Terms and Conditions for the Supply of Goods and/or services
1. General Definitions
1.1 In this Sub-Contract the following words and expressions shall, except where the context otherwise requires, be deemed to have the following meanings:
means Firstco’s client as identified in the Order;
has the meaning given in clause 4.4 (Completion and Delay);
has the meaning given in clause 4.5 (Completion and Delay);
means these contract terms and conditions for the purchase of those goods and services as specified in the Order;
means the place identified as such on the face of the Order;
has the meaning given in clause 3.3 (Delivery and Delay);
means Firstco Limited whose registered address is at 4 Cellbridge Mews, London, W2 6EU (Company No. 03574901);
means those goods to be delivered to Firstco as described in the Order;
means any such period after delivery of the Goods and/or Services, specified in the Order or agreed by the parties;
means the contract entered into, or to be entered into, between Firstco and the Client for the provision of the Main Supplies;
means the services and/or goods to be provided by Firstco to the Client as identified in the Order;
means the purchase order to which these Conditions relate;
means the total price specified in the Order or such other sum as shall become payable in accordance with this Sub-Contract;
means the project as identified in the Order;
means those services to be supplied to Firstco as described in the Order;
means all laws (including any guidance issued under statutory authority and all applicable European Community regulations, directions and other legislation), statutes, treaties, ordinances, judgments, decrees, injunctions, writs, orders, codes of practice, rules, regulations, permissions and interpretations of any court, arbitrator, governmental body, agency or authority applicable to the Goods and/or Services and all planning permissions, consents, licences, permissions and approvals whether of a public or private nature which shall be necessary for the supplying of the Goods and/or the carrying out of the Services;
means the sub-contract for supply of the Goods and/or Services to Firstco incorporating the Order, any information/documents stated in the Order, and these Conditions;
has the meaning given in clause 6.2 (Variations); and;
“You” or “Your”
means the supplier organisation identified as such in the Order;
1.2. In this Sub-Contract:
1.2.1. except where the context otherwise requires, any reference to a clause is to a clause in this Sub-Contract;
1.2.2. references to any statute or statutory instrument shall include any statutory amendment or re-enactment thereof from time to time and for the time being in force;
1.2.3. except where the context otherwise requires, references to any other documents or their provisions shall be construed, at any particular time, as reference to such documents or provisions as they may have been amended, varied or supplemented or novated at that time; and ;
2. Effects of these conditions
2.1. You agree to supply the Goods and/or carry out the Services which form part of the Project in accordance with this Sub-Contract. Both parties agree to act in a spirit of mutual trust and cooperation.
2.2. If You have not previously agreed to the terms of this Subcontract, delivery of the Goods and/or commencement of the Services as required by the Order shall be treated as agreement by You to the terms of this Sub-Contract.
2.3. Firstco has entered into, or intends to enter into, the Main Contract with the Client for the provision of the Main Supplies in respect of the Project.
2.4. If requested by You and at your cost, Firstco shall provide You with a copy of the Main Contract (other than the details of Firstco’s rates and prices and other confidential provisions as determined by Firstco). You shall be deemed to have knowledge of the terms of the Main Contract (other than the details of Firstco rates and prices and other confidential provisions as determined by Firstco).
2.5. You shall carry out and complete the supply of the Goods and/or perform the Services and remedy any defects and/or other faults in accordance with this Sub-Contract, and in such manner and at such times so that no act, omission or default by You shall constitute, cause or contribute to any breach by Firstco of any of its obligations under the Main Contract.
2.6. You shall take on and perform all the obligations of Firstco under the Main Contract in relation to the supply of the Goods and/or the performance of the Services as required by this Sub-Contract.
2.7. If the Main Contract imposes obligations on Firstco in relation to the giving of forms of collateral warranty and/or third party rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to any third parties by You, You shall enter into such forms of warranty and/or give such third party rights at such time or times and in favour of such parties as are therein set out.
3. Supply of Goods
3.1. All Goods supplied by You to Firstco must:
3.1.1. conform with any particulars detailed in the Order;
3.1.2. be of good commercial quality, comprise only new materials (unless otherwise agreed by the parties) and be fit for the purposes for which Firstco requires them;
3.1.3. comply with the Statutory Requirements and all applicable standards; and
3.1.4. be to Firstco’s reasonable satisfaction.
3.2. Where any of the Goods require Your or a manufacturer guarantee or warranty, You shall ensure the issue of the guarantee or warranty and shall be responsible for obtaining and providing to Firstco (or such other person as Firstco nominates) all guarantee or warranty documentation.
3.3. All Goods shall be delivered in accordance with all details specified in the Order. All Goods shall be delivered to the Delivery Address by:
3.3.1. any date specified in the Order;
3.3.2. if no date is specified. such reasonable delivery date communicated to You by Firstco; or
3.3.3. if no date is specified in the Order or communicated to You, within a reasonable period (the “Delivery Date”).
The parties acknowledge that time is of the essence. Delivery shall not be effective unless the Goods have been inspected by Firstco (or its representatives) at the Delivery Address.
3.4. You shall immediately notify Firstco as soon as becoming aware of any event which may prevent or delay the delivery of the Goods.
3.5. If You fail to deliver the Goods by the Delivery Date, You shall pay or allow to Firstco general damages for the period between the Delivery Date and the date the Goods are actually delivered to the Delivery Address in accordance with this Sub-Contract. Firstco may deduct any such amount from any monies due or to become due to You under this Sub-Contract or may recover the same as a debt.
3.6. Without further charge, Firstco shall be entitled to defer delivery for any reason. If Firstco instructs You to delay delivery, You shall store the Goods at Your premises or in a secure warehouse at Your cost and risk. You shall promptly arrange for delivery when requested by Firstco.
3.7. Firstco may reject any Goods which are not in accordance with this Sub-Contract. Firstco may, at its option, require You to immediately replace any rejected Goods to Firstco’s satisfaction.
3.8. You shall promptly, at Firstco‘s request, replace or repair (to Firstco’s satisfaction) all Goods in which any defect appears during the Guarantee Period. Any replacement or repair work shall be guaranteed for an additional period equal to the Guarantee Period.
3.9. Firstco shall be entitled to recover all its losses, including any indirect or consequential losses whatsoever, resulting from Firstco rejecting the Goods, or replacing or repairing the Goods, in accordance with clauses 3.7 – 3.8.
3.10. Title in the Goods shall pass to Firstco upon delivery at the Delivery Address or upon full payment being made for the Goods, whichever is the earlier. Should title pass to Firstco before delivery, You shall clearly mark all Goods to which ownership has passed to Firstco as Firstco’s property and shall store them separate from Your property pending delivery.
3.11. Unless otherwise agreed by the parties. You shall be responsible for transport and unloading costs relating to the Sub-Contract and for all risks of damage or loss prior to completion of delivery.
3.12. All packages shall be marked in accordance with any requirements of Firstco and shall unless otherwise agreed, be in English.
3.13. Any Goods which are hazardous or may otherwise endanger life or health or which have limited life expectancy or require particular circumstances to maintain their quality shall be clearly identified (including external packaging). You shall supply appropriate warning labels and instructional material as to the storage, handling and use of such Goods.
3.14. You shall ensure that all Goods are adequately packaged so as to avoid any damage, loss or corrosion in transit. A detailed consignment note will accompany every delivery of the Goods. Reasonable advance notice of every delivery shall be given in writing by You to Firstco.
3.15. You shall indemnify and keep indemnified Firstco against all losses (including, but without limitation, complete or partial loss of Goods or loss of profit and of any contract) arising out of errors in or omissions from or failure to comply with clauses 3.12 to 3.14 above.
3.16. Any packaging or containers (including without limitation packing cases, carboys, cylinders, pallets, boxes, tins, drums and wrappings) supplied by You under this Sub-Contract (“Packaging”) shall be non-returnable and included in the Price (unless otherwise specified in the Order and/or otherwise requested by Firstco).
3.17. You shall, if specified in the Order or otherwise requested by Firstco, accept the return of any Packaging and shall clearly mark any such returnable Packaging with Your name and return address and shall be responsible for the costs of return. Risk in such returnable Packaging shall at all times remain with You.
3.18. Any and all Packaging shall conform with the requirements of Firstco’s environmental policy from time to time, a copy of which Firstco shall provide to You upon request.
4. Supply of Services
4.1. You shall carry out and complete the Services:
4.1.1. in accordance with all particulars detailed in the Order and with any service level, specification and programme comprised in the Sub-Contract or, to the extent not so specified, with due care and diligence and to such standard and within such time as Firstco shall reasonably request;
4.1.2. regularly and diligently and in a proper and workmanlike manner;
4.1.3. where You are responsible for selecting materials and goods, so that they are fit for the purposes set out in or reasonably inferred from the Sub-Contract;
4.1.4. in accordance with the Statutory Requirements and all applicable standards; and
4.1.5. to Firstco’s reasonable satisfaction.
4.2. The Services shall be performed by appropriately skilled and qualified personnel. Where individual staff are named in a team for the delivery of the Services and such details are supplied to Firstco prior to or during the performance of this Sub-Contract, every reasonable effort shall be made by You to ensure those staff are used. If changes in Your named staff are necessary, You shall give reasonable notice of the changes and provide Firstco with details of the replacement staff.
4.3. All personnel provided by You for carrying out the Order shall at all times be deemed to be in Your employment, and shall comply in all respects with site rules applicable to Firstco’s premises and/or such other premises relevant to the Services.
4.4. You shall commence the Services:
4.4.1. on any date specified in the Order;
4.4.2. if no date is specified in the Order within such reasonable date communicated by Firstco to You; and
4.4.3. if no date is specified in the Order or Firstco does not communicate a date to commence the Services, within a reasonable period following the date of the Order (the “Commencement Date”).
4.5. You shall carry out and complete the Services by:
4.5.1. any date(s) specified in the Order;
4.5.2. if no date(s) are specified such reasonable date(s) communicated by Firstco to You; or
4.5.3. if no date(s) are specified in the Order or communicated to You, within a reasonable period (the “Completion Date”).
The parties acknowledge that time of commencement of the Services and time of completion of Services is of the essence of this Sub-Contract.
4.6. You shall promptly notify Firstco as soon as practicable after becoming aware of any event which may prevent or delay completion of the Services by the Completion Date. You shall specify the cause of the delay and the likely effect on the Completion Date and Your proposals for reducing the effect. The notice shall be accompanied by all supporting documents and relevant calculations.
4.7. If, in the opinion of Firstco, the Services are likely to be delayed or have been delayed beyond the Completion Date by any impediment, prevention or breach of this Sub-Contract by Firstco or an instruction for a Variation (a “Delay Event”), then, save to the extent that the Delay Event was in any way caused or contributed to by Your negligence, omission or default, Firstco shall extend the Completion Date or part thereof by such reasonable period as it may determine and it shall notify You in writing. However, You agree to constantly use Your best endeavours to overcome, avoid or minimise the effects of any Delay Event.
4.8. If You fail to complete the Services by the Completion Date, You shall pay or allow to Firstco general damages for the period between the Completion Date and the actual date the Services are completed, and Firstco may deduct any such amount from any monies due or to become due to You under this Sub-Contract or may recover the same as a debt.
4.9. Firstco shall advise You of any defects and/or other faults which appear within the Guarantee Period and which are due to Your failure to comply with Your obligations under this Sub-Contract. You shall make good such defects and/or other faults at no cost to Firstco within a reasonable period of such notice.
5.1. Unless agreed by the parties, You shall be responsible for obtaining at Your expense any licences, permits, permissions required to supply the Goods and/or carry out the Services in accordance with this Sub-Contract.
6.1. Firstco may issue, and You shall comply with, any instruction in relation to supplying the Goods and/or carrying out the Services. Such instructions may include an instruction for a Variation.
6.2. Firstco may ask You to vary any particulars in the Order by giving notice to You (a “Variation”). If You reasonably consider that such a request will require an adjustment to the Price (whether increase or reduction) and/or an adjustment to the Delivery Date and/or Completion Date, You shall immediately provide Firstco with an estimate of the cost of complying with the notice and the effect, if any, which the request is likely to have on the Delivery Date and/or Completion Date.
6.3. Firstco may within a reasonable period and at its own discretion:
6.3.1. withdraw the Variation; or
6.3.2. accept Your estimate and adjust the Price and/or the Completion Date and/or the Delivery Date, in accordance with Your estimate; or
6.3.3. determine such adjustment to the Price and/or the Completion Date and/or the Delivery Date as shall be fair and reasonable.
7.1. Subject to clause 7.6 and 7.8, Firstco shall pay to You the Price stated in the Order for the Goods properly delivered and/or the Services properly supplied in accordance with the terms of this Sub-Contract. The Price shall only be subject to adjustment in accordance with the express terms of this Sub-Contract.
7.2. All prices shall be deemed to include packaging, insurance, carriage and all import duties or charges that may be levied by any authority, and all licences, permits, permissions or otherwise. All payments shall be in the currency specified in the Order.
7.3. You shall submit invoices to Firstco which shall be the notice of payment (“the Payment Notice”) specifying the sum that You consider to be due at the payment due date (“the Notified Sum”).
7.4. Your invoice to Firstco shall:
7.4.1. state the basis on which the amount is calculated and include details of the calculation in accordance with the Order, and
7.4.2. identify the relevant Goods and/or Services and where these were delivered/performed;
7.4.3. clearly reference, within the text of the invoice, the purchase order number stated on the Order;
7.4.4. be addressed to Firstco’s legal entity as stated on the Order;
7.4.5. be accompanied by a tax invoice acceptable to Firstco for VAT or other tax purposes where applicable.
7.5. Any payment due to You shall be made by Firstco within thirty (30) days from the date of the invoice. The final date for payment shall be forty-five (45) days following the date of the invoice.
7.6. If Firstco intends to pay less than the Notified Sum, it shall notify You of the amount which Firstco considers to be due no later than seven (7) days before the final date for payment. The notification shall state the basis on which the amount is calculated and include details of the calculation. Firstco shall pay the Notified Sum unless it has notified its intention to pay less than the Notified Sum.
7.7. In the event of any delay in payment of the amount due and payable by Firstco, You shall be entitled to interest of two (2) per cent above the Bank of England base rate (current at the time the amount becomes overdue) on the amount outstanding in respect of the period from the final date for payment specified in this clause to the actual date for payment.
7.8. Firstco shall be entitled to deduct or set-off any amount due or which may become due to Firstco from You, from any amount due or which may become due from Firstco to You (whether each of the same arises under any term of this Sub-Contract or under any rule of law or of equity).
7.9. All payment made under this Sub-Contract shall not relieve You of any of Your obligations or liabilities under this Sub-Contract.
8.1. You shall indemnify in full, defend and hold harmless Firstco against any and all (direct or indirect) losses, liabilities, damages, claims, costs and/or expenses sustained, incurred or payable by Firstco (including legal expenses on a full indemnity basis) arising out of or in connection with:
8.1.1. any breach by You of this Sub-Contract;
8.1.2. personal injury to or death of any person, or damage to property arising out of this Sub-Contract.
8.1.3. any breach of any warranty given by You in relation to the Goods or Services; and/or
8.1.4. Your breach of clause 2.5 – 2.7.
8.2. You agree to enter into for the benefit of Firstco and be bound by any indemnity entered into by Firstco in the Main Contract for the benefit of the Client as if all such indemnities were set out in full herein mutatis mutandis.
8.3. In the event of any breach of this Sub-Contract by You, Firstco may deduct, withhold or set-off from any amount otherwise due to You, such sum as Firstco, in its bona fide estimate, considers it will incur by way of loss or damage as a consequence of the breach.
9. Intellectual Property
9.1. If the Main Contract imposes obligations on Firstco in relation to intellectual property rights, and/or the design and/or copyright in Your drawings or any other documents, and/or a licence to use such documents, You agree to give such rights and undertake such obligations in relation to the intellectual property and/or Your drawings or any other documents, and/or the licence, as will enable Firstco to fully comply with such provisions in the Main Contract.
9.2. If the Main Contract contains no such provisions as are set out in clause 9.1, the provisions of this clause 9.2 shall apply. Intellectual property rights owned by You at the date of this Sub-Contract shall continue to be Your sole property. Firstco shall have an irrevocable royalty-free licence to use all designs, documents and data for any purpose associated with the Goods and/or Services before and after the Delivery Date and/or Completion Date (as the case may be). Designs, documents and data created by or on behalf of You for the purposes of this Sub-Contract, including any modifications to any designs, document and data provided by Firstco to You, shall become the sole property of Firstco upon delivery and You shall have a continuing and irrevocable licence to use the same for any purpose related to the Sub-Contract.
9.3. Copyright and other intellectual property rights in any designs or documents provided to You by Firstco shall remain the sole property of Firstco. You shall have a licence to use the same solely for the purposes of this Sub-Contract.
9.4. You warrant that the Goods and/or Services supplied do not violate any patent or other intellectual property rights of any third party. You shall indemnify Firstco against any claims, damages, costs and expenses arising out of any infringement or alleged infringement of any patent or other rights of third parties in connection with the Goods and/or Services.
10.1. Without prejudice to its other obligations under this Sub-Contract or otherwise at law, You shall maintain, with a reputable insurance company carrying on business in the United Kingdom, those insurances required to fully cover all of Your liability under this Sub-Contract for as long as You have any liability.
10.2. Without limiting the generality of the foregoing, You shall:
10.2.1. insure the Goods until such time as You have completed delivery of the Goods in accordance with this Sub-Contract;
10.2.2. maintain professional indemnity insurance with a limit of indemnity not less than any limit of indemnity set out in the Order and for any period set out in the Order;
10.2.3. maintain public liability insurance with a limit of indemnity of not less than any amount set out in the Order until You have finally performed Your obligations under this Sub-Contract; and
10.2.4. maintain employer’s liability insurance with a limit of indemnity of no less than that required by the law applicable to the Project until You have finally performed Your obligations under this Sub-Contract.
10.3. You shall produce for inspection by Firstco all documentary evidence that the insurances required under this Sub-Contract are being properly maintained within 72 hours of a request by Firstco.
10.4. If You fail to effect and keep in force any of the insurances required under this Sub-Contract, or fail to provide evidence of insurance when required, Firstco may effect and keep in force any such insurances and pay any premium as may be necessary and may from time to time deduct the amount so paid from any monies due or to become due to You, or recover the same as a debt due from You.
11. Confidential Information
11.1. Firstco may disclose certain confidential information to You for the purposes of this Sub-Contract. Save as may be necessary for performance of the obligations under this Sub-Contract or as otherwise required by law, You shall not at any time, without Firstco’s prior written consent, disclose to any person or otherwise make use of any information which may reasonably be deemed to be confidential (including but not limited to: any information and data that is not generally available to others; proprietary technical, marketing, financial, operating, performance, cost, know-how, business, and process information; computer programming techniques; and all record-bearing media containing or disclosing such information and data that are disclosed to You by Firstco orally, visually or in writing) which has or may come into the Your possession relating to Firstco and/or the Goods and/or the Services. Your obligations set out in this paragraph shall continue to apply, without limitation in point of time, unless and until such information comes into the public domain through no default on Your part.
11.2. You shall not without Firstco’s prior written consent use Firstco’s or the Client’s name or otherwise hold Yourself out as associated with Firstco or the Client in any advertising or publicity material or in any other manner.
12. Sub-Contracting and Assignment
12.1. You shall not assign, charge or transfer the benefit of any part of the Order without the prior written consent of Firstco. Firstco reserves the right to assign the benefit of the Order to any third party whatsoever.
12.2. You shall not sub-contract the performance of any part of the obligations under this Sub-Contract to any third party without Firstco’s prior written consent. In the event that You are permitted to sub-contract any obligations under this Sub-Contract, You shall remain fully responsible for all goods supplied and all services carried out by any sub-contractors.
13. Termination and Suspension
13.1. If the Main Contract is terminated or discharged the Sub-Contract shall immediately terminate.
13.2. Firstco shall be entitled to terminate in whole or in part Your employment under this Sub-Contract at any time upon one week’s written notice to You.
13.3. Firstco may immediately terminate this Sub-Contract upon written notice to You if:
13.3.1. You breach any of Your obligations under this Sub-Contract.
13.3.2. You become insolvent or make any voluntary arrangement with Your creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) become bankrupt or (being a company) become subject to an administration order or go into receivership or liquidation (other than for the purpose of reconstruction or amalgamation) or have a winding-up order made or pass a resolution for voluntary winding-up (other than for the purpose of reconstruction or amalgamation); or
13.3.3. there is corruption or attempted corruption, an act of fraud, misrepresentation or falsification in relation to the supply of Goods and or Services by You or on Your behalf of by one of Your employees.
13.4. Firstco may require You to immediately suspend performance of the Sub-Contract. You shall immediately resume performance of the Sub-Contract upon Firstco’s request. If the Sub-Contract is suspended for a period in excess of seven (7) days, Firstco may by written notice to You with immediate effect terminate this Sub-Contract.
13.5. Upon termination or suspension of the Sub-Contract:
13.5.1. You shall take immediate steps to bring an end to the Services and the supply of the Goods (or any part) in an orderly manner but with all reasonable speed and economy; and
13.5.2. You shall forthwith hand over and/or supply to Firstco all Goods and Services already paid for by Firstco under this Sub-Contract.
13.6. Upon termination or suspension of the Your employment under this Sub-Contract, subject to any set-off or deductions which Firstco is entitled to make under this Sub-Contract, Firstco shall pay to You a fair and reasonable proportion of the Price commensurate with which You have performed up to the date of termination or suspension less any amounts in respect of the Price which have been previously paid to You by Firstco. In relation to payment upon termination or suspension, the provisions in clause 7 shall apply.
13.7. Subject to clause 13.6, on termination or suspension of this Sub-Contract (howsoever arising), You shall not have any further entitlements under this Sub-Contract including, but not limited to, any loss of profits, loss of contract(s) or other costs, losses and/or expenses arising out of or in connection with such termination or suspension.
13.8. If Your employment is terminated or suspended by reason of Your act, omission or default, Firstco shall not be obliged to make any payment which would otherwise be due pursuant to clause 13.6 until after completion of the Main Supplies under the Main Contract and Firstco may then deduct from any sums then payable all costs, losses and expenses properly incurred by Firstco as a result of or arising from such termination or suspension and/or such act, omission or default.
13.9. Any termination shall be without prejudice to the accrued rights and remedies of either party in respect of any breach of this Sub-Contract by the other party prior to such termination. On the cancellation, termination or expiry of the Sub-Contract, You shall forthwith return to Firstco within 14 days any property of Firstco that You then have in Your possession or control.
14.1. Any notice shall be properly given if in writing and sent by first class post, facsimile or email to such address as Firstco and You from time to time notify to each other as their respective addresses for service. Notices shall be deemed served in the case of postal notice, on the expiry of 48 hours from the time of posting and in the case of facsimile and email upon completion of transmission by the sender.
15. General Provisions
15.1. This Sub-Contract contains the entire and only agreement and understanding between the parties and supersedes any previous agreement between the parties relating to or connected with the subject matter of this Sub-Contract (whether oral or in writing). Neither party has relied on any warranty nor representation of the other except as expressly stated or referred to in this Sub-Contract.
15.2. Any terms and conditions submitted by You or contained in any purchase order, any invoice or any other document submitted by You, and/or any qualifications submitted by You in Your tender, do not form part of this Sub-Contract (except to the extent expressly agreed by the parties).
15.3. All the documents comprising this Sub-Contract shall be read as a whole and their provisions construed accordingly. In the event of any conflict, discrepancy, ambiguity, or inconsistency between these Conditions and the Order, the Order shall take precedence.
15.4. Nothing in this Sub-Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
15.5. If any provision or term of this Sub-Contract shall be held invalid, illegal, or unenforceable, in whole or in part such term or provision shall not form part of this Sub-Contract and the enforceability of the remainder of the Sub-Contract shall not be affected.
15.6. Each right or remedy of Firstco under the Sub-Contract is without prejudice to any other right or remedy of Firstco whether under the Sub-Contract or not.
16. Third Party Rights Act
16.1. None of the terms of this Sub-Contract is intended by You or Firstco to be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any third party who is not a party to the Sub-Contract.
17.1. This Sub-Contract shall be governed by and construed in accordance with the laws of England. Any dispute arising under or in connection with this Sub-Contract shall be subject to the exclusive jurisdiction of the English courts, save that enforcement proceedings may be brought in any jurisdiction.