the Supplier in writing of its good faith belief and the Supplier shall cooperate fully with any and all enquiries undertaken by or on behalf of PowerMark in connection therewith, including by making available the Supplier’s relevant personnel and supporting documents if reasonably deemed necessary by PowerMark.
25.6 Any breach by the Supplier of clauses 25.4 and 25.5 shall be deemed to be a material breach of this Agreement for the purposes of clause 7.1.
26.1 Each Party shall ensure that disclosure of the Confidential Information is restricted to those employees, directors or contractors, and/or members of its Group who need access to the Confidential Information for the purposes of an Agreement. Copies or reproductions of the Confidential Information shall not be permitted except to the extent reasonably necessary for the purposes of such Agreement and all copies made shall remain the property of the disclosing party.
26.2 In this clause “Confidential Information” shall mean product, business, market, strategic or other information or data (including but not limited to information retained on all types of medium including written, diagrammatical, software or other storage medium) relating to an Agreement or the business or affairs of the Party disclosed whether in writing, orally or by any other means, and whether or not that information is marked “confidential” excluding any information which: (a) at the time of receipt by the recipient is in the public domain, or subsequently comes into the public domain through no fault of the recipient or its personnel; (b) is lawfully received by the recipient from a third party on an unrestricted basis; (c) is already known to the recipient before receipt under an Agreement; (d) is required by law, regulation or order of a competent authority to be disclosed by the recipient provided that the disclosing party is given reasonable advance notice of the intended disclosure and a reasonable opportunity to challenge the same; or (e) is disclosed by the recipient with the prior written approval of the other Party in accordance with the terms of such written approval.
26.3 Each Party shall maintain Confidential Information in confidence and shall exercise in relation to the Confidential Information no lesser security measures and degree of care than those which it applies to its own confidential information, which each Party warrants as providing the protection required by these PowerMark PTs against unauthorised disclosure, copying or use.
Supplier shall have in force and shall maintain a policy of insurance in respect of its liabilities under an Agreement with a limit of indemnity not less than £2,000,000 for any one claim arising out of any one incident or event and without limit as to the number of claims during the period of insurance.
28.1 All PowerMark IPRs supplied to the Supplier by PowerMark and/or its sub-contractor(s) are supplied solely for the purposes of the Supplier performing its obligations under the Agreement. PowerMark IPR vests in and remains with PowerMark and nothing in this Agreement shall transfer ownership, or any aspect of ownership in and to PowerMark’s IPRs to Supplier or be deemed to grant to Supplier any rights or interest or a licence of PowerMark’s IPR except as expressly set out herein.
28.2 The Supplier warrants that all Supplier IPRs vest in and remain with the Supplier and/or its sub-contractor(s) as the case may be and Supplier warrants that:
(a) it has the right to use and/or exploit such Supplier IPRs as envisaged under this Agreement; and
(b) that the Supplier IPR’s and the use by PowerMark of Supplier’s IPR does not infringe the rights of any third party.
28.3 Without prejudice to clause 10.2 above, PowerMark’s remedy and the Supplier’s liability, for any breach of this clause 28.2 will be as set forth in clause 9.1(B) above.
28.4 Supplier hereby grants to PowerMark an irrevocable, non-exclusive, perpetual licence to use, copy, install, maintain, modify, enhance and adapt the Supplier IPR and to allow members of the PowerMark Group to do the same. PowerMark may also assign or sub-licence its licence to use the Supplier IPR (or any part thereof) to any third party supplier to whom it may outsource the operation of a part of PowerMark’s operations or business or to a third party customer to whom PowerMark may provide services provided that such third party’s use, copying, installation, maintenance, modification, enhancement and adaptation is solely for the purpose of, in the case of a PowerMark Supplier, providing a service to PowerMark and, in the case of a PowerMark customer, using the services provided by PowerMark.
28.5 In respect of Bespoke IPR, the Parties shall clearly identify in writing which of the IPRs ownership options set out in clause 28.6 shall apply. If the Parties fail to enter into discussions or to reach agreement in relation to the ownership of such Bespoke IPR, clause 28.6 (a) shall apply.
28.6 The options for ownership of Bespoke IPR shall be as follows:
(a) PowerMark exclusively owns the Bespoke IPR (in which case Supplier agrees to take all such actions and to execute all such documents, including but not limited to an assignment of all future rights in and to the Bespoke IPR, as may be necessary to enable PowerMark to obtain, defend or enforce its rights to use the Bespoke IPR, and shall not do or fail to do any act which would or might prejudice PowerMark’s rights).
(b) Supplier exclusively owns the Bespoke IPR (in which case Supplier hereby grants to PowerMark an irrevocable, non-exclusive, perpetual licence to use, copy, install, maintain, modify, enhance and adapt the Bespoke IPR and to allow members of the PowerMark Group to do the same).
(c) The Bespoke IPR is owned jointly by both Parties. In this case each party grants the other party a royalty free, irrevocable, perpetual and transferable licence to use the Bespoke IPR.
29. SURVIVAL OF PROVISIONS
Clauses 1, 7, 9, 10, 11, 12, 13, 16, 20, 21, 23, 24, 25 (to the extent that a party retains Personal Data provided by the other party), 26, 28, and 29 of an Agreement shall survive termination of that Agreement, for whatever reason.
Each party shall use all reasonable endeavours to mitigate any loss or damage suffered arising out of or in connection with this Agreement, including any losses for which the relevant party is entitled to bring a claim against the other party pursuant to the indemnities in this Agreement. Each party shall act in good faith when exercising its rights under this Agreement.
An Agreement may be executed in any number of counterparts by the Parties to it on separate counterparts, each of which is an original but all of which together constitute one and the same instrument.
1. RIGHT TO INSPECT
Supplier shall, at PowerMark’s request, allow PowerMark to inspect and test the Goods prior to despatch to the PowerMark Premises. If as a result of any inspection or testing PowerMark is not satisfied that the Goods will comply in all material respects with an Agreement, and PowerMark so informs Supplier within 7 days of such inspection or testing, PowerMark shall not be deemed to have accepted such Goods, and PowerMark shall not be obliged to pay any relevant Charges until the non-compliance is remedied. No such inspection shall diminish or otherwise affect Supplier’s obligations.
2. DELIVERY AND ACCEPTANCE
2.1 Supplier shall, at its own expense, deliver the Goods during a Working Day, properly packed and secured to the place specified in the PO or such other location as may subsequently be advised in writing by PowerMark to Supplier. All Goods shall be delivered by the relevant Delivery Dates, and time shall be of the essence in relation to delivery of the Goods.
2.2 Supplier shall supply PowerMark in good time with any instruction or other information required to enable PowerMark to take delivery of the Goods.
2.3 PowerMark shall accept Goods immediately after Supplier has demonstrated to PowerMark’s satisfaction that the Goods (i) comply with the PO pursuant to which they are supplied; (ii) comply with the relevant Agreement; and (iii) are in accordance with the Specification, and “Acceptance” shall be construed accordingly for the purposes of this Schedule 1.
2.4 PowerMark may reject any Goods delivered earlier or later than the relevant Delivery Date, unless previously agreed in writing by the Parties provided that PowerMark shall use its reasonable endeavours to accommodate deliveries effected prior to the relevant Delivery Date.
2.5 If the Goods (or any parts of them) are not delivered by the relevant Delivery Date, PowerMark may terminate in whole or in part the relevant Agreement without cost or liability. Where PowerMark exercises this option: (a) Supplier shall refund to PowerMark in full any payments made by PowerMark to Supplier in respect of such Goods; (b) no further payment will be due from PowerMark in respect of such Goods; (c) following receipt of payment in full of all monies due to it in relation to the Goods in respect of which an Agreement has been terminated (whether in whole or in part) PowerMark shall make such Goods available for collection by Supplier and Supplier shall collect such Goods at its own expense within 5 Working Days of the payment, and if Supplier fails to collect within this period, PowerMark may dispose of such Goods in its absolute discretion without notice or liability to Supplier; (d) title in the Goods will revert to Supplier following receipt by PowerMark from Supplier of payment in full of the refund due to PowerMark; and (e) risk in the Goods shall revert immediately to Supplier.
2.6 Supplier undertakes at its own expense to repair or replace (at the option of PowerMark) Goods lost or damaged in transit, and Acceptance will not be deemed to have taken place until replacement or repaired items have been delivered to the satisfaction of PowerMark.
3. RISK AND TITLE
Without prejudice to PowerMark’s other rights under an Agreement: (a) title in the Goods shall pass to PowerMark on payment for the relevant Goods, and (b) risk in the Goods shall pass to PowerMark on Acceptance save where the Agreement includes installation, in which case risk shall not pass to PowerMark until completion of the installation work.
4.1 Supplier shall provide PowerMark with the benefit of any Manufacturer’s warranties in respect of the Goods and additionally Supplier warrants to PowerMark as follows: (a) Supplier holds absolute legal and beneficial title in and to the Goods and has the unfettered right to sell and supply them and to pass good unencumbered title to PowerMark, (b) the Goods are manufactured, supplied and installed in accordance with PowerMark Policies, new and unused, of satisfactory quality and conform in all respects to their description and with the Specification, (c) the Goods will be free from Defects whether actual or latent and whether in design, material or workmanship (d) the Goods will comply in all material respects with all relevant statutory requirements and standards issued from time to time by the International Organisation for Standards (ISO), ITU-T and any other applicable organisation or recognised standards body, (e) the Documentation provided by Supplier in respect of the Goods are or will be of such a standard as to enable suitably trained personnel of PowerMark to understand, operate and maintain the Goods to a level of competence sufficient for PowerMark’s business purposes, and (f) where Supplier modifies the Goods or any part of the Goods for PowerMark, such modification will not materially reduce the functionality of the Goods save to the extent that may be agreed by PowerMark in writing prior to Supplier carrying out such modification. The Goods shall conform with each Warranty for 12 months from the date of Acceptance (the “Warranty Period”).
Supplier shall provide the Services during Working Day(s) (unless otherwise agreed with PowerMark) at the place specified in the PO or such other location as may subsequently be advised in writing by PowerMark to Supplier. All Services shall be delivered by the relevant Delivery Dates, and time shall be of the essence. If the Services (or any parts of them) are not provided by the relevant Delivery Date, PowerMark may terminate in whole or in part the relevant Agreement without cost or liability. Where PowerMark exercises this option: (a) Supplier shall refund to PowerMark in full all payments made by PowerMark to Supplier in respect of any Services; (b) no further payment will be due from PowerMark in respect of any Services; and (c) a full refund shall be due to PowerMark in respect of any payments already made. Where Supplier is in possession of PowerMark’s property in pursuance of providing the Services, it shall at its own expense repair or replace (at the option of PowerMark) any such property that is lost or damaged while in Supplier’s possession to the satisfaction of PowerMark.
PowerMark shall accept Services immediately after Supplier has demonstrated to PowerMark’s satisfaction that the Services (i) comply with the PO pursuant to which they are supplied; (ii) comply with the relevant Agreement; and (iii) are in accordance with the Specification, and “Acceptance” shall be construed accordingly for the purposes of this Schedule 2.
2.1 Supplier warrants to PowerMark: (a) that it will ensure that Supplier Personnel will use the skill, care and diligence as would be expected from a skilled and experienced supplier engaged in the same type of business as Supplier and will be performed by employees, authorised agents and sub-contractors possessing the appropriate accreditations, skills and experience for all tasks assigned to them; (b) that Supplier Personnel will carry out the Services in such a way as (i) not to cause any material fault or malfunction in the Deliverables (ii) not to cause any material interruption to PowerMark’s business (other than any agreed downtime and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner) (iii) to comply in all material respects with PowerMark Policies (iv) to work in a co-operative manner with PowerMark and PowerMark’s suppliers (where the provision of the Services interact with services of such other suppliers) and ensure the effective performance of the Services; (c) that the Services will conform in all material respects to the relevant Specification and will comply in all material respects at the time the relevant Service is performed with all statutory requirements or regulations or any other standards relating to the Services and their supply, that have been issued by any recognised and appropriate standards bodies; and (d) that any Deliverables produced by Supplier in the course of performing Services shall comply with the applicable Warranties set out elsewhere in these PowerMark PTs. The Services shall conform with each of the Warranties for 12 months from the date of their Acceptance (the “Warranty Period”).
2.2 If any of the Services performed are found to be in breach of any Warranty during the Warranty Period, Supplier will (without prejudice to its other rights or remedies) re-perform the Services promptly at PowerMark’s premises. This shall be at no cost to PowerMark. If Supplier fails to re-perform the Services within a reasonable period determined by PowerMark, PowerMark may either itself or through a third party, re-perform the Services and set off the cost of doing so against any sum PowerMark owes or will owe to Supplier and recover any further amount outstanding from Supplier as a debt. PowerMark’s rights and remedies are in addition and without prejudice to its other rights and remedies at law.
2.3 Save as expressly provided to the contrary, each of the Warranties is, and shall be construed as, separate and distinct from the other Warranties. Accordingly, a Warranty shall not be limited or restricted by reference to, or inference from, the terms of any other Warranty or any other term of an Agreement.
2.4 The Warranties apply equally to Services re-performed, in which case the Warranty Period shall be the longer of the remainder of the original Warranty Period or 6 months from the date of re-performance.