TERMS & CONDITIONS OF PURCHASE
Clause 1 – Scope of application
1.1. These general terms and conditions of purchase (hereinafter “Terms and Conditions of Purchase”) apply to all orders and purchases of Goods and/or Services by W B Power Services Ltd, (Company number 02120023), and/or its affiliates (hereinafter “WBPS”) on the recipient and its affiliates named in the Contract Details or WBPS purchase order as applicable (the “Supplier”), unless superseded by agreement in writing signed by a Director of WBPS and the Supplier.
1.2. The Contract Details or purchase order (as applicable) constitutes an offer by WBPS to purchase the Goods and/or Services subject to these Terms and Conditions of Purchase and through the acceptance by the Supplier of a purchase order or Contract Details, a Contract (as defined below) is concluded between the parties. Such acceptance may be express or implied in accordance with Clause 2.2 below and shall mean the application of these Terms and Conditions of Purchase by the parties to the Contract. The application of any other additional or deviating terms and conditions of the Supplier or any agent or affiliate of the Supplier, mentioned on whatever document, are explicitly rejected, and shall have no effect.
1.3. These Terms and Conditions of Purchase, and where applicable, the specific terms and conditions contained in the Contract Details or purchase order issued by WBPS or otherwise agreed between the parties in writing, constitute the entire Contract.
1.4. In case of any conflicts, inconsistencies or discrepancies between the provisions of these Terms and Conditions of Purchase and the specific terms and conditions contained in any purchase order or Contract Details or otherwise agreed between the parties in writing, the specific order terms and conditions shall take precedence over the provisions of these Terms and Conditions of Purchase. Irrespective of any other language used, the English language version of these Terms and Conditions of Purchase shall always apply and take precedence.
1.5. In these Terms and Conditions of Purchase the following definitions apply:
affiliate means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity and ‘affiliated’ shall mean an affiliate of the relevant entity;
Background IPR means any IPR that are: (a) in existence at the Start Date and not created by or on behalf of a party in contemplation of this Contract; or (b) created after the Start Date other than in the course of providing the Goods and/or Services or performing the parties’ obligations under this Contract;
Business Day means Monday to Friday except for public holidays;
Confidential Information means any commercial or technical information in whatever form which is disclosed by one party to the other party and which would be regarded as confidential by a reasonable business person including, without limitation, all business, statistical, financial, marketing and personnel information, customer or supplier details, know-how, designs, trade secrets or software of the disclosing party;
Contract means these Terms and Conditions of Purchase, the Contract Details (or purchase order as applicable), and any Schedules specified in the Contract Details;
Contract Details means the contract details signed between the parties which incorporate these Terms and Conditions of Purchase (including any schedules referred to in such contract details);
Control has the meaning given to it in section 1124 of the Corporation Tax Act 2010 and Controls, Controlled and under common Control shall be construed accordingly; and the words or phrases ‘other’, ‘including’ and ‘in particular’ or similar words shall not restrict the generality of any preceding words or be construed as being limited to the same class, acts, things or matters as the preceding words where a wider construction is possible.
Data Processing Agreement means an agreement entered into by the parties as controller and processor (as applicable) outlining the rights and responsibilities for handling Personal Data under this Contract.
Data Protection Laws means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) EU Regulation 2016/679 (“GDPR”); (ii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing the GDPR (including, in the UK, the Data Protection Act 2018 (“DPA”) and the applied GDPR as defined in the DPA; and (iii) any laws and regulations implementing or made pursuant to EU Directive 2002/58/EC (as amended by 2009/136/EC) (including, in the UK, the Privacy and Electronic Communications (EC Directive) Regulations 2003); in each case, as updated, amended or replaced from time to time; and the terms “Data Subject”, “Personal Data”, “processing”, “processor” and “controller” shall have the meanings set out in the DPA;
Deliverable means any document, plan or other product which is included in the Services or which the Supplier is obliged to provide to WBPS in the course of providing the Services under the Contract;
Goods means any Goods which the Supplier supplies to WBPS under the Contract;
IPR (Intellectual Property Rights) means patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks 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;
Services means any works or Services which the Supplier supplies to WBPS under the Contract;
Start Date means the commencement of the Contract as set out in the Contract Details;
Warranty Period has the meaning given to it in clause 7.2.
Clause 2 – Order
2.1. WBPS’ issuance of its written purchase order or Contract Details shall supersede any other verbal or written exchange between the parties concerning its subject-matter and constitutes an offer by WBPS. Unless explicitly mentioned otherwise in the purchase order or Contract Details, the issuance of a purchase order or Contract Details by WBPS does not constitute the acceptance of any quotation by the Supplier. Any purchase order or Contract Details issued by WBPS may be withdrawn prior to acceptance in a way that is satisfactory to WBPS.
2.2. A purchase order or Contract Details is deemed to be accepted as soon as one of the following situations occurs:
i. The written confirmation or acceptance of the purchase order or Contract Details by the Supplier; or
ii. The execution of the purchase order or Contract Details by the Supplier;
iii. The acceptance by the Supplier of the payment, in whole or in part, of the order
2.3. The Supplier shall execute all orders in accordance with the Contract and any specifications contained in any Schedules to the Contract Details. The Supplier shall not make any amendments to the type, the design, the quality, the quantity, the content, the deliverables of the ordered Goods or Services, or the modalities or timing of packing, sending and delivery, or any other specification relating to the ordered Goods or Services without the prior written consent of a Director or procurement representative of WBPS.
2.4. Provided that the Goods have not been delivered and/or the Services have not been performed yet, WBPS shall be entitled, at its sole discretion, to request amendments to the type, the design, the quality, the quantity, the content, the deliverables of the ordered Goods or Services, or the modalities or timing of packing, sending and delivery or any other specification relating to the outstanding ordered Goods or Services. If the amendments to the Goods and/or Services requested by WBPS would entail a change in the price or the conditions of delivery, the Supplier shall immediately inform WBPS thereof in writing. In such case, the amendments to the Goods and/or Services cannot be put into effect without the prior written consent of a Director or procurement representative of WBPS. WBPS shall in such case also be entitled to cancel the order in whole or in part without liability by giving notice to the Supplier at any time prior to delivery or provision in which event the Supplier shall discontinue any further work and WBPS shall reimburse the Supplier for all reasonable, properly evidenced costs directly incurred by the Supplier in relation to such cancelled Goods and/or Services as at the date of such cancellation. These Terms and Conditions of Purchase are fully applicable to an order that has been amended in accordance with this Clause.
2.5. At WBPS’s request, the Supplier shall provide WBPS with:
i. Evidence and results of material and quality tests that were executed on the Goods ordered or to be ordered or the raw materials used for the fabrication thereof
ii. The certificate of origin relating to the Goods ordered or to be ordered or the raw materials used for the fabrication thereof; and/or
iii. Any other information and documentation that WBPS may request, including, without being limited to information and documentation related to and/or needed for certification, registration, audit, or safety purposes.
Clause 3 – Prices
3.1. The prices contained in the purchase order or Contract Details are binding and may not be increased. If the Supplier can apply lower prices at the time of delivery of the Goods or Services than the prices mentioned in the Contract, the lower prices will, however, be applicable to the Goods or Services mentioned in the Contract.
3.2. Unless explicitly stated otherwise in the purchase order or Contract Details, the prices mentioned in the purchase order or Contract Details are inclusive of all costs and expenses, including, without being limited to all costs of handling, processing, packing, storage, transport, stocking, import, third party licensing and insurance (other than VAT which is excluded).
Clause 4 – Delivery
4.1. The Supplier shall deliver the quantity of Goods and/or provide the Services in accordance with the purchase order or the Contract Details at the time(s) and place(s) specified in the purchase order or Contract Details, as well as to respect all other modalities of packing, sending and delivery mentioned in the purchase order or Contract Details. The Supplier recognises that the time or schedule of delivery and the quantity specified in the purchase order or Contract Details form an essential element of the Contract and time of delivery is of the essence.
4.2. The Supplier shall immediately notify WBPS in writing of each event that could compromise full delivery of the Goods or performance of the Services at the time or in accordance with the schedule specified in the purchase order or Contract Details. Such notification does, however, not relieve the Supplier from its obligation to deliver the Goods or perform Services at the time or in accordance with the schedule specified in the purchase order or Contract Details. All additional costs that may be incurred because of the possible necessity to make use of an accelerated method of sending or delivery shall be borne by the Supplier.
4.3. WBPS shall not be required to accept partial, surplus, early, or late deliveries of Goods and may reject such Goods If the Supplier delivers more or less than the quantity of Goods ordered, and WBPS accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.4. Unless explicitly agreed otherwise, all deliveries of Goods shall take place on a DDP basis (Delivery Duty Paid, Incoterms® 2020), at the place specified in the purchase order or Contract Details. However, the risk of damage to or loss of the Goods or Deliverables shall only pass from the Supplier to WBPS at the moment of acceptance of the delivered Goods by WBPS. The title to the Goods and any service deliverables shall pass to WBPS at the moment and place of actual acceptance by WBPS.
4.5. Delivery shall only be considered to have taken place upon signature of the delivery documents by WBPS when the Goods are unloaded at the delivery location specified by WBPS in the purchase order or the Contract Details.
4.6. The Supplier shall ensure that the Goods to be delivered shall be properly packaged and labelled by the Supplier in such manner as to enable them to reach their destination in good condition, taking into account the obligations under applicable law, in particular in the country of delivery, and the requirements specified by WBPS and/or the carrier mandated to transport the Goods. The Supplier shall at its own cost ensure the taking back, managing and recycling of the used packaging materials and/or waste that originates from the delivery of the Goods. The Supplier is liable towards WBPS for whatever obligation WBPS may have as a result of the managing and recycling of such packaging material and/or waste, at no extra cost to WBPS.
4.7. Before the Goods are shipped or transported, the Supplier shall notify WBPS in writing of any risky, fragile, temperature affected, toxic or hazardous materials that form part of the Goods to be delivered, together with any instructions, including, without being limited to a Material Safety Data Sheet (or similar international equivalent), that would be necessary to safely and properly use, handle, process, pack, store, transport and/or dispose of such materials.
4.8. Unless explicitly agreed otherwise, the Supplier shall be responsible for importing the delivered Goods into the UK, European Union and the country of destination and for fulfilling all related formalities of export, customs and import, including, without being limited to fulfilling all obligations in the framework of European Regulation 1907/2006 concerning the registration, evaluation, authorisation and restriction of chemicals (REACH), as well as following from the UK REACH regime, as implemented in the UK via the EU Withdrawal Act 2018 or any other national UK Acts. The import duties, taxes and other levies shall be fully borne by the Supplier.
4.9. The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which provides WBPS with all necessary information and documentation concerning the Goods, as required under applicable law, or as reasonably requested by WBPS, including, 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) in addition to information and documentation concerning transport, import and export, safety, origin, and traceability of the Goods.
4.10. WBPS shall be entitled to reject any deliverables that are not in full compliance with the terms and conditions of the Contract. Any acceptance of defective, late, or incomplete deliverables or any payment made in respect thereof, shall not constitute a waiver of any of WBPS’ rights and remedies, including without limitation its right to reject.
Clause 5 – Acceptance
5.1. Signature of the delivery documents, use of the delivered Goods or Services or payment of the respective invoice does not constitute acceptance of the delivered Goods or Services. Services are not to be deemed to be accepted by WBPS until satisfactory completion of any acceptance tests required by WBPS.
5.2. After complete delivery of the Goods or Services, WBPS will inspect the delivered Goods or Services within one (1) Business Day but only with respect to deviations in quantity and identity, apparent defects and obvious external damages suffered during storage or transport. Without prejudice of WPBS’ right to reject any or all Goods or Services, WBPS shall endeavour to inform the Supplier in writing of its discovery of deviations in quantity or identity, apparent defects, or obvious external damage, within five (5) Business Days following the delivery.
5.3. If WBPS, otherwise than intended in Clause 5.2, becomes aware that the delivered Goods or Services are not in conformity with the specifications of the purchase order or Contract Details, WBPS shall be entitled to inform the Supplier of the total acceptance, rejection, or acceptance of the part of the Goods or Services, without being bound by any delay. In any case, where Goods (whether or not inspected or tested) do not comply with the purchase order or Contract Details, WBPS may, without prejudice to any other right or remedy, reject them in whole or in part.
5.4. The Supplier shall replace, re-perform, or repair the non-accepted Goods or Services as if the non-conformity has manifested itself during the Warranty Period, in accordance with Clause 7.2 of these Terms and Conditions of Purchase.
5.5. In case of non-acceptance, the risk of damage to or loss of the Goods or deliverables shall remain with the Supplier. WBPS shall have no liability for the rejected Goods even if on their premises and the Supplier shall be liable for all storage costs and shall insure the relevant Goods itself. The possible costs that are incurred in relation to the picking up of the non-accepted Goods by the Supplier shall be fully borne by the Supplier. The Supplier must collect all rejected Goods within a reasonable time of rejection and if the Supplier has not picked-up the non-accepted Goods within thirty (30) days following the notification of non-acceptance by WBPS, WBPS shall be entitled to return to the Supplier at the Supplier’s risk and expense, charge for their storage, destroy or otherwise dispose of the Goods, at Supplier’s cost without liability.
5.6. As long as the Goods or Services are not supplied in accordance with the specifications of the Contract, WBPS is entitled to suspend its payment obligations towards the Supplier for the unfulfilled or disputed part of the Contract.
Clause 6 – Invoicing and payment
6.1. All invoices issued by the Supplier shall include:
i. The reference number of the purchase order or Contract Details
ii. The quantity of the Goods or Services that have been delivered, where applicable with indication of the number of packaging units
iii. The same itemised structure as the purchase order
iv. A reference to the documents of shipment or delivery (e.g. bill of lading)
v. Any other information required by WBPS
6.2. Invoices issued by the Supplier that are not in compliance with the obligations of this Clause, shall not be paid by WBPS. WBPS will not be held responsible for delays in payment caused by the Supplier’s failure to comply with invoicing instructions.
6.3. Invoices shall be sent to WBPS electronically via PurchaseLedger@wbpsltd.co.uk and shall be paid by WBPS
ninety (90) days following the end of the month in which WBPS receive the properly submitted and valid invoice, subject to the respective Goods or Services being properly delivered, rejection of the Goods and/or Services not being made by WBPS in whole or part and the invoice correctly reflecting the agreed price. Payment shall be made via wire transfer to the bank and the account nominated by the Supplier.
6.4. Upon late, no, or incomplete payment, the Supplier shall not be entitled to suspend or stop delivery of Goods or Services to WBPS.
6.5. WBPS is entitled to set off each amount owed by the Supplier to WBPS, under whatever agreement it may be and irrespective of whether this amount is contested or not, with an amount owed by WBPS to the Supplier and this without any prior notice.
6.6. If WBPS disputes an invoice (whether in whole or in part), WBPS shall pay the undisputed portion only on or before the due date for payment in accordance with clause 6.3, and promptly notify the Supplier in writing of the nature of the dispute as to the remainder, and the parties shall use commercially reasonable endeavours to resolve the disputed invoice in accordance with clause 18.10. Pending resolution of the dispute, the Supplier shall continue to provide the Goods and/or Services in accordance with the Contract.
6.7. If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party 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 will accrue each date at 2% a year above the Bank of England’s base rate from time to time. Where a payment is disputed in good faith in accordance with clause 6.6, interest is only payable after the dispute is resolved, on sums found or agreed to be due, from 30 days after the dispute is resolved until payment.
Clause 7 – Warranties
7.1. The Supplier explicitly warrants and represents that all delivered Goods or Services, (including, without limitation, all internal and external packaging, components or materials that are processed in the Goods):
i. Conform with the specifications of the Contract and with any other specifications, drawings, samples, or descriptions as notified to the Supplier by WBPS or as agreed in writing between the parties from time to time.
ii. Are fit for the purpose for which they have been purchased by WBPS or if not indicated by WBPS, expressly or by implication, then for the purpose that such type of Goods or Services is usually used.
iii. Are of a satisfactory quality and are free of any defect in design, workmanship, or materials.
iv. Respect all applicable local, national, and international legislation, regulations, standards, and guidelines, as well as the newest, prevailing industry standards relating to their sale or supply.
v. Conform with the strictest requirements regarding safety, health and protection of the environment and the maximum prescribed standards for the use of risky, fragile, temperature effected, toxic or hazardous materials and machines.
vi. Do not infringe the IPR or constitute an infringement of patent, design right, trademarks of third parties and are free of all other liens, restrictions, and claims of third parties and the Supplier shall pass the benefit of any additional warranties or guarantees secured from supplier in respect of the Goods.
vii. The Services will be performed by properly qualified, experienced and competent persons in good time with all reasonable care, skill and diligence to the best UK industry standards and deliverables to a similar standard and in accordance with any specifications, standards and timetables notified to the Supplier by WBPS or as agreed in writing between the parties from time to time.
7.2. The warranties mentioned in Clause 7.1 of these Terms and Conditions of Purchase are valid for a period of twenty-four (24) months following the acceptance (the “Warranty Period”). In case it is established during this Warranty Period that the Supplier has not complied with one of the warranties, the Supplier shall at its own cost ensure the replacement, re-performance or repair of the respective Goods and/or Services within a reasonable period of time following notification by WBPS. In case no replacement or repair or re-performance is carried out by WBPS within such reasonable period of time, or such replacement or repair or re-performance would not be duly executed, WBPS shall be entitled to, at its own discretion and without prejudice to any other remedies it may have, have any one or more of the following rights and remedies:
i. Terminate the Contract and all pending orders under the Contract with immediate effect, without prior judicial intervention and without owing any compensation or having any liability to the Supplier, by sending a notification hereof to the Supplier in writing. In such case and where applicable, the Supplier shall fully reimburse WBPS for the part of the price that has been paid for the non-conforming Goods or Services, without prejudice to any other claims that WBPS may have;
ii. Reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
iii. Repair or replace the Goods or repeat performance of the Services at the Supplier’s cost by WBPS approved contractors;
iv. Keep the non-conforming Goods or Services, provided that the Supplier repays WBPS forthwith the non- conformity corresponding part of the price that has been paid by WBPS for the non-conforming Goods or Services; and
v. To claim damages for any additional costs, loss or expenses incurred by WBPS arising from the Supplier’s failure to supply Goods and/or perform Services in accordance with this clause 7.
7.3. In case of repair, the abovementioned Warranty Period shall be suspended during the entire period of repair. In case of replacement or re-performance, a new warranty period of twenty-four (24) months shall start upon the moment of replacement or re-performance.
7.4. The Supplier warrants that it always applies and maintains quality assurance measures regarding the delivered Goods and/or Services. In this framework the Supplier shall use a quality management system that conforms with the DIN EN ISO 9001:2015 standard or with any other applicable or relevant quality standard, as the case may be. At WBPS’s first request, the Supplier shall provide WBPS with evidence that these quality assurance requirements have been met.
7.5. Upon delivery of Goods or Services on the WBPS designated location, the Supplier and its personnel and subcontractors are obliged to strictly respect the rules and guidelines applicable to that location regarding safety and health. The Supplier shall ensure that its personnel and subcontractors are aware of these rules and guidelines and follow regular trainings regarding safety and health. WBPS reserves the right to refuse access or to ask the Supplier, its personnel, or subcontractors to leave the premises immediately in case the rules and guidelines regarding safety and health are not respected. All additional costs that may be incurred as a result thereof shall be borne by the Supplier.
7.6. The Supplier engages itself to exercise due diligence and management controls to ensure compliance with safety, health and environmental requirements relating to the Goods and Services delivered. Only the Supplier shall be liable for any damage that would be brought to the environment as a result of use, handling, processing, transporting or storing of the Goods or performance of the Services. All warranties relating to the environment are valid for unlimited duration.
7.7. The Supplier explicitly warrants to have fulfilled and to continue to fulfil all obligations following from European Regulation 1907/2006 concerning the registration, evaluation, authorisation, and restriction of chemicals (REACH), as well as following from the UK REACH regime, as implemented in the UK via the EU Withdrawal Act 2018, The REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, or any other national UK Acts (“(UK) REACH”). Unless explicitly agreed otherwise, WBPS shall have no obligation under (UK) REACH and WBPS shall not be considered as the importer or the only representative of the Supplier under (UK) REACH. At first request of WBPS, the Supplier shall provide WBPS with all necessary information regarding the chemical composition of the Goods (substances, preparations, mixtures, alloys, Clauses, or goods), including all safety information and information concerning the registration or pre-registration of the Goods. The Supplier shall include any identified use notified by WBPS in writing, and that is reasonably acceptable, in the (UK) REACH registration. The Supplier shall immediately inform WBPS of substances of very high concern that would be part of the Goods and, where applicable, do all the necessary to obtain the necessary authorisations. The Supplier shall keep all information that could be necessary to fulfil the obligations under (UK) REACH for a period of at least ten (10) years following the date on which the Goods were last manufactured, imported or delivered by the Supplier.
7.8. The Supplier guarantees that in the framework of delivery of Goods and Services to WBPS, it shall only engage personnel or subcontractors that possess the necessary degree of professionalism, qualification, and experience. The Supplier shall be the only one to exercise authority and supervision with regards to the personnel it engages and is the only one responsible for compliance with all social rights obligations relating to such personnel.
7.9. In case of an infringement by the Supplier of any warranty mentioned in this Clause, the Supplier shall promptly inform WBPS thereof in writing.
7.10. The warranties mentioned in this Clause shall continue to exist, irrespective of any inspection, audit, acceptance or payment of the delivered Goods or Services by WBPS. Unless in case of prior written consent of WBPS, the Supplier cannot limit these warranties in any way. This Clause is without prejudice to the rights of WBPS in case of hidden defects and otherwise generally in law so that the above are not restrictive of the recovery of loss suffered by WBPS.
Clause 8 – Liability
8.1. Supplier shall fully indemnify and hold WBPS (its agents, employees, subsidiaries, holding company, associated companies and assigns) harmless against any and all loss (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation) damage, liability, expenses or cost (including legal and other professional fees and expenses), awarded against or incurred or paid by WBPS as a result of or in connection with:
i. any claim made against WBPS by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods and/or Services, to the extent that the defects in the Goods and/or Services are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
ii. any claim made against WBPS by a third party arising out of or in connection with the supply of the Goods and/or the Services, to the extent that the claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier;
iii. An infringement by the Supplier of the warranties described in Clause 7 of these Terms and Conditions of Purchase;
iv. A breach of data protection or confidentiality obligations;
v. An infringement by the Supplier of the rights of third parties, including, but without being limited to IPR arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of you, your employees, agents or subcontractors.
vi. any claims brought against WBPS by any employee or former employee of the Supplier under any employment legislation and any liabilities which WBPS incurs as a result of the performance of Services under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time).
8.2. The indemnification obligation is without prejudice and cumulative to the right of WBPS to make use of any other remedy it may have in accordance with these Terms and Conditions of Purchase, the Contract or applicable law.
8.3. Subject to clause 8.9, WBPS’ total aggregate liability whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this Contract shall not exceed the price payable by WBPS to the Supplier under the Contract in the twelve (12) months preceding the date on which the claim arose.
8.4. Subject to clause 8.9, WBPS shall not be liable for consequential or indirect loss, loss of profits or special losses.
8.5. Subject to clause 8.9, WBPS shall not be liable for any of the following (whether direct or indirect):
i. loss of profit
ii. loss of revenue
iii. loss of data
iv. loss of use
v. loss of production
vi. loss of contract
vii. loss of commercial opportunity
viii. loss of savings, discount, or rebate (whether actual or anticipated)
ix. harm to reputation or loss of goodwill; and
x. loss of business
8.6. Notwithstanding clauses 8.6 and 8.7, and without limiting WBPS’s entitlement to recover other types of loss, the parties agree that WBPS may recover the following from the Supplier as direct loss:
i. the cost of selecting, procuring, installing, and testing replacement Goods or Services
ii. wasted expenditure or unnecessary charges incurred by WBPS (including regulatory fines)
iii. liability to third parties (including customers); and
iv. the cost of rectifying lost or damaged data
8.7. Notwithstanding any other provision of the Contract, neither party’s liability shall be limited in any way in respect of the following:
i. death or personal injury caused by negligence;
ii. fraud or fraudulent misrepresentation or wilful misconduct; and
iii. any other losses which cannot be excluded or limited by applicable law.
Clause 9 – Force Majeure
9.1. A party cannot be held liable for any delay or non-execution of its obligations under these Terms and Conditions of Purchase or the Contract in as far as this delay or non-execution would be the result of unforeseeable circumstances over which this party reasonably does not have any control, including, without being limited to natural disasters, sabotage, fire, explosion, flood, pandemic, acts of government or war (hereinafter “Situation of Force Majeure”). The impossibility of the Supplier to perform as a result of insolvency, lack of financial means, changes in costs or availability of materials shall not be considered as a Situation of Force Majeure.
9.2. The party invoking a Situation of Force Majeure shall immediately inform the other party in writing about the nature and the expected impact of the Situation of Force Majeure and the party’s ability to perform its obligations under the Contract. The party invoking a Situation of Force Majeure shall use all reasonable endeavours to mitigate the effect of the Situation of Force Majeure on the performance of its obligations. For example, the performance of the obligations of the Party concerned may be suspended for the duration of the delay caused by the Situation of Force Majeure and the period of performance may be extended for an equal period without any penalty. As soon as the Situation of Force Majeure has been remedied, the party invoking the Situation of Force Majeure shall notify the other party and shall reassume its obligations under this Contract. The Supplier shall in any case give the highest priority to the orders of WBPS in case of the allocation of available capacity during or following the occurrence of a Situation of Force Majeure. Should a Situation of Force Majeure last for more than thirty (30) days, the non-affected party shall have the right to terminate the Contract upon written notice to the other party.
Clause 10 – Intellectual Property
10.1. All WBPS Background IPR shall remain vested in WBPS or its licensors and there shall be no assignment of any WBPS Background IPR to the Supplier. WBPS grants the Supplier a licence to use such WBPS Background IPR solely to the extent required for the Supplier’s performance of its obligations under the Contract.
10.2. Subject to clause 10.4, all IPR in any Goods, Deliverables or any materials which are created by or on behalf of the Supplier as a result of the provision of the Services and which are produced for, on behalf of or at the request of, the WBPS pursuant to these Terms including a purchase order or the Contract Details shall immediately vest in WBPS on creation. If by operation of law such IPR does not automatically vest in WBPS then the Supplier hereby assigns, or otherwise shall assign to WBPS (including by way of an assignment of future IPR), in each case at no cost to WBPS, with full title guarantee and free from all charges, liens, licences and other encumbrances all such IPR together with the right to sue for and obtain full and effective relief (including damages) in respect of any infringement of such IPR by a third party.
10.3. The Supplier shall obtain waivers of all moral rights in any of the Goods, Deliverables and any materials which are created by or on behalf of the Supplier as a result of the performance of this Contract to which any individual is now or may at any future time be entitled under the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
10.4. Where any Goods, Deliverables and any other materials which are otherwise created by or on behalf of the Supplier as a result of the performance of these Terms and Conditions of Purchase are supplied with or have embedded in them Supplier Background IPR then the Supplier shall retain ownership of such Supplier Background IPR, but grants to WBPS a non-exclusive, perpetual, irrevocable, royalty-free licence to use such Supplier Background IPR in any way whatsoever to facilitate and/or enable full use of the Goods, Deliverables or other materials and, for this purpose, to sub-license such Supplier Background IPR to third parties.
10.5. All logos, trade names or trade marks (the “Marks”) owned or used by WBPS in the course of its business are the property of WBPS or its licensors. WBPS reserves all IPR in relation to the use of such Marks. The Supplier may not use or permit the use of such Marks or any similar Marks without the prior written permission of WBPS.
10.6. The Supplier warrant that neither the Goods and/or Services, nor our use of them, will infringe any third party IPR and the Supplier shall at all times indemnify and keep indemnified WBPS and any affiliates against all actions, costs, claims, demands, expenses and liabilities arising from or incurred by reason of any infringement or alleged infringement of any third party’s IPR as a result of or in connection with the receipt, use or possession or the Goods or the Services by WBPS.
Clause 11 – Confidentiality
11.1. Each party shall not disclose the other party’s Confidential Information except as permitted by clause 11.2 or if the receiving party can show that the information:
i. Is publicly available at the moment of disclosure, without any confidentiality obligation being breached by the receiving party;
ii. Was already rightfully in the possession of or received by the receiving party at the moment the disclosing party disclosed it, without any confidentiality obligation being breached by the receiving party; or
iii. Was developed in an independent manner by the receiving party.
11.2. The receiving party shall use the Confidential Information only for the purpose of performing its obligations under the Contract and shall not communicate it to third parties, unless upon the disclosing party’s prior written consent. The receiving party will only disclose the Confidential Information to its employees, officers, representatives, subcontractors or advisers on a need to know basis and shall ensure that all these persons are bound by confidentiality obligations not less stringent than those contained in this Clause.
11.3. The confidentiality obligations mentioned in Clauses 11.1 and 11.2 are valid during the entire duration of the Contract and for a period of five (5) years following the end thereof.
11.4. If the receiving party is obliged by law or by the order of any court or regulatory authority to disclose Confidential Information, the receiving party will inform the disclosing party thereof immediately, will restrict disclosure to the minimum required and will clearly communicate that the disclosed information is of a confidential nature.
11.5. Confidential Information shall at all times remain the exclusive property of the disclosing party. At the disclosing party’s request, the receiving party shall return or irrevocably delete all of its Confidential Information.
Clause 12 – Data Protection
12.1. If the performance of the Contract would entail the processing of Personal Data by the Supplier on behalf of WBPS, such processing shall at all times happen in accordance with all relevant Data Protection Laws. If Personal Data will be processed, the Supplier shall act as a data processor and WBPS shall act as data controller. Where relevant, the parties shall conclude a separate Data Processing Agreement in which their respective rights and obligations in relation to such data processing are further detailed and pending such the provisions of this clause 12 and any privacy policy on the WBPS website shall apply. If a Data Processing Agreement is not being entered into, the relevant Schedule to the Contract Details will set out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of Personal Data and categories of Data Subject pursuant to this Contract.
12.2. The Supplier shall implement appropriate technical and organizational measures to protect the Personal Data against unauthorized disclosure of or unlawful processing of such Personal Data and against accidental or unlawful destruction, loss or damage to the Personal Data appropriate to the level of harm that might occur, having regard to the state of technological development and the cost of implementing any measures and to safeguard the rights of the Data Subject. The Supplier shall strictly limit access to the Personal Data to personnel and subcontractors on a need-to-know basis in the framework of the performance of the Contract and shall ensure they are obliged to keep the Personal Data confidential. In case of a Personal Data Breach, the Supplier must immediately notify WBPS thereof in writing and take all necessary measures to investigate and remedy the effects of such Personal Data Breach.
12.3. The Supplier shall only collect, process and store Personal Data on behalf of WBPS for the purpose indicated by WBPS and on WBPS’s documented instructions. The Supplier shall not collect, process, or store more data than necessary for the indicated purposes. The Supplier shall provide WBPS with all necessary assistance to allow WBPS to timely respond to requests by the Data Subject to exercise their rights of access, rectification, or erasure and in ensuring compliance with its obligations under the Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;.
12.4. The Supplier shall not transfer any Personal Data processed on behalf of WBPS outside of the United Kingdom without the prior written consent of WBPS and the Supplier shall ensure that it complies with its obligations under the Data Protection Laws by providing an adequate level of protection to any Personal Data that is transferred.
12.5. The Supplier shall maintain complete and accurate records and information to demonstrate its compliance with this Clause 12 and allow for audits by WBPS or WBPS’ designated auditor and immediately inform WBPS if, in the opinion of the Supplier, an instruction infringes the Data Protection Laws.
12.6. The Supplier shall not process or retain any Personal Data for longer than necessary for the purpose of the processing as indicated by WBPS. After the end of the data processing on behalf of WBPS, the Supplier shall, at the choice of WBPS, return all Personal Data and any copies thereof to WBPS or delete the Personal Data from its systems and confirm such deletion to WBPS in writing.
12.7. The Supplier shall not enlist any sub-processor without the prior written consent of WBPS. Any agreed sub-processors shall be agreed between the parties in writing and be bound to the Supplier through a written agreement containing not less stringent obligations for the sub-processor vis-à-vis the Supplier than the obligations contained in this Clause of the Supplier vis-à-vis WBPS.
12.8. Nothing in these Terms and Conditions of Purchase shall affect the statutory rights of a Data Subject.
Clause 13 – Termination
13.1. At all times WBPS has the right to terminate the Contract in writing, with respect of a notice period of thirty (30) days to the Supplier.
13.2. Either party may, without prejudice to its other rights or remedies, terminate the Contract with immediate effect by written notice to the other party if:
i. the other party commits a material breach (being a single event or a series of events which together amount to a material breach) of this Contract other than a default in respect of payment obligations and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of that party being notified in writing of the breach;
ii. the other party repeatedly breaches this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to this Contract;
iii. the other party encounters a Situation of Force Majeure which continues for a period of thirty (30) days; or
iv. the other party suffers any of the following events: (i) the passing of a resolution for winding up or a court of competent jurisdiction making an order for winding up or dissolution; (ii) the appointment of an administrator, receiver, administrative receiver; (iii) an encumbrancer taking possession of any assets; (iv) applying to court for, or obtaining, a moratorium under Part A1 of the Insolvency Act 1986; (v) being unable to pay debts within the meaning of section 123, Insolvency Act 1986; (vi) ceasing to carry on business for more than 30 days; (vii) or is subject to events or circumstances analogous to any of those in (i) – (vi) in any jurisdiction.
13.3. In case of early termination of the Contract, for whatever reason, the Supplier shall immediately cease all activities for WBPS and is entitled to refuse to accept any further Goods and/or Services not yet delivered. All Goods and Services that have been delivered or carried out by the Supplier to WBPS and accepted by WBPS in conformity with the specifications of the Contract shall be paid by WBPS, without any payment obligation in the event of termination being able to exceed the obligation WBPS would have had in absence of termination of the Contract. WBPS shall not be liable towards the Supplier, directly or on account of claims by Supplier’s subcontractors, for any other alleged or actual losses or costs. In case WBPS would already have paid for Goods and Services that have not yet been delivered at the moment of termination, the Supplier shall promptly reimburse WBPS for the price that has already been paid.
13.4. Upon termination, the Supplier shall, at the option of WBPS, promptly either return all Confidential Information, documents, samples, drawings, and Personal Data that it has received from WBPS to WBPS, or destroy such Confidential Information, documents, samples, drawings and Personal Data (and copies thereof) and confirm such destruction in writing to WBPS.
13.5. Each party’s further rights and obligations under this Contract will cease immediately upon the expiry or termination of this Contract, provided that the expiry or termination will not affect the accrued rights and obligations of the parties as at the date of expiry or termination.
13.6. Notwithstanding the termination of the Contract, for whatever reason, the provisions of the Contract intended to survive its termination shall remain in full force and effect after the termination. The provisions surviving termination shall include, without being limited to Clause 1 (Scope), Clause 2 (Order), Clause 4 (Delivery), Clause 5 (Acceptance), Clause 7 (Warranties), Clause 8 (Liability), Clause 10 (Intellectual Property) Clause 11 (Confidentiality), Clause 12 (Data Protection), Clause 13 (Termination),Clause 14 (Insurance), Clause 18 (General Provisions) and Clause 19 (Applicable Law & Jurisdiction) of these Terms and Conditions of Purchase.
Clause 14 – Insurance
14.1. The Supplier declares to have concluded all necessary insurances, including, without being limited to, an insurance for public liability, professional indemnity and product liability insurance, with a reputable insurance company, to adequately cover all liabilities that are inherent to and customary for exercising the type of activity in the domain in which the Supplier is active and any specific minimum cover notified by WBPS were required by its relevant customer and which are stated in the purchaser order or Contract Details. The Supplier shall ensure that these insurances remain valid at least for the entire term of the Contract, the Warranty Period and as to professional indemnity insurance for 6 years thereafter following the termination or expiry of this Contract.
14.2. The Supplier shall immediately notify WBPS in writing of any cancellation notice received from any insurer or of any material change in cover type or amount.
14.3. At first request and at the latest within thirty (30) days following such request, the Supplier shall provide WBPS with a copy of the insurance policies or insurance certificates together with evidence of payment of the last premium that evidence that the Supplier has fulfilled the requirements of Clause 14.1.
Clause 15 – Inspection and Audit
15.1. During the term of the Contract, WBPS or a third party appointed hereto by WBPS, has the right to enter the premises of the Supplier or the subcontractors of the Supplier, with the purpose of establishing whether the Supplier complies with its obligations under these Terms and Conditions of Purchase or the Contract. Such inspection or audit can only be performed during normal office hours and under the condition that prior written notice is given to the Supplier.
15.2. The Supplier shall fully cooperate with the inspection or audit. More in particular, the Supplier shall provide WBPS or a third party appointed hereto by WBPS with access to each location, installation, documentation or information that may be useful in the framework of the inspection or audit or that is reasonably requested by WBPS or the third party appointed by WBPS.
15.3. During the inspection or audit, WBPS or the third party appointed by WBPS, shall be entitled to take samples of the Goods to be delivered, irrespective of whether these Goods have already been completed or are still in the process of being manufactured, to verify whether these Goods fulfil the conditions of the Contract. However, such sampling does not relieve the Supplier from its obligation to test and inspect the quality of the Goods.
15.4. In case irregularities are established during the inspection or audit, the Supplier shall promptly take all necessary action to remedy such irregularities, if the case may be in accordance with the guidelines of WBPS or the third party appointed hereto by WBPS. The costs of the inspection or audit shall in such case be fully borne by the Supplier.
Clause 16 – Assignment or Subcontracting
16.1. The Supplier shall not assign, transfer, charge delegate, or deal in any other manner any of its rights or obligations under the Contract to a third party without the prior written consent of WBPS. Notwithstanding any assignment, delegation or subcontracting, the Supplier shall remain fully responsible for the Goods and Services delivered, including, without being limited to all related warranties. The Supplier shall not subcontract the performance of any of its obligations under these Terms without the prior written consent of WBPS. The Supplier shall ensure that none of its subcontractors subcontract their obligations. The Supplier shall remain fully responsible for the acts and omissions of its subcontractors as if such acts and omissions were its own, including compliance with these Terms and Conditions of Purchase and the Contract.
16.2. WBPS shall, at its own discretion, have the right to assign, transfer, charge, delegate, subcontract or deal in any other manner any of its rights or obligations under the Contract, including, without being limited to any of its affiliates or any other third party from time to time.
Clause 17 – Relationship between the parties
17.1. WBPS and the Supplier are independent contracting parties and no provision of these Terms and Conditions of Purchase, or the Contract can be interpreted as an agreement to constitute an undertaking, a joint venture, partnership or an association, or to make one party the agent or legal representative of the other party. These Terms and Conditions of Purchase do not grant either party an authorisation to engage in any obligation in name or on behalf of the other party.
17.2. The Supplier is solely responsible for carrying the costs and risks related to its activities, including, but not limited to social security expenses, taxes, and insurance premiums. WBPS shall have no responsibility towards the personnel or subcontractors of the Supplier.
Clause 18 – General Provisions
18.1. No failure or delay by a party to enforce its rights or remedies under these Terms and Conditions of Purchase or the Contract can be interpreted as a waiver by that party of its rights or remedies under these Terms and Conditions of Purchase or the Contract. Each waiver of rights must be explicit and in writing.
18.2. In case any provision of these Terms and Conditions of Purchase or the Contract, in whole or in part, is found to be invalid or unenforceable, this shall have no effect on the validity or enforceability of the other provisions of these Terms and Conditions of Purchase or the Contract. Both parties shall in such case replace the invalid or unenforceable provision(s) or the parts thereof, with new provision(s) that corresponds as closely as possible to the original intention of the parties.
18.3. The Supplier shall: (i) comply with all applicable laws, regulations, codes and guidance relating to anti-bribery and anti-corruption and have and shall maintain in place throughout the term of this Contract, and enforce where appropriate, its own policies and procedures to comply with the adequate procedures under the Bribery Act 2010.
18.4. In performing its obligations under the Contract, the Supplier shall ensure that it and any of its sub-contractors comply with all applicable anti–slavery and human trafficking laws, statutes, regulations and codes from time to time in force, including but not limited to the Modern Slavery Act 2015.
18.5. This Contract constitutes the entire agreement and understanding of the parties with respect to the subject matter of the Contract and supersedes any prior agreements or arrangements between the parties (oral or written) in relation to such subject matter. Each party acknowledges that: (a) upon entering into this Contract, it does not rely, and has not relied, upon any representation (whether negligent or innocent), statement or warranty made or agreed to by any person (whether a party to this Contract or not) except those expressly set out in this Contract; and (b) the only remedy available in respect of any misrepresentation or untrue statement made to it shall be a claim for damages for breach of contract under this Contract.
18.6. No variation, addition, alteration or substitution of these the Contract or these Terms and Conditions of Purchase shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
18.7. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18.8. Any notice or other communication given to a party under or in connection with this Contract shall be given in writing and addressed to that party at its registered office (if it is a company) or principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause.
18.9. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 18.8; if sent by pre-paid first class post or other next working day delivery service to the registered office, at 9.00 am on the second Business Day after posting; if sent by email, one Business Day after transmission; or if delivered by commercial courier, the notice will have been deemed to have been received on the date and at the time that the courier’s delivery receipt is signed.
18.10. A party shall not commence court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Contract unless it has complied with this clause:
i. A party claiming that a dispute has arisen in relation to this Contract shall notify and provide relevant details to the relevant representative of the other party (contained in the Contract Details or purchase order) of the dispute who shall attempt to resolve the dispute.
ii. If the parties’ representatives are unable to resolve the dispute within 21 days (or such longer period as agreed between the parties) from the date of the notice setting out the nature of the dispute under clause 18.10(i) then, such dispute shall be referred to WBPS’ and the Supplier’s respective Managing Directors.
18.11. In the event that the Dispute is not resolved by the process as set out in clause 18.10(i) and 18.10(ii), the parties shall attempt to then settle the dispute by mediation pursuant to clause 18.12 below.
18.12. In the event of a dispute arising out of or relating to this Contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the London Court of International Arbitration (LCIA) Mediation Rules in force as at the date of the relevant dispute, which Rules are deemed to be incorporated by reference into this clause.
18.13. If the dispute is not settled by mediation within 20 Business Days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the LCIA Rules in force as at the date of the relevant dispute, which Rules are deemed to be incorporated by reference into this clause. It is agreed that:
i. The language to be used in the mediation and in the arbitration shall be English;
ii. the tribunal shall consist of one arbitrator appointed in accordance with the LCIA Rules; and
iii. the seat, or legal place, of arbitration shall be London, UK.
Clause 19 – Applicable Law & Jurisdiction
19.1. The Contract between the parties, as well as these Terms and Conditions of Purchase, shall exclusively be governed by and interpreted in accordance with English law.
19.2. The parties irrevocably submit to the exclusive jurisdiction of the English courts to support and assist the arbitration process pursuant to clause 18.13, including if necessary the grant of interlocutory relief pending the outcome of that process.
