TERMS AND CONDITIONS OF PURCHASE
Schedule 1 – Terms and Conditions of Purchase
for procurement by Feilo Sylvania
DATA PROTECTION PRIVACY NOTICE:
Please note and make your employees, agents or other representatives aware that we will need to process their personal data in performing our obligations under this agreement. Generally this will be contact names, email addresses and telephone numbers which are necessary to communicate details of the contract and manage our relationship with you. This will be processed by Feilo Sylvania International Group Kft. or one of our Affiliates and will be processed within Hungary, the EEA or the UK. In rare circumstances we may need to share your personal data with third parties or transfer it to one of our Affiliates outside of the EEA or the UK – in these circumstances we will comply with the relevant data export requirements. Data subjects have certain rights under the Data Protection Legislation in relation to their Personal Data including the right to receive a copy and the right to make a complaint at any time to the competent authority, in Hungary to the Hungarian National Authority for Data Protection and Freedom of Information (NAIH) (www.naih.hu). Should you require any more information, please ask for a copy of our privacy policy.
1. Definitions
1.1 The following definitions shall apply to these terms and conditions:
“Affiliate” means any one or more legal entities (i) directly or indirectly owned or controlled by the Buyer, (ii) directly or indirectly owning or controlling Buyer; or (iii) directly or indirectly under common ownership of a legal entity with the Buyer. For the purposes of this definition a legal entity shall be deemed to own and/or to control another legal entity if more than 50% (fifty percent) of the voting stock of the latter legal entity, ordinarily entitled to vote in the meetings of shareholders of that entity, (or, if there is no such stock, more than 50% (fifty percent) of the ownership of or control in the latter legal entity) is held directly or indirectly by the owning and/or controlling legal entity;
“Business Day” means a day other than a Saturday, Sunday or public holiday in the country of delivery of the Goods or Services;
“Buyer” means Feilo Sylvania International Group Kft. (registered office: 22 Népfürdő utca, Duna Tower, H-1138 Budapest, Hungary; company registration number: 01-09-304993);
“Civil Code” means Hungarian Act V of 2013 on the Civil Code;
“Conflict Minerals Requirements” means compliance with section 1502 of the United States Dodd-Frank Wall Street Reform and Consumer Protection Act, European Union regulation 2017/821 together with any analogous legislation now or in the future incorporated in the European Union, United Kingdom or United States;
“Contract” means the contract between the Supplier and the Buyer for the purchase of the Goods and/or Services on acceptance by the Supplier of the Buyer’s Order and incorporating these Terms;
“Data Breach” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to confidential information, including Personal Data, transmitted, stored, or otherwise processed by Supplier or its subcontractors;
“Data Protection Legislation” means the Hungarian Data Protection Legislation and the General Data Protection Regulation ((EU) 2016/679), the UK Data Protection Legislation and any other directly applicable European Union regulations or local regulations relating to privacy, and Data Controller, Data Processor, Data Subject, Personal Data and Process/Processing shall have the meaning given to them by the Data Processing Legislation;
“Delivery” has the meaning given in clause 6;
“Force Majeure Event” means an event beyond the reasonable control of a party which does not relate to its fault or negligence (not including industrial action by employees of the party, or any breakdown of plant or machinery under the control of that party or its representatives or any change of materials or supplier), and whose impact could not have been avoided by the use of reasonable business continuity/disaster recovery measures;
“Good(s)” means the goods (i.e. finished goods, components or raw materials) purchased by Buyer from the Supplier in accordance with these Terms which may include software (whether embedded into the items or supplied separately or over the internet, including software parts and new versions or updates of the software provided by the Supplier in the course of its warranty obligation or as part of software maintenance services) or other Intellectual Property Rights;
“Hungarian Data Protection Legislation” means any data protection legislation from time to time in force in Hungary including Act CXII of 2011 on the Right of Informational Self-Determination and on Freedom of Information or any successor legislation.
“Intellectual Property Rights” shall mean any patents, or patentable inventions, products or technologies, utility models, rights to inventions, processes and methods of performing processes, designs, copyright and related rights, software code whether embedded in the Goods or hosted by a party or third party, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use and protect the confidentiality of confidential information (including know-how and trade secrets), semiconductor topography rights, and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world and the right to enforce such protections;
“Material Breach” shall mean a breach which is not minimal or trivial in its consequences to the Buyer;
“Order” means Buyer’s order for the Goods and/or Services, as set out in the written Buyer’s purchase order form duly signed by its authorized representatives and incorporating any Product Specifications, Service Descriptions or Service Levels (as defined in clause 4.1) mentioned therein;
“Product Specification” means the specification relating to Goods provided by Buyer in writing to Supplier or vice versa;
“Services” the services to be provided by Supplier to Buyer as set out in the Order which may include the use of software and continuing software support;
“Service Description” means the description of the Services provided by the Supplier to the Buyer;
“Supplier” means the party from whom the Buyer purchases the Goods and/or Services;
“Terms” the terms and conditions set out in this document as amended from time to time;
“Tools” includes tools, jigs, dies, casts, moulds, models, fixtures, gauges or equipment of whatsoever nature used to manufacture goods.
“UK Data Protection Legislation” means any data protection legislation from time to time in force in the UK including the Data Protection Acts of 1998 and 2018 and any successor legislation
1.2 In these Terms, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) A reference to a party includes its personal representatives, successors or permitted assigns;
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(e) A reference to writing or written includes emails.
2. Contract Formation
2.1 In the absence of a written agreement to the contrary executed between Supplier and Buyer, these Terms shall apply to every purchase of Goods or Services by Buyer.
2.2 An Order constitutes an offer by Buyer to purchase the Goods or Services in accordance with these Terms. The Contract shall be formed at the time when Buyer’s Order is confirmed in writing by Supplier or when the Supplier commences the supply of the Goods or Services detailed in an Order. Each accepted Order will be deemed to create a separate binding Contract incorporating these Terms.
2.3 Buyer shall not be responsible for nor obliged to accept any goods supplied or services performed by Supplier that have not been subject to an Order placed by Buyer. The quantities ordered by Buyer in the Order shall not be exceeded by Supplier unless expressly agreed upon between Buyer and Supplier and Buyer shall not be obliged to return, store or exercise any care over any goods not subject to an Order.
2.4 Buyer may modify or cancel any Order or Contract in whole or in part at any time subject to the modification or cancellation occurring before the Supplier commences the production of the Goods or performance of the Services. In the event Buyer cancels an Order or Contract, Supplier shall immediately stop all work hereunder and provided the cancellation was not due to breach of the Contract by the Supplier, Buyer shall pay:
(i) the net price demonstrated to Buyer of the raw material purchased by Supplier based on the forecasts issued by Buyer, subject to (a) such raw material purchased not exceeding that required to fulfil the most recent two month forecast provided by Buyer; and (b) Supplier having made reasonable commercial efforts to sell or use the ordered raw materials in any products that Supplier manufactures for itself or third parties; and
(ii) other reasonable and actual costs resulting from the cancellation of the Order (subject to the provision of satisfactory documentation by Supplier) as agreed between the parties.
2.5 Supplier shall not be paid for any costs incurred or work done after receipt of the notice of cancellation or modification of an Order or Contract, nor for any costs incurred by Supplier’s suppliers or subcontractors.
2.6 The parties agree that any forecasts provided by Buyer to Supplier will not be binding. Fluctuations in demand will lead to proportional modifications of quantities of Goods that Buyer will order from Supplier. Such modifications shall not influence the price agreed and Supplier shall reserve and anticipate the production quantities on an appropriate basis.
2.7 Any terms and conditions proposed by Supplier or contained or referred to in any Order confirmation, invoice, Product Specification or other document sent by Supplier are expressly rejected by Buyer and waived by Supplier.
2.8 These Terms apply to the purchase of Goods or Services to the exclusion of any other terms that Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Product Specification, Warranty and Supplier’s liability for defects
3.1 The Supplier warrants that the Goods shall:
(a) correspond to their description and any applicable Product Specification;
(b) be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Buyer expressly or by implication, and in this respect the Buyer relies on the Supplier’s skill and judgment;
(c) be free from defects in design, material and workmanship and remain so for at least sixty (60) months from the date of invoice issued by the Buyer to its customer, unless agreed otherwise by Buyer and Supplier in writing;
(d) comply with all applicable statutory and regulatory requirements relating to health and safety, the environment, Conflict Minerals Requirements, chemical content, electro-magnetic interference, manufacture, labeling, packaging, storage, handling, export control and delivery of the Goods valid in the European Union, United Kingdom or other countries into which the Goods will be supplied. To this end, Supplier shall conduct the compliance tests necessary to ensure that the Goods are fully compliant and provide Buyer with all relevant documentation accordingly;
(e) be free from any charges, mortgages, liens or other such third party rights;
(f) where the Goods incorporate software, be free from viruses, Trojans, or other malicious code; include the highest security protocols as are standard within the industry; be provided with all such licences as are necessary for the Buyer and any end user to use the Goods in accordance with the Product Specification; and for the duration of the warranty period in clause 3.1(c) be subject to only such updates or modifications as are necessary to maintain or enhance the software functionality.
3.2 Supplier shall not without the Buyer’s express written consent change, substitute or modify the Goods nor make any changes to the Product Specification without prior written consent of the Buyer. In addition, Supplier shall not make any changes to the design, material, engineering, electrical or mechanical performance, form or fit, interchangeability, environmental capability or chemical characteristics, life, reliability, serviceability, documentation, manufacturing process, manufacturing site or supplier of the Goods without the express written consent of the Buyer. If such changes are required to conform with any applicable statutory, UK or EU requirements or the requirements of the applicable law where the Goods will be supplied, Supplier shall implement such changes in such a way that they do not materially affect the nature, performance, compatibility, scope of, or the charges for the Goods. Supplier shall inform Buyer immediately of each such change made to the Goods and Buyer shall have the right to terminate the Contract. If the Supplier requests a change to the Goods for any other reason than regulatory compliance, this shall only be implemented if agreed in writing by the Buyer. If not agreed, Buyer shall be able to cancel its Contract without this granting any indemnification or compensation rights whatsoever for Supplier.
3.3 The Supplier shall ensure that at all times it has and maintains all the licenses, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract and shall, at its expense, maintain its facilities used for the manufacture of the Goods in compliance with all applicable state and regional rules and regulations, including but not limited to any applicable environmental, chemical control, health and safety laws.
3.4 The Buyer shall have the right to inspect and test the Goods at any time before Delivery.
3.5 If following such inspection or testing the Buyer considers that the Goods do not conform or are unlikely to comply with the Supplier’s warranties at clause 3.1, the Buyer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance while fulfilling the delivery terms agreed upon.
3.6 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Buyer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.7 Where Buyer gives notice in writing to Supplier during the warranty period set out in clause 3.1(c) above and within a reasonable time of discovery that some or all of the Goods do not comply with the warranties set out in clause 3.1, the Supplier shall immediately use its best endeavours to take all remedial action and necessary steps to ensure compliance and provide support as quickly as possible to Buyer. At Buyer’s request, Supplier shall travel at its cost to the site where the Goods are located, to repair or replace the defective/non-compliant Good and bear all expenses (including but not limited to labour costs) relating to the investigation, repair, removal of the defective/non-compliant Goods and reinstallation of the replacement Good or parts thereof and making good any other damage caused. Buyer (if asked to do so by Supplier) will return such Goods to Supplier’s place of business at Supplier’s cost.
3.8 The Buyer shall have the right to assign the benefit of the warranty set out in clause 3.1(c) to its customers.
3.9 This clause 3 shall survive termination of the Contract.
4. Services
4.1 The Supplier warrants that the Supplier shall:
(a) perform the Services with the care and skill expected of a competent professional within the industry and in accordance with all applicable statutory and regulatory requirements and the Services correspond to any applicable Service Description; and shall have and maintain all licences, consents, permissions, authorisations and permits that are necessary to perform the Services;
(b) ensure that, when providing the Services, it does so in accordance with any health, safety, environmental or security procedures, protocols or any other policies in force at any site at which the Services are performed; comply with any reasonable operational directions of the Buyer or the Buyer’s customer; and not interfere with Buyer’s activities or those of its customers;
(c) provide the Services on or before the dates specified in the Contract. If the Contract does not specify completion dates(s) for providing the Services, Supplier will provide the Services at such time as Buyer specifies (acting reasonably);
(d) where the Contract specifies, provide the Services in line with any service levels, uptime and repair or response deadlines, and key performance indicators the Buyer agrees with the Supplier (“Service Levels”). Where the Service Levels specify, the Buyer shall have the right to claim any liquidated damages or the right to terminate the Contract in accordance with the Service Levels;
(e) report any accidents or incidents it becomes aware of and which occur during the performance of the Services. In particular Supplier shall inform Buyer immediately after it becomes aware of any matter which may affect Supplier’s ability to provide the Services in line with Contract, including meeting any Service Levels, milestones or completion dates and give Buyer details of any proposed alternative arrangements (which will be subject to Buyer’s prior approval);
(f) ensure that none of the personnel used in providing the Services are wholly or substantially assigned to the performance of the Services to the extent that if the Buyer terminates any Order or Contract the personnel would be deemed to be subject to the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”) and shall indemnify and hold harmless the Buyer against any and all costs, claims, taxes, pension contributions or any other liabilities if it is deemed that TUPE or similar binding legal requirement shall apply.
5. Software
5.1 Where any software is provided either as part of the Goods or the Services, the Supplier shall grant the Buyer a paid-up, unlimited and worldwide right to use the software. The right of use of the software shall include: (i) to copy, install, transmit, store, load, test, execute the software; (ii) to integrate, embed and/or combine the software with other software or hardware; (iii) to translate, to modify and/or to create derivative works of the software; (iv) to demonstrate, to market, to distribute, to disseminate or to otherwise dispose of the software; (v) to resell the software, whereas the term “Reselling” means the distribution of the software by the Buyer to third parties, including a distribution of copies of the software, and including the right to rent or lend such software, irrespective of whether such distribution is effected in a tangible or intangible form; and (vi) to use the software within the scope of providing services for third parties, e.g. as Software as a Service (“SaaS”), Application Service Provider (“ASP”), hosting and cloud services for third parties etc.
5.2 Unless explicitly otherwise agreed in writing, the Supplier shall provide to the Buyer throughout the warranty period without entitlement to any separate remuneration the following services free of charge: (i) all generally available new versions and updates as well as (ii) error corrections or work arounds (fixes and patches) of the software and to inform the Buyer thereof accordingly without undue delay in writing or in text form, (iii) all required information with regard to error restriction, error correction and/or error environment; and (iv) technical support on the telephone or via email.
5.3 The Supplier undertakes that upon the Buyer’s request, it shall offer further support and maintenance services during and after the warranty period at economically reasonable conditions.
5.4 In case of a cloud service, Supplier must, at all times: (1) back up, archive and maintain duplicate or redundant systems that: (i) are located at a secure physical location; (ii) are updated and tested at least annually; and (iii) can fully recover the cloud services all on a daily basis; and (2) establish and follow procedures and frequency intervals for transmitting backup data and systems to Supplier’s backup location.
5.5 To the extent that the Source Code of the software is not provided to the Buyer in accordance with the contract, upon the request of the Buyer, the Supplier shall enter into an escrow agreement at a renowned depository to be chosen by the Buyer and deposit the Source Code for the benefit of the Buyer. For the purposes of this clause 5.5, “Source Code” means a program code in the form of a text of a computer program written in a programming language and readable by humans in computer science, which cannot be changed by the Buyer.
5.6 Supplier shall use reasonable endeavours to ensure that the software is available for use twenty four hours a day, seven days a week save for any maintenance work.
5.7 Supplier shall ensure that it (or, where appropriate, shall procure that the ultimate client) has appropriate back-up, security and virus-checking procedures in place.
5.8 The Supplier shall maintain a cyber security policy and comply with the Buyer’s prevailing cyber security requirements as communicated to the Supplier from time to time.
6. Price
6.1 The purchase price of the Goods and/or Services shall be the price and currency agreed in writing by the Buyer and Supplier.
6.2 Buyer is partly liable to comply with the recycling and electronic scrap rules and related laws and regulations. Supplier agrees to support Buyer in its waste management effort by compensating Buyer for the reasonable actual expenses incurred through the waste disposal of Supplier’s transportation and product packaging. This reimbursement will be calculated and invoiced on a quarterly basis with reimbursement invoices to be paid by Supplier to Buyer within sixty (60) days of the date of invoice or set off against any Supplier invoices in accordance with clause 9.2.
6.3 The purchase price of the Goods and/or Services is exclusive of amounts in respect of value added tax (“VAT”). No extra charges shall be effective unless agreed in writing and signed by the Buyer.
6.4 Where the price of Goods or Services is determined by reference to currency other than Euros and as a result of the devaluation of Euros the amount of Euros required by the Buyer to pay or to purchase foreign currency to pay for the Goods or Services is increased the Buyer shall be entitled to suspend or cancel the Contract. Where there is a fall in the price of raw materials used by the Supplier or supplied by the Buyer in the fulfilment of the Contract between the date of the Order and the date of the delivery of the Goods to the Buyer there shall be made a proportionate reduction in the price.
6.5 Agreed prices will remain stable unless agreed in writing that factors beyond the control of either party shall create a need to alter selling prices which will only be implemented once agreed in writing. Factors driving such change shall be considered but not limited to currency fluctuations, which shall be measured as the average over a six month period and moving beyond a +/-5% change against the agreed base currency rate; movement of price of materials over a six month period that shall be measured against the demonstrated price paid by Supplier at date of Order and measured against such indices as the Shanghai metals or other applicable and agreed indices, exchanges or other such agreed third party monitoring agencies.
6.6 As part of the need to constantly remain competitive Supplier shall accept that pricing will be benchmarked on a regular basis which, for the avoidance of doubt, will be no less frequent than every six months. Should such benchmarking provide alternative pricing for a comparable or improved Product Specification then Supplier shall review and adjust pricing to remain competitive which shall be agreed in writing between the parties. If Supplier fails to adjust pricing to a competitive level within a six week period of the completion of the benchmarking process, then Buyer will be entitled to switch sourcing such Goods elsewhere without any effect on the pricing of other Goods procured from the Supplier.
6.7 Supplier shall agree to provide cost breakdown information in order that cost reduction ideas can be generated from both parties. This shall include but not be limited to raw material pricing, drivers, LEDs, manufacturing costs and overheads. Such information shall be treated as confidential between the parties and used to achieve common cost reduction goals.
7. Delivery and shortfall
7.1 Unless otherwise agreed in writing, Delivery of the Goods shall be completed in accordance with the Incoterm as indicated on the Contract and on the Delivery date and at the location specified in the Contract. If no Incoterm is mentioned on the Contract, the Incoterm DDP – Buyer’s warehouse (Incoterms 2010) shall apply by default. Delivery of the Services shall be completed at the location specified in the Contract. If no Delivery date is provided on the Contract, Delivery of the Goods or Services shall be completed within 28 days of the date of the Contract unless a different lead time is agreed upon between the parties. If Supplier is no longer in a position to deliver the Goods or Services according to the agreed Delivery date, Supplier shall promptly and in any case within three working days notify Buyer of the existence or risk of such delay, stating the reasons for delay and providing a projected delivery date (the “Projected Date”). The Projected Date shall not be binding on the Buyer unless the same is accepted by the Buyer in writing. The Buyer shall have absolute discretion to accept or reject the Projected Date. Accordingly, time shall be of the essence and failure to deliver acceptable Goods or to provide satisfactory Services by the date stated in the Contract / Delivery Schedule shall constitute grounds for a claim by Buyer for any loss it may suffer arising in any way out of such failure and shall entitle it to cancel the Contract. Should Buyer require a shorter lead time or Delivery Schedule than those that have been agreed, Supplier shall use its best efforts to comply with such shorter lead time.
7.2 The Supplier shall ensure that each Delivery of the Goods are properly packed and secured in such a manner as to enable them to reach their destination in good condition in accordance with the applicable laws and regulations of the receiving country and is accompanied with a Delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods, special shipping and packaging instructions (if any), special storage instructions (if any), and the outstanding balance of the Goods remaining to be delivered if the Goods are being delivered by instalments. If requested by the Buyer a Certificate of Conformance and or Origin shall be furnished by the Supplier against each separate Contract. Where the Goods or the Services include any Intellectual Property Rights of the Supplier or any third parties, Supplier shall provide a letter of authority authorising the use of those Intellectual Property Rights. Supplier will give all such assistance as may be necessary to expedite and ensure that the Goods pass through customs or such other import or export authority.
7.3 All returnable packing materials will be returned to the Supplier if requested at its expense and at no cost for Buyer. All returnable packing materials shall be stamped with the Supplier’s name and address.
7.4 Where the Buyer makes a claim in writing with respect to Goods lost in transit or shortfall in Delivery, the Supplier shall replace those Goods or provide a full refund of the price if already paid, and/or where time is of the essence the Buyer shall be entitled to recover from Supplier any costs, expenses, or loss incurred by Buyer in obtaining substitute Goods.
7.5 Bills of Lading for Goods from overseas must be marked “Free Inspection and Sampling Allowed”. Without prejudice to the Supplier’s obligation to effect Delivery in accordance with clause 7 hereof, Buyer may inspect and sample all such Goods before dispatch or on arrival at their destination location as instructed by Buyer. No such inspection or sampling shall constitute acceptance by Buyer of the Delivery. Should such inspection and sampling in the Buyer’s opinion prove the Goods not to be in accordance with the Contract, the Buyer shall be entitled to reject partially or entirely the Goods delivered. In the event of a rejection of a proportion of the Goods, clause 7.7 hereof shall apply. Goods so rejected shall continue to be at the Supplier’s sole risk.
7.6 The Buyer shall be entitled to reject any Goods or any portion of Goods or the performance of the Services which in its opinion do not fully comply with the Buyer’s specifications. Such opinion shall be based on full inspection or quality control at the Buyer’s option. Detailed advice of all Goods or Services rejected will be sent to the Supplier who shall be entitled to examine them within three days from the date of dispatch of the rejection notifications. Thereafter the Buyer shall be entitled to return the rejected Goods to the Supplier at the Supplier’s risk and expense and shall not be obliged to make a contract with a carrier on any particular or reasonable terms. Clause 7.7 hereof shall apply in the event of a rejection of a proportion of the Goods.
7.7 In the event of a rejection of all or any portion of Goods or the performance of any of the Services pursuant to clause 7.5 or 7.6 hereof, the Buyer shall notify the Supplier whether it wishes the Supplier to replace the rejected Goods or re-perform the Services (and if so within what period but otherwise upon terms of the original Order unless amended). If the Buyer shall notify the Supplier that it does not wish the Supplier to replace the rejected Goods or re-perform the rejected Services the Buyer shall be entitled to cancel the Contract in respect of the said portion and obtain supplies elsewhere, perform the Services itself or have any third party provide equivalent Services, charging any difference in price (in addition to any other loss suffered arising out of the Supplier’s breach of Contract) to the Supplier.
7.8 If the Supplier fails to deliver the Goods or Services on time as stipulated in clause 7.1 or on the Order in addition to any other claim the Buyer may have, Supplier shall pay Buyer a contractual penalty in the amount of 5 % of the purchase price of the delayed Goods or Services per each week of delay up to a maximum value of 20% of the purchase price of the delayed Goods or Services. The parties confirm that this sum represents a genuine pre-estimate of Buyer’s loss.
8. Passing of Risk and Title
8.1 Unless otherwise agreed in writing, all risk and title in the Goods and in the performance of the Services shall pass to Buyer in accordance with the Incoterm referred to in the Order form. If nothing is mentioned on the Order, the Incoterm Delivered Duty Paid as applicable (Incoterms 2010) shall apply by default.
9. Payment
9.1 An invoice and dispatch notification stating thereon the Buyer’s Order number, route, trailer number (if any) and how Goods are addressed must accompany the Goods and a copy must be posted or emailed (at the Buyer’s request) separately by Supplier to the Buyer for each Delivery on the same day (time being of the essence) as the Goods are dispatched. Where Goods are collected by a carrier hired by the Buyer (which collection shall not prejudice the Supplier’s obligation to Delivery in accordance with clause 7) an additional copy of the dispatch notification must be handed to the carrier when the Goods are collected. Where cash discounts are available for prompt payments a corresponding statement should accompany the invoice. An invoice for the performance of the Services shall only be issued by the Supplier on completion of the performance of the Services by the Supplier and acceptance by the Buyer.
9.2 The Buyer shall pay correctly rendered invoices within 90 days of receipt of a valid invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Buyer may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by Supplier against any amount payable by the Buyer to the Supplier. Supplier shall not be entitled to assert any credit, set-off or counterclaim against Buyer in order to justify withholding payment of any such amount in whole or in part.
9.3 If the Supplier delivers less than the quantity of the Goods ordered or does not fully perform the Services, and the Buyer accepts the Delivery, a pro-rata adjustment shall be made to the invoice.
10. Force Majeure
10.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure result from events, circumstances or causes beyond its reasonable control.
10.2 The Supplier shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations including maintaining and implementing a business continuity and disaster recovery plan or sourcing raw materials or any components of the Goods from an alternative supplier.
10.3 In the event of a Force Majeure Event occurring, the affected party shall give notice within seven days to the other party. In the case of a Force Majeure Event each party will bear its own costs arising from this Force Majeure Event.
10.4 The party claiming to be prevented or delayed in the performance of any of its obligations under this Contract by reason of a Force Majeure Event will use all reasonable endeavours to bring the Force Majeure Event to a close or to find a solution in the event of continuance of the Force Majeure Event.
10.5 If a Force Majeure Event prevents, hinders or delays the Supplier’s performance of its obligations for a continuous period of more than 30 Business Days, the Buyer may terminate the Contract immediately by giving written notice to the Supplier.
10.6 The Buyer shall not be liable for failure to take Delivery of the Goods if the Buyer is prevented from doing so by unforeseen governmental import restrictions or similar Force Majeure Event reasons.
11. Termination
11.1 In the event of any Material Breach by the Supplier, the Buyer may give seven (7) Business Days notice to the Supplier to remedy the Material Breach.
11.2 If the Supplier fails to remedy the Material Breach within the time limit stated in clause 11.1 or if the Material Breach is not capable of remedy or if the Buyer may terminate under clause 4.1, the Buyer has the right to terminate the Contract in part or whole with immediate effect by serving notice to the Supplier.
11.3 Unless otherwise agreed in writing, the Buyer shall be entitled, at the Buyer’s convenience, to terminate the Contract in part or whole by serving notice to the Supplier without need for legal proceedings or a court decision. The Supplier will cease performance of its obligations at such time and to the extent instructed by the notice.
11.4 The Buyer shall not be liable for any of the Supplier’s special, indirect or consequential loss, including but not limited to anticipated costs, losses or loss of profit or business arising out of or in relation to the termination of the Contract under this clause 11.
11.5 Any provision of this Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect. Termination of this Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
11.6 In the event of a Contract being terminated Supplier shall assist Buyer to secure an alternative source of supply and such assistance shall include but not be limited to Supplier providing Buyer or nominated alternative supplier the right to manufacture, reconstruct, use, offer for sale, import, export or sell deliverables provided hereunder including the combination and/or use with any Buyer goods or services using the Intellectual Property Rights owned by or licensed to the Supplier including but not limited to technical data, drawings, designs, tools and stock completed or in the course of manufacture. Such right to manufacture or use any Intellectual Property Rights whether exercised directly or through a third party will take effect pursuant to an irrevocable, worldwide, free of charge licence which is hereby granted by Supplier as condition of termination. Agreement on the terms of any such licence will not be a pre-requisite to the granting of that licence or for Buyer or its alternate suppliers right to use such Intellectual Property Rights.
12. Indemnity
12.1 The Supplier shall keep the Buyer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, fines, damages, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with:
(a) any claim made against the Buyer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods or Services;
(b) any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods or performance of the Services, to the extent that the defects in the Goods or Services are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
(c) any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods or Services, to the extent that such claim arises out of the breach, wilful, reckless or negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors;
(d) any claim made against the Buyer in connection with clause 4.1((f);
(e) any claim made against the Buyer by a third party (including any regulatory authority) arising out of or in connection with any data processing undertaken by the Supplier in accordance with clause 18
(f) any claim, penalties, fines or other liabilities made or levied against the Buyer for any breach by the Supplier of clause 20
12.2 In addition to the indemnity given in clause 12.1 Supplier shall procure from the manufacturer of each and every constituent part of the Goods and for the benefit of the Buyer an indemnity in similar wording to that contained in 12.1(a) above, such wording to be approved by the Buyer.
12.3 This clause 12 shall survive termination of the Contract.
13. Insurance
13.1 The Supplier shall keep in force, with a reputable insurance company, professional indemnity insurance, product liability insurance, product recalls and public liability insurance to a commercially prudent level to cover such heads of liability as may arise under or in connection with the Contracts however in no circumstances will Buyer be obliged to apply directly to nor be limited to or required to accept the proceeds of any claim.
13.2 Unless otherwise agreed in writing, the Supplier delivers Delivered Duty Paid (Incoterms 2010). The risk of loss of or damage to the Goods passes when the Goods delivered at the Buyer’s warehouse. The Supplier must contract for and pay the costs and freight necessary to bring the Goods to the named place of destination. The Supplier also contracts for insurance cover against the Buyer’s risk of loss of or damage to the Goods during the carriage and shall obtain insurance only on minimum cover in accordance with the Incoterms 2010. Should the Buyer wish to have more insurance protection, it will expressly agree with the Supplier or it will make its own extra insurance arrangements.
14. Intellectual Property Rights and Design Ownership
14.1 The Supplier warrants and represents that it has full right and title to assign or sub-licence to the Buyer for the purpose of the Contract (including for the Buyer’s onward sale to any end user) all Intellectual Property Rights contained within or used to produce the Goods or the Services.
14.2 In the event of any suit or pending suit or other claim for infringement of Intellectual Property Rights with respect to the Goods or Services, the Supplier may, at its sole option and expense, either procure for Buyer the right to continue using said Goods or Services, or re-perform or modify same so that they become non-infringing, or replace it with non-infringing Goods or Services, or remove the Goods and refund the purchase price paid by Buyer and any additional costs incurred by such a situation including but not limited to those additional costs incurred by the Buyer in sourcing and purchasing any alternatives.
14.3 Any specifications, drawings, designs, trademarks or other technical information, data, Tools, dyes, patterns, masks, test equipment, software and any other item (the “Creative Elements”), that is supplied, or created by the Supplier as part of its standard product range shall remain the exclusive property of Supplier. However where Creative Elements are supplied, or created pursuant to the Contract for Goods or Services for the Buyer, the Creative Elements thus developed shall be the exclusive property of Buyer, and no right, title or license in any such item or design is hereby granted to Supplier (save a licence as necessary to perform any Contract for the Buyer) and Supplier is prohibited from copying or using the Creative Elements without Buyer’s prior written consent.
14.4 Supplier shall do all such things as are necessary to protect the Buyer’s Intellectual Property Rights, including those in the Buyer’s Tools and the Buyer’s Creative Elements. This shall include but not be limited to assigning or transferring to the Buyer the Intellectual Property Rights in any newly created or adapted Buyer Creative Elements and doing all such things including signing any documents which are necessary to achieve this. The Supplier hereby appoints Buyer as its attorney to do any such things and sign any documents as may be necessary to achieve this.
14.5 Supplier shall not admit, settle or in any other way compromise any claim that Buyer’s Intellectual Property Rights or the Buyer’s Creative Elements infringe the Intellectual Property Rights of any third party and Supplier shall give to the Buyer such assistance as is necessary to defend any such claim.
14.6 All Buyer’s Tools, property, information and Buyer’s Creative Elements which are or could become subject to Intellectual Property Rights shall remain strictly confidential and subject to the provisions of clause 17. In particular, Suppler shall not do anything or omit to do anything which would or could destroy, infringe, jeopardise or prevent the protection, application for, registration or enforcement of any Intellectual Property Right of the Buyer.
15. Tools
15.1 Samples, drawings, Tools, surplus or scrap materials or any other property of whatsoever nature of the Buyer supplied to the Supplier in connection with an Order shall at all times remain the property of the Buyer and must be returned to the Buyer on completion of the Order or upon Buyer’s request at any time. Buyer’s Tools must clearly be marked as the property of the Buyer and must be stored separately from any other Supplier property. The Tools shall not be used by Supplier for the manufacture of any items other than those referred to in the Order.
15.2 Supplier will be responsible at its cost for the daily maintenance of Buyer’s Tools. Supplier shall insure the Tools against loss or damage with a reputable insurance company while they are made at Supplier’s disposal. The return/removal of Buyer’s Tools from the Supplier’s premises at anytime shall not give rise to any indemnity claim, demands, costs, expenses, liabilities or compensation to Supplier.
15.3 The Supplier shall not sell or offer for sale, assign, charge, mortgage, pledge, underlet, lend or in any way part with the material or Tools or any interest therein and shall prevent the creation of any charge or lien thereon.
15.4 The Supplier shall not suffer the material or Tools or any part thereof to be seized or taken out of its possession or control under any legal process but if any Goods or part thereof are so seized will notify Buyer and indemnify it against all losses, costs, charges, damages and expenses incurred by reason or in respect thereof.
16. Insolvency and Change in Control
16.1 Either party shall have the right to terminate a Contract in the event that the other party is insolvent (or as applicable, bankrupt) according to the law, or has made any arrangements with its creditors or under the law with a view to avoiding an impending insolvency (or as applicable, bankruptcy), or has had any person appointed by its creditors or under law as a consequence of debts which have fallen, or which are about to fall, due and which the relevant party is unable to properly repay or there is in the reasonable opinion of the other party a material deterioration in the financial condition or creditworthiness of the relevant party.
16.2 The Buyer shall have the right to terminate any Contract where there has been a change in control of the Supplier.
17. Confidentiality
17.1 All non-public, confidential or proprietary information, including, but not limited to, technical or commercial know-how, specifications, inventions, samples, designs, plans, drawings, documents, data, processes, forecasts, initiatives, business operations, prices, financial performance, projects, potential or existing customers which are of a confidential nature and have been disclosed by one party (“Disclosing party”) to the other party (“Receiving party”), its employees, agents or subcontractors shall be kept in strict confidence, including any other confidential information concerning the Disclosing party’s business, its Goods and services, conveyed orally or in written, electronic or other form or media, and whether or not identified as “confidential”. The Receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving party’s obligations under a Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract however the Receiving Party will remain primarily liable. The Receiving Party may also disclose such of the Disclosing Party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction however the Receiving Party will give all such notice and assistance to the Disclosing Party to challenge the validity of any such request save where it is prevented by law.
17.2 This clause 17 shall survive termination of the Contract and shall remain in force for a period of five years after the parties have ceased to do business together.
18. Data Protection
18.1 Both parties will comply with all requirements of the Data Protection Legislation. This clause 18 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
18.2 The Supplier acknowledges that for the purposes of the Data Protection Legislation, the Buyer will be a Data Controller of its own data however, particularly where the Supplier is providing Services, the Supplier may be the Data Processor of Personal Data of employees, representatives or customers (and Data Subjects of the Buyer’s customers) of the Buyer.
18.3 Without prejudice to the generality of clause 18.1 the Supplier will, where acting as a Data Processor of the other, ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the other for the duration and purposes of each Contract.
18.4 Without prejudice to the generality of 18.1 the Supplier shall, where acting as a Data Processor of the Buyer and in relation to any Personal Data processed in connection with the performance of its obligations under each Contract:
(a) Process that Personal Data only on the written instruction of the Buyer unless the Supplier is required by the Data Protection Legislation to otherwise Process that Personal Data.
(b) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Buyer to protect against unauthorised or unlawful Processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or Process Personal Data are obliged to keep the Personal Data confidential;
(d) not transfer or Process any Personal Data outside of the United Kingdom or the European Economic Area unless the following conditions are fulfilled:
(i) the Supplier has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with the reasonable instructions notified to it by the Data Controller with respect to the processing of the Personal Data;
(e) assist the Buyer, at the Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) at the written direction of the Buyer, delete or return Personal Data and copies thereof to the Data Controller on termination of each Contract unless required by Applicable Law to store the Personal Data; and
(g) maintain complete and accurate records and information to demonstrate its compliance with this clause 18.
18.5 Without limiting Supplier’s obligations under these Terms, on becoming aware of any Data Breach involving Buyer or the Buyer’s representative or customer’s Personal Data, Supplier shall follow the below process:
(a) Supplier shall notify the Buyer without undue delay but in any event within 24 hours of the Data Breach (in all cases before Supplier makes any general public disclosure (e.g., a press release));
(b) Supplier shall promptly investigate or perform required assistance in the investigation of the Data Breach and provide the Buyer with detailed information about the Data Breach, including a description of the nature of the Data Breach, the approximate number of Data Subjects affected, the Data Breach’s current and foreseeable impact, and the measures Supplier is taking to address the Data Breach and mitigate its effects; and
(c) Supplier shall promptly take all commercially reasonable steps to mitigate the effects of the Data Breach, or assist the Buyer in doing so.
18.6 Supplier will comply with clause 18.5 at Supplier’s cost unless the Data Breach arose from the Buyer’s negligent or wilful acts or Supplier’s compliance with the Buyer’s express written instructions.
19. Assignment and subcontracting
19.1 Supplier may not assign any of its rights or obligations hereunder without the previous written consent of Buyer, which will not be unreasonably withheld.
19.2 Buyer enters into each Contract for the benefit of it and its Affiliates and Supplier acknowledges that Buyer may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under a Contract or any part of a Contract to an Affiliate.
20. Ethical behaviour and Anti Bribery
20.1 Supplier shall ensure that the Goods and Services are ethically and legally sourced. Supplier acknowledges that it is aware of the prohibition of child work and warrants, represents and covenants to Buyer that its activities and supply chain are conducted in full compliance and respect of human rights and the UK Modern Slavery Act. Furthermore Supplier shall ensure that none of the Goods or Services or any components or materials thereto are manufactured, performed in or sourced from any person resident in or operating out of or otherwise associated with any country on any EU, UK, US or United Nations sanctioned or restricted list, and shall comply with the Conflict Minerals Requirements.
20.2 Supplier represents, warrants and covenants to Buyer, that in carrying out its responsibilities, neither the Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees or agents, shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (A) any official or employee of any government, or any department, agency, or instrumentality thereof, (B) any political party or official thereof, or to any candidate for political office, or (C) any official or employee of any public international organization, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for Buyer or otherwise promoting the business interests of Buyer in any respect. Supplier further warrants, represents and covenants that in placing any orders or contracts with its own suppliers it has not received, requested, been offered or expects to receive any financial inducement or other benefit from its supplier or any third party. Buyer may, in addition to its other remedies, immediately terminate this business relationship and any Contracts with Supplier in the event Buyer receives information which it determines, in its sole discretion, to be evidence of a breach by the Supplier of any representation, warranty, covenant or undertaking set forth in this clause. In the event of such termination, Buyer shall have no liability to the Supplier for any fees, reimbursements or other compensation whatsoever, and the Supplier shall defend and indemnify Buyer for any third-party loss, costs, claims, fines, penalties or damage resulting from the breach of this clause.
21. Miscellaneous
21.1 A waiver of any right or remedy shall only be effective if given in writing and no waiver by Buyer of any breach of the Contract by Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision nor shall any delay in enforcing any of Buyer’s rights under any Contract constitute a waiver.
21.2 If any provision of these Terms is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
21.3 Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, pre-contractual offers or representations, shall be effective unless it is agreed in writing and signed by the Buyer. If Buyer does not agree to the modifications to the Contract as suggested by Supplier, the terms of the Contract shall remain unchanged and continue to apply.
21.4 The Buyer and Supplier are independent contractors and nothing in these Terms will be construed to create a partnership or joint venture between them.
21.5 Supplier acknowledges that damages may be an insufficient remedy including in particular but not limited to any breach of clauses 14, 15, 17, 18 or 20 and that the Buyer will have the right to seek any other equitable remedy including but not limited to injunction or specific performance.
21.6 Any notice to be given in respect of any Contract shall be sent by first class post or by email to the address stipulated in the Order or Order confirmation.
22. Exclusion of Third Party Rights
Save as specified in clause 19.2 no person other than Buyer and Supplier shall have any right to enforce any obligation under a Contract.
23. Governing Law and Jurisdiction
The Contract and these Terms are governed by Hungarian laws without giving effect to any principles or conflict of laws excluding however the United Nations Convention on Contracts for the International Sale of Goods. Any dispute or claim arising out of or in connection with a Contract or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with Hungarian laws, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Hungary.