1.1 “The Company” – shall mean HRG (UK) Limited, a company incorporated in England and Wales with Company registration number 02527817.
1.2 “The Client” – shall mean the person or company that buys or agrees to buy goods and/or services from the Company.
1.3 “Conditions” – shall mean the terms and conditions of sale set out in this document and/or any other terms and conditions agreed in writing by the Company.
1.4 “Working Day” – shall mean Monday to Friday inclusive, excluding statutory Bank Holidays.
2. Conditions Applicable
2.1 These conditions shall apply to all contracts for sale of goods and/or services by the Company to the Client to the exclusion of all other terms and conditions, including warranties and conditions implied by statute and/or common law, to the fullest extent possible save for standard industry practice. For the avoidant of doubt, these conditions shall not include any terms and conditions which the Client may purport to apply under any of their documentation, correspondence or elsewhere or implied by practice or course of dealing unless otherwise agreed in writing by the Company. In the event of disparity between these terms and standard industry practice these terms shall prevail.
2.2 Accepting the delivery of goods or commencement of the providing of services shall be deemed conclusive evidence of the Client’s acceptance of these conditions.
2.3 Any variation to these conditions shall not apply unless agreed in writing by the Company.
3. Estimates and Quotations
3.1 Estimates and Quotations are valid for one month from the date thereof.
3.2 The Company reserves the right to withdraw or revise any estimate at any time prior to the Client contracting for goods and/or services.
3.3 A ‘Quotation’ is a fixed price given only against a fixed specification, and as such the Company does not undertake to hold a quoted price if, for any reason, the specification changes. Specification will include time allowed on a project.
3.4 Each contract shall come into existence once the Client has confirmed in writing its acceptance of the Company’s Quotation.
3.5 The Client must ensure that the terms of its specification are complete and accurate.
4.1 Visuals and/or Proofs of all work whether it is design, print and/or advertising production will be submitted for a Client’s approval, or that of an authorised agent or representative. If the Client wants to limit who in its organisation can give such approval it must specify so, and the people who can give such approval, in its acceptance of the Quotation.
4.2 Authors corrections, including alterations to originally briefed and agreed style, and the costs of additional visuals necessitated by such changes will be charged extra and may impact on the due delivery date.
4.3 Final proofs will be submitted for a Client’s approval and thereafter no responsibility will be accepted by the Company for any errors not corrected therein. The Company accepts no responsibility for correctness of proofs if the Client instructs the Company to proceed without examining proofs.
5. Price and Payment
5.1 The price shall be the Company’s estimated or quoted price or the price set out in any revised estimate or Quotation unless amended in accordance with clauses 3.3, 4.2, 6.1, 6.5 and 7.2.
5.2 The price is exclusive of VAT, which shall be due at the rate ruling on the date of the Company’s invoice.
5.3 Payment for the goods and services is due 30 days from the invoice date.
5.4 The Company reserves the right to charge interest at NATWEST BANK base lending rate plus 3% on any overdue account, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
5.5 The Client shall make all payments due under the Contract without any deduction whether by way of set off, counterclaim, discount, abatement or otherwise unless the Client has a valid Court Order requiring an amount equal to such deduction to be paid by the Company to the Client.
5.6 Prior to commencing work on any order, the Company reserves the right to charge a deposit of 30% of the order value or the value of any third party costs it will incur in fulfilling the order, whichever is the higher and such payment shall be due immediately and the Company will be entitled to refrain from incurring any third party liability or starting any work even if this adversely affects the proposed delivery date pending receipt of the deposit.
5.7 In the event that the Client fails to comply with the payment terms set out in this clause 5, the Company shall at its own discretion be entitled to suspend the provision of goods and/or services, or the provision of further goods and/or services, to the Client under each contract until such time as the Client remedies its default.
6. Delivery and Production
6.1 Unless otherwise specified the price is for delivery of the work to the client’s address as set out in the estimate. A charge may be made to cover any extra costs involved for delivery to a different address.
6.2 Should work be suspended at the request of, or delayed through any default of the Client for a period of 30 days the Company shall then be entitled to payment for work already carried out, materials specially ordered, storage and any other additional costs.
6.3 Any complaint of short delivery or of damage to goods in transit must be notified to the Company within five Working Days of receipt of the goods.
6.4 Any complaint of failure to deliver goods invoiced must be so notified within ten Working Days of the date of invoice.
6.5 Reasonable endeavours will be made to deliver the correct quantity ordered but estimates are conditional upon margins of 5% being allowed for overs or shortages, the same to be charge or deducted.
6.6 Any date specified by the Company for delivery of the goods is intended to be an estimate and time for delivery shall not be of the essence.
6.7 If for any reason the Client will not accept delivery of the goods when they arrive at the Client’s premises:
6.7.1 risk in the goods will pass to the Client;
6.7.2 the goods will be deemed to have been delivered; and
6.7.3 the Company may store the goods until delivery, whereupon the Client
will be liable for all related costs and expenses (including without limitation storage and insurance).
7. Urgent Contracts
7.1 Where the Client specifically requests that production of work and/or delivery of goods be expedited in a time span not normally accepted by the Company, reasonable efforts will be made to comply. Though reasonable efforts will be made to ensure the product is free from defects, the Client must make reasonable allowances.
7.2 Should such delivery necessitate overtime being worked or other additional costs being incurred an additional charge will be made to cover the increased cost.
7.3 The Company will not be liable to the Client if as a result of the expedited production the quality of the goods is of a lower standard than that produced by the Company in the ordinary course of business.
8. Standing Materials
8.1 Data may be erased and/or origination scrapped immediately after the order is executed unless written agreements are made to the contrary.
8.2 The Company shall be entitled to destroy all other materials in their custody two years after its creation or delivery to the Company (whichever is later) unless it continues to be used for the Client’s work, or after one month’s notice given to the Client at such earlier time as the Company think reasonable.
9. Materials Supplied by Client
9.1 Client’s property when supplied will be held at the Client’s risk.
9.2 Care will be taken to secure the best results but the Company accepts no responsibility for imperfect work caused by defects in or unsuitability of materials supplied by the Client unless caused by the negligence of the Company.
9.3 The Company may reject any materials supplied or specified by the Client, which appear to the Company to be unsuitable. Additional cost incurred if materials supplied by the Client are found to be unsuitable during any production process will be charged as extra.
9.4 The Company shall not be required to produce work, which in their opinion is of an illegal or libellous nature, or any infringement of proprietary rights or other rights of any third party.
10 Intellectual Property Rights
10.1 For the purpose of these conditions, “Intellectual Property Rights” means: any patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and renewals or extensions of, 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.
10.2 The Client warrants that it is the sole owner of all Intellectual Property Rights in any artwork provided by the Client to the Company, save where otherwise notified to the Company in writing. Where the Client is not the sole owner of all Intellectual Property Rights in any artwork provided by the Client to the Company the Client warrants that it has acquired the right to use such artwork and to engage the Company to use the same.
10.3 The Client further warrants that any artwork provided by the Client to the Company does not contain anything that is defamatory or indecent and that it does not infringe the statutory or common law rights of any third party.
10.4 The Client shall indemnify the Company against any and all loss, damages or costs sustained by the Company arising from any breach by the Client of its warranties under this clause 10. At the Company’s request, and at the Client’s own expense, the Client shall provide all reasonable assistance to enable the Company to resist any claim, action or proceedings brought against the Company as a consequence of that breach. For the avoidance of doubt, the indemnity shall extend to any amounts paid on a lawyer’s advice in settlement of any claim, including legal costs.
10.5 All Intellectual Property Rights in original artwork created by the Company on behalf of the Client (save where the Intellectual Property Rights are already owned by the Client and/or a third party) shall be the property of the Company and shall remain vested in the Company. Upon completion of the Company’s work in respect of each contract for sale of goods and/or services by the Company to the Client, and upon the Client’s written request, the Company shall assign to the Client all Intellectual Property Rights as are vested in the Company in original artwork created by the Company on behalf of the Client provided that the Client has complied with all of its obligations under the contract including for the avoidance of doubt payment in full of all invoices in respect of the goods/services provided by the Company under the relevant contract.. Any such assignment must be completed in writing and signed on behalf of the Company.
10.6 The Company shall retain any and all Intellectual Property Rights in all presentation or pitch materials prepared by the Company, in competition with any other agency, in the event that such pitch or presentation is unsuccessful. Further, the Company shall retain any and all Intellectual Property Rights in any other material produced speculatively by the Company, whether or not such material is produced in competition with any other agency, in the event that such material is not used by the Client.
10.7 The Client shall immediately give notice in writing to the Company if it becomes aware, whilst the Intellectual Property Rights in any original artwork created by the Company remain vested in the Company, of:
10.7.1 any infringement or suspected infringement of and of the Intellectual Property Rights; or
10.7.2 any claims made or threatened that the Intellectual Property Rights infringe the rights of any third party and the Company shall, in its sole discretion decide what if any action to take and if it so elects shall have sole control over and conduct of all claims and proceedings. The Client shall provide, at its own cost, all assistance that the Company may reasonably require in the conduct of any claims or proceedings. The Company shall bear the cost of any claims and proceedings of which it has conduct and shall be entitled to retain all sums recovered in any such action for its own account.
10.8 The Company reserves the right to reproduce any artwork created by the Company on behalf of a Client for the purpose of its own promotion unless the Client specifies otherwise in writing upon accepting the Quotation.
11. Limitation of Damages
11.1 Nothing in these Conditions excludes or limits the Company’s liability:
11.1.1 for death or personal injury caused by the negligence of such party;
11.1.2 resulting from any fraud including without limitation fraudulent misrepresentation made by such party; or
11.1.3 for which liability may not otherwise lawfully be limited or excluded.
11.2 Subject to Clause 11.1 in no event shall either party be liable to the other under contract negligence or otherwise for any special loss including direct loss of profits nor for any indirect or consequential damages (including indirect loss of profit, business interruption, loss of sales, loss turnover, loss of opportunity, loss of anticipated savings, loss of data and/or loss of inaccuracy or information either than fraudulent misrepresentation) even if the loss was reasonably foreseeable or either party has been advised of the possibility of such damages.
11.3 Subject to clause 11.1 the Company’s aggregate liability to the Client whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the costs of the goods and/or services which gives rise to such liability in respect of any occurrence or series of occurrences
12. Force Majeure
12.1 Neither party shall be liable for any default due to any Act of God, war, strike, lockout industrial action, fire, flood, draught, tempest, or any event beyond the reasonable control of either party provided it informs the other party of such an occurrence as soon as reasonably practicable.
13. Title and Risk
13.1 The risk passes to the Client at the point when the goods are delivered to the Client’s premises or such other address as specified by the Client.
13.2 Ownership of the goods shall not pass to the Client until the Company has received in full (in cleared funds) all sums due to it in respect of:
13.2.1 the goods; and
13.2.2 all other sums which are or which become due to the Company from the Client on any account.
13.3 The Client’s right to possession of the goods shall terminate immediately if the Client has a Bankruptcy Order made against him or makes an arrangement or composition with his Creditors or otherwise takes the benefit of any Act for the time being in force for the relief of Insolvent Debtors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation or has a Receiver and/or Manager, Administrator or Administrative Receiver appointed of its undertaking or any part thereof or a Resolution is passed or a Petition presented to any Court for the winding up of the Client or for the granting of an Administration Order in respect of the Client or any proceedings are commenced relating to the Insolvency or possible Insolvency of the Client.
13.4 The Company shall be entitled to recover payment for the goods notwithstanding that ownership of any of the goods has not passed from the Company.
13.5 The Client grants the Company, its Agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them or to recover them.
14.1 Where the Company is not the manufacturer of the Goods, the Company will endeavour to transfer to the Client the benefit of any warranty or guarantee given to the Company.
14.2 The Company warrants that (subject to the other provisions of these Conditions) upon delivery and for a period of 3 months from the date of delivery, the Goods will:
14.2.1 be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended by the Supply of Goods and Services Act 1994);
14.2.2 be reasonably fit for the purpose for which the Goods are being order as specified in the Quotation
14.3 The Company shall not be liable for a breach of any of the warranties in condition 14.2 unless:
14.3.1 the Client gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 10 days of the time when the Client discovers or ought to have discovered the defect; and
14.3.2 the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Client (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Client’s cost for the examination to take place there.
14.4 The Company shall not be liable for a breach of any of the warranties in condition 14.2 if:
14.4.1 the Client makes any further use of such Goods after giving such notice; or
14.4.2 the defect arises because the Client failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
14.4.3 the Client alters or repairs such Goods without the written consent of the Company.
14.5 Subject to conditions 14.3 and 14.4, if any of the Goods do not conform with any of the warranties in condition 14.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Client shall, at the Client’s expense, return the Goods or the part of such Goods which is defective to the Company.
14.6 If the Company complies with condition 14.5 it shall have no further liability for a breach of any of the warranties in condition 14.2 in respect of such Goods.
15. Governing Law
All aspects of this Contract shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.
The Parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.1 Any waiver by the Company of any breach of, or any default under any provision of the Contract by the Client will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
17.2 Failure or delay by the Company 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.
The warranty provided is for 12 months, covering materials, manufacturing and where applicable, installation.
In all cases the faulty component(s) will be replaced free of charge. The process for this is as follows:
Initial response will be within 1 working day and remedial action agreed within 48 hours. Items not covered will be quoted for each occurrence.
Items not covered by the guarantee:
For the purposes of these General Terms and Conditions, the following words shall have the meanings assigned to them below:
1.1 Contract: any agreement concluded with the Supplier and any alteration, addition or any more detailed arrangements such as the Specifications for the procurement of Products or Services thereto;
1.2 Defect: any deviation from the Specifications or any kind of improper functioning of the Products;
1.3 General Terms and Conditions: these general terms and conditions for the procurement of Products and Services;
1.4 Items: all items, documentation, images or materials otherwise, such as models, stamps, drawings, tools or other aids, which HRG (UK) Ltd makes available to the Supplier in connection with the Contract;
1.5 Products: all items, goods, materials, merchandise and any other products (including without imitation, computer software), data, as stipulated in the Purchase Order or the Contract, which are supplied, delivered or otherwise made available or to be supplied, delivered or made available, to HRG (UK) Ltd and Supplier in the performance of a Contract;
1.6 Purchase Order: the written confirmation by HRG (UK) Ltd of a quotation, proposal or offer from Supplier sent to Supplier by post mail, fax or digitally;
1.7 Services: all services as stipulated in the Purchase Order or the Contract, which are offered, provided or to be provided to HRG (UK) Ltd;
1.8 Specifications: the detailed specifications or description of the Products or Services as agreed to by HRG (UK) Ltd and Supplier, including, if applicable, the specifications or descriptions detailed in requests for quotations, requests for proposals, offers and other communications between HRG (UK) Ltd and Supplier. Should no such detailed specification or description be provided, the specification shall be that which is usual between parties or, should no such specification/description exist, that which generally applies within the sector;
1.9 Supplier: any (potential) supplier of HRG (UK) Ltd, Company Number 2527817, Registered Office, Mercury House, 8 Sandy Way, Northampton, NN4 5EJ, UK.
2.1. These General Terms and Conditions shall apply to all requests for quotations, proposals and offers, all orders,
agreements and other legal relationships (including Purchase Orders, Contracts and non-contractual or precontractual relationships) between HRG (UK) Ltd and the Supplier in respect of the ordering, procuring, receiving, providing, purchasing, supplying or otherwise making available of Products or Services, except and to the extent that HRG (UK) Ltd has deviated from these General Terms and Conditions in writing.
2.2. HRG (UK) Ltd expressly rejects the applicability of any general terms and conditions of the Supplier.
2.3. When HRG (UK) Ltd and Supplier enter into any order, agreement or other legal relationship to which these General Terms and Conditions apply, Supplier shall be considered to have agreed to the applicability of these General Terms and Conditions for future orders, agreements and legal relationships regarding the procurement of products or services.
3. Conclusion and term of the Contract
3.1. If HRG (UK) Ltd asks the Supplier for a quotation, proposal or offer, the quotation, proposal or offer submitted by Supplier, as well any subsequent quotations, proposals or offers submitted following negotiations with HRG (UK) Ltd, if any, will be deemed irrevocable. Any requests by HRG (UK) Ltd to Supplier for the submission of a quotation, proposal or offer are not binding upon HRG (UK) Ltd. HRG (UK) Ltd is entitled to request changes or amendments to the quotation, proposal or offer of the Supplier as well as to the Specifications without being bound by such request for change or amendment.
3.2. Contracts are concluded only after HRG (UK) Ltd has accepted the (final) quotation, proposal, or offer made by the Supplier by issuing a Purchase Order. If the Supplier starts to perform the provisions of the quotation, proposal or offer without first having received the relevant Purchase Order, Supplier will do so entirely at its own expense and risk. HRG (UK) Ltd is not obliged to award a Purchase Order or Contract to any quotation, proposal or offer nor to reimburse the costs of any such quotation, proposal or offer.
3.3. In case of, and within the existence of, a framework agreement, a Contract is concluded each time after HRG (UK) Ltd issues a written Purchase Order for the provision of a (part of a) Product or Service.
3.4. The Supplier is obliged to inform HRG (UK) Ltd with immediate effect of any errors and/or ambiguities in request and/or documents.
3.5. Contracts shall be effective for the term as detailed in the Specifications and/ or the Purchase Order, unless sooner terminated in accordance with these General Terms and Conditions.
4. Prices and payment
4.1. All prices quoted by Supplier shall be fixed, on a time and material basis or as otherwise detailed or agreed to in
the Specifications and/ or the Purchase Order, expressed in Pounds Sterling (unless stated otherwise), without prejudice and subject to these General Terms and Conditions, exclusive of VAT but inclusive of any other taxes, incidental costs and expenses.
4.2. All prices include the standard packaging and delivery carriage paid and shall be free of import duties. Prices shall include the provision of all materials and all preparatory and other work necessary to comply with the requirements and descriptions set out in the Contract and/ or the Specifications. All prices include the costs for transportation of equipment and personnel, insurance, and customs, unless explicitly agreed otherwise in writing.
4.3. With the exception of the provisions laid down in Section 6, prices are not subject to change, unless explicitly agreed by HRG (UK) Ltd in writing.
4.4. The payment of an invoice shall be made in Pounds Sterling within sixty (60) days of the date of invoice, unless agreed otherwise, by transferring the amount due to the bank account stipulated by Supplier. Invoices for Products will not be sent until Supplier has fully and correctly performed the Contract in accordance with the Specifications, Invoices for Services will be submitted on a monthly basis to HRG (UK) Ltd covering Services rendered during the preceding month, unless explicitly agreed otherwise. Payment of an invoice by HRG (UK) Ltd does not imply HRG (UK) Ltd’s acceptance of the performance of the Contract by Supplier in accordance with the Specifications.
4.5. The invoice must contain, as a minimum, either (i) a summary description of the Services that were performed during the preceding month and the period during which they were provided or (ii) the description of the Products and the quantities supplied, as well as the respective Purchase Order number and should be addressed to the correct HRG (UK) Ltd legal entity. HRG (UK) Ltd reserves the right to return invoices which do not contain the data mentioned in this Section 4.5.
4.6. HRG (UK) Ltd may require the Supplier to provide sufficient security if, at whichever moment, doubts arise with regard to the Supplier’s creditworthiness. If the Supplier fails to provide the required security, HRG (UK) Ltd may terminate the Purchase Order and Contract with immediate effect without any liability for HRG (UK) Ltd arising thereof.
4.7. HRG (UK) Ltd is entitled, without judicial intervention, and without prejudice to any other rights that HRG (UK) Ltd may have under the Contract or applicable law, to offset and/or suspend payment of any amount, if it or a company affiliated to it has or will have a claim, which may or may not be enforceable, against the Supplier or a company affiliated to the Supplier.
5. Delivery and Time for performance
5.1. Delivery of Products shall be deemed to have taken place once the Products are stored on the premises
designated by HRG (UK) Ltd, unless otherwise agreed. Delivery of Products takes place during normal working hours.
5.2. The Supplier acknowledges that the agreed time and time for performance of the Contract, and/or any further deadlines or timelines specified, are of essential importance to HRG (UK) Ltd.
5.3. The Supplier shall be deemed to be in default by exceeding the deadlines or timelines for performance agreed
with HRG (UK) Ltd. Any penalty agreed on for such default event shall be without prejudice to HRG (UK) Ltd’s other rights including its right to demand compliance and its right to the full payment of damages by the Supplier; the said penalty shall not be deducted from any such damages.
5.4. HRG (UK) Ltd shall be entitled at any time and for whatever reason, by providing a written statement to the Supplier, to defer the performance of the Contract that it has ordered for a period to be specified. In such event, Supplier shall store the Products in a suitable location, separate from any other goods or products, on behalf of HRG (UK) Ltd, insuring them and taking appropriate measures to prevent any loss of quality. HRG (UK) Ltd shall make reasonable payment to the Supplier for the cost of such storage, measures, and insurance. HRG (UK) Ltd reserves the right to issue further instructions upon commencement of the Contract concerning work hours and time schedules, as well as to the precise location on the site where the Services should be performed.
5.5. If, in the performance of the Contract in question, there is a risk of a delay occurring in relation to the agreed delivery date or timelines for provision of the Services, for any reason whatsoever, the Supplier will take adequate measures on its own initiative and with immediate effect, such as for example, employ extra staff in order to make up for any (potential) delays, and/or to prevent these from arising. The Supplier will promptly report the (potential) delay and the measures to be taken to HRG (UK) Ltd in writing. Without prejudice to the above, the Supplier will be in default without any further notice of default being required, if any of the agreed delivery date, timelines or implementation periods relating to the performance of (part of) the Contract are exceeded and HRG (UK) Ltd shall be entitled to terminate the Contract with immediate effect, notwithstanding any of HRG (UK) Ltd’s other rights hereunder.
5.6. Performance of (part of) the Contract prior to the delivery date or agreed time for performance may only take place with prior written permission from HRG (UK) Ltd and will not lead to any change in the agreed period of payment.
5.7. Products must be suitably packaged taking into account the nature of the Products and also taking into account the means of transport. Supplier is liable for damage resulting from or related to undue packaging of the Products.
5.8. Products delivered that are not in accordance with the Contract and/or the Specifications may be returned at the Supplier’s expense and risk.
5.9. The Supplier is responsible for the removal or processing of packaging, dirt, waste and surplus material, at its own expense.
5.10. Performance of a Contract includes the delivery of all accompanied tools and documents such as, but not limited to, (guarantee-) certificates, drawings, quality reports, maintenance- and instruction guidelines.
5.11. Supplier is not entitled to perform a Contract in part(s), unless explicitly agreed otherwise in which case these General Terms and Conditions apply to such a partial delivery.
6. Performance of the Contract
6.1. The Supplier shall perform the Contract strictly in accordance with the Specifications and other relevant contractual arrangements in good workmanlike manner.
6.2. The Contract shall be performed on a non-exclusive basis. Parties agree that Supplier and Supplier personnel render the Services as independent parties and are not authorised to act as the agent or representative of HRG (UK) Ltd or to represent that it or they are entitled so to act. Parties agree that no employment relationship shall exist between HRG (UK) Ltd and Supplier or Supplier’s subcontractors by virtue of Supplier’s or Supplier’s subcontractor’s personnel providing the Services under the Contract.
6.3. The Supplier undertakes that it, it’s staff, and any third parties which it engages shall conduct themselves on HRG (UK) Ltd’s site and it’s premises in accordance with the regulations and rules of conduct applying there, for example in respect of security, safety, and health, and that they will follow any instructions or guidelines with which they are issued in that regard and sign the necessary statements (or cause such to be signed). HRG (UK) Ltd is entitled to immediately halt the provision of the Services in case the forementioned regulations and rules are not complied with.
6.4. Supplier shall use its best efforts to minimize any adverse impact on the scheduled time and projected cost of the project that may be caused by the removal or replacement of any of its personnel or materials from a project or site.
6.5. HRG (UK) Ltd may request the Supplier to submit regular reports setting out the progress of the Services.
6.6. HRG (UK) Ltd shall be entitled to change or supplement the Specifications during performance of the Contract or to request the supply of additional Products or Services after the Contract has been performed.
6.7. If, in the Supplier’s opinion, a change or addition to the Contract or the Specifications has consequences for the
agreed price and/or delivery date or time for performance, the Supplier will inform HRG (UK) Ltd of this in writing by return post, though in no event any later than within one calendar week before implementing the change. If the Supplier fails to timely inform HRG (UK) Ltd of the price change and/or change in delivery date or time for performance, the Supplier shall be obliged to implement the change without any entitlement to additional payment.
6.8. In the event that, in the Supplier’s opinion, a change to the Contract or the Specifications requested by HRG (UK) Ltd will lead to a new price and/or delivery date or time for performance that is not acceptable to HRG (UK) Ltd, HRG (UK) Ltd reserves the right to determine that the Contract shall be performed without the changes proposed or performed in a different way that is acceptable to HRG (UK) Ltd. If the Supplier and HRG (UK) Ltd fail to reach agreement on the new price, new delivery date or new time for performance, HRG (UK) Ltd reserves the right to terminate the Contract with immediate effect.
7. Testing and Inspection
7.1. HRG (UK) Ltd at all times reserves the right to assess, test or inspect the way in which the Contract is being performed (or to have others to do this), but is not obliged to do so, and to take all possible measures to this end that it considers reasonable, which includes inspecting (or have others inspect) the places where the Contract is being performed either in full or in part and conducting (or have others conduct) an audit of the Supplier’s books. The (non)- performance of an inspection by HRG (UK) Ltd does not discharge the Supplier from any of its obligations or liability.
7.2. HRG (UK) Ltd shall inspect the Products that have been ordered within a reasonable period after they have been
delivered. Should HRG (UK) Ltd reject the Products or should it later appear, in the reasonable assessment of HRG (UK) Ltd, that the Products do not comply with the requirements set for them pursuant to the Contract, HRG (UK) Ltd, without prejudice to any of its other rights, may give the Supplier the opportunity to rectify and/or repair the Defects, at the Supplier’s expense and risk and at the first request of HRG (UK) Ltd. Any additional costs for dismantling, transport, reproducing or reassembly shall be also at the expense of the Supplier
7.3. Acceptance of the provision of (part of) the Services shall have no further significance than that, in the provisional judgement of HRG (UK) Ltd, the provision of (that part of) the Services) is in accordance with the Contract. In particular, such acceptance shall not preclude HRG (UK) Ltd invoking the Supplier’s non-compliance with its warranty obligations referred to in Section 9 or any other obligation vis-à-vis HRG (UK) Ltd.
7.4. Should HRG (UK) Ltd reasonably find that the Services are not provided in conformity with the requirements set for them pursuant to the Contract or should it later appear, in the reasonable assessment of HRG (UK) Ltd, that the Services have not so been provided, HRG (UK) Ltd, without prejudice to any of its other rights, may give the Supplier the opportunity to provide the Services again in accordance with the Contract, at the Supplier’s expense and risk and at the first request of HRG (UK) Ltd. Any additional costs related thereto shall be also at the expense of the Supplier.
7.5. If, in the reasonable assessment of HRG (UK) Ltd, (timely) replacement or repair of the Products or re-rendering of the Services is impossible or if the Supplier fails to comply, within the period set by HRG (UK) Ltd, with the request referred to in Section 7.2 or 7.4 respectively, the Supplier shall be required to repay to HRG (UK) Ltd the amounts it has received from HRG (UK) Ltd in relation to the Products and Services concerned.
7.6. HRG (UK) Ltd shall inform Supplier immediately in writing in case (a part of) the performance of the Contract is being rejected by HRG (UK) Ltd, which notification shall be deemed to be the notification of default. In case parties agreed a fixed time for the performance of the Contract, Supplier will be in default with immediate effect without any further notice of default being required.
8. Ownership and risk
8.1. All goods and deliverables developed and/or manufactured by the Supplier in the performance of the Services, including but not limited to drawings, sketches, moulds, templates, prototypes, computer programs in source code, object code and/or hard copy, the corresponding documentation and any other resources, shall become property of HRG (UK) Ltd upon their manufacture.
8.2. HRG (UK) Ltd shall acquire ownership of the Products at the moment they are delivered in accordance with Section 5 or otherwise become available to HRG (UK) Ltd or as much earlier as legal execution of delivery takes place in some other manner.
8.3. The Supplier is liable for all losses or damages arising out of or resulting from the Products, good or deliverables and/or for any losses of and damages to such Products, goods or deliverables until the moment they are delivered to HRG (UK) Ltd, without prejudice to any other stipulations laid down in these General Terms and Conditions.
8.4. Should it be agreed, in deviation from the provisions of Section 4.4, that full or partial payment shall be made for partial performance of the Contract at an earlier point than there referred to, HRG (UK) Ltd shall, by making an advance payment and without any more specific act of delivery being required, acquire ownership of all Products, materials, raw materials, or semi-manufactures used by the Supplier to perform the Contract or intended for that purpose. The Supplier shall be obliged to acquire the said Products, materials, raw materials, or semi-manufactures, entirely free of charges and third-party rights, and to store them separately on behalf of HRG (UK) Ltd. Supplier shall remain liable in accordance with Section 8.3 after the transfer of ownership pursuant to this Section 8.4.
8.5. The Supplier shall have no right of retention or right to postpone obligations in respect of ordered Products or Services.
9.1. The Supplier warrants at least the following:
9.1.1. the Products and Services are suitable for the purpose for which the Contract was concluded, insofar as the Supplier was aware of that purpose or could have been aware of it;
9.1.2. Supplier will exercise due professional care, skill, diligence and competence in accordance with applicable professional standards and will perform the Contract entirely in accordance with the requirements as stated in the Specifications;
9.1.3. Supplier’s employees and third parties which Supplier may make use of for the performance of the Services are of sufficient qualification and shall comply with any agreed qualification requirements relating to training, expertise and experience and will continue to do so for the duration of the Contract;
9.1.4. the Products and materials used in the provision of the Services are of the highest possible quality, fit for purpose and provide the adequate level of safety, health, welfare and environment;
9.1.5. the Products and materials used in the provision of the Services are in accordance with any samples, models or drawings as regard their quantity, description, quality and performance, are produced according to the latest state of technology and are new, of the highest possible quality, free of faults as regard their design, processing, manufacture, construction, and dimensions, free of Defects and third party rights
9.1.6. all applicable national and international laws and regulations regarding the Products (or their packaging) and Services have been and will be complied with strictly;
9.1.7. the Products and Services otherwise comply with the requirements reasonably set for them or as informed by HRG (UK) Ltd from time to time.
9.2. The conditions laid down in this Section 9 do not affect HRG (UK) Ltd’s other rights, including those referred to in Section 17.
10. Specific warranties for Products:
10.1. Ordered Products shall in any case be deemed inadequate within the meaning of Section 9.1 if Defects
occur within the agreed Warranty Period, as defined in Section 10.3, unless such is the result of normal wear and
tear or such Defects are caused by HRG (UK) Ltd.
10.2. Without prejudice to HRG (UK) Ltd’s right to the payment of costs, damages or interests, if any Defects occur within a period of twenty four (24) months following delivery of the Products, such Defects shall be remedied by Supplier for its own risk and costs within seven calendar days after appearance (“Warranty Period”). This Warranty Period will be extended by a period equal to the period(s) during which the Products were not used or could not be fully used as a result of a failure of this Warranty. The Warranty Period then recommences for products provided as replacements of the defect Products and replaced or repaired parts of these Products, including those parts of the Products on which replaced or repaired parts may be of influence. The expiry of the Warranty Period leaves the statutory rights of HRG (UK) Ltd unchanged.
10.3. If during the Warranty Period a Defect arises, HRG (UK) Ltd reserves the right either to return the Products and
demand immediate repayment of the amount paid for these Products, or to demand that the Products in question be replaced or repaired, all at the Supplier’s costs.
11.1. Supplier undertakes to keep strictly confidential and not to divulge, disclose or otherwise furnish, directly or indirectly, to any third party any information disclosed by or in relation with HRG (UK) Ltd that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, unless explicitly permitted herein or required by law. The provisions of this Section 11 shall not apply to any information, which Supplier can demonstrate:
11.1.1. is or becomes public knowledge other than by breach of this Section; or
11.1.2. is in the possession of Supplier without restriction in relation to disclosure before the date of disclosure
by HRG (UK) Ltd; or
11.1.3. is received from a third party who lawfully acquired it and who is under no obligation restricting its
11.2. Supplier shall impose the obligations under this Section to its staff and any third party assigned by Supplier for the fulfillment of Supplier’s obligations under a Contract.
11.3. Supplier shall not make any public announcement with respect to a Contract or any ancillary matter without the prior written consent of HRG (UK) Ltd.
11.4. In the event Supplier breaches any of the provisions of this Section 11, Supplier shall pay to HRG (UK) Ltd damages of £25,000- per event plus £5,000- for each day during which such breach continues. HRG (UK) Ltd is entitled to claim such damages without prejudice to HRG (UK) Ltd’s other rights under a Contract or at law and without prejudice to HRG (UK) Ltd’s right to seek compensation for the actual amount of the losses incurred in excess of the amount of the liquidated damages. HRG (UK) Ltd reserves the right to deduct the imposed penalties from any outstanding or future invoices of the Supplier.
12. Intellectual property rights
12.1. The Supplier guarantees that the performance of the Contract, the use of the Products and/or the rendering and the receipt of the Services or the receipt, possession or use by HRG (UK) Ltd of the results of the Services or of any goods or deliverables as part of the Services do not infringe any patent, trademark, design, drawing rights, copyright, database, trade name or any other absolute or proprietary (intellectual) right of HRG (UK) Ltd or any third party and Supplier indemnifies and holds HRG (UK) Ltd harmless against and in relation with any such infringement, including without limitation claims in respect of know-how and unauthorised competition. The Supplier will also impose the same obligation upon third parties assigned by the Supplier for the performance of the Contract.
12.2. In case the performance of the Contract, the use of the Products or Services or the receipt, possession or use by HRG (UK) Ltd of the results of the Services or of any goods or deliverables as part of the Services results in an alleged claim infringing any third party’s intellectual property rights, Supplier shall undertake to either, at its own expense and without prejudice to HRG (UK) Ltd’s rights of termination or otherwise:
12.2.1. replace or adapt such Products, Services, results, goods or deliverables(or the relevant component
thereof) by non-infringing Products, Services, results, goods or deliverables, whereby the alteration and/or replacement shall not result in any restriction in the possibilities for utilisation thereof by HRG (UK) Ltd;
12.2.2. obtain a license to use the Products, Services, results, goods or deliverables (or the relevant
component thereof) from the relevant third party; 12.2.3. cease rendering the Service or take back the
Products, results, goods or deliverables (or the relevant component thereof) against payment of the costs, damages and interest.
12.3. To the extent that the Products, results of the Services or any goods or deliverables provided to HRG (UK) Ltd as part of the Services include third party’s intellectual property rights, Supplier grants to HRG (UK) Ltd and warrants that it is entitled to grant to HRG (UK) Ltd a perpetual, fully paid-up license to use those Products, Services, results, goods or deliverables for any purpose whatsoever and worldwide (unless otherwise agreed between Supplier and HRG (UK) Ltd) without any additional charges. In the event additional licenses or additional charges are required, HRG (UK) Ltd is entitled to agree on the terms directly with the third party and charge Supplier here for.
12.4. All intellectual property rights resulting from a Contract or in the Services, results of the Services or any goods or deliverables provided to HRG (UK) Ltd as part of the Services, will vest in HRG (UK) Ltd, except for the third party rights as referred to in Section 12.3 provided that such rights were not created as part of the Contract or Services or specifically for HRG (UK) Ltd. These rights are hereby transferred to HRG (UK) Ltd by the Supplier by virtue of the Contract, which transfer is hereby accepted by HRG (UK) Ltd, now for then immediately following the creation of these rights. In so far as another instrument is required for the transfer of such rights, the Supplier hereby irrevocably authorises HRG (UK) Ltd, now for then, to have such an instrument drawn up, and to sign this on behalf of the Supplier, without prejudice to the Supplier’s obligation to co-operate in the transfer of such rights at HRG (UK) Ltd’s first request, without being able to impose conditions on this. The Supplier hereby irrevocably authorises HRG (UK) Ltd to have the transfer of these intellectual (property) rights entered in the appropriate registers. The Supplier also hereby surrenders to HRG (UK) Ltd all so-called moral rights that may accrue to the Supplier, to the extent to which the applicable regulations allow such surrender.
13.1. HRG (UK) Ltd shall remain the owner of all Items. The Supplier shall use the Items only for the purpose of the
proper performance of the Contract and shall not authorise or permit third parties to make use of them. Unless it has received the written consent of HRG (UK) Ltd, the Supplier shall refrain from any act or omission relating to the Item, such that HRG (UK) Ltd loses the ownership thereof by means of specification, accession, confusion, or in any other manner. The Supplier also undertakes that the Item shall not be encumbered or burdened with any third party rights.
13.2. The Supplier shall not have any right of retention or right to postpone obligations in respect of the Items.
13.3. The Supplier shall adequately insure the Items in favour of HRG (UK) Ltd, at its own costs, against any damage resulting from their being partly or wholly lost or damaged, regardless of the cause.
13.4. The Supplier shall be granted a strictly personal, non transferable and non-exclusive license to use the Items for the term of the Contract in the manner referred to in this Section. HRG (UK) Ltd retains all its rights of intellectual property and know-how in respect of the Items.
13.5. Supplier shall use the Items entirely on its own risk and shall return the Items to HRG (UK) Ltd in good conditions immediately upon completion of the Contract, or at an earlier time if this can be reasonably expected of the Supplier.
14. Maintenance and spare parts for Products
14.1. Supplier agrees to keep in stock spare parts for the delivered Products for the term that is reasonable within
business practice, even if the production of the Products is terminated in the meantime. The sale of spare parts shall be at market conform prices. Supplier shall inform HRG (UK) Ltd on the end of life of a Product.
14.2. Supplier warrants that it can maintain the delivered Products for a minimum term of 5 years after delivery or, if agreed upon, acceptance of the Products.
15. Assignment and subcontracting
15.1. The Supplier is not permitted to assign the Contract, or any part thereof, or rights or claims ensuing from the Contract, to third parties, nor to transfer or pledge these, unless HRG (UK) Ltd has given prior written permission.
15.2. The Supplier is not permitted to outsource, subcontract or otherwise have third parties perform the Contract unless expressly agreed otherwise with HRG (UK) Ltd in writing.
15.3. In the event that the Supplier is given permission to assign, transfer or pledge the Contract, or any part thereof,
the Supplier will ensure that the third party undertakes to fully observe the conditions laid down in the Contract and
these General Terms and Conditions and Supplier will remain responsible for the performance of the Contract in
accordance with the Specifications and any other contractual arrangements, if any. Supplier indemnifies HRG (UK) Ltd against and holds HRG (UK) Ltd harmless from any claims and/or damages caused by a subcontractor.
The Supplier warrants it has taken out sufficient insurance of legal and professional liability, also covering subcontractors and their personnel, if applicable, and will remain so insured. At HRG (UK) Ltd’s first request, the Supplier will present a copy of the policy document and proof that the premiums have been paid.
17.1. The Supplier is liable for and indemnifies and holds HRG (UK) Ltd harmless against any and all direct losses or
damages whether in contract, tort, breach of statutory duty or otherwise resulting from or in connection with the
performance of the Contract, regardless of whether said loss or damage is caused by the Supplier itself, its staff, by other persons whom the Supplier has engaged in the performance of the Contract or any other third parties and regardless of whether HRG (UK) Ltd could have foreseen the possibility of such loss or damage.
17.2. Neither Party excludes liability in respect of (i) loss or damage caused by willful intent or gross negligence, or (ii) injuries to or death of any person, caused by any of its officers, employees, agents or contractors.
17.3. In the event that Supplier does not perform the Contract, or a part thereof, on the agreed time or within the
agreed period for performance, or otherwise fails to meet the deliverables as agreed upon, HRG (UK) Ltd is entitled to charge Supplier for each calendar day it is in default an immediately payable penalty of 1.5% of the total price of the respective Contract, increased with VAT, to a maximum percentage of 30% of the total price of the Contract.
HRG (UK) Ltd is entitled to charge the maximum penalty at once, in the event that the respective performance remains impossible. HRG (UK) Ltd’s right to claim penalties as set forward in this Section does not affect HRG (UK) Ltd’s other legal rights under a Contract or under applicable laws and is without prejudice to HRG (UK) Ltd’s right to seek compensation for the actual amount of the losses incurred in excess of the amount of the liquidated damages.
18. Force majeure
18.1. Force majeure is understood to mean circumstances that impede the fulfillment of the Contract and which are not attributable to Supplier. Supplier is obliged to report this force majeure situation to HRG (UK) Ltd in writing within one calendar day. Excluded from force majeure are, at least, the following events:
18.1.1. specific strike at the Supplier and transport problems;
18.1.2. failure to obtain all equipment, materials, and/or (third party) services required for the proper fulfillment of the Contract, unless caused by circumstances that cannot in fairness be attributed to Supplier;
18.1.3. late an/or stagnation of deliveries by Supplier’s suppliers;
18.1.4. incomplete deliveries by Supplier’s suppliers.
18.2. During force majeure all of Supplier’s obligations shall be suspended. Should the period in which Supplier cannot fulfill its obligations as a result of force majeure continue for longer than one (1) calendar month, HRG (UK) Ltd shall be entitled to terminate the Contract in writing without there being an obligation to pay any compensation whatsoever arising out of or in connection herewith.
19. Termination and suspension
19.1. Unless otherwise determined in these General Terms and Conditions, in the event that Supplier fails to perform
any of its obligations under the Contract, HRG (UK) Ltd shall send Supplier a notice of default, allowing the Supplier a
reasonable period for compliance.
19.2. In the event i) Supplier fails to perform within the reasonable period as set out in the notice of default, ii)
Supplier fails to meet a deadline or performance is temporarily or permanently impossible, iii) Supplier can be
reasonably assumed not to perform the Contract properly or at the agreed delivery date or time for performance, iv) Supplier is declared bankrupt, granted a suspension of payment, or goes into liquidation, v) Supplier is repossessed,
closed down or wound up or presented with a petition thereof, vi) of the application for an order or application for the appointment of a receiver (including an administrative receiver), administrator, trustee or similar officer in respect of the Supplier, vii) a receiver, administrative receiver, administrator or similar office is appointed over all or any part of the assets or undertaking of the Supplier, viii) the Supplier makes a composition with its creditors generally or an assignment for the benefit of its creditors or other similar arrangement, ix) Supplier ceases, or threatens to cease, to carry on business, HRG (UK) Ltd shall, without prejudice to any of its other rights, be entitled to:
19.2.1. wholly or partly terminate the Contract and/ or the Purchase Order by notifying Supplier to that effect and without any further notice of default being required and without any liability for HRG (UK) Ltd arising out of or related to this termination,
19.2.2. to suspend its (payment) obligations,
19.2.3. to oblige the Supplier to repeat the performance of the Contract at the Supplier’s own expense;
19.2.4. to reverse the performance of the Contract at the Supplier’s expense and risk, and/or
19.2.5. to allow HRG (UK) Ltd or a third party nominated by HRG (UK) Ltd to repeat or reverse the performance of the Contract at the Supplier’s expense and risk.
19.3. HRG (UK) Ltd may, without prejudice to any of its other rights arising hereunder or under the terms of any Contract, upon giving written notice, terminate the Contract (at HRG (UK) Ltd’s discretion) with immediate effect if one of the businesses that compete with HRG (UK) Ltd has (directly or indirectly) become holder of more than 50 (fifty) percent of the shares in Supplier’s share capital or is capable (directly or indirectly, whether or not pursuant to an agreement with other persons or entities with voting rights) of exercising more than the aforementioned percentage of the voting rights in the general meeting of Supplier.
19.4. In the event of termination of the Contract, HRG (UK) Ltd shall be entitled to reclaim from the Supplier all payments it has made to the Supplier as having been unduly paid. Insofar as the performance provided by Supplier at the moment of dissolution is not open to repayment and if it otherwise complies with the Contract, the Supplier shall be entitled to a payment, based on the value of the performance to HRG (UK) Ltd and determined in all reasonableness, less the amount which HRG (UK) Ltd can claim from the Supplier in respect to the shortcoming and/or the termination. Insofar as repayment is possible, HRG (UK) Ltd shall be entitled, at its discretion, to retain the Contract which has been performed in return for a payment as referred to above or to return it to the Supplier at the Supplier’s expense and risk, such being without prejudice to any exercise of the rights referred to in Section 7.
19.5. Should HRG (UK) Ltd be the owner of the Products which it wishes to return in accordance with Section 19.4, HRG (UK) Ltd shall retain ownership even after termination of the Contract whereby it acquired ownership, such being within the limits set out in the applicable law, as security for the payment of everything that it may be able to claim from the Supplier. Should HRG (UK) Ltd not be the owner of the Product, HRG (UK) Ltd shall acquire a right of pledge in respect thereof to serve as the same security.
19.6. Upon expiry or termination of a Contract for any reason whatsoever, the Supplier shall offer due assistance to enable HRG (UK) Ltd or a third party to continue the provision of the Services and return to HRG (UK) Ltd at its own expense all Items, materials, specifications any other information relating to these Services in its possession. All claims from HRG (UK) Ltd on Supplier shall become immediately due and payable upon the termination of a Contract.
19.7. It is expressly agreed that HRG (UK) Ltd shall not be liable to pay any severance payment or compensation of whatever nature to the Supplier for loss of profit or loss of goodwill or for any other loss or damage howsoever arising as a result of the expiry or termination, for whatever reason, of a Contract.
20. Tax and social security
20.1. The Supplier is and shall remain responsible and liable for fulfilling all of its tax and social security obligations and all of the tax and social security obligations of its subcontractors. Supplier shall indemnify HRG (UK) Ltd against all claims in relation to these matters.
20.2. If the Supplier fails to pay, deduct or transfer VAT, other sales taxes, wage tax, social security contributions or employee’s insurance contributions or fails to do so in due time, HRG (UK) Ltd will be entitled to terminate the Contract with immediate effect.
21. Conversion partial invalidity
If any provision under these Terms and Conditions cannot be invoked or such provision is deemed to be invalid for any reason whatsoever, the other provisions shall remain in full force and effect. The Supplier and HRG (UK) Ltd shall be deemed to have agreed to new terms and conditions in substitution for such invalid provisions. These new terms and conditions shall be interpreted, as regards their contents and effect, as closely as possible to the original text as written but in such a way that rights can indeed be derived therefrom.
22. Authority to amend
HRG (UK) Ltd is entitled to amend these Terms and Conditions. Such amendments shall enter into force on the effective date as notified. If the effective date has not been officially announced then the amendments affecting the Supplier will enter into force on the date that Supplier is notified or informed of such amendment.
The rights of either party under any Contract are without prejudice to all other rights and remedies available to either party and no failure or delay by either party to exercise any right under this Contract will operate as a waiver of such right under any Contract.
24. Governing Law
All aspects of this Contract shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.
HRG UK Ltd v1.0 DP 2013