Supply Chain

DavyMarkham - Supply Chain

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DAVYMARKHAM LIMITED

GENERAL CONDITIONS OF PURCHASE FOR THE SUPPLY OF
EQUIPMENT AND MATERIAL OR SERVICES 2009

DEFINITIONS
The BESPOKE SOFTWARE means that part of the SOFTWARE (if any) to be developed by the SUPPLIER under the CONTRACT including all documentation in relation thereto to be provided by the SUPPLIER under the CONTRACT.

The CONTRACT means the contract between the PURCHASER and the SUPPLIER for the provision of GOODS and/or SERVICES comprising these general conditions and the PURCHASE ORDER including any special conditions, specifications, drawings and other documents referenced in or attached to the PURCHASE ORDER.

The FUNCTIONAL SPECIFICATION means the specification of the functions to be performed by the SYSTEM prepared by the SUPPLIER and approved by the PURCHASER.

The GOODS and/or SERVICES means all the work and all the services to be performed, together with the equipment and material which are subject matter of the PURCHASE ORDER.

The HARDWARE means the computer or microprocessor forming part of the GOODS and all the equipment and operating systems related thereto.

The OWNER means any customer of the PURCHASER to which the PURCHASER supplies GOODS and/or SERVICES or any goods incorporating the GOODS.

The PRICE means the total value specified in the PURCHASE ORDER.

The PURCHASE ORDER means the order in writing on the PURCHASER'S official order form for the GOODS and/or SERVICES issued by the PURCHASER to the SUPPLIER.

The PURCHASER means DavyMarkham Limited.

The SITE means the actual place or places, provided or made available by the PURCHASER, to which GOODS are to be delivered or at which work is to be done by the SUPPLIER, together with so much of the area surrounding the same as the SUPPLIER shall with the consent of the PURCHASER actually use in connection with the GOODS otherwise than merely for the purposes of access.

The SOFTWARE means the BESPOKE SOFTWARE and the STANDARD SOFTWARE.

The SOFTWARE SYSTEM SPECIFICATION means the specification (prepared by the SUPPLIER and approved by the PURCHASER) of the design and means of implementation of each part of the SOFTWARE.

The STANDARD SOFTWARE means the SUPPLIER'S standard computer programs including all documentation relating thereto to be provided by the SUPPLIER under the CONTRACT.

The SUPPLIER means the person, firm or company to whom the PURCHASE ORDER is addressed.

The SUPPORT SERVICES means the maintenance and operational support services (if any) to be provided by the SUPPLIER in relation to the SYSTEM, the HARDWARE and the SOFTWARE.

The SYSTEM means that part of the GOODS which consist of the HARDWARE and the SOFTWARE generally as described in the PURCHASE ORDER (as the same may be modified by the SOFTWARE SYSTEM SPECIFICATION),

The TRIAL PERIOD means in relation to the SOFTWARE or any part thereof the period specified in the statement of requirements commencing when the PURCHASER is notified that such SOFTWARE is available for use by the PURCHASER for its intended purpose.
SUPPLIER'S CONDITIONS

Any terms and conditions of the SUPPLIER, whether contained in the SUPPLIERS tender, bid or any other document, shall be null and void. These conditions and the PURCHASE ORDER shall be deemed to be accepted by the SUPPLIER upon either their acknowledgement of the PURCHASE ORDER in writing or, if earlier, the SUPPLIER'S commencement or performance of any work, including but not limited to the ordering of materials, in relation to the GOODS or SERVICES. No change, amendment or modification to the Purchase Order will be valid, unless made in writing and signed by a duly authorised representative of the PURCHASER. In case of inconsistency between the documents SUPPLIER shall revert to PURCHASER for written clarification.
SCOPE OF WORK

The SUPPLIER shall manufacture, supply and deliver all the GOODS and perform all the SERVICES, together with any other work required or necessarily implied by the PURCHASE ORDER strictly in accordance with the PURCHASE ORDER, together with any specifications and drawings furnished or approved by the PURCHASER. Where the specification indicates that the GOODS or SERVICES are required for a particular purpose, the SUPPLIER warrants that they will be fit for that purpose and any specification or drawing furnished or approved by the PURCHASER shall not relieve the SUPPLIER of this or any other responsibility.

The GOODS and SERVICES, together with all required or necessarily implied work, shall be complete in all respects (except in respects expressly excluded by the PURCHASE ORDER or the specification). If any detail shown on any drawings are omitted from the specification or vice versa, the SUPPLIER shall, notwithstanding such omission, supply such detail and shall be deemed to have allowed for the same in the PRICE.

All GOODS shall be new and unused and shall be designed and manufactured in accordance with the PURCHASE ORDER. Where no standards or codes of practice are specified, the GOODS, SERVICES and all associated workmanship shall be in accordance
PROGRAMME

If the PURCHASE ORDER does not itself specify the programme for completion of the GOODS or SERVICES the SUPPLIER will furnish the PURCHASER, by the date specified in the PURCHASE ORDER, or if none then within 14 days of the date of the PURCHASE ORDER, with the outline programme for completion of the GOODS or SERVICES for approval by the PURCHASER.

The outline programme will include and clearly indicate the periods required for the design, manufacture, delivery, erection and commissioning of all principal GOODS and the dates by which the same will be completed.
PRICE AND PAYMENT

The price for the GOODS and/or SERVICES shall constitute the total payment to SUPPLIER for such GOODS and/or SERVICES and shall include, unless otherwise expressly stated, all costs, taxes, duties, fees or charges of any kind accruing in respect of the GOODS or SERVICES, during the performance of the PURCHASE ORDER. Payment will be made in accordance with the applicable provisions of the PURCHASE ORDER or, in the absence thereof, within 60 days following either the month of delivery/acceptance of the GOODS, receipt of a properly drawn invoice or receipt of an approved certificate of valuation in respect of the SERVICES, whichever is the later.
SUB-ORDERS

The SUPPLIER will not sub-let or sub-contract any material part of the PURCHASE ORDER without the PURCHASER'S prior written consent. Such sub-letting or sub-contracting will not relieve the SUPPLIER of his obligations under the PURCHASE ORDER. The SUPPLIER will ensure that these general conditions, the special conditions (if any) and all specifications, drawings and other applicable documents and the rights of the PURCHASER are incorporated into each sub-order. The SUPPLIER will supply an unpriced, certified copy of each sub-order to the PURCHASER immediately it has been issued.

The SUPPLIER shall at the PURCHASER'S request procure from its authorised sub-contractor or sub-supplier a collateral warranty in a form satisfactory to the PURCHASER in favour of the PURCHASER, its client or any ultimate beneficiary or end-user of the GOODS or SERVICES warranting such sub-contractor's or sub-supplier's performance of the obligations of the SUPPLIER under the provisions of the PURCHASE ORDER.
COLLATERAL WARRANTY

Upon the PURCHASER'S reasonable request the SUPPLIER shall execute a collateral or direct warranty in a form satisfactory in favour of the OWNER or the ultimate end user or beneficiary of the GOODS or SERVICES warranting the SUPPLIER'S performance of its obligations under the PURCHASE ORDER in respect thereof.
DRAWINGS

In the event of any apparent inconsistency, inaccuracy or ambiguity in the specifications, drawings or other documents provided by the PURCHASER, the SUPPLIER will notify the PURCHASER immediately and obtain instructions in writing before proceeding with the item in question.

The SUPPLIER will provide, at no extra cost to the PURCHASER, detail drawings and other documents as set out in the PURCHASE ORDER and/or as may reasonably be required by the PURCHASER from time to time. The PURCHASER has the right to approve such detail drawings and other documents but such approval shall not relieve the SUPPLIER of any of its responsibilities under the PURCHASE ORDER. No deviation from or modification to drawings supplied or approved by the PURCHASER will be made by the SUPPLIER without the prior written agreement of the PURCHASER.
EXPEDITING, INSPECTION AND TESTING

The GOODS or SERVICES may be subject to such expediting, inspection and testing before, during or after manufacture as the PURCHASER in its discretion shall reasonably require. The PURCHASER and its authorised representative shall have access at all reasonable times to the SUPPLIER'S premises and those of its sub-contractors to expedite, inspect and test the GOODS or otherwise audit or inspect the SERVICES. The SUPPLIER will give the PURCHASER at least seven (7) days notice when any part of the GOODS, or where appropriate the SERVICES, are ready for inspection or test. The SUPPLIER, at its own cost, will provide all tools, instruments, apparatus, equipment, facilities, services and material for carrying out such tests.

The PURCHASER will have full power to reject all or any portion of the GOODS or SERVICES that it considers defective or inferior in quality of material, workmanship, performance or design. The SUPPLIER, at its expense, will immediately replace the rejected portion, unless in the PURCHASER'S opinion the said portion can be rendered fit for use.

No inspection or test, or the absence thereof, will relieve the SUPPLIER of its responsibility under the PURCHASE ORDER for the adequacy of the GOODS or SERVICES, whether or not witnessed by the PURCHASER, the OWNER or their authorised representatives.
PROTECTION AND PACKING

The SUPPLIER shall provide suitable protection and packaging for the GOODS to ensure their safe delivery in accordance with the PURCHASE ORDER. The GOODS shall be packaged and protected suitable for storage prior to use. Any special storage instructions or requirements should be specifically drawn to the PURCHASER'S attention in writing. The cost of such protection and packing is deemed included in the PRICE.

All packing cases/drums shall be deemed to be non-returnable, unless otherwise stated in the PURCHASE ORDER.
SITE CONDITION ETC

The SUPPLIER shall be deemed to have inspected the SITE and to have satisfied itself as far as can reasonably be done as to the condition of and all circumstances affecting the SITE (including the safety regulations of the PURCHASER applicable thereto), if access has been made available to it, and to have examined these conditions and any specification, with such drawings, schedules, plans and information as may be annexed thereto or referred therein.

The PURCHASER shall make available on the SITE for use by the SUPPLIER for the purposes of the SERVICES such supplies of electricity, water, gas, air and other services as may be specified in the PURCHASE ORDER. Such supplies shall be made available at the point(s) specified in the PURCHASE ORDER.

Where the CONTRACT provides for any test on SITE, the PURCHASER shall, unless otherwise stated in the PURCHASE ORDER, provide free of charge such fuel, electricity, materials, stores, water, apparatus, instruments and feedstocks as may be requisite and as may reasonably be requested by the SUPPLIER to enable the tests to be carried out effectively.
DELIVERY

The time for delivery of the GOODS or performance of the SERVICES is of the essence to the PURCHASE ORDER. The GOODS, SERVICES and all required or necessary documentation shall be completed and delivered by the delivery date stated and in full accordance with the PURCHASE ORDER. The SUPPLIER shall not, without the consent of the PURCHASER, deliver any part of the GOODS before the delivery date.

Subject always to the PURCHASERS rights under Article 21, delays in delivery due to causes beyond the SUPPLIER'S control, such as acts of the PURCHASER or acts of God, acts of civil or military government, fire, national strike, flood, epidemic, war, riots or civil commotion, shall be the subject of an extension to the delivery date as the PURCHASER deems reasonable, provided that the SUPPLIER has given the PURCHASER written notice of delay within five days of its commencement.

The extension to the delivery date shall not be greater than the time reasonably and actually lost by the SUPPLIER as a result of the delay.
LIQUIDATED DAMAGES

If the SUPPLIER fails to complete the GOODS or SERVICES or any part of the GOODS or SERVICES, including the satisfactory carrying out of any completion tests within the time fixed by the CONTRACT for that completion or any extension of that time, save to the extent that such failure is due to any act or omission of the PURCHASER then for each week that such failure continues the SUPPLIER shall pay to the PURCHASER the percentage of the PRICE specified in the PURCHASE ORDER as liquidated damages. The amount paid pursuant to this Article 13 shall not exceed the maximum percentage of the PRICE specified in the PURCHASE ORDER.

If the losses sustained by the PURCHASER as a result of the failures of the SUPPLIER exceed the specified liquidated damages (or where no liquidated damages are specified) the SUPPLIER will pay the full amount of the PURCHASER'S losses.
PROPERTY AND RISK

Property and risk in the GOODS will only pass from SUPPLIER to the PURCHASER on delivery in accordance with the PURCHASE ORDER. However, the SUPPLIER will remain liable for all damage and loss arising due to defective packing, protection or labelling.

All goods taken from the PURCHASER'S premises for the purposes of performing SERVICES remain the property of the PURCHASER and must be clearly identified as such. Risk in the property remains with the SUPPLIER from loading at PURCHASERS works, to signing off/acceptance by PURCHASER.
FREE ISSUE MATERIAL

Where the PURCHASER issues materials free of charge to the SUPPLIER to be incorporated in the GOODS or in respect of which SERVICES are to be performed by the SUPPLIER, such materials will remain the property of the PURCHASER. The SUPPLIER will maintain and protect all such materials in good order and condition and will use such materials solely in connection with the PURCHASE ORDER. Loss or waste of, or damage to such material arising whilst it is in the SUPPLIER'S possession will be made good by the SUPPLIER at its own expense. Any surplus materials will be disposed of at the PURCHASER'S discretion. The SUPPLIER will mark such material as the property of the PURCHASER.
HARDWARE AND SOFTWARE

The following provisions of this Article 16 shall apply in respect of HARDWARE and SOFTWARE supplied under the CONTRACT.

The SUPPLIER warrants that the SYSTEM and the SUPPORT SERVICES shall fulfil the requirements and functions stated in the PURCHASE ORDER, and if any, the FUNCTIONAL SPECIFICATION. In the event of conflict between the PURCHASE ORDER and any FUNCTIONAL SPECIFICATION, the PURCHASE ORDER shall prevail.

If the SERVICES do not include for the preparation of the SITE by the SUPPLIER for the installation of the SYSTEM the SUPPLIER shall provide the PURCHASER with adequate information to enable the PURCHASER to prepare its premises for the SYSTEM and to provide a suitable supply of electric current and any necessary mains services and all other required electrical and mechanical items (other than the HARDWARE and SOFTWARE) and such environmental conditions as are necessary for the purposes of the SYSTEM. The PURCHASER shall at its own expense ensure that such preparation and provisions are made in accordance with the programme provided for in clause 4 sufficient to ensure that such work is complete before delivery of the HARDWARE.

The parties shall meet together with such frequency as may be desirable for the purposes, inter alia, of monitoring progress of that part of the SERVICES which consists of the SYSTEM, agreeing a delivery schedule for the HARDWARE, agreeing the SOFTWARE SYSTEM SPECIFICATION, agreeing the completion tests therefor and the SUPPORT SERVICES and facilities (if any) to be provided by the PURCHASER. Following approval in writing of the SOFTWARE SYSTEM SPECIFICATION or any part thereof by the PURCHASER no amendment thereto shall be made by the SUPPLIER unless specifically requested in writing so to do by the PURCHASER which shall signify its approval thereof in writing.

The SUPPLIER shall, unless otherwise instructed by the PURCHASER, deliver the HARDWARE in accordance with the programme provided for in clause 4 or, if no time or date be stated in such programme, within a reasonable time to enable the SYSTEM to pass the completion tests within the time provided for in the CONTRACT for completion of the SERVICES. Following delivery of the HARDWARE the SUPPLIER shall install the same and conduct the agreed tests and verification routines for the HARDWARE prior to the installation of the SOFTWARE.

Following successful passing of the tests and routines for the HARDWARE the SUPPLIER shall provide, deliver, install and commission the SOFTWARE. Each item representing part of the STANDARD SOFTWARE and each part of the BESPOKE SOFTWARE shall be accepted when it has in conjunction with the HARDWARE successfully passed the completion tests specified for such part. The SYSTEM shall be accepted when the SOFTWARE has demonstrated its capability to fulfil the requirements of the FUNCTIONAL SPECIFICATION during the TRIAL PERIOD.

Title to and copyright in the STANDARD SOFTWARE shall at all times remain vested in the SUPPLIER. The SUPPLIER shall grant to the PURCHASER the non-exclusive right to use the STANDARD SOFTWARE in the SYSTEM for the purposes of its business. The PURCHASER shall be entitled to make such copies of the STANDARD SOFTWARE as it may reasonably require for its own internal use without the payment of any royalty to the SUPPLIER and will ensure that all such copies acknowledge the SUPPLIER's copyright therein and in the product thereof. The PURCHASER shall take all reasonable measures to safeguard the SUPPLIER'S rights in the STANDARD SOFTWARE.

Title to and copyright in the BESPOKE SOFTWARE shall vest in the PURCHASER. The PURCHASER shall at the request of the SUPPLIER grant to the SUPPLIER a non-exclusive worldwide licence to market the BESPOKE SOFTWARE (and to sub-licence third parties to use the same) upon such terms as may be agreed.

The SUPPLIER shall upon delivery of any part of the BESPOKE SOFTWARE:

Provide for the retention on the PURCHASER'S premises of a copy of the source code thereof both in written form and in a magnetic or optical digital form; or

Deposit a copy of such code with a third party approved by the PURCHASER upon terms that upon the SUPPLIER going into liquidation or having a receiver or administrator appointed, or ceasing to provide service in respectthereof, the same shall on the written request of the PURCHASER be released forthwith by such third party to the PURCHASER for use by the PURCHASER solely for the purposes of maintaining the SYSTEM in connection with the PURCHASER'S business.

Where so specified in the CONTRACT, following acceptance of the SYSTEM the SUPPLIER shall offer to provide services of maintenance and advisory and consultancy services for the HARDWARE and SOFTWARE including the provision of an updating service for the STANDARD SOFTWARE as specified in the PURCHASE ORDER.

The SUPPLIER shall provide instruction in the use of the HARDWARE and SOFTWARE and the SYSTEM for the PURCHASER'S personnel in accordance with the details given in the PURCHASE ORDER.

The SUPPLIER shall provide as part of the SOFTWARE all operation manuals, clerical control manuals, fault finding procedures and routines and full operating and user manual documentation necessary for the use of the SYSTEM in such numbers as the parties may agree. Notwithstanding the passing of any completion tests the SYSTEM shall not be deemed to have been accepted until all such documentation shall have been provided to the PURCHASER.

For a period of 12 months after acceptance of the SYSTEM the SUPPLIER shall be responsible for making good with all possible speed at its own expense any defect in or damage to any portion of the SOFTWARE which results in the failure of the SYSTEM to fulfil the PURCHASE ORDER and FUNCTIONAL SPECIFICATION and which arises from defective materials, including SOFTWARE, workmanship or design (other than a design furnished or specified by the PURCHASER).

If any such damage or defect be not remedied within such time as may be agreed, the PURCHASER may proceed to do the work at the SUPPLIER'S expense (such expense not to exceed the prices the SUPPLIER would reasonably have charged for the work in question).

Where a defect involves a fault inherent in the design of the SYSTEM as specified in the SOFTWARE SYSTEM SPECIFICATION, the SUPPLIER shall at its own expense promptly carry out such redesign as may be necessary to prevent a recurrence of the defect and upon the completion of such redesign shall rectify the defect in the SYSTEM. Any such redesign shall be accomplished in such a manner as to ensure that performance and operation of the SYSTEM is not downgraded by virtue of such redesign from the standard shown on the passing of the completion tests.

In all other respects the provision of Article 17 shall apply to any defect in or damage to the System which may occur during the period specified in clause 17.
GUARANTEE

The SUPPLIER guarantees the GOODS or SERVICES against all defects in design (insofar as it was the SUPPLIER'S responsibility to so design or verify the design of the GOODS or SERVICES under the terms of the PURCHASE ORDER), manufacture, materials and workmanship and shall indemnify the PURCHASER against all claims arising in connection with such defects. Without prejudice to the PURCHASER'S right to reject the GOODS or SERVICES in the event of a material defect being discovered, if during the period of 12 months from the date on which the plant into which the GOODS are incorporated or SERVICES have been performed is brought into operation, or 36 months from delivery of the GOODS or completion of the SERVICES in accordance with the PURCHASE ORDER, whichever first occurs, any part of the GOODS or SERVICES are found defective due to the SUPPLIER'S faulty design, manufacture, materials, performance or workmanship, the SUPPLIER will correct such defect by way of removal, replacement, repair and/or modification free of charge and shall be deemed hereby to have provided a new guarantee on identical terms in respect of such GOODS or SERVICES.

If the SUPPLIER fails to rectify defects promptly after receiving written notice from the PURCHASER, then without prejudice to the SUPPLIER'S responsibilities and liabilities under the PURCHASE ORDER the PURCHASER may arrange to carry out the necessary remedial work itself. In such case the PURCHASER will be entitled to recover from the SUPPLIER all costs incurred directly or indirectly in the course of such remedial work, including but not limited to the costs of dismantling, re-assembly and transportation of goods that are affected by the defect (including but not limited to the GOODS) and the actual cost of having the SERVICES performed other than by the SUPPLIER. Where a defect has arisen during the guarantee period but is not then apparent, the SUPPLIER'S liability will not cease merely because notice of the defect was not given to the SUPPLIER within such period.

The benefit of the foregoing guarantee will be assignable by the PURCHASER to the OWNER and such guarantee will then be enforceable by the OWNER directly against the SUPPLIER.
PATENT RIGHTS

The SUPPLIER shall fully indemnify the PURCHASER and the OWNER against liability for all claims, whatsoever and howsoever arising from any infringement or alleged infringements of letters patent, trade mark or name, copyright or other protected rights in respect of the GOODS and/or SERVICES, or any arrangement, system or method of using, fixing or working used by the SUPPLIER or his sub-contractors in carrying out the PURCHASE ORDER or as a result of the PURCHASER'S or the OWNER'S use or possession of the GOODS or SERVICES.

All fees, royalties and other payment due to any entity in respect of such protected rights aforesaid, whether payable in one sum or otherwise, shall be included by the SUPPLIER in the PRICE and shall be paid by it to those to whom they are payable. The SUPPLIER shall indemnify the PURCHASER against all claims in respect of such fees, royalties and other payments due which are made against the PURCHASER and which are directly or indirectly connected with this PURCHASE ORDER.

If any claim is made or action brought against the PURCHASER or OWNER in respect of any such matters aforesaid, the PURCHASER or the OWNER shall have the right to require the SUPPLIER to provide such assistance as the PURCHASER or OWNER (as the case may be) deem necessary. All costs and expenses incurred by the PURCHASER, OWNER or the SUPPLIER in connection with such claims shall be borne by the SUPPLIER.

If, because of any infringement or alleged infringement or any protected rights as aforesaid, the GOODS or SERVICES, or any part thereof, cannot be used by the PURCHASER or the OWNER for all of the purposes for which they are intended, then the SUPPLIER shall, at his own expense, modify re-perform or otherwise replace the GOODS or SERVICES in question so that they can be used.
PURCHASER'S RIGHTS IN SPECIFICATIONS, DRAWINGS ETC.

Except where the subject matter of the PURCHASE ORDER is to produce such materials, in which event they shall be the property of the PURCHASER, and as otherwise provided in the CONTRACT, all specification, drawings, patterns or designs supplied by the SUPPLIER in connection with the PURCHASE ORDER shall remain the property of the SUPPLIER but the SUPPLIER shall hereby grant to the PURCHASER a free non exclusive license to use all or any of the same for the purpose of maintaining the GOODS or otherwise repairing the same following expiry of the guarantee period in Article 17. Any information derived therefrom or otherwise communicated to the SUPPLIER by the PURCHASER in connection with the PURCHASE ORDER will be kept strictly confidential by the SUPPLIER and will not be published or disclosed by the SUPPLIER to any third party, or made use of by the SUPPLIER (except for the purpose of implementing the PURCHASE ORDER) without the PURCHASER'S prior, written consent.

All specifications, drawings, patterns or designs and all rights therein prepared by the SUPPLIER under the PURCHASE ORDER will become the property of the PURCHASER as soon as they have been prepared and will be handed over to the PURCHASER on completion or termination of the PURCHASE ORDER and the SUPPLIER shall execute or procure the execution (as a deed or otherwise) of all documents necessary to give full effect to this Article 19.
HEALTH AND SAFETY

The SUPPLIER will provide full information regarding the use for which the GOODS have been designed or SERVICES performed, and any restrictions and safeguards which should be observed in all stages of their operation. The SUPPLIER will provide and fix all warning notices to equipment that may be required by any Governmental regulations or laws. The SUPPLIER will provide adequate safety mechanisms, alarms, guarding and protection necessary to protect operating personnel.

The SUPPLIER will indemnify the PURCHASER against liability for all claims whatsoever and howsoever arising in contract, tort (including negligence) or otherwise which are made against the PURCHASER and which are, directly or indirectly, connected with the SUPPLIER'S failure to comply with his obligations under this Article 20.
SUPPLIER'S DEFAULT

If:
- the PURCHASER has reasonable evidence of the SUPPLIER'S inability to deliver the GOODS or SERVICES in accordance with PURCHASE ORDER, or
- the SUPPLIER fails promptly to correct any defect or deficiency in such GOODS or SERVICES, or
- the SUPPLIER in the PURCHASER'S opinion is not making sufficient progress to ensure completion by the delivery date stated in the PURCHASE ORDER, or (if such date has passed)
- the SUPPLIER has refused to carry out the reasonable instructions of the PURCHASER, or
- the SUPPLIER has breached any provision of the PURCHASE ORDER, then in each or any of these events the PURCHASER may give the SUPPLIER written notice of default.
If the SUPPLIER has not made good the default (or taken all reasonable steps towards making good the default) within the five (5) days following the date of issue of such written notice of default, the PURCHASER shall without prejudice to any other of its rights under this PURCHASE ORDER be entitled to terminate the PURCHASE ORDER in whole or in part.

If the PURCHASER terminates the PURCHASE ORDER, in whole or in part, the PURCHASER shall be entitled to obtain at its election either the GOODS or SERVICES or those GOODS or SERVICES which were to be supplied under the terminated portion of the PURCHASE ORDER from any other source. The SUPPLIER shall indemnify the PURCHASER for all additional costs incurred by the PURCHASER in so doing.

If the PURCHASER exercises the power to terminate the PURCHASE ORDER it shall be entitled to enter the SUPPLIER'S premises and, notwithstanding any lien, to take possession of and remove therefrom all GOODS or SERVICES, whether complete or not, which are or have become the property of the PURCHASER pursuant to the PURCHASE ORDER. The cost to the PURCHASER of so doing shall be repaid to it by the SUPPLIER or shall be deducted by the PURCHASER from any money due from the PURCHASER to the SUPPLIER under the CONTRACT or any other contract between the PURCHASER and the SUPPLIER. The PURCHASER shall pay or allow to the SUPPLIER any amount by which the value of GOODS which have become the property of and are in the possession of the PURCHASER exceeds the total amount paid by the PURCHASER on account of the PRICE.

The SUPPLIER shall, in each of his sub-orders, reserve for itself the same rights as are reserved for the PURCHASER by this Article 21 and shall procure that the benefit of such rights shall be assignable to the PURCHASER and shall immediately assign such benefit when required by the PURCHASER so to do.
TERMINATION

Notwithstanding the preceding Article, the PURCHASER may cancel the PURCHASE ORDER, in whole or part, at any time by giving notice in writing to the SUPPLIER and without giving any reason. In the event of termination under this or the preceding Article the SUPPLIER will immediately stop performance of the PURCHASE ORDER including those parts (or the part in question) being performed under sub-orders and at the PURCHASER'S option, assign all outstanding sub-orders to the PURCHASER. The PURCHASER will be entitled to receive all drawings, the GOODS, SERVICES and other items associated with the PURCHASE ORDER in their then current state of completion. The PURCHASER will not be liable for any work done or expense incurred by the SUPPLIER after the date of termination, unless such work or expense has been authorised in advance by the PURCHASER in writing. In the event of termination under this Article 22 the PURCHASER will pay the SUPPLIER for all work done up to the date of termination as well as any other substantiated costs reasonably incurred by the SUPPLIER in connection with the prompt termination of performance. However, under no circumstances shall the total of the sums payable by the PURCHASE to the SUPPLIER under this paragraph exceed the price.
BANKRUPTCY AND INSOLVENCY

If the SUPPLIER shall become bankrupt or insolvent; or have a receiving order made against him; or compound with his creditors; or being a corporation commences to be wound up (such winding up not being voluntary for the purpose of reconstruction or amalgamation whilst solvent); or carry on its business under an administrative receiver for the benefit of its creditors or any of them; or have an administrator appointed; or have any distress levied on the GOODS the PURCHASER will be at liberty at its option to terminate the PURCHASE ORDER forthwith by notice in writing to the SUPPLIER or to the administrative receiver, liquidator, administrator or to any person in whom the PURCHASE ORDER may become vested, or give such administrative receiver, liquidator, administrator or other person the option of carrying out the PURCHASE ORDER, subject to his providing a guarantee for the date and faithful performance of the order up to an amount to be agreed.

If the PURCHASER exercises its power to terminate the PURCHASE ORDER under this Article 23 it will be entitled to enter the SUPPLIER'S premises and, notwithstanding any lien, take possession of and remove therefrom all drawings, the GOODS and other items associated with the PURCHASE ORDER in their current state of completion which are or have become the property of the PURCHASER pursuant to the PURCHASE ORDER.

The cost to the PURCHASER of so doing will be repaid by, or on behalf of, the SUPPLIER. The PURCHASER will pay or allow to the SUPPLIER any amount by which the value of the GOODS or SERVICES, which have become the property of and are in possession of the PURCHASER, exceeds the total amount paid by the PURCHASER on account of the PRICE. The SUPPLIER will reserve for itself in each of his sub-orders the same rights as are reserved for the PURCHASER by this Article 23 and will ensure that the benefit of such rights will be assignable to the PURCHASER. The SUPPLIER shall effect such assignment immediately at the PURCHASER'S request.
VARIATIONS

The PURCHASER has the right during the execution of the PURCHASE ORDER, by notice in writing to direct the SUPPLIER to add or omit, or otherwise vary the GOODS or SERVICES. The SUPPLIER will carry out such variations and be bound by the same condition, as though the said variations were stated in the PURCHASE ORDER. Where the SUPPLIER receives any such instructions which would occasion an alteration to the PRICE or delivery date then the SUPPLIER will advise the PURCHASER in writing within seven days giving the total PRICE of such alterations and any change in the delivery date. The PURCHASER will decide whether or not the variation will be carried out and will confirm its instructions in writing to the SUPPLIER. The SUPPLIER will take no action in performing the variation in question until such instructions have been given by the PURCHASER.
TECHNICAL ASSISTANCE

In connection with the GOODS or SERVICES the SUPPLIER agrees to provide technical advice as necessary to assist the PURCHASER or the OWNER during installation, commissioning or testing of the GOODS or any other goods or thing in respect of which the SERVICES were to be performed. The extent and any additional terms and conditions respecting the provision of such technical services will be set forth in the PURCHASE ORDER.
ASSIGNMENT

The SUPPLIER shall not assign all or any part of the CONTRACT.

The PURCHASER may, at any time, assign the CONTRACT in whole or in part.
EMPLOYER'S LIABILITY

The SUPPLIER shall indemnify the PURCHASER against liability for all claims whatsoever and howsoever arising in contract, tort (including negligence or otherwise) in respect of personal injury or death of, or loss of or damage to the property of the SUPPLIER'S employees, consultants and agency personnel which are made against the PURCHASER and which are, directly or indirectly, connected with the PURCHASE ORDER.
AUDIT

In the case of reimbursable contracts only for the duration of the PURCHASE ORDER (including any extension of it) and for three (3) years thereafter, the SUPPLIER shall maintain full records of all financial matters connected with the performance of the PURCHASE ORDER (and all amendments thereto) and at any time during such period the PURCHASER, OWNER or both of them may enter the SUPPLIER'S premises and audit such records. For the purposes of such audit, the PURCHASER or OWNER may take copies of any such records and shall be entitled to require a certificate from the SUPPLIER in respect of anything contained in such records.
APPLICABLE LAWS

The CONTRACT shall be enforced, construed and interpreted in accordance with the Laws of England and the SUPPLIER and PURCHASER hereby agreed to submit to the exclusive Jurisdiction of the English Courts.
SET-OFF

The PURCHASER shall be entitled but not obliged at any time or times without notice to the SUPPLIER to set off any liability owed to the SUPPLIER against any liability of the SUPPLIER (in either case howsoever arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of the currency of its denomination) and may for such purpose convert or exchange any currency. Any exercise by the PURCHASER of its rights under this clause shall be without prejudice to any other rights or remedies available to the PURCHASER under the CONTRACT or otherwise.
ENTIRE AGREEMENT

The CONTRACT contains the entire agreement between the parties in relation to the matters contemplated by the CONTRACT and supersedes any previous agreements between the parties in relation to such matters.

Each of the parties confirms that in entering into the CONTRACT it has not relied on any statement, representation, warranty, agreement or undertaking of any person (whether a party to the CONTRACT or not) other than those expressly set out in the CONTRACT, and that it will not have any claim, right or remedy arising out of any such statement, representation, warranty, agreement or undertaking.

Without prejudice to the rest of this Article, each of the parties agrees that no breach of the CONTRACT shall entitle it to rescind the CONTRACT and that except as otherwise expressly provided in the CONTRACT the only remedy available to it for breach of the CONTRACT shall be damages for breach of contract in accordance with the terms of the CONTRACT.

Nothing in the CONTRACT shall operate to limit or exclude any liability of one of the parties in respect of a fraudulent misrepresentation made by that party to the other.
WAIVERS AND REMEDIES

No failure or delay to exercise, or other relaxation or indulgence granted in relation to, any power, right or remedy under the CONTRACT shall operate as a waiver of it or impair or prejudice it nor shall any single or partial exercise or waiver of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy.

All rights of any person contained in the CONTRACT are in addition to all rights vested or to be vested in it pursuant to common law or statute.
SEVERABILITY

Each of the provisions of the CONTRACT is distinct and severable from the others and if at any time one or more of such provisions is or becomes invalid, unlawful or unenforceable (whether wholly or to any extent), the validity, lawfulness and enforceability of the remaining provisions (or the same provision to any other extent) of the CONTRACT shall not in any way be affected or impaired.
NOTICES

Each party may give any notice or other communication under or in connection with the CONTRACT by letter or facsimile transmission or email addressed to the other party. The address for service of each party shall be the address set out in the PURCHASE ORDER or such other address for service as the addressee may from time to time notify to the other party for the purposes of this clause or (in the case of a company) its registered office from time to time.

Any such communication will be deemed to be served:
- if personally delivered, at the time of delivery and, in proving service, it shall be sufficient to produce a receipt for the notice signed by or on behalf of the addressee;
- if by letter, at 1 p.m. on the second Business Day after such letter was posted (or, in the case of airmail, five Business Days after such letter was posted) and, in proving service, it shall be sufficient to prove that the letter was properly stamped first class (or airmail), addressed and delivered to the postal authorities;
- if by facsimile transmission, at noon on the Business Day after the day of transmission and, in proving service, it shall be sufficient to produce a transmission report from the sender's facsimile machine indicating that the facsimile was sent in its entirety to the recipient's facsimile number; and
- if by email, at noon on the Business Day after such message was sent and, in proving service, it shall be sufficient to produce a computer print out indicating that the message was sent to the recipient's email address.
THIRD PARTY RIGHTS

Except as provided in this Article 35, the CONTRACT is made for the benefit of the parties to it. The SUPPLIER acknowledges that in respect of rights in the CONTRACT expressed to be for its benefit the OWNER shall be entitled to enforce such rights under the CONTRACT together with all benefits conferred on it by the CONTRACT subject to and in accordance with the CONTRACT and the Contracts (Rights of Third Parties) Act 1999.

The parties may without the consent of the OWNER agree to amend, vary or terminate the CONTRACT in such a way as may affect any rights or benefits the OWNER under the CONTRACT by virtue of the Contracts (Rights of Third Parties) Act 1999.