Supply of Goods Agreement

1 Definitions and interpretation

1.1 In this Agreement:

Actual Spend	has the meaning given in clause 4.2;
Affiliate	means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity;
Bribery Laws	means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments, and regulations in relation to bribery or corruption and any similar or equivalent legislation in any other relevant jurisdiction.
Business Day	means a day other than a Saturday, Sunday or bank or public holiday in England;
Confidential Information	has the meaning given in clause 18;
Control	means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the management of the company and Controls and Controlled shall be interpreted accordingly OR has the meaning given in the Corporation Tax Act 2010, s 1124 and Controls and Controlled shall be interpreted accordingly;
Delivery	means the time at which Goods are deemed to be delivered to the Customer under clause 7.2;
Delivery Location   Effective Date	means the location specified in an Order to which the Supplier shall deliver, or procure the Delivery of, Goods; means the date of signature of the Order
Force Majeure	means an event or sequence of events as detailed in clause 22, beyond a party’s reasonable control preventing or delaying it from performing its obligations under this Agreement, save that an inability to pay is not a Force Majeure event;
Goods	means the goods supplied to the Customer by the Supplier pursuant to an Order;
Order	has the meaning given in clause 5.1;
Order Commitment	has the meaning given in clause 4.1;
Price	means the price of any of the Goods determined in accordance with clause 10 and Prices shall be interpreted accordingly;
Representatives	has the meaning given in clause 16.2.1;
Specification	means the description of the Goods set out in the Order;
Term	has the meaning given in clause 2.1;
VAT	means value added tax, as defined by the Value Added Tax Act 1994; and

1.2 In this Agreement:

1.2.1 a reference to a ‘party’ includes that party’s personal representatives, successors and permitted assigns;

1.2.2 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;

1.2.3  a reference to a gender includes each other gender;

1.2.4  words in the singular include the plural and vice versa;

1.2.5 any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition, or description preceding those words;

1.2.6 the table of contents, background section and any clause, schedule or other headings in this Agreement are included for convenience only and shall have no effect on the interpretation of this Agreement; and

2 Supply of goods

2.1 This Agreement commences on the Effective Date and shall continue until the Goods have been delivered and accepted by the Customer in writing, when it shall terminate automatically unless terminated earlier in accordance with clause 15 (the Term).

2.2 During the Term, the Supplier agrees to supply, and the Customer agrees to purchase, Goods on the terms set out in this Agreement. The procedure for ordering Goods is set out in clause 5.

2.3 The Goods to be supplied are specified in the Order.

2.4 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

2.5 The Supplier warrants that it will only supply Goods with a minimum 12 (Twelve) months manufacturer’s warranty.

3 Exclusivity

3.1 Nothing in this Agreement shall restrict the Supplier from supplying Goods (or any other products) to other customers.

4 Order commitment

4.1 In the event that the total Price of Goods purchased by the Customer in respect of any Contract Year during the Term (the Actual Spend) is less than the Order Commitment in force for that Contract Year, the Supplier may:

4.1.1 require the Customer to pay the difference between the Order Commitment and the Actual Spend in accordance with the provisions of clause 10; and/or

4.1.2 terminate this Agreement in accordance with clause 15.2.1.

4.2 The provisions of clause 4.2 shall not apply to the extent that the Customer does not meet the Order Commitment as a direct result of:

4.2.1 the Supplier failing or choosing not to supply the Customer with any Goods ordered in accordance with the provisions of this Agreement;

4.2.2 the Supplier’s breach of contract; or

4.2.3 a Force Majeure event.

5 Orders

5.1 The Supplier may provide the Customer with a Sales Order form for signature (an Order).

5.2 An Order, signed by the Customer, shall constitute an offer by the Customer to purchase the specified Goods on the terms of this Agreement.

5.3 The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for thirty (30) Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn OR until withdrawn by the Customer giving notice to the Supplier after the expiry of thirty (30) Business Days from the date on which the Customer submitted the Order.

5.4 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Goods shall arise, until the earlier of:

5.4.1 the Supplier’s written acceptance of the Order; or

5.4.2 the Supplier dispatching the Goods or notifying the Customer that they are available for collection (as the case may be).

5.5 Rejection by the Supplier of an Order, including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.

5.6 Any terms and conditions of the Customer included or referred to in the Order, or any proposed variation to this Agreement set out in the Order, shall not be binding on the Supplier.

5.7 The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Goods and are incapable of being accepted by the Customer.

5.8 Marketing and other promotional material relating to the Goods are illustrative only and do not form part of this Agreement. The Customer agrees that, in submitting an Order, it has not relied on any representations or statements by the Supplier other than those expressly set out in this Agreement.

6 Delivery

6.1 Each Order shall specify whether the Goods are to be:

6.1.1 delivered by the Supplier, or by a carrier appointed by the Supplier, to the Delivery Location on the date(s) specified in the Order; or

6.1.2 made available for collection by the Customer at the Supplier’s, or carrier’s, premises set out in the Order (as the case may be). The Customer shall collect the Goods within the period specified in the Order.

6.2 The Goods shall be deemed delivered:

6.2.1 if delivered by the Supplier under clause 6.1.1, on completion of unloading of the Goods at the Delivery Location; or

6.2.2 if delivered by a carrier under clause 6.1.1, on Delivery of the Goods by the Supplier to the carrier; or

6.2.3 if collected by the Customer under clause 6.1.2, when the Supplier makes the Goods available for collection at the Supplier’s, or carrier’s, premises (as the case may be).

6.3 The Customer shall not be entitled to reject any Delivery of Goods on the basis that an incorrect volume of Goods has been supplied provided the volumes are within the tolerances (if any) set out in the Order.

6.4 The Goods may be delivered by instalments (if specified in the Order). Any delay in Delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

6.5 Delivery of the Goods shall be accompanied by a Delivery note stating:

6.5.1 the date of the Order;

6.5.2 the product numbers, type, and quantity of Goods in the consignment; and

6.5.3 any special handling instructions.

6.6 Time of Delivery is not of the essence. The Supplier shall use its reasonable endeavours to meet Delivery dates, but such dates are approximate only.

6.7 The Supplier shall not be liable for any delay in, or failure of Delivery caused by:

6.7.1 the Customer’s failure to: (i) make the Delivery Location available, (ii) prepare the Delivery Locationin accordance with the Supplier’s instructions OR as required for Deliveryand installation of the Goods or (iii) provide the Supplier with adequate instructions for Deliveryand installationor otherwise relating to the Goods;

6.7.2 the Customer’s failure to collect the Goods from the Supplier’s premises; or

6.7.3 an event of Force Majeure.

6.8 If the Customer fails to accept Delivery of the Goods the Supplier shall store and insure the Goods pending Delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.

6.9 If the last day of the period for Delivery or collection of the Goods, the Customer has not taken Delivery of or collected them, the Supplier may resell or otherwise dispose of the Goods. The Supplier shall:

6.9.1 deduct reasonable storage charges and costs of resale.

6.9.2 account to the Customer for any excess of the resale price over or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Goods.

7 Warranty

7.1 The only warranties available to the Customer are those provided by third party manufacturers of the Goods supplied.

8 Risk

Risk in the Goods shall pass to the Customer on Delivery.

9 Title

9.1 Title to the Goods shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Goods.

9.2 Until title to the Goods has passed to the Customer, the Customer shall:

9.2.1 hold the Goods as bailee for the Supplier;

9.2.2 store the Goods separately from all other material in the Customer’s possession;

9.2.3 take all reasonable care of the Goods and keep them in the condition in which they were delivered;

9.2.4 insure the Goods from the date of Delivery: (i) with a reputable insurer (ii) against all risks (iii) for an amount at least equal to their Price (iv) noting the Supplier’s interest on the policy;

9.2.5 ensure that the Goods are clearly identifiable as belonging to the Supplier;

9.2.6 not remove or alter any mark on or packaging of the Goods;

9.2.7 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 15.2.1 to 15.2.3 or 15.4.1 to 15.4.14; and

9.2.8 on reasonable notice permit the Supplier to inspect the Goods during the Customer’s normal business hours and provide the Supplier with such information concerning the Goods as the Supplier may request from time to time.

9.3 Notwithstanding clause 9.2, the Customer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 15.2.1 to 15.2.3 or 15.4.1 to 15.4.14 has occurred or is likely to occur.

9.4 If the Customer resells the Goods in accordance with clause 9.3, title to the Goods shall pass to the Customer immediately prior to the resale.

9.5 If, at any time before title to the Goods has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 15.2.1 to 15.2.3 or 15.4.1 to 15.4.14, the Supplier may:

9.5.1 require the Customer, at the Customer’s expense to re-deliver the Goods to the Supplier; and

9.5.2 if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.

10 Price

10.1 The Prices payable by the Customer in respect of any Order for Goods are contained in the Order and may be increased by the Supplier in accordance with clauses 10.4 and 10.5.

10.2 The Prices are exclusive of VAT.

10.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.

11 Payment

11.1 The Supplier may issue its invoice for the Goods at any time following acceptance of the Order.

11.2 The Customer shall pay all invoices:

11.2.1 in full without deduction or set-off, in cleared funds within thirty ( 30 ) days of the date of each invoice; and

11.2.2 to the bank account nominated by the Supplier.

11.3 Time of payment is of the essence. Where sums due under this Agreement are not paid in full by the due date:

11.3.1 If the Fees or any other sums payable to the Supplier hereunder are not paid in full by the due date, the Supplier shall, without prejudice to any other rights or remedies to which it may be entitled whether hereunder or at law, claim interest pursuant to the Late Payments of Commercial Debts (Interest) Act 1998 after as well as before judgement.

12 Credit limit

The Supplier may set and vary credit limits from time to time and withhold all further supplies if the Customer exceeds such credit limit.

13 Limitation of liability

13.1 The extent of the parties’ liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.

13.2 Subject to clauses 13.5 and 13.6, the total liability of the Supplier shall not exceed the sum of the value of the Goods supplied.

13.3 Subject to clauses 13.5 and 13.6, neither party shall be liable for consequential, indirect or special losses.

13.4 Subject to clauses 13.5 and 13.6, the Supplier shall not be liable for any of the following (whether direct or indirect):

13.4.1 loss of profit;

13.4.2 loss of revenue;

13.4.3 loss or corruption of data;

13.4.4 loss or corruption of software or systems;

13.4.5 loss or damage to equipment;

13.4.6 loss of use;

13.4.7 loss of production;

13.4.8 loss of contract;

13.4.9 loss of commercial opportunity;

13.4.10 loss of savings, discount, or rebate (whether actual or anticipated);

13.4.11 harm to reputation or loss of goodwill; and/or

13.4.12 wasted expenditure.

13.5 Notwithstanding any other provision of this Agreement, the liability of the Supplier shall not be limited in any way in respect of the following:

13.5.1 death or personal injury caused by negligence;

13.5.2 fraud or fraudulent misrepresentation;

13.5.3 breach of any obligation as to title implied by:

(a) section 12 of the Sale of Goods Act 1979;

(b) section 2 of the Supply of Goods and Services Act 1982; or

(c) section 8 of the Supply of Goods (Implied Terms) Act 1973;

13.5.4 any other losses which cannot be excluded or limited by applicable law;

14 Insurance

14.1 The Supplier shall put in place and maintain the following insurance for the duration of this Agreement:

14.1.1 public liability insurance for not less than £5m respect of each claim; and

14.1.2 product liability insurance for not less than £5m in respect of each claim.

14.2 At the Customer’s request, the Supplier shall supply copies of the certificates of insurance.

15 Termination

15.1 This Agreement may be terminated by the Supplier giving not less than one month’s notice in writing to the Customer.

15.2 Either party may terminate this Agreement at any time by giving notice in writing to the other party if:

15.2.1 the other party commits a material breach of this Agreement, and such breach is not remediable;

15.2.2 the other party commits a material breach of this Agreement which is not remedied within fourteen (14) days of receiving written notice of such breach;

15.2.3 any consent, licence or authorisation held by the other party is revoked or modified such that the other party is no longer able to comply with its obligations under this Agreement or receive any benefit to which it is entitled.

15.3 Without prejudice to any other rights that it may have, the Supplier may terminate this Agreement immediately on written notice to the Customer if the Customer has failed to pay any amount due under this Agreement on the due date and such amount remains unpaid 28Business Days after the Customer has received a written notification from the Supplier that the payment is overdue.

15.4 Either party may terminate this Agreement at any time by giving notice in writing to the other party if that other party:

15.4.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;

15.4.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the non-defaulting party reasonably believes that to be the case;

15.4.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;

15.4.4 becomes subject to a moratorium under Part A1 of the Insolvency Act 1986;

15.4.5 becomes subject to a restructuring plan under Part 26A of the Companies Act 2006;

15.4.6 becomes subject to a scheme of arrangement under Part 26 of the Companies Act 2006;

15.4.7 has a receiver, manager, administrator, or administrative receiver appointed over all or any part of its undertaking, assets, or income;

15.4.8 has a resolution passed for its winding up;

15.4.9 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;

15.4.10 is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within seven (7) days of that procedure being commenced;

15.4.11 has a freezing order made against it;

15.4.12 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items;

15.4.13 is subject to any events or circumstances analogous to those in clauses 15.4.1 to 15.4.12 in any jurisdiction.

15.5 The right of a party to terminate the Agreement pursuant to clause 15.4 shall not apply to the extent that the relevant procedure is entered into for the purpose of amalgamation, reconstruction or merger (where applicable) where the amalgamated, reconstructed or merged party agrees to adhere to this Agreement.

15.6 The Supplier may terminate this Agreement at any time by giving not less than one (1) calendar month’s notice in writing to the Customer if the Customer undergoes a change of Controlor if it is realistically anticipated that the Customer shall undergo a change of Control within two (2) calendar months.

15.7 On termination of this Agreement for any reason:

15.7.1 the Customer shall immediately pay all outstanding invoices of the Supplier;

15.7.2 the Supplier shall promptly invoice the Customer for all Goods delivered but not yet invoiced and payment for such invoices shall be due immediately on receipt by the Customer;

15.7.3 the Customer shall within seven (7) Business Days return any materials of the Supplier then in its possession or control; if it fails to do so, the Supplier may enter any premises owned by or under the control of the Customer and take possession of them; and

15.7.4 the accrued rights and liabilities of the parties (including any rights in relation to breaches of contract) shall not be affected.

15.8 The following clauses of this Agreement shall survive termination, howsoever caused:

15.8.1 clause 13(limitation of liability);

15.8.2 clause 15 (termination);

15.8.3 clause 16 (confidential information);

15.8.4 clause 18(dispute resolution);

15.8.5 clause 20(notices);

15.8.6 clause 29 (third party rights); and

15.8.7 clauses 30 and 31 (governing law and jurisdiction)

together with any other provision of this Agreement which expressly or by implication is intended to survive termination.

16 Confidential information

16.1 Each party undertakes that it shall keep any information that is confidential in nature concerning the other party and its Affiliates including, without limitation, any details of its business, affairs, customers, clients, suppliers, plans or strategy (Confidential Information) confidential and that it shall not use or disclose the other party’s Confidential Information to any person, except as permitted by clause 16.2.

16.2 A party may:

16.2.1 disclose any Confidential Information to any of its employees, officers, representatives or advisers (Representatives) who need to know the relevant Confidential Information for the purposes of the performance of any obligations under this Agreement, provided that such party must ensure that each of its Representatives to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause 16 as if it were a party;

16.2.2 disclose any Confidential Information as may be required by law, any court, any governmental, regulatory, or supervisory authority (including, without limitation, any securities exchange) or any other authority of competent jurisdiction to be disclosed; and

16.2.3 use Confidential Information only to perform any obligations under this Agreement.

16.3 Each party recognises that any breach or threatened breach of this clause 16 may cause irreparable harm for which damages may not be an adequate remedy. Accordingly, in addition to any other remedies and damages, the parties agree that the non-defaulting party may be entitled to the remedies of specific performance, injunction, and other equitable relief without proof of special damages.

16.4 This clause 16 shall bind the parties during the Termand for a period of three (3) years following termination of this Agreement.

17 Anti-bribery

17.1 For the purposes of this clause 17 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.

17.2 The Customer shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that:

17.2.1 all of the Customer’s personnel;

17.2.2 all others associated with the Customer; and

17.2.3 all of the Customer’s subcontractors;

involved in the performance of this Agreement so comply.

17.3 Without limitation to clause 17.2, the Customer shall not make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, either in the United Kingdom or elsewhere, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

17.4 The Customer shall immediately notify the Supplier as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 17 (Anti-bribery).

17.5 Any breach of this clause 17 by the Customer shall be deemed a material breach of this Agreement that is not remediable and shall entitle the Supplier to immediately terminate this Agreement by notice under clause 15.2.

18 Dispute resolution

18.1 If any dispute arises between the parties out of or in connection with this Agreement, the matter shall be referred to senior representatives of each party who shall use their reasonable endeavours to resolve it.

18.2 If the dispute is not resolved within fourteen (14 days) of the referral being made the partiesmay resolve the matter through mediation.

18.3 Until the parties have completed the steps referred to in clauses 18.1 and 18.2 and have failed to resolve the dispute, neither party shall commence formal legal proceedings or arbitration except that either party may at any time seek urgent interim relief.

19 Entire agreement

19.1 The parties agree that this Agreement and any documents entered into pursuant to it constitutes the entire agreement between them for the supply of Goods, and supersedes all previous agreements, (only in relation to the supply of Goods, not cloud software or consultancy services) understandings and arrangements between them, whether in writing or oral in respect of its subject matter.

19.2 Each party acknowledges that it has not entered into this Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this Agreement except in the case of fraudulent misrepresentation. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in this Agreement.

20 Notices

20.1 Any notice required or authorised to be given hereunder shall be given in writing and served personally or sent by letter to the parties at their Registered Address or to such other addresses as may from time to time be notified to the other party hereto in writing for this purpose. Any notice served personally shall be deemed to have been given upon such service. Any notice sent by post shall be deemed to have been served two (2) days after the same shall have been posted.

20.2 This clause does not apply to notices given in legal proceedings or arbitration.

20.3 A notice given under this Agreement is not validly served if sent by email.

21 Announcements

No announcement or other public disclosure concerning this Agreement or any of the matters contained in it shall be made by, or on behalf of, a party without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed), except as required by law, any court, any governmental, regulatory, or supervisory authority or any other authority of competent jurisdiction.

22 Force majeure

The Parties shall have no liability to each other under or related to this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, including, without limitation, acts of God, Governmental actions, war or national emergency, acts of terrorism, protests, riot , civil commotion, fire, explosion, extreme weather conditions, floods, epidemic, pandemic, lock outs, strikes or other labour disputes ( whether or not relating to either party`s workforce) or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

23 Variation

No variation of this Agreement shall be valid or effective unless it is in writing, refers to this Agreement and is duly signed or executed by, or on behalf of, each party.

24 Assignment

24.1 The Customer may not assign, subcontract, or encumber any right or obligation under this Agreement, in whole or in part, without the Supplier’s prior written consent, such consent not to be unreasonably withheld or delayed.

24.2 The Customer may perform any of its obligations and exercise any of its rights granted under this Agreement through any Affiliate, provided that it gives the Supplier prior written notice including the identity of the relevant Affiliate. The Customer acknowledges and agrees that any act or omission of its Affiliate in relation to the Customer’s rights or obligations under this Agreement shall be deemed to be an act or omission of the Customer itself.

25 Set off

Each party must pay all sums that it owes to the other party under this Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

26 No partnership or agency

Nothing in this Agreement constitutes, or shall be deemed to constitute, a partnership between the parties nor make any party the agent of another party.

27 Severance

If any provision of this Agreement (or part of any provision) is or becomes illegal, invalid, or unenforceable, the legality, validity, and enforceability of any other provision of this Agreement shall not be affected.

28 Waiver

No failure, delay, or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power, or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power, or remedy.

29 Third party rights

29.1 No one other than a party to this Agreement, their successors and permitted assignees shall have any right to enforce any of its provisions.

29.2 The Affiliates of the Supplier shall have the right to enforce the provisions of this Agreement.

30 Governing law

This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

31 Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, this Agreement, its subject matter or formation (including non-contractual disputes or claims).