Standard terms of goods and services not for resale
- DEFINITIONS AND INTEPRETATION
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APPLICATION OF THIS AGREEMENT
2.1 Each and every obligation of the Supplier under this Agreement is owed to the Customer and each member of the Customer Group who may enforce the terms of this Agreement under the Contracts (Rights of Third Parties) Act 1999 and references to the Customer in the context of the Supplier's obligations shall be construed accordingly.
2.2 This Agreement may be varied only by written agreement which is signed by an authorised representative of each party. Unless expressly stated otherwise and agreed to in writing by an authorised representative of the Customer, any quotation, confirmation of order, delivery note or other standard document of the Supplier shall not expressly vary this Agreement.
2.3 The Supplier acknowledges and agrees that the Customer shall not be bound by any minimum purchase commitments in respect of the purchase of Goods and/or Services.
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COMMENCEMENT AND TERM
3.1 This Agreement shall commence on the Effective Date, and if applicable, shall continue for the term set out in the Agreement Schedule, unless terminated in accordance with the terms of this Agreement.
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PROVISION OF GOODS AND SERVICES
4.1 The Supplier shall provide the Goods and/or perform Services in accordance with the terms and conditions set out in this Agreement, and shall devote such time, attention and abilities to the provision of the Goods and/or performance of the Services as may be necessary for the provision or performance thereof.
4.2 The Supplier shall at all times perform the Services in accordance with good industry practice.
4.3 If the Supplier is unable to supply the Goods and/or perform the Services for any reason, it will immediately inform the Customer of this fact giving the reason and the likely duration of the inability, but this shall be without prejudice to any rights or remedies available to the Customer.
4.4 The parties agree that:
4.4.1 the Supplier shall provide the Services in accordance with all applicable timescales and shall achieve each Milestone by the applicable Milestone Date; and
4.4.2 if a Milestone is not achieved by the relevant Milestone Date, this shall be deemed a material breach incapable of remedy and the Customer shall be entitled to claim damages for loss and damage incurred in respect of any delay and/or terminate this Agreement in whole or in part.
4.5 The Supplier shall at all times comply with all reasonable requests and directions of the Customer and any other third party working with (and authorised by) the Customer and will take reasonable care to ensure that the provision of Goods and/or performance of the Services shall not interfere with the operations of the Customer, its employees or any other third party working with any member of the Customer.
4.6 If any member of The Co-operative Movement requires to be provided with goods and/or services similar to the Goods and/or Services by placing an Order, then the Supplier agrees to provide such Goods and/or Services on the same terms as those set out herein including at the same charges and in accordance with any agreed Service Levels. The limits of liability set out in clause 20 shall be deemed to apply to any Orders placed pursuant to this clause 4.6, but such Orders shall not be included in any calculation under clause 20.4.2.
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GOODS
5.1 The Supplier shall ensure that the Goods (and all other deliverables provided by the Supplier pursuant to this Agreement):
5.1.1 shall be of appropriate design, quality, material and workmanship and free from defect;
5.1.2 conform to the quantities, quality, standards, descriptions, stipulations, drawings, samples, patterns and specifications set out or referred to in the Specification;
5.1.3 are fit for any purpose held out by the Supplier or made known to it either expressly or by implication by the Customer;
5.1.4 comply with the Acceptance Criteria and continue to do so throughout the Warranty Period;
5.1.5 comply with all Relevant Laws relating to the manufacture, packaging, supply and sale of the Goods at the time when the same are supplied.
6.SERVICES
6.1 The Supplier shall:
6.1.1 ensure that the Services are performed with all due skill and care by people qualified and authorised to work in the United Kingdom, in accordance with best industry practice and are fit for the purpose held out by the Supplier or made known to it either expressly or by implication by the Customer;
6.1.2 obtain and maintain in force at all times all licenses, consents, permissions, authorisation and permits needed to perform the Services;
6.1.3 perform the Services in accordance with all standards, descriptions and requirements set out or referred to in the Specification;
6.1.4 allocate sufficient numbers of appropriately skilled and experienced personnel, and all necessary equipment, resources and facilities to perform the Services;
6.1.5 perform the Services in accordance with all Relevant Laws;
6.1.6 fully co-operate with the Customer in all matters relating to the performance of the Services;
6.1.7 comply (and shall ensure that all Supplier Personnel comply) with all the Customer’s Policies as notified to the Supplier from time to time, and shall notify the Customer as soon as it becomes aware of any breach of the same.
7.PERSONNEL
The Customer reserves the right to refuse to admit to, or remove from, any of the Customer’s Premises any Personnel whose admission or presence would, in the Customer's opinion (i) be undesirable or represent a threat to confidentiality or security; or (ii) be in breach of any rules and regulations governing the Customer's own staff. The Customer shall notify the Supplier of any such refusal. The exclusion of any such individual from such Customer Premises shall not relieve the Supplier from the performance of its obligations under this Agreement.
8.DELIVERY, RISK & TITLE
8.1 The Supplier shall deliver the Goods at its own cost on the date and to the place specified in the Agreement Schedule or on such other date or to such other location specified by the Customer.
8.2 If so requested by the Customer, Goods and/or Services shall be delivered by instalments.
8.3 Time of delivery of the Goods and/or performance of the Services shall be of the essence of this Agreement.
8.4 Each delivery of Goods shall be accompanied by a delivery note stating the number and date of the order to which it relates and details of the Goods included in the delivery, including the number of packages delivered and in the case of part delivery (where previously approved by the Customer), the number of outstanding packages to be delivered and agreed dates for delivery.
8.5 Goods delivered in excess of the quantities set out in the Agreement Schedule shall remain at the risk of the Supplier and shall be returnable at the Supplier’s expense. The Customer shall not be bound to pay for any such excess unless it agrees in writing to accept such excess.
8.6 Goods shall remain at the risk of the Supplier until actual delivery to the Customer including unloading and stacking.
8.7 Title to the Goods shall pass to the Customer on the earlier of actual delivery or payment for the Goods (in whole or in part). Title to the Goods shall pass to the Customer with full title guarantee and free from all encumbrances and other rights of whatever nature exercisable by any third party.
8.8 If the Customer makes any advance, part or progress payment in respect of Goods prior to delivery, the Supplier shall (i) keep the Goods in its possession, stored separately from all other goods in its possession, (ii) label the same as being the property of the Customer, and (iii) allow the Customer access to the Supplier's premises in order to take possession of the Goods on request.
8.9 The Goods shall be properly packed and secured in such a manner as to reach their destination in a good condition having regard to the nature of the Goods and the other circumstances of the case. Packaging material shall not be charged for and the Customer shall have no obligation to return the same to the Supplier.
8.10 The Supplier shall ensure that the Goods meet any applicable Acceptance Criteria. The Customer shall have a reasonable amount of time and in any event no less than 14 days to inspect and/or test the Goods following delivery. The Customer shall be entitled to reject the Goods (i) if they do not meet the Acceptance Criteria, or (ii) following acceptance, within a period of 14 days of discovery of any latent defect in the Goods. If there are no Acceptance Criteria, the Customer shall not be deemed to have accepted the Goods until it has had 14 days to inspect and/or test them following delivery. In this case, the Customer shall also have the right to reject the Goods as though they had not been accepted for 14 days after any latent defect in the Goods has become apparent.
9.CUSTOMER PROPERTY AND INTELLECTUAL PROPERTY RIGHTS
9.1 Customer Property shall remain the exclusive property of the Customer. Without prejudice to any other provision in this Agreement, the Supplier shall (a) use the Customer Property solely for the purpose of complying with its obligations under this Agreement and in accordance with the Customer's written instructions, (b) keep the Customer Property in its possession and maintain the same in good condition and (c) not dispose of any of the Customer Property without the prior written instruction of the Customer.
9.2 All IPR belonging to a party prior to the execution of this Agreement shall remain vested in that party.
9.3 All New IPR shall vest exclusively in the Customer unless agreed otherwise in writing.
9.4 The Supplier grants to the Customer a worldwide, royalty-free, non-exclusive, transferable, perpetual, irrevocable licence (including the right to grant sub- licences) to use and copy (including for back-up purposes in accordance with best industry practice) (i) any and all IPR (excluding New IPR assigned to the Customer) in the Goods, and (ii) any other IPR to the extent necessary to (a) receive or use the Services; (b) to enable the full benefit of ownership of the Goods, and/or (c) perform its obligations or exercise its right under this Agreement.
9.5 If any of the Goods and/or Services (or item used in the delivery thereof) is the subject of an infringement claim, the Supplier shall at the request of the Customer:
9.5.1 procure for the Customer the right to continue to use or receive the relevant Goods and/or Services in accordance with this Agreement; or
9.5.2 modify or substitute the relevant Goods and/or Services so that they are non-infringing, provided that any such modification or substitution shall not degrade the performance or quality of the affected item.
10.WARRANTIES
10.1 The Supplier warrants and represents to the Customer that:
10.1.1 it has and will at all times have the right to sell the Goods and/or perform the Services;
10.1.2 it has and will at all times have full authority to grant the licences granted by the Supplier under this Agreement;
10.1.3 the performance of its obligations under this Agreement and the Customer's receipt and use of the Services, any Intellectual Property Rights provided or made available, any Confidential Information disclosed to it by the Supplier, any of the Goods and the exercise of any rights granted under any licences granted by the Supplier to the Customer will not infringe any Intellectual Property Rights (or moral rights) or any other rights of any third party.
11.DATA PROTECTION
11.1 The Supplier shall at all times comply with DP Legislation (including the data protection principles therein) regardless of the owner of such data or media upon which it is stored.
11.2 Upon written request from the Customer at any time, whether during or after the term of this Agreement, the Supplier shall take or refrain from taking any action in relation to Personal Data which the Customer considers necessary or desirable to ensure the Customer complies with DP Legislation.
11.3 The Supplier shall implement appropriate technical and organisational measures to safeguard Personal Data against unlawful processing and against accidental loss, destruction, damage, alteration or disclosure of Personal Data, and only process Personal Data (a) for the purpose of providing Goods or Services (or both) to the Customer; and (b) in accordance with the Customer's instructions. The Supplier shall not process the Personal Data outside the UK without the prior written consent of the Customer. The Supplier shall ensure that it has adequate security programmes and procedures in place to ensure that unauthorised persons do not have access to any equipment used to process such data or on which any relevant software or data is stored.
11.4 The Supplier shall promptly notify the Customer if: (a) the subject of any Personal Data makes a written request to have access to Personal Data or any complaint or request relating to the Customer's obligations under DP Legislation; or (b) it becomes aware of any actual or potential loss, damage, destruction, or unauthorised processing or accidental disclosure of Personal Data.
12.AUDIT AND INSPECTION
12.1 The Supplier shall allow the Customer’s employees, officers, agents, consultants, sub-contractors and regulators to access its premises and/or records and information during normal business hours or, in the case of clause 12.4, at any time for the purposes of determining compliance with this Agreement and the Customer Policies from time to time. The Supplier shall co-operate fully with the Customer’s employees, officers, agents, consultants, sub-contractors and regulators (and shall procure access for the Customer to its Personnel as necessary) in relation to any reasonable request for information concerning such compliance which includes permitting copying of records and documents and taking such copies away.
12.2 The Customer relies on the skill and judgement of the Supplier in the provision of the Goods and/or Services. However, the Customer may (but shall not be obliged to), inspect and/or test any of the Goods and/or Services supplied or to be supplied to ensure conformity with this Agreement from time to time.
12.3 No testing or inspection carried out by the Customer shall diminish the obligations of the Supplier under this Agreement nor shall such action or results thereof constitute acceptance of the Goods and/or Services.
12.4 The Supplier agrees to co-operate fully with the Customer in any way required by the Customer and at any time to ensure the prevention of fraud or the commission of any criminal offence.
13.COMPUTER ACCESS
13.1 Where the Supplier gains access to the Customer computer systems the Supplier shall:
13.1.1 limit the access and use of the system to those parts and for such purposes as are strictly necessary for the proper performance of a Agreement;
13.1.2 not, and shall procure that its Personnel shall not, gain or attempt to gain access to any database or file without the Customer’s prior express written consent; and
13.1.3 comply and procure compliance of its Personnel with all security audit and other such procedures and requirements of the Customer from time to time in relation to such access.
14.CUSTOMER POLICIES
14.1 The Supplier shall comply and procure compliance by its Personnel with any and all of the Customer Policies.
14.2 Without prejudice to clause 14.1 the Supplier warrants and undertakes to work in good faith with the Customer and members of the Customer Group to explore, develop and promote sustainable product and service offerings.
15.CHARGES AND PAYMENT
15.1 The Charges shall be as set out in the Agreement Schedule and, unless otherwise specified in the Agreement Schedule, shall be exclusive of VAT, but inclusive of all other charges including expenses, delivery, applicable discounts, packaging, freight, carriage insurance, loading and off loading.
15.2 Where pursuant to the Agreement Schedule additional charges and/or expenses are payable, they shall become payable only in such amounts as have been previously approved in writing by the Customer, and in the case of expenses, have been incurred in accordance with the Customer's supplier expenses policy.
15.3 The Supplier shall invoice the Customer in accordance with the instructions in the Agreement Schedule, or, if no instructions are specified therein, upon acceptance of the Goods and/or completion of the Services. Invoices must show the number and date of the order. Where the Supplier is registered for VAT the invoice shall be a valid VAT invoice and VAT shall be shown as a separate item.
15.4 Unless otherwise agreed in writing, the Customer shall pay for the Goods and/or Services within 60 days of receipt of a valid VAT invoice. Time for payment shall not be of the essence to this Agreement.
15.5 Payment for Goods and/or Services is without prejudice to any claims or rights which the Customer may have against the Supplier and shall not amount to acceptance of the Goods and/or Services.
15.6 The Customer reserves the right to set off any amount owing to it from the Supplier howsoever arising against any sums payable by the Customer to the Supplier, and to withhold any payments to the extent that Goods or Services have not been supplied to the Customer's reasonable satisfaction.
15.7 The parties agree that the provisions of Late Payment of Commercial Debts (Interest) Act 1998 shall not be applicable to this Agreement and the parties further expressly agree that interest calculated from day to day at the rate per annum of two (2) per cent above the base rate of The Co-operative Bank p.l.c. in force from the date on which such payment was due until and including the date of actual payment (the “Agreed Interest”) shall be a substantial remedy in respect of any late payment of sums due under this Agreement.
15.8 Each party shall be entitled to receive Agreed Interest on any payment not made when properly due and payable pursuant to the terms of this Agreement. Interest shall not accrue or be payable on any monies or payment set-off pursuant to clause 15.6.
15.9 If the Customer disputes any sums set out in an invoice then it will notify the Supplier in writing before the due date for payment and the Supplier shall submit an invoice to the Customer for the undisputed balance of the invoice. The Customer and the Supplier shall meet as soon as reasonably possible after receipt of a written notice from the Customer under this clause to attempt to resolve the dispute.
16.VARIATION AND CANCELLATION
16.1 The specification and quantity of Goods or Services may be amended or cancelled without liability on the part of the Customer (save as provided at clause 16.2) at any time prior to the dispatch of Goods and/or performance of the Services by giving written notice to the Supplier.
16.2 If the Customer cancels or amends the specification or quantities in accordance with clause 16.1 above, the Customer shall pay the cost of labour and materials expended on work in progress up until the date of the cancellation notice (to the extent that such work has been carried out in accordance with any previously-agreed time scales and to the extent that the Supplier can evidence this expenditure).
16.3 The results of any such work in progress (including any deliverables or other material, whether complete or not) shall be delivered to the Customer by the Supplier within seven (7) days of such cancellation or amendment
17.TERMINATION
17.1 Termination of this Agreement shall be without prejudice to any rights or remedies which may have accrued as at termination.
17.2 Termination or expiry of this Agreement for any reason shall not affect the coming into force or the continuation in force of any provisions which is expressed or implied to come into force on or after such expiry or termination, or which is required to give effect to such expiry or termination. Without prejudice to the foregoing, clauses 2.1, 5.1, 6.1, 9, 10, 11, 12, 17, 19, 20, 21, 26 and 28 shall survive expiry or termination.
17.3 Either party may terminate this Agreement with immediate effect by giving prior written notice to the non-terminating party if a Force Majeure Event prevents the non-terminating party from performing its obligations under this Agreement for a period of longer than thirty (30) days.
17.4 The Customer may terminate this Agreement in whole or in part with immediate effect by giving written notice to the Supplier if:
17.4.1 the Supplier commits a material breach and, where the breach is capable of remedy, the Supplier fails to remedy the breach within the period specified in the written notice from the Customer requiring it to do so; or
17.4.2 the Supplier commits a series of persistent or minor breaches which, when taken together, are regarded by the Customer as equivalent to a material breach; or
17.4.3 continued association with the Supplier is likely to or may, in the opinion of the Customer, damage the business and/or the reputation of the Customer and/or any member of the Customer Group; or
17.4.4 the Supplier is affected by an Insolvency Event;
17.4.5 the Supplier undergoes a change in control (as defined by section 1124 of the Corporation Taxes Act 2010); or
17.4.6 the Supplier commits any breach of clause 14.2 (the Customer Policies).
17.5 The Customer shall be entitled to terminate this Agreement in whole or in part at any time and without reason, by giving written notice to the Supplier of not less than 30 days or such shorter period as is reasonable where the duration of the Services is less than 30 days.
17.6 On expiry or termination of this Agreement for any reason, the Supplier shall immediately (a) deliver to the Customer all materials, information, data and equipment belonging to or provided by the Customer to the Supplier for the purpose of this Agreement, together with all Confidential Information, and if the Supplier fails to do so, the Customer shall be entitled to enter the Supplier’s premises and take possession of any items that should have been returned to it; (b) vacate the Customer Premises (if any) where it is performing Services in connection with this Agreement; and (c) provide all such reasonable assistance to the Customer and any third party nominated by the Customer to enable the smooth and orderly transfer of the Services to the Customer or its nominated third party, including the transfer of any knowledge relevant for the continued provision of the Services.
18.THE CUSTOMER’S RIGHTS AND REMEDIES
18.1 In addition and without prejudice to any other rights or remedies available to the Customer, if any Goods and/or Services are not supplied in accordance with this Agreement or if the Supplier fails to comply with any term of this Agreement, including any applicable Milestones and Service Levels, whether or not the Goods and/or Services have been accepted by the Customer, the Customer may:
18.1.1 reject the Goods and/or Services in whole or part, in which case a full refund for the Goods and/or Services so rejected shall be made to the Customer by the Supplier and such rejected Goods and/or Services shall be removed from the Customer Premises within two (2) days of receipt of a written request to remove the same. Notwithstanding clause 8, rejected Goods remain at the Supplier’s risk. In the event of such rejected Goods not being removed as required above, the Customer may arrange for such removal at the cost of the Supplier; or
18.1.2 require the Supplier, at the Supplier’s expense, to remedy any defect in the Goods and/or Services or to supply replacement Goods and/or Services in accordance with this Agreement; or
18.1.3 refuse to accept any further provision of Goods and/or Services; or
18.1.4 obtain Goods and/or Services from a third party, the Supplier being responsible for any cost above that at which the Supplier would have supplied the Goods and/or Services; and/or\
18.1.5 claim damages.
19. INDEMNITY AND INSURANCE
19.1 The Supplier shall indemnify, keep indemnified and held harmless the Customer and all members of the Customer Group (each an “Indemnified Party”) from any and all Losses made against, incurred or suffered by any of them, and whether wholly or in part resulting directly or indirectly from, or connected in any way with any of the matters listed below whether or not such Losses were foreseeable at the date of entering this Agreement:
19.1.1 any alleged or actual infringement by an Indemnified Party of any IPR or any third party as a result of the Customer's (or the relevant Indemnified Party's) receipt of the Services or use of any Goods or IPR provided or otherwise made available to any Indemnified Party by the Supplier; and/or
19.1.2 any breach by the Supplier of its obligations under this Agreement in relation to Confidential Information or DP Legislation;
19.1.3 the wilful misconduct or wilful default of the Supplier or any of its Personnel;
19.1.4 any fraudulent or dishonest act or omission by the Supplier or its Personnel;
19.1.5 any death or personal injury arising from the act or omission of the Supplier or any of its Personnel;
19.1.6 any claim brought by a third party against any member of the Customer to the extent that such claim is, or is alleged to be, caused by or based on any default, act or omission of the Supplier or Personnel.
19.2 The Supplier shall provide all reasonable assistance to the Customer and/or its insurers for the purposes of dealing with any action, claim or matter to which clause 19.1 applies.
19.3 The Supplier shall, at all times, carry adequate insurance cover with a reputable insurer in respect of all risks for which it is prudent for the Supplier to insure against, having regard to the Supplier's possible liability to the Customer. The Supplier shall, on written request, supply a copy of the policy and premium receipt to the Customer.
20. LIABILITY
20.1 Nothing in this Agreement limits or excludes the liability of either party (i) in respect of any deceit, theft, fraud or fraudulent misrepresentation by it or its employees, and in the case of Supplier, by its Personnel; (ii) for death or personal injury caused by its negligence; (iii) under clause 19 (Indemnity and Insurance); (iv) for breach of any obligation as to title implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or (vi) to the extent such limitation or exclusion is not permitted by law.
20.2 Subject to clause 20.1, neither party shall be liable to the other for (i) any consequential or indirect loss or damage (including loss of profit); or (ii) any loss of profits, in each case whether arising from breach of contract, tort (including negligence), breach of statutory duty or otherwise.
20.3 Subject to clause 20.1, the total aggregate liability of the Customer and each other member of the Customer Group to the Supplier (in addition to payment of any amounts properly due) under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise howsoever, shall in no event exceed the aggregate amount which the Customer is obliged to pay the Supplier hereunder (excluding any amounts that are not quantifiable at the Effective Date) for the relevant Goods and/or Services.
20.4 The total aggregate liability of the Supplier to the Customer and each other member of the Customer Group under or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise howsoever:
20.4.1 for loss of or damage to the tangible, material property of the Customer (and/or or any other member of the Customer Group), shall not exceed £1,000,000; and
20.4.2 in respect of all other loss (other than that governed by clauses 20.1 and 20.4.1) shall not exceed the amount which is twice the total price paid and payable for the relevant Goods and/or Services under this Agreement.
21. CONFIDENTIALITY & NO ENDORSEMENT
21.1 Each party (the “Receiving Party”) shall treat and keep all Confidential Information (a) first disclosed to it by the other party, or (b) learnt, acquired or developed by the Receiving Party in connection with this Agreement, secret and confidential, and will not, without the other party's consent, disclose Confidential Information to any other person other than in accordance with this Agreement.
21.2 Unless otherwise agreed in writing, the Supplier shall (a) keep confidential the fact that it is supplying the Customer and the terms of such supply, and (b) not use any of the Customer or the Customer’s logo or business name in any promotional material.
21.3 The foregoing shall not apply to the extent that (a) the Receiving Party needs to have or disclose Confidential Information of the other party to any affiliate, sub-contractor, agent or employee of the Receiving Party in order to fulfil its obligations, exercise its rights under this Agreement or to receive the benefit of the Services, provided always that the Receiving Party shall procure that such person to whom the Confidential Information is disclosed keeps the Confidential Information secret and confidential; or (b) any Confidential Information of the Supplier is embodied in or otherwise incorporated into any Goods or Services; or (c) any Confidential Information is in the public domain at the Effective Date, or at a later date comes into the public domain, where such Confidential Information has not come into the public domain through a breach of this Agreement; or (d) any Confidential Information is required to be disclosed pursuant to any Relevant Law or regulatory authority.
21.4 This clause shall survive termination of this Agreement.
22. FORCE MAJEURE
22.1 Neither party shall have any liability or responsibility for failure to fulfil its obligations under this Agreement to the other so long as and to the extent only that such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.
22.2 A party claiming benefit under this clause 22 shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event, notify the other party of the nature and extent of such Force Majeure Event and unless and until this Agreement is terminated by reason of Force Majeure Event in accordance with clause 17.3, use all reasonable endeavours to resume performance under the relevant Agreement as soon as feasible.
23. ASSIGNMENT AND NOVATION
23.1 The Customer may assign, charge, transfer, sub-contract or otherwise deal in any way with any of its rights or obligations under this Agreement in whole or in part at any time and on more than one occasion to (a) any member of the Customer Group by giving the Supplier written notice; or (b) subject to clause 24 (Outsourcing), to any third party with the consent of the Supplier, such consent not to be unreasonably withheld or delayed, save that no such consent shall be required on any sale, in whole or part, of the business to which this Agreement relates.
23.2 The Supplier shall not assign, charge, transfer, sub-contract or otherwise deal with any of its rights or obligations under this Agreement without prior written consent from the Customer.
24. OUTSOURCING
24.1 For the purposes of this clause 24,
24.1.1 “Outsource Provider” means any person used by the Customer and/or any member of the Customer Group to provide Outsource Services to the Customer and/or any member of the Customer Group; and
24.1.2 “Outsource Service” means a service provided by an Outsource Provider which relates directly or indirectly to, or relies directly or indirectly on, the business of the Customer or any member of the Customer Group including, without limitation, the Services.
24.2 If at any time the Customer or any member of the Customer Group uses an Outsource Provider to provide Outsource Services then, notwithstanding anything in this Agreement to the contrary, the Customer may do any one or more of the following:
24.2.1 upon written notice to Supplier, assign or novate to the Outsource Provider, in whole or in part, the benefit subject to the burden of this Agreement;
24.2.2 permit the Outsource Provider in the performance of the Outsource Services to access, operate, and use any item supplied and to receive and use any service provided, under this Agreement;
24.2.3 otherwise permit the Outsource Provider, in its performance of the Outsource Services, to do anything that the Customer and/or any member of the Customer Group are entitled to do under this Agreement.
24.3 Upon the termination or expiry of Outsource Services the Customer shall be entitled to require the Outsource Provider to whom the benefit of this Agreement has been assigned or novated pursuant to clause 24.2 above, upon written notice to the Supplier, to assign or novate to the Customer, any member of the Customer Group or an alternative Outsource Provider, in whole or in part, the benefit subject to the burden of this Agreement.
25. COMPLIANCE WITH RELEVANT REQUIREMENTS
25.1 The Supplier shall and shall procure that its Personnel shall:
25.1.1 comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
25.1.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
25.1.3 without prejudice to clause 14.1, comply with all the Customer Policies concerning ethics, anti-bribery and/or anti-corruption as well as with any relevant industry code on anti-bribery, in each case as the Customer or the relevant industry body may update them from time to time (“Relevant Policies”).
25.1.4 have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 25.1.2, and will enforce them where appropriate;
25.1.5 immediately notify the Customer if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier (and the Supplier warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement);
25.1.6 ensure that all persons associated with the Supplier or other persons who are providing the Goods and/or performing the Services comply with this clause 25; and
25.1.7 within 3 months of the date of this Agreement, and annually thereafter, certify to the Customer in writing signed by an officer of the Supplier, compliance with this clause 25 by the Supplier and all persons associated with it and all other persons for whom the Supplier is responsible under clause 25.1.6. The Supplier shall provide such supporting evidence of compliance as the Customer may reasonably request.
25.2 Breach of this clause 25 shall be deemed a material breach incapable of remedy under clause 17.4.1.
25.3 The Supplier warrants that it is not entering into this Agreement with any knowledge that any money or other benefit has been, or will be, paid to any person working for or engaged by the Customer or that an agreement has been made to that effect, unless details of any such arrangement have been disclosed in writing to and acknowledged by the Customer before the date of this Agreement.
25.4 Notwithstanding any other provision of this Agreement, the Customer may exercise its rights of audit and inspection under clause 12 in respect of the Supplier's obligations in this clause
25.5 For the purpose of this clause 25, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 25 a person associated with the Supplier includes any sub-contractor of the Supplier.
26. THIRD PARTY RIGHTS
26.1 Without prejudice to clause 2, the Supplier acknowledges that the Customer enters into this Agreement on its own behalf and for the benefit of each member of the Customer Group. In this regard, the parties agree that:
26.1.1 all supplies, licences and other rights made or granted by the Supplier to the Customer may be held by the Customer for the benefit of any or all members of the Customer Group and shall be deemed to be made to each member of the Customer Group who utilises such supply or exercises such right; and
26.1.2 the obligations that the Supplier has to the Customer under this Agreement shall also be construed as obligations that the Supplier has to members of the Customer Group who utilise such supply or exercise such rights.
26.2 Other than as permitted by this clause 26, a person who is not a party to this Agreement is not entitled to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise. If a person who is not a party to this Agreement is stated to have the right to enforce any of its terms, the parties may rescind or vary this Agreement without the consent of that person.
27. PROVIDING SERVICES TO ACQUIRED AND DIVESTED ENTITIES
27.1 Subject to clause 27.3 below, upon the Customer’s request in relation to any reorganisation, divestment or acquisition by the Customer during the Term (a “Reorganisation”):
27.1.1 the Supplier shall provide such support as is reasonably required by the Customer in relation to the Reorganisation (including providing advice, information, assessments, transition planning, testing and migration support);
27.1.2 the Supplier shall, if required by the Customer provide the Services as they apply to any reorganised, divested or acquired entity, on the terms set out in this Agreement (including pricing);
27.1.3 the parties shall negotiate and agree in good faith such other terms as are necessary or reasonable to ensure that the Reorganisation does not have a negative effect on the provision of the Services and that the Reorganisation is implemented to the satisfaction of the Customer.
27.2 The Customer acknowledges that notwithstanding any Reorganisation pursuant to clause 27.1, where any divested entity or business continues to use the Services pursuant to clause 27.1.2 above, the Customer shall remain responsible for any breach of this Agreement by such divested entity or business and shall continue to be liable for any Charges in accordance with clause 15 until the earlier of:
27.2.1 the date on which the Supplier enters into a direct agreement with the divested entity or acquirer of a divested business;
27.2.2 the divested entity or business ceasing to use the Services;
27.2.3 any subsequent reorganisation, divestment or acquisition of the divested entity or business; and
27.2.4 twelve (12) months from the date of the Reorganisation (or such shorter period as may be agreed between the parties in writing).
27.3 The parties agree that if the Supplier and the divested entity or subsequent acquirer of a divested business are unable to execute a direct agreement within twelve (12) months from the date of the Reorganisation (or such shorter period as may be agreed between the parties in writing), then the Supplier shall stop providing the Services to the divested entity or business.
28. GENERAL
28.1 Notices: Any notice given under this Agreement shall be in writing served by hand, prepaid first class recorded delivery or first class registered post, marked for the attention of the person and sent to the address set out in the Agreement Schedule or if no address is specified to the relevant parties’ 16 registered office, and, in the case of the Customer, copied to General Counsel, Legal Department, The Co-operative Group, 1 Angel Square, Manchester, M60 0AG. Notices served by hand shall be deemed to have been received immediately if during business hours, and at the start of the next business hour if not. Notices sent by recorded delivery or post shall be deemed to have been received the second business day after posting. For the avoidance of doubt, notice given under this Agreement shall not be validly served if sent by email.
28.2 Waiver: A waiver of any right under this Agreement is only effective if it is in writing and it shall apply only to the party to whom the waiver is addressed and the circumstances for which it is given.
28.3 Cumulative Rights: The rights and remedies of the parties in connection with this Agreement are cumulative and, except as expressly stated in this Agreement, are not exclusive of and may be exercised without prejudice to any other rights or remedies provided in this Agreement, by law, equity or otherwise.
28.4 Further Assurance: Each party shall do and execute, or arrange and procure for the doing and executing of, any act and/or document reasonably requested of it by any other party to implement and give full effect to the terms of this Agreement.
28.5 No Partnership or Agency: Nothing in this Agreement shall create or be deemed to create a partnership, joint venture or principal-agent relationship between the Supplier and the Customer and neither party shall have authority to act in the name of or bind the other in any way.
28.6 Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable then the remaining provisions shall remain in full force and effect.
28.7 Entire Agreement: This Agreement constitutes the entire agreement and understanding of the parties, and supersedes all previous agreements and understandings between the parties in relation to the subject matter of this Agreement. In entering into this Agreement, the Supplier has not relied on any statement, representation, warranty, understanding, promise or assurance of any person, other than as expressly set out in this Agreement. The Supplier waives all rights and remedies which, but for this clause 28.7, it might otherwise have had in relation to any of the foregoing. Nothing in this clause shall limit or exclude any liability for fraud, fraudulent misrepresentation or fraudulent misstatement.
28.8 Governing Law and Jurisdiction: This Agreement and any non-contractual obligations arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of England and Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of England and Wales to settle any claim or dispute that arises from or in connection with this Agreement or its subject mattter.