Purchase Order — Terms and Conditions [United Kingdom]

Definitions and Interpretation – The following words shall have the following meanings:

Affiliate: means any Subsidiary of the Company, Holding Company of the Company, or Subsidiary of any such Holding Company (Subsidiary and Holding Company taking the meaning given in section 1159 of the Companies Act 2006).

Applicable Laws: means any law, statute, subordinate legislation, bye-law, regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body, in each case which are relevant to the Contract, Goods and/or Services and which are in force from time to time.

Background IP: means Intellectual Property Rights existing and held by the Supplier prior to commencement of the Contract (including in any methodologies by which the Supplier provides goods and/or services or any pre-existing materials or data) and which have not been developed specifically for the Company or its Affiliates (including under any contract).

CDM Regulations: means the Construction (Design and Management) Regulations 2015 and the related “Managing Health and Safety in Construction” – L153 Guidance issued by the Health and Safety Executive (including any replacement or modification of those regulations and/or the related guidance).

Company: means the company that issued the Order.

Confidential Information: means all information and data disclosed by or on behalf of either party (or its affiliates) to the other (including its employees, officers, sub-contractors, advisors, representatives, affiliates and agents) relating to its (or its affiliate’s) operations, processes, plans, specifications, inventions, products, know-how, trade secrets, customers or other business affairs, and any other information that would be regarded as confidential by a reasonable business person.

Contract: means a contract between the Supplier and the Company for the purchase of Goods and/or Services made pursuant to the relevant Order, and which incorporates these Conditions (together with the applicable terms and conditions of any Framework Agreement).

Deliverables: means the deliverables, documents and output provided pursuant to the Services.

Delivery: means the delivery of the specified quantity of Goods in an acceptable condition, to the relevant delivery location identified in the Contract (or to such location as the Company may require) on the date and time (if any) specified in the Order (or if not specified such reasonable date and time as the Company may require) (and “Deliver” and “Delivered” shall be construed accordingly).

Foreground IP: means Intellectual Property Rights comprised in or arising from any Services or the Deliverables (in each case except for Background IP) or else that are developed specifically for the Company and/or its Affiliates.

Framework Agreement: any framework agreement relevant to the Goods and/or Services, entered into between the Supplier and the Company (or any of its Affiliates), and pursuant to which the Order was issued.

Goods: means the goods (or any part of them) to be supplied to the Company by the Supplier under and in accordance with the Contract, including any goods supplied in the course of performing the Services, and where appropriate, including such packaging as may be required for the immediate containment or handling of the Goods but excluding packaging used for convenience of distribution.

Good Industry Practice: means the degree of skill, diligence, prudence and foresight reasonably and ordinarily expected from a skilled and experienced supplier engaged in the same or similar type of business under the same or similar conditions and to a high professional standard (including in relation to the techniques, practices and procedures used).

Intellectual Property Rights: means any and all intellectual property rights protected under the law anywhere in the world, including patents, designs, copyright and related rights, trade marks, business names and domain names, rights in data and database rights, rights in get-up, goodwill and the right to sue for passing off, rights to use, and protect the confidentiality of confidential information (including know-how and technical information), 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 and equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Mandatory Policies: means the Company’s or its Affiliates’ policies, procedures and rules in force from time to time including on-site rules, health and safety, anti-bribery, corruption, data protection, ethics, corporate social responsibility, slavery, human trafficking and such other policies as provided or made available to the Supplier from time to time, and shall include those requirements known as “Drax Management Instructions”;

Order: means a purchase order placed by the Company for goods and/or services to be provided by the Supplier, as issued by the Company to the Supplier in writing, including details of (where applicable) any Specification, Special Conditions and/or other documents referred to therein.

Plant and Equipment: means any plant, machinery and/or equipment of the Company (or its Affiliates) in respect of which the Services are to be performed.

Price: means the agreed consideration for the relevant Goods and/or Services, as calculated pursuant to the Framework Agreement or, if there is no Framework Agreement or agreed price under a Framework Agreement, then as otherwise stated in the Order.

Return Address: has the meaning given in Clause 9.1.2.

Returned Goods: has the meaning given in Clause 9.1.

Services: means any services to be provided by the Supplier to the Company under and in accordance with the Contract (including any part of the Services as the context requires).

Site: means the site or sites of the Company (or its Affiliates) where the Goods shall be Delivered and/or the Services shall be performed by the Supplier.

Special Conditions: means the special terms and conditions (if any) set out in, or appended to, an Order which are incorporated into the relevant Contract.

Specification: means the specification or description of the Goods and/or Services, including any related plans, drawings, designs and technical information or data, as appended to the relevant Contract.

Supplier: means the person, firm or company who supplies the Goods and/or Services pursuant to the Contract.

1. Supplier Personnel: means any employee, officer, agent, representative and/or sub-contractor or supplier engaged by the Supplier to provide the Goods and/or Services under the Contract.

1.1. References to a person includes a natural person, corporate or unincorporated body (whether or not with separate legal personality). Reference to the masculine includes the feminine and a reference to the singular includes the plural, and vice versa.  A reference to a party includes its personal representatives, successors or permitted assigns.

1.2. 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.

1.3. A reference to a statute or statutory provision includes such statute or statutory provision as it may be amended or re-enacted.

1.4. A reference to in writing or written shall include e-mail.

1.5. Headings are for ease of reference only and shall not affect the interpretation of construction of these Conditions. References to Clauses are, unless otherwise provided, references to clauses of these Conditions.

2. Application of Conditions

2.1. These Conditions shall apply to all purchases of Goods and/or Services pursuant to the Order, and shall (together with the terms of any Framework Agreement) prevail to the exclusion of any other terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotations, acknowledgements or acceptances of orders, specifications or similar documents, or implied by trade, custom, practice or course of dealing, or contained in any previous agreement or understanding and the Supplier waives any right which it otherwise might have to rely on such terms or conditions.

2.2. Each Order constitutes an offer by the Company to purchase Goods and/or Services from the Supplier in accordance with these Conditions. Each Purchase Order shall be deemed to be accepted by the Supplier on the earlier of: (a) the date that acceptance or deemed acceptance of the Order occurs under a Framework Agreement; (b) the Supplier issuing a written acceptance of the Order; or (c) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence and be binding on the parties from that date.

2.3. Where the relevant Order is issued under a Framework Agreement, the constituent parts of the Contract and the order of priority between them shall be as set out in the Framework Agreement. Otherwise, the Contract shall constitute both these Conditions and the Order and in the event of any conflict, ambiguity or inconsistency between the constituent parts of the Contract the order of priority shall be (a) Special Conditions; (b) these Conditions; (c) Order (excluding the Special Conditions, Specification and any other document referred to in the Order); (d) Specification; (e) any other document referred to in the Order.

2.4. To the extent that Goods and/or Services or any part of the Goods and/or Services supplied from time to time relate to any project, asset, Site, personnel, business or other item of an Affiliate (“Relevant Affiliate”) rather than the Company, then it is agreed that (to that extent) the Company acts and acted for and on behalf of the Relevant Affiliate in procuring and receiving those Goods and/or Services. In respect of such Goods and/or Services, the Relevant Affiliate shall have the full ability to enforce the Contract (including in relation to costs, loss and/or damage suffered by it) on the same terms as the Company.

3. Delivery and Performance

3.1. The Supplier shall supply the Goods and/or perform the Services (and deliver all Deliverables) in accordance with the terms of the Contract.

3.2. The Supplier shall Deliver the Goods carriage and insurance paid, and perform the Services, in the manner, and at the times and dates specified in the Order (or otherwise agreed by the Company), or if not specified, as soon as reasonably practicable and which unless stipulated shall be within the Company’s normal business hours.

3.3. The Supplier will comply with and perform and discharge its obligations relevant to its designated role under the CDM Regulations, and warrants and represents to the Company that it has the competence, capacity and resources to do so.

3.4. The Supplier shall not Deliver the Goods in instalments without the Company’s prior written consent. Where it is agreed, Goods may be invoiced and paid for separately.

3.5. The Company shall provide the Supplier with reasonable access at reasonable times to the Site(s) as may be necessary for the performance of the Contract.

3.6. The Supplier shall:

3.6.1. ensure that each Delivery is: (i) properly packaged and secured so as to reach its destination in good condition; and (ii) accompanied by a delivery note containing details of the Supplier, contents, any perishable items, any outstanding Deliveries, the Company’s Contract number and any other information the Company requires (and has notified the Supplier of);

3.6.2. ensure that all Goods are suitably and sufficiently marked, endorsed and labelled with such information and advice necessary to enable the Company to comply with all Applicable Laws relating to the Goods and to instruct persons who may handle the Goods about any hazards to health and/or safety reasonably foreseeable from handling, using or processing the Goods; and

3.6.3. comply (and ensure all Supplier Personnel comply) at all times with all the Company’s instructions and all Mandatory Policies. The Supplier shall also address the hazards selected in a hazard risk evaluation sheet provided by the Company.

3.7. The Company shall be entitled to a period of 14 days (or such other period of time as may be agreed between the parties) in order to inspect any Goods and/or Services prior to accepting such Goods and/or Services. Any such acceptance is without prejudice to the rights of the Company thereafter following the identification of any defect in or failure of the Goods or Services or any non-compliance with the Contract.

3.8. The Company may (in its discretion) refuse any Supplier Personnel access to any Site and/or order any person (including Supplier Personnel) to leave any Site.

3.9. The Supplier shall not, without prior written consent from the Company, use any of the Company’s (or its Affiliates’) facilities, property, equipment, tools, machinery, vehicles, goods, plant, substances, chemicals, emissions, utilities, services or by-products. The Company shall be entitled to make a reasonable charge to the Supplier for the use of any of such items and the Supplier shall be fully responsible for any loss of or damage to anything so supplied (subject to fair wear and tear).

4. Quality and Defects

4.1. The Supplier warrants, represents and undertakes that the Goods shall:

4.1.1. correspond with any applicable Specification or otherwise be capable of any specified standard of performance and corresponds to their description;

4.1.2. be of good and suitable industry design, quality, material and workmanship and of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Company expressly or by implication, and in this respect the Company relies on the Supplier’s skill and judgement; and

4.1.3. be free from any defects in design, materials or workmanship and shall remain so for twenty-four (24) months after Delivery of Goods or completion of Services.

4.2. The Supplier warrants, represents and undertakes that all Services performed under the Contract shall be performed with all due skill and care, in a good and workmanlike manner and in accordance with Good Industry Practice.

4.3. The Supplier warrants, represents and undertakes that:

4.3.1. all Goods supplied and/or Services performed shall conform in all respects with the Contract, and comply with all Applicable Laws (including, in respect of any Goods, the manufacture, labelling, packaging, storage, handling and delivery of the Goods), and that the Supplier shall otherwise comply with all Applicable Laws in connection with the Contract;

4.3.2. the Supplier Personnel have the qualifications, professional competence and experience necessary to supply the Goods and/or perform the Services in accordance with the requirements of the Contract and shall be appropriately supervised at all times;

4.3.3. the Goods and/or Services shall not in any way infringe or violate any Intellectual Property Rights nor any other rights of any third parties; and

4.3.4. it has full capacity and authority to enter in to the Contract and that it has (and shall maintain) all necessary licences, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

4.4. The Supplier shall maintain sufficient quality, specification control, testing and inspection procedures to enable the Supplier to comply with its obligations under the Contract and shall supply the Company with full details of such procedures (and any updates to them) on request and allow the Company (at its option) to be represented at such tests.

5. Plant and Equipment

5.1. All Plant and Equipment shall remain the property of the Company at all times (together with any product, substance, emission or item created, produced or generated by such Plant and Equipment) and shall be used by the Supplier in the execution of the Services only (and then only to the extent expressly permitted by the Company) and for no other purpose whatsoever.

5.2. The Supplier shall be responsible to ensure that any Plant and Equipment or any other property of the Company (or its Affiliates) is suitable in all respects for the purpose for which it is provided. The Supplier shall without delay notify the Company if it discovers any defect or deficiency in any Plant or Equipment or any other property of the Company (or its Affiliates), including that it does not comply in all respects with Applicable Laws, or otherwise forms the view that it requires replacement or refurbishment. The Supplier shall not use any such identified Plant or Equipment or property unless the Company instructs it to do so after receipt of such notice.

6. Removal of Plant and Equipment off-Site

6.1. Where, in order for the Services to be carried out, any Goods and/or Plant and Equipment are collected by or sent to the Supplier at a location other than the Site:

6.1.1. risk in the Goods and/or Plant and Equipment shall pass to the Supplier at such time as they are collected by the Supplier or leave the possession of the Company or its relevant Affiliate (whichever is earliest) and shall remain at the risk of the Supplier until the Company resumes possession after their re-delivery to the Site or any other designated premises of the Company or its Affiliate has taken place;

6.1.2. title in any Plant and Equipment shall at all times be retained by the Company (or its relevant Affiliate);

6.1.3. title in any Goods that the Company has taken title to in accordance with these terms, shall at all times be retained by the Company;

6.1.4. the Supplier shall not dispose of such Goods and/or Plant and Equipment, and the restriction at Clause 3.9 shall also apply to the Goods;

6.1.5. the Supplier shall keep the Goods and/or Plant and Equipment separate from other goods and shall mark them clearly as being property of the Company;

6.1.6. the Supplier shall, on request, provide to the Company such security relating to the Goods, Plant and Equipment in such form as may be reasonably required by the Company;

6.1.7. the Supplier shall not remove, deface or obscure any markings or packaging on or relating to the Goods and/or Plant and Equipment; and

6.1.8. the Supplier shall insure any Goods and/or Plant and Equipment against all risks and for their full reinstatement value whilst they are removed from the Company’s or its Affiliate’s premises or the Site.

7. Risk and Title

Goods shall remain at the risk of the Supplier until Delivery (including unloading and stacking and installation where appropriate), at which point risk in those Goods shall pass to the Company (but without prejudice to any right of return or rejection which may accrue to the Company under the Contract).  Title in the Goods shall pass to the Company on the earlier of (a) Delivery; or (b) payment for the Goods by the Company. Where payment for any Goods is requested by the Supplier prior to Delivery of such Goods, then as a condition of payment the Company may require such security or vesting certificates in such form as it may reasonably require.

8. Price and Payment

8.1. The Price of the Goods and/or Services shall be as stated in the Contract and, unless otherwise agreed in writing by the Company, shall be exclusive of value added tax but inclusive of all other charges (including carriage, insurance and equipment required).

8.2. Unless otherwise agreed in writing by the Company, the Price shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Contract. The Price includes all royalties or other charges which may be claimed or required to be paid in respect of rights or licences (including licences of Intellectual Property Rights) necessary to enable the Company freely to employ and use any Goods or Services supplied under the Contract.

8.3. The Supplier shall submit all invoices both in hard copy to the Company and electronically to [email protected]. The Company shall be under no obligation to accept invoices that are not submitted in both hard and soft copy. Each invoice shall include such supporting information as may be required by the Company to verify the accuracy of the invoice, and to the extent that VAT (or equivalent sales tax) is properly chargeable to the Company, must be a valid VAT invoice. Save where the invoice is disputed, the Company shall pay the Price within sixty (60) days of the date of receipt of a valid invoice. The Supplier acknowledges that it is the Company’s policy not to effect third party payments and, accordingly, the Company is only obliged to make payment to an account which the Supplier has evidenced it is the beneficial owner of. The Supplier agrees that the Company is not obliged to make payment whilst the requirements of this Clause 8.3 are not met and, in the case of the supply of Goods, whilst the information requirements of Clause 3.6.1 are not met.

8.4. If the Company fails to pay any amount properly due and payable under the Contract, the Supplier shall have the right to charge interest on the overdue amount at the rate of two per cent (2%) per annum above the base rate for the time being of Barclays Bank plc accruing on a daily basis from the due date up to the date of actual payment, whether before or after judgment. the Company shall pay the interest together with the overdue amount.

8.5. Without prejudice to any other right or remedy, the Company reserves the right to withhold, deduct or set-off any amounts owing or claimed from the Supplier against any amount payable by the Company or any of its Affiliates to the Supplier. The Supplier shall not be entitled to assert any credit, set-off or counterclaim against the Company.

8.6. If there is any invoice which is in dispute (whether in whole or in part), the Company shall be entitled to withhold payment of the disputed amount. The parties shall enter into good faith discussions to resolve such dispute.

8.7. Payment of the Price for the Goods and/or Services shall not constitute acceptance by the Company of the Goods and/or Services.

8.8. The Company may nominate from time to time a representative to pay or collect monies on its behalf.

9. Returned Goods

9.1. The Company may at its option return to the Supplier any ordered Goods (or complete individual items of the Goods) (“Returned Goods“) that are in materially similar condition as they were upon Delivery and receive a full refund of the Price subject to the following conditions:

9.1.1. the Company will provide written notice of its intention to return any Returned Goods to the Supplier and (at its option) provide details of where the Returned Goods are to be collected from in accordance with Clause 9.1.2;

9.1.2. if the Company has opted for Returned Goods to be collected, the Supplier shall, within 5 days of receipt of the notice specified in Clause 9.1.1, provide details of the return address for the Returned Goods (“Return Address“);

9.1.3. the Company or the Supplier (at the Company’s option) shall arrange for the collection or delivery (as the case may be) of the Returned Goods; and

9.1.4. the Returned Goods must be collected by the Supplier promptly following notification by the Company.

9.2. Repayment of the Price for the Returned Goods shall be made upon return to the Supplier’s Return Address or collection from the Site (as the case may be).

10. Remedies

10.1. Without prejudice to any other right or remedy which the Company may have, if any Goods are not Delivered or any Services not performed when due, or any damaged or sub-standard Goods or Services are Delivered or performed, or any Goods or Services do not meet the Specification or any other requirement of the Contract, then the Company shall have the right (at its sole option and whether or not it has accepted the Goods and/or Services) to any one or more of the following remedies:

10.1.1. to terminate or cancel the Contract either wholly or partially;

10.1.2. to reject the Goods and/or Services (in whole or in part) and return the Goods to the Supplier at the Supplier’s risk and expense;

10.1.3. to require the Supplier to immediately repair or replace any rejected Goods or re-perform any rejected Services, in each case at the Supplier’s expense, or to provide a full refund of the price of the rejected Goods and/or Services (if paid);

10.1.4. to refuse to accept any subsequent Delivery of Goods and/or performance of Services;

10.1.5. to require the Supplier to leave the Site, to remove the Supplier’s property brought onto the Site or the premises of the Company or any of its Affiliates and, where it is not removed or collected within a reasonable time by the Supplier, dispose of such property by whatever means the Company deems fit.

11. Liability and Indemnity

11.1. The Supplier shall on demand indemnify, keep indemnified and hold harmless the Company and its Affiliates against any and all loss, damages, injury, claims, costs, fines and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company or its Affiliates as a result of or in connection with:

11.1.1. any actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or provision of the Services and/or Deliverables;

11.1.2. any death, personal injury or loss or damage to any property (real or personal, tangible or intangible) suffered or incurred by any person or entity to the extent it relates to or arises from the Goods and/or Services or the presence of the Supplier or the Supplier Personnel on the Site or other premises of the Company or its Affiliates, other than to the extent it arises from any default or responsibility of the Company; and

11.1.3. any other claim made against the Company by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or sub-contractors.

11.2. Neither party shall have any liability to the other party, for any indirect, special or consequential loss arising under or in connection with the Contract.

11.3. The Supplier’s maximum liability under the Contract shall be £5,000,000 or the Price (whichever is the higher).

11.4. Notwithstanding the above limitations and exclusions, neither party excludes or limits its liability: (i) under Clause 11.1.1 or 11.1.2 (or otherwise for death or personal injury); (ii) for fraud or fraudulent misrepresentation; (iii) for any liability that cannot be excluded or limited as a matter of law; or (iv) under Clauses 12 or 13. In addition, nothing in this Clause shall be interpreted as limiting any obligation on the Supplier to rectify defects or deficiencies in Goods or Services or any obligation on the Supplier to refund any part of the Price to the Company.

11.5. The Supplier shall, at its own expense, maintain in force during the Contract with reputable insurers adequate insurance cover for the provision of Goods and/or Services, including professional indemnity insurance, general third party liability insurance and such insurance as is required by Applicable Law and, at the Company’s request, shall produce insurance certificates and evidence of payment of the then current premium, each with a minimum coverage of £5,000,000 or such other amount agreed with the Company.

12. Confidentiality and Intellectual Property Rights

12.1. The Supplier shall, and shall procure that the Supplier Personnel shall, keep secret and confidential all Confidential Information.

12.2. The obligation of confidentiality referred to in Clause 12.1 shall not apply to any information which is:

12.2.1. already in the public domain or otherwise ceases to be of a confidential nature through no act or omission of the recipient;

12.2.2. in the possession of the recipient other than pursuant to disclosure from the discloser, without any obligation of confidentiality applying to it; or

12.2.3. required to be disclosed by law, an order of a court of competent jurisdiction or the legally binding rules of any stock exchange.

12.3. To the extent necessary to perform its obligations under the Contract, the Supplier may disclose Confidential Information to Supplier Personnel provided that the Supplier shall: (a) before disclosure, make such persons aware of the obligations of confidentiality under the Contract; (b) at all times procure compliance with such obligations of confidentiality; and (c) if requested by the discloser, procure that such persons execute a confidentiality agreement directly in favour of the discloser.

12.4. The Supplier (and the Supplier shall procure that all Supplier Personnel) will not use the Confidential Information for any purpose other than performance of the Contract.

12.5. The Supplier grants to the Company and its Affiliates a non-exclusive irrevocable royalty-free licence to use Background IP in connection with the Contract, the Goods, Services, Deliverables and in order to make full use of the Goods, Services, Deliverables and Foreground IP. Ownership of Background IP is retained by the Supplier.

12.6. Any Intellectual Property Rights in the Foreground IP created by the Supplier in performing the Contract (including all rights in, and ownership of, the Deliverables) are hereby assigned (by way of current assignment of future rights) by the Supplier to the Company with full title guarantee and free from third party rights. The Supplier agrees to execute all documents and assignments and do all such things as may be necessary to perfect the Company’s title to such Intellectual Property Rights in the Foreground IP or to register the Company as owner of registerable rights. The Supplier agrees that the Company may share Foreground IP and/or any Deliverables with any Affiliate, and that such Affiliates may rely on the same (and have the benefit of all rights under this Agreement in relation to Foreground IP and Deliverables) to the same extent as the Company.

12.7. All Intellectual Property Rights belonging to the Company (or its Affiliates) are and shall remain the exclusive property of the Company (or its relevant Affiliate(s)). To the extent permitted by the Company at all, the Supplier shall only use any Intellectual Property Rights belonging to the Company (or its Affiliates) for the purpose only of performing the Contract. The Supplier undertakes not to use, reproduce, modify or distribute any Foreground IP or Deliverables for any purpose other than for the purpose of performing the Contract.

12.8. This Clause 12 shall apply during the continuance of the Contract and after its termination howsoever arising without limitation in time.

13. Compliance

13.1. In this Clause 13:

13.1.1. “the Bribery Act” means the Bribery Act 2010;

13.1.2. the “Modern Slavery Act” means the Modern Slavery Act 2015.

13.2. The Supplier shall:

13.2.1. comply with the Company’s Mandatory Policies insofar as they relate to anti-bribery and corruption, slavery and human trafficking;

13.2.2. comply with all Applicable Laws relating to anti-bribery and anti-corruption (including but not limited to the Bribery Act) and slavery and human trafficking (including but not limited to the Modern Slavery Act);

13.2.3. not engage in any activity, practice or conduct which would constitute an offence under section 1, 2 or 6 of the Bribery Act if such activity, practice or conduct had been carried out in the UK;

13.2.4. have and maintain in place throughout the duration of the Contract its own policies and procedures including (but not limited to) adequate procedures under the Bribery Act and Modern Slavery Act to ensure compliance with this Clause 13.2 and shall enforce them where appropriate;

13.2.5. ensure that all persons associated with the Supplier, all Supplier Personnel or other persons who are performing the Services or supplying Goods in connection with the Contract, comply with this Clause 13.2;

13.2.6. notify the Company as soon as it becomes aware of any actual or suspected bribery, corruption, slavery or human trafficking in a supply chain which has a connection with the Contract. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Supplier’s obligations.

13.3. The Supplier also represents and warrants that, at the date of the Contract, neither the Supplier nor any of its officers, employees or other persons associated with it:

13.3.1. has been convicted of any offence involving anti-bribery, corruption, slavery or human trafficking anywhere in the world; and

13.3.2. has been or is or has been notified that it may be the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with the matters set out in this Clause 13.

13.4. The Supplier shall maintain a complete set of records of all documentation and materials provided to the Company in connection with the Contract and shall implement procedures for its own suppliers, subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains. The Supplier shall make records available for inspection by the Company upon reasonable request;

13.5. The Supplier shall not do or omit to do anything which causes any liability for the Company under Part 3 of the Criminal Finances Act 2017.

13.6. The Supplier shall at all times comply with all of its obligations pursuant to applicable laws and regulations of any relevant jurisdiction (including the European Union) relating to data protection and data security, and shall not do anything which causes the Company (or any of its Affiliates) to incur any liability, fine or penalty in connection with such laws and regulations. To the extent that the Supplier’s data protection and/or data security obligations under any Framework Agreement are more burdensome than the above, then such obligations shall be deemed to be incorporated into this Clause 13.6 (with all necessary changes having been made).

13.7. The Supplier shall indemnify the Company and its Affiliates against any losses, liabilities, damages, costs (including, but not limited to, legal fees) and expenses incurred by, or awarded against, the Company or its Affiliates as a result of any breach by the Supplier or Supplier Personnel of the obligations, representations and/or warranties under this Clause 13.

13.8. The Company may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier commits a breach or suspected breach of this Clause 13.

14. Termination of the Contract

14.1. The Company shall have the right at any time and for any reason to terminate the Contract by giving the Supplier not less than fourteen (14) days written notice whereupon the Supplier shall discontinue the performance of such works as the Company may determine and the Company shall pay to the Supplier fair and reasonable compensation for the relevant work-in-progress at the time of termination but excluding loss of anticipated profits or any consequential loss.

14.2. Either party shall have the right at any time by giving written notice to the other to terminate the Contract immediately if:

14.2.1. the other party commits a material breach of any of its obligations under the Contract and (if capable of remedy) fails to remedy this within fourteen (14) days of being required to do so by written notice;

14.2.2. the other party commits a series of persistent minor breaches (which taken together amount to a material breach);

14.2.3. any distress, execution or other process is levied upon any of the assets of the other party;

14.2.4. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or an application is made to court or an order for the appointment of an administrator or notice of intention to appoint an administrator is given, or negotiations are commenced with all or any class of its creditors with a view to rescheduling of debts or makes a proposal for or enters into any compromise or arrangement with its creditors, or a petition is filed or notice is given or a resolution is passed or an order is made for or in connection with the winding up of that party (not being a member’s voluntary winding up for the purposes of reconstruction or amalgamation), or a receiver is entitled to be or is appointed over the assets of the other party, or the other party otherwise discontinues all or a significant part of its business operations; or

14.2.5. the other party ceases or threatens to cease carrying on all or a substantial part of its business.

14.3. Termination of the Contract for any reason shall be without prejudice to the parties’ accrued rights as at termination. Any terms of the Contract which expressly or impliedly have effect following termination will remain in force (including obligations in relation to confidentiality, Intellectual Property Rights and liabilities that arise after termination in connection with Goods, Services or other matters performed, delivered or carried out prior to termination).

14.4. Within seven (7) days of termination or expiry (for any reason) the Supplier shall return all Plant and Equipment, any property of the Company (and its Affiliates), and all copies of Confidential Information held by the Supplier. If the Supplier fails to do so then the Company may (and the Supplier hereby grants and procures that any third party grants to the Company the right to) enter any premises of the Supplier or any third party where such Plant and Equipment, property of the Company (or its Affiliates) or Confidential Information may be located and recover the Plant and Equipment, property and/or Confidential Information.

15. Force Majeure

Neither party shall be liable to the other for any delay or failure to perform its obligations under the Contract, if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party, and which by its very nature could not reasonably have been foreseen or avoided, including acts of God, war, riot, civil commotion, fire, flood, storm, malicious damage, act of terrorism or governmental order (“Force Majeure“).  Any strikes or labour disputes, breach of the Contract or default by suppliers or sub-contractors affecting the party seeking to rely on this Clause shall not be an event of Force Majeure. A party shall use all reasonable efforts to overcome a Force Majeure event and resume the performance of its obligations as soon as reasonably possible.  Drax shall be entitled (without limiting its other rights or remedies) to terminate the Contract if the Supplier suffers an event of Force Majeure for fourteen (14) days or longer.

16. General

16.1. The Supplier shall not assign, transfer, sub-contract or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.

16.2. The Supplier shall not use the Contract or the name of the Company (or any of its Affiliates or the name “Drax”) in any advertising or promotion without the Company’s prior written consent.

16.3. Failure or delay by either party in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract. A waiver by either party of any breach or default of any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and shall not affect the other terms of the Contract.

16.4. Each right or remedy of the parties under the Contract is without prejudice to any other right or remedy of the parties whether under the Contract or not.

16.5. Any notice to be given under the Contract shall be in writing, and given to such address or email address as may have been notified to the other Party from time to time. In any event, any notice to the Company relating to any breach or alleged breach, demand or claim for payment (other than invoices issued in the ordinary course under Clause 8) or termination or suspension or potential termination or suspension must be sent to [email protected].

16.6. Save for Affiliates, nothing in the Contract is intended to, nor shall confer any rights on a third party under the Contracts (Rights of Third Parties) Act 1999.

16.7. The Contract (incorporating the Order, the Specification (if any), these Conditions and any Special Conditions together with any applicable terms of any Framework Agreement) contains the entire agreement between the parties in respect of the supply of the Goods and/or Services to the Company by the Supplier. The Contract replaces any previous agreement or understanding between the parties.

16.8. If any provision (or part of any provision) of the Contract is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions herein shall continue in full force and effect as if the Contract had been agreed with the invalid, illegal or unenforceable provision eliminated.

16.9. The Supplier is engaged as an independent contractor. Nothing in the Contract is intended to, or shall be deemed to establish or imply any agency, partnership, joint venture or employee/employer relationship between the parties. No party shall have authority to act as agent for, or to bind, the other party in any way (including making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

16.10 The Contract, any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, the law of England and Wales and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales with regard to all matters arising under or in connection with it or its subject matter or formation (including non-contractual disputes or claims).