These Conditions apply to all purchases made by Calor under an Order, save where Calor and the Supplier have entered into a separate written agreement with respect to the supply of such products and/or services which are the subject of an Order and such agreement has been signed by duly authorised representatives of Calor and the Supplier (in which event such written agreement shall take precedence over these Conditions).
1. DEFINITIONS AND INTERPRETATION
1.1 Except as otherwise stated in these Conditions or required by their context:
(a)references to statutory provisions are to those provisions as in force from time to time;
(b)the words including, include, in particular, or any similar terms shall be construed as illustrative only and shall not limit the sense of the words preceding those terms;
(c)headings to Conditions are for ease of reference only.
1.2 In these Conditions:
Affiliate(s) means any other legal entity that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with Calor;
Background IP means the Intellectual Property Rights of either Calor or the Supplier which are in existence prior to the Order or which are developed by either party independently of the Order;
Calor means Calor Gas Limited and its Affiliates and their successor or assigns from time to time;
Calor Materials means all Calor data, materials, documents, pictures, photographs, graphics, artwork, equipment and tools, drawings, specifications or other outputs of any kind supplied by Calor to the Supplier in connection with an Order;
Conditions means these terms and conditions;
Control means the ability of a person to direct or cause the direction of the management and policy of another person whether through ownership of the voting rights in securities or capital stocks or assets, by contract or otherwise and Controlled shall be read accordingly;
Data Controller and Data Processor have the meanings set out in the applicable Data Protection Laws;
Data Protection Laws means the UK Data Protection Legislation and any other applicable law or regulations in any relevant jurisdiction relating to the privacy, use or processing of personal data in force from time to time (including the EU GDPR); and any guidance, codes of practice or opinions issued or recognised by the relevant data protection or supervisory authority and applicable to a party, in each case as updated, amended or replaced from time to time;
Employment Taxes means income tax, national insurance contributions and any other liability, deduction, levy including without limitation any apprenticeship levy, arising from or made in connection with the performance of the Services;
EU GDPR means the European General Data Protection Regulation (Regulation (EU) 2016/679); Force Majeure means the occurrence of any event beyond the reasonable control of a party which directly causes that party to be unable to comply with all or a material part of its obligations under an Order provided that a circumstance beyond the Supplier’s reasonable control shall not include any cause which: (i) is attributable to the Supplier’s wilful act, omission or negligence; (ii) merely increases the Supplier’s cost of performing its obligations; (iii) is attributable to any industrial dispute relating to the Supplier or its personnel; or (iv) is attributable to any analogous failure in the Supplier’s supply chain;
Intellectual Property Rights means all rights in patents, trademarks, service marks, copyrights, moral right, design rights, software or database rights, and rights in know how or any other intellectual property right of whatever nature subsisting in any part of the world;
IR35 means the intermediaries legislation known as IR35 concerning off payroll working which as at the date of these Conditions is set out in Chapters 8 and 10 of Part 2 of the Income Tax (Earnings and Pensions) Act 2003 (as may be amended from time to time) and any other legislation or secondary legislation dealing with the tax and national insurance contributions treatment of workers whose services are provided via intermediaries;
Labour Supply Chain means the Supplier’s supply chain as it relates to the provision of labour or personnel to assist in the provision of the Services and includes without limitation all subcontractors at any level or tier of that supply chain, whether or not there is a formal contract in place in respect of such assistance;
Order means the purchase order issued by Calor to the Supplier for the purchase of the Products and/or Services, which order shall include these Conditions and any specification for the Products or Services which Calor and the Supplier have agreed in writing shall be incorporated into the order;
Personal Data has the meaning set out in the applicable Data Protection Laws;
Prices means the prices to be charged for Products or Services set out in the Order;
Process, Processing, Processed has the meaning set out in applicable Data Protection Laws;
Products means the Products as set out in the Order;
Services means the Services as set out in the Order;
Supplier means the party appointed by Calor to supply the Products and/or Services as set out in the Order;
Tax Authority means HMRC and/or any court, tribunal or other competent tax authority;
UK Data Protection Legislation means all applicable data protection and privacy legislation in force from time to time in the UK including the Data Protection Act 2018; the UK GDPR; and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
2. AGREEMENT
2.1Save where Calor and the Supplier have entered into a separate written agreement with respect to the supply of such products and/or services which are the subject of an Order and such agreement has been signed by duly authorised representatives of Calor and the Supplier (in which event such written agreement shall take precedence over these Conditions), the Supplier agrees that these Conditions contain the only terms upon which Calor is prepared to contract for the purchase of Products and/or Services.
2.2 These Conditions shall govern the Order to the entire exclusion of all other terms or conditions. The Supplier irrevocably waives its rights under the provisions of any of its standard terms and conditions whether contained or referred to in any quotation, acknowledgement or acceptance of order, specification, delivery note, invoice or other similar document.
2.3 Any delivery of Products or commencement of performance of Services shall be deemed to constitute acceptance of an Order under these Conditions.
2.4Calor reserves the right to cancel an Order (in whole or in part) if it has not been accepted in writing within 14 days of issue.
2.5Calor’s appointment of the Supplier is non-exclusive and nothing in these Conditions or the Order shall oblige Calor to purchase Products and/or Services exclusively from the Supplier and, unless expressly stated in the Order, there are no quantities of Product or Services committed to be purchased by Calor in terms of either product items or value.
2.6 Orders are placed in reliance upon such samples, tenders, quotations, drawings, illustrations, photographs, plans etc. as have been provided by the Supplier. These, together with any weights, measurements, powers, capacities, times, and other particulars provided, are therefore an essential term of the Order and the Supplier accepts full responsibility for deviations from them, except where such deviations are minor and immaterial, or where deviations are due to inaccurate information or particulars provided by Calor.
3. PERFORMANCE OF SERVICES
3.1 The Supplier warrants undertakes and represents that:
(a)Services will be carried out by appropriately qualified and trained personnel using all reasonable skill and care and to such high standard of quality as is reasonable for Calor to expect in all the circumstances;
(b)Services will be performed using first class materials suitable in all respects for their purposes; and
(c)the Services will be performed in accordance with their specifications, the service levels and other performance metrics, and the timescales and dates set out in the Order and time shall be of the essence in performance of the Services.
3.2 If any Services are not performed or accepted by their due date, or fail to comply with the provisions of the Order by reason of (without limitation) their quality, quantity or otherwise, then Calor may, at its sole discretion, cancel the relevant Order in whole or in part, and:
(a)direct the Supplier to, whereupon the Supplier shall immediately, re-perform or rectify performance of such Services, so that they comply with the terms of the relevant Order; or
(b)purchase equivalent Services from another supplier and recover from the Supplier any additional costs incurred by Calor in obtaining such equivalent Services from that other supplier.
3.3 This Condition shall apply to Services re-performed or rectified as it does to Services as originally performed.
3.4 The Supplier will be responsible for providing all facilities, labour, materials, tools, equipment and for provision and supervision of all personnel necessary for performance of the Services.
3.5 The Supplier shall procure that personnel performing Services while on Calor premises shall observe all site rules and regulations applicable to such premises and notified to the Supplier and the Supplier indemnifies Calor against all claims and liabilities arising from any failure by such personnel to observe such rules and regulations. The Supplier shall remove from performance of the Services at Calor’s request any of its personnel failing to observe such rules and regulations.
3.6 Any Services performed by the Supplier shall not be deemed to have been completed unless Calor has agreed in writing that the Services have been performed or provided in full and in accordance with the terms of these Conditions (“Completion”). Should Calor consider that any Services have not been Completed it shall notify the Supplier with reasons and the Supplier shall perform such further services or make such modifications as are necessary to complete the Services.
4. SPECIFICATION OF PRODUCTS
4.1 The Products shall conform in all respects with the Order and with any representations previously made by or on behalf of the Supplier.
4.2The Supplier warrants, undertakes and represents that:
(a)all usual precautions have been and will be taken to secure excellence of materials, equipment and workmanship, and that the Products are free from defects in design, material and workmanship and free of any charge or encumbrance;
(b)Products shall in all respects be in accordance with all samples, patterns, descriptions and specifications agreed between the Supplier and Calor or specified in the Order;
(c)the Supplier is aware of the use for the Products intended by Calor and the Products shall be of satisfactory quality and fit for their purpose;
(d)Products shall comply in design, construction and quality with all relevant industry codes of practice (including national and EU standard specifications) and all other regulations or legislation affecting the Products in any territory notified to the Supplier by Calor or in which the Products are to be delivered or used;
(e)where Calor has previously issued an approval certificate for goods and/or appliances of the type to be supplied hereunder the Products supplied hereunder will be identical in all respects with the goods and/or appliances for which the certificate was given;
(f)in the case of cylinders and pressure vessels intended for the purpose of containing liquefied petroleum gases, that they shall comply with all laws, statutes and regulations in force for the time being and also the recommendations of Liquid Gas UK and, in particular, will comply in all respects with the details set out in the specifications provided by Calor; and
(g)the Products will not infringe any Intellectual Property Rights of a third party or rights of any third party in confidential information.
4.3 The Supplier warrants, undertakes and represents that any documents relating to the Products delivered to Calor are valid and that the information contained in such documents is true, accurate and not misleading.
4.4 The Supplier shall use its best endeavours to assign to Calor the benefit of any third party manufacturer’s warranties, guarantees or similar rights that may apply to the Products.
5. DELIVERY OF PRODUCTS
5.1 The Supplier shall deliver the Products by the date and time stipulated in the Order. Time shall be of the essence in delivery of the Products and the Supplier will accept full responsibility for any delay beyond the time specified for delivery in the Order.
5.2 The Supplier shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the Order number, date of the Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
5.3 Unless otherwise stipulated by Calor in the Order, deliveries shall only be accepted by Calor in normal business hours.
5.4If any Products are not delivered on or accepted by the due date, or fail to comply with the provisions of the Order by reason of (without limitation) their quality, quantity or otherwise, or are delivered in error then Calor may, at its sole discretion reject such Products, cancel the Order in whole or in part, and:
(a)return at the Supplier’s risk and expense the Products or any instalment and immediately upon such return the Supplier shall refund to Calor any monies paid in respect of such Products; or
(b)direct the Supplier to, whereupon the Supplier shall immediately, replace, repair or rectify such Products, so that they comply with the terms of the relevant Order; or
(c)purchase equivalent Products from another supplier and recover from the Supplier any additional costs incurred by Calor in obtaining such equivalent Products from that other supplier.
5.5 The provisions of this Condition shall apply to Products repaired and replaced as they do to Products as originally supplied.
5.6 The making of any prior payment shall not prejudice Calor’s rights under these Conditions, including the right to reject any of the Products and/or Services.
5.7 Any carrier appointed by the Supplier in connection with the Order shall be deemed to be the Supplier’s agent and not that of Calor. Where Products upon delivery are found to be damaged or defective, in any way, the Supplier accepts full responsibility therefore so long as a claim is made in writing within a reasonable time; the Supplier will also accept responsibility for losses in transit, but in each case Calor will provide all reasonable assistance with respect to the return of damaged goods and making claims upon carriers.
5.8The Supplier shall:
(a)comply with any standing instructions or policies of Calor in respect of the making of deliveries;
(b)deliver or procure delivery of Product using well-maintained, suitable and roadworthy vehicles complying with all relevant legal requirements;
(c)warrant, undertake and represent that the labelling and packaging of the Products complies with all laws and other legal requirements of all countries where the Products are supplied to Calor; and
(d)supply with the Products all written instructions, information and warnings relating to the Products necessary for their safe use or for Calor to comply with any obligation it may have under statute or otherwise.
6. RISK/PROPERTY
6.1Subject to Condition 6.2, risk of loss or damage in the Products and title to the Products shall transfer from the Supplier to Calor on delivery of the Products, notwithstanding any attempt by the Supplier to transfer risk at an earlier date or any purported retention of title by the Supplier until some later date.
6.2Where Products are subject to acceptance testing or other processes establishing when Products are or are deemed to be accepted set out in an Order, risk in and title to such Products shall pass to Calor on acceptance unless the Order otherwise provides.
7. PRICES AND PAYMENT
7.1 Unless otherwise expressly stated in the Order Prices are fixed and as set out in the Order and, unless otherwise agreed in writing by Calor, shall be exclusive of value added tax (“VAT”) but inclusive of all other charges (including any charges for packaging, shipping, carriage, insurance or delivery of the Products). No variation in the price nor extra charges will be accepted by Calor.
7.2 The Supplier shall ensure that each of its invoices include all supporting information required by Calor to verify the accuracy of the invoice, including but not limited to: (i) Calor’s relevant Order number; (ii) the Supplier’s bank account details; (iii) the Supplier’s VAT registration number (where applicable); and (iv) such other information as Calor may reasonably request to meet UK tax or legal requirements.
7.3 Where transactions relating to an Order are processed using a recognised electronic data interchange process system, the Supplier shall send to Calor a composite monthly financial statement showing Order numbers, the composition of all invoices raised and the Price for all the Products and/or Services supplied to Calor during the statement period.
7.4 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Products and/or Services, and the Supplier shall allow Calor to inspect such records at all reasonable times on request. If errors or omissions in any of such processes, calculations, invoices or statements are found, the Supplier shall promptly refund to Calor any excess payments made by Calor.
7.5 In consideration of the supply of the Products and/or Services, Calor shall pay the Supplier all undisputed and correctly rendered invoices in accordance with the payment terms set out in the relevant Order or, where no payment terms are stated in the Order, within 60 days of receipt of a valid VAT invoice, to a bank account nominated in writing by the Supplier.
7.6 Both parties reserve the right to charge interest on any payment not made when due in accordance with these Conditions (“Late Payment”) at the rate of 2% above the Bank of England’s base rate from time to time. Interest will be charged from the day that any amount becomes a Late Payment until it represents cleared funds in the relevant party’s bank account. The parties acknowledge that this is a substantial contractual remedy for the purpose of Section 8 of the Late Payment of Commercial Debts (Interest) Act 1998.
7.7Without prejudice to any other right or remedy which Calor may have whether under these Conditions or otherwise, if any sum of money shall be recoverable from the Supplier or payable by the Supplier to Calor, whether under these Conditions or otherwise, Calor may deduct such sum from any sums payable to the Supplier under an Order.
8. CONFIDENTIALITY/PUBLICITY
8.1 Each of Calor and the Supplier undertake that they shall not at any time disclose to any person any information concerning the business, affairs, customers, clients or suppliers of the other party (“Confidential Information”), except as permitted by this Condition 8.
8.2 Each party may disclose the other party’s Confidential Information:
(a)to its employees, officers, representatives, contractors, sub-contractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under an Order. Each party shall ensure that its employees, officers, representatives, contractors, sub-contractors or advisers to whom it discloses the other party's Confidential Information comply with this Condition 8;
(b)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 Neither party shall use the other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the relevant Order.
8.4 The restrictions in this Condition 8 shall not apply to:
(a)the disclosure of information where required by law or order of a regulatory authority (provided that to the extent permitted by such law or order, the disclosing party notifies the other of such requirement in advance);
(b)information which is made public other than through a breach of this Condition; or
(c)information in a party’s possession or provided to a party without obligations of confidence.
8.5 The Supplier shall not make, or permit any person to make, any public announcement, communication or circular concerning an Order, or promote or publicise in any way that Calor is a customer of the Supplier, without the prior written consent of Calor.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 Each of Calor and the Supplier shall retain its rights in its Background IP.
9.2 Except as expressly set out in these Conditions, the Supplier shall not acquire any right, title or interest in any Intellectual Property Rights owned by, or licensed to, Calor.
9.3 The Supplier shall not in any way use or copy Calor’s trademarks or trade names for any purpose without Calor’s prior written consent. If Calor gives its consent, the Supplier shall use the relevant trademarks or trade names in compliance with Calor’s brand guidelines, as they may be amended from time to time, a copy of which can be provided to the Supplier on request, and in accordance with any terms and conditions of Calor’s consent.
9.4 All Intellectual Property Rights developed or created specifically in connection with the production of Products and/or the performance of Services for Calor under an Order shall be owned by Calor. The Supplier grants to Calor, or shall procure the direct grant to Calor of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Products and Services for the purpose of receiving and using the Products and Services. Acceptance of an Order by the Supplier shall be taken to guarantee undisturbed use by Calor of any Intellectual Property Rights under which the ordered items are manufactured or supplied.
9.5 All property in any Calor Materials supplied by Calor to the Supplier for the purposes of the Order shall remain with Calor. The Supplier shall treat all Calor Materials as confidential and shall use them only for the purposes for which they were supplied and shall deliver them up to Calor upon (a) completion of such purposes; (b) Calor’s request; or (c) termination of the Order; and except for the right to use such Calor Materials as necessary to perform the relevant Order no Intellectual Property Rights in such Calor Materials will be granted to the Supplier.
10. TERMINATION
10.1 Calor may terminate an Order in whole or in part at any time with immediate effect by giving the Supplier no less than 7 days’ written notice, whereupon the Supplier shall discontinue all work on the Order. Should Calor terminate an Order pursuant to this Condition 10.1, it shall pay the Supplier fair and reasonable compensation for any work in progress on the Products or Services at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
10.2 Calor may terminate an Order in whole or in part at any time with immediate effect without liability by giving the Supplier written notice if:
(a)the Supplier fails to fulfil or comply with any of its obligations under an Order and such failure is not remediable, or where such failure is remediable the Supplier has failed to remedy such failure within 7 days of written notice from Calor specifying the failure and requiring its remedy; or
(b)acting reasonably, it believes that any of the events mentioned in Condition 10.3 is about to occur in relation to the Supplier and notifies the Supplier accordingly; or
(c)there is a change of Control of the Supplier; or
(d)the Supplier commits a breach of Conditions 17.1 or 17.2 (compliance with laws).
10.3 Calor or the Supplier shall be entitled to terminate an Order immediately without liability by giving notice in writing at any time if the other party:
(a)makes or proposes any voluntary arrangement with its creditors (within the meaning of insolvency legislation) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order, is wound up or goes into liquidation (other than for the purpose of a solvent amalgamation or reconstruction); or
(b)has a receiver, administrative receiver, administrator or similar officer appointed over any of their property or assets, or documents are filed at court or any action taken in relation to the appointment of an administrator; or
(c)ceases, or threatens to cease, to carry on business; or
(d)is unable to pay its debts as they fall due; or
(e)suffers the occurrence of an event equivalent or similar in effect to any of the above events in any other jurisdiction.
10.4 Without prejudice to any other rights of Calor under these Conditions or otherwise, on the termination of an Order, the Supplier shall:
(a)deliver to Calor or at Calor’s direction destroy all copies of Calor’s Confidential Information;
(b)return all Calor Materials supplied to the Supplier pursuant to the Order, unless the Supplier still requires such Calor Materials to provide Products or Services or meet its obligations under another Order; and
(c)if so requested by Calor, at no cost, provide all assistance reasonably required by Calor to facilitate the smooth transition of any Services under the Order to Calor or any replacement supplier appointed by Calor.
10.5 The termination of any Order under these Conditions shall be without prejudice to either party’s rights then accrued arising from such Order or any breach thereof and to any provision of these Conditions which is expressly or by implication intended to survive such termination.
10.6 On termination of the Order the Supplier shall not be entitled to payment for any costs incurred in relation to any Products supplied and/or Services performed after the effective date of such termination
10.7 Any Condition that expressly or by implication is intended to come into or continue in force on or after termination or expiry of an Order shall remain in full force and effect.
11. INDEMNITIES
11.1The Supplier shall indemnify Calor and/or its Affiliates against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis)) and all other professional costs and expenses suffered or incurred by Calor and/or its Affiliates arising out of or in connection with:
(a)breach of any warranty of the Supplier in relation to the Products and/or Services;
(b)breach by the Supplier of any of these Conditions;
(c)negligence for which the Supplier is responsible in relation to Products and/or Services;
(d)any claim made or bought against Calor for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the receipt, use, sharing or supply of the Products or Services;
(e)any claim made against Calor by a third party for death, personal injury or damage to property arising out of, or in connection with, the Products or Services; and/or
(f)any claim, action, adjudication, decision or fine made against Calor by a third party (including any regulatory body) arising out of or in connection with the supply of the Products or Services.
12. LIABILITY
12.1Subject to Condition 12.5, neither party shall have any liability to the other under or in connection with an Order, whether in contract or tort or otherwise, for any loss or damage which is indirect or consequential and which, whether or not it arises as a direct and natural result of a breach of these Conditions, is not a reasonably foreseeable result of such a breach.
12.2 Subject to Condition 12.5, the total aggregate liability of Calor under or in connection with an Order for all claims whether in contract, tort or otherwise, shall not exceed the amounts payable by Calor under such Order.
12.3 Subject to Condition 12.5, the total aggregate liability of the Supplier under or in connection with an Order for all claims whether in contract, tort or otherwise, shall be limited to:
(a)for any claim relating to damage to property caused by the negligence of the Supplier its employees, contractors or agents in connection with an Order or for losses or liabilities suffered or incurred by Calor arising out of or in connection with any third party claim against Calor which has been caused by the acts or omissions of the Supplier, an amount equal to £5,000,000 (five million pounds) for any one claim or series of related claims;
(b)for all other loss or damage which does not fall within Condition 12.3(a) an amount equal to 200% of the total Prices payable under an Order (where the total Prices means all sums paid or payable by Calor under the Order in respect of the Products and Services supplied or to be supplied under that Order, whether or not invoiced to Calor) for any one claim or series of related claims.
12.4 The Supplier’s limitation of liability set out in Condition 12.3 shall not apply in respect of the indemnities in Conditions 11.1(d) to (f) inclusive, Condition 16.2 and Condition 22.3 and any amounts recovered under such indemnities shall be excluded in calculating the Supplier’s total liability under Condition 12.3.
12.5 Nothing in these Conditions shall limit the liability of either party for personal injury or death caused by its negligence or for fraud or fraudulent misrepresentation.
13. INSURANCE
13.1The Supplier shall take out and maintain in force with reputable and substantial insurers the following insurances (and the Supplier agrees that the insurance policies shall note the interest of Calor by means of an indemnity to principals clause or similar and shall be evidenced by certificates and receipts confirming payment of the premiums for the insurances to be made available to Calor within 7 days of request):
(a)employers’ liability insurance in the amount of £10,000,000 for any one occurrence and unlimited in the period of insurance;
(b)public liability insurance (including product liability) in the amount of at least £5,000,000 for any one incident and unlimited in the period of insurance but in the aggregate in respect of product liability;
(c)all risks property insurance in a sum adequate to cover all Calor Materials or Products in the Supplier’s possession or control from time to time on a reinstatement basis;
(d)professional indemnity insurance in the amount of at least £1,000,000 for any one occurrence; and
(e)any other insurances required at such levels required to adequately insure against the Supplier’s liabilities and obligations under an Order.
14. FORCE MAJEURE
14.1 If either party is prevented, hindered or delayed from or in performing any of its obligations under an Order by Force Majeure, then:
(a)that party’s obligations under the Order shall be suspended for so long as the Force Majeure continues and to the extent that it is so prevented, hindered or delayed;
(b)as soon as possible after the start of the Force Majeure that party shall give notice to the other party of the nature of the Force Majeure, the date and time at which it started and the likely effects of the Force Majeure on its ability to perform it obligations;
(c)that party shall use all reasonable endeavours to mitigate the effects of the Force Majeure on the performance of its obligations under the Order; and
(d)as soon as practicable after the end of the Force Majeure that party shall notify the other party and resume performance of its obligations under the Order.
14.2 If the Supplier is prevented, hindered or delayed from or in performing any of its obligations under an Order by Force Majeure, Calor may engage an alternative service provider to provide the Products and/or Services for the duration of the event of Force Majeure and for a reasonable period thereafter. If this occurs then payment to the Supplier will be suspended and the Supplier’s invoice adjusted accordingly to account for the reduced or no service.
14.3 If the Supplier is prevented, hindered or delayed from or in performing any of its obligations under an Order by Force Majeure for a continuous period in excess of 7 days Calor may terminate the relevant Order immediately by giving notice in writing to the Supplier.
15. MANAGEMENT INFORMATION AND AUDIT
15.1 The Supplier will provide Calor with monthly management information regarding the purchase activity for the Products or Services by Calor. Such information shall include:
(a)overall invoiced values for the then current month and year to date;
(b)overall volumes of purchases of Products or Services for the current month and year to date;
(c)reports on service delivery with reference to any service criteria as set out in an Order; and
(d)such other information or reports as Calor may reasonably require from time to time.
16. GENERAL DATA PROTECTION
16.1 Both parties shall comply with all applicable requirements of Data Protection Laws.
16.2 The Supplier shall indemnify and keep indemnified in full and on demand Calor and each of its Affiliates against all liabilities, claims, proceedings, costs, damages, losses and fines (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis)) and all other professional costs and expenses suffered or incurred by Calor and/ or its Affiliates arising out of or in connection with any breach by the Supplier of Data Protection Laws.
16.3 If the provision of the Services involves the processing of Personal Data by the Supplier on behalf of Calor, the parties agree that they shall enter into a separate data processing agreement. Unless the Supplier is otherwise required by the Data Protection Laws or any other applicable laws of the European Union or any of its members (“EU Laws”), the Supplier shall only act on instructions and directions from Calor. The Supplier shall comply promptly with all such instructions and directions received from Calor from time to time. Where the Supplier is relying on such EU Laws as the basis for processing Personal Data, the Supplier shall promptly notify Calor of this before performing any processing required by the EU Laws.
17. COMPLIANCE WITH LAW AND CODE OF CONDUCT
17.1 The Supplier undertakes and agrees that in connection with an Order and the transactions contemplated by the Order, it will comply with all applicable laws, statutes, regulations, rules, decrees and/or official governmental orders of the United Kingdom in force from time to time, including all guidelines and codes of practice issued or recognised by any statutory, regulatory or relevant industry body and will obtain, and at all times maintain, all licences and consents which may be required for the provision of the Services or Products.
17.2 Without prejudice to the generality of Condition 17.1, both parties shall comply with all applicable laws relating to: (i) bribery and anti-corruption including the Bribery Act 2010; (ii) slavery and human trafficking including the Modern Slavery Act 2015; and (iii) UK and foreign tax evasion facilitation including the Criminal Finances Act 2017.
17.3 Calor has a Business Partner Code of Conduct (the “Calor BPCoC”), an electronic copy of which is available via:
https://cip-glob-cdn.azureedge.net/-/media/sites/greatbritain/pdfs/business-partner-code-of-conduct.pdf?rev=2134ffb305d9421094cfd60887bb5365
17.4 The Supplier shall:
(a)carefully review the Calor BPCoC;
(b)ensure that the Calor BPCoC is disclosed to all Supplier’s personnel; and
(c)undertake and agree that, in connection with Supplier performance under an Order, all Supplier personnel shall act consistently with the applicable principles of the Calor BPCoC in all material respects.
18. SUB-CONTRACTING AND ASSIGNMENT
18.1 The Supplier shall not sub-contract any part of its obligations under an Order (except in respect of delivery of the Products) without Calor’s prior written approval.
18.2 The Supplier shall be fully responsible for those elements performed by its sub-contractors and for the acts and omissions of all its sub-contractors to the same extent as its own acts and omissions.
18.3 The Supplier shall not assign, transfer or otherwise dispose of all or any part of its obligations under an Order without the prior consent in writing of Calor, such consent not to be unreasonably withheld or delayed.
18.4Calor may assign its rights under an Order in whole or part.
19. NOTICES
19.1 Any demand, notice or communication shall be deemed to have been duly served:
(a)if delivered by hand, when left at the proper address for service (except that where such delivery is not on a working day service shall be deemed to occur on the next working day);
(b)if given or made by prepaid first class post, two working days after being posted;
19.2 Any demand, notice or communication shall be made in writing to the recipient at its registered office and, in the case of Calor, shall be addressed to the General Counsel.
20. TRANSFER OF EMPLOYEES
20.1 It is the parties’ intention that neither the commencement nor the termination of the provision of any Services under an Order will give rise to a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (the “Regulations”).
20.2 In the event that the Regulations apply to the expiry or termination of an Order (in whole or in part), the Supplier shall (not less than 30 days prior to the expiry or termination of the relevant Order (or the relevant part of the Order) and to the extent lawfully permitted, provide Calor with the employee liability information (as defined in the Regulations) for all personnel engaged in the provision of the Services (“Relevant Employees”).
20.3 The Supplier shall fully indemnify and hold harmless Calor and its Affiliates from and against all costs, claims, liabilities and expenses (including legal expenses) incurred, suffered or paid by Calor or its Affiliates in connection with, or as a result of:
(a) any claim or demand by or on behalf of any Relevant Employee arising from any act, fault or omission of the Supplier on or before the Transfer Date;
(b)any failure by the Supplier to comply with its obligations under the Regulations unless such failure arises from the failure of Calor to comply with its obligations under the Regulations;
(c)a claim by any person whose employment transfers or is alleged to have transferred under the Regulations but whose name is not notified to Calor prior to the relevant alleged Transfer Date;
(d)the service of a notice terminating the employment of a person whose employment has transferred under the Regulations within 6 months after the Transfer Date (including all statutory or contractual redundancy payments payable in respect of such person, and any compensation or damages paid to such person for unfair and/or wrongful dismissal or as a reasonable settlement of a claim for such compensation or damages).
20.4 In this Condition the “Transfer Date” is the date of transfer of a relevant person’s employment under the Regulations.
21. EXPORT CONTROLS AND SANCTIONS
21.1 The parties shall each comply with all applicable laws pertaining to their respective obligations under these Conditions with respect to the import, export, distribution, sales and marketing of the Services. Furthermore, the parties shall not engage in any business or dealings with any embargoed countries, blocked persons, restricted parties identified or proscribed by the USA Bureau of Industry and Security (“BIS”), or individuals or entities listed as a sanctions target by the USA (for example, the USA Department of the Treasury's Office of Foreign Assets Control (OFAC)), United Kingdom, European Union or any other relevant country’s legislation (including facilitating transactions with third parties that involve embargoed countries, blocked persons or BIS restricted parties).
22. EMPLOYMENT TAXES
22.1 The Supplier represents and warrants that in the provision of the Services it shall not operate as an IR35 intermediary (including, without limitation, a personal service company) and shall not contract, engage with or provide the services of any party operating via an IR35 intermediary in its Labour Supply Chain and the Supplier shall notify Calor immediately should such representation and warranty no longer be correct.
22.2 If Calor or any of its Affiliates is liable to withhold and account for any Employment Taxes due to any act, omission or default of the Supplier or any member of the Labour Supply Chain, the Supplier will take or procure the taking of all necessary action to ensure that Calor and/or any such Affiliate ceases to be responsible for such liabilities as soon as practicable.
22.3 The Supplier will indemnify Calor and/or its Affiliates from and against all liabilities, costs, expenses, damages, fines, penalties and losses (including, for the avoidance of doubt, any liability to pay any Employment Taxes and any penalty, fine or interest incurred or payable by Calor or any Affiliate in connection with or in consequence of any liability, deduction, contribution, assessment or claim for any individual or by a Tax Authority in respect of the application of IR35 where recovery is not prohibited by law) arising out of or in connection with:
(a)any breach of (including without limitation any breach of any warranty or representation) or failure of the Supplier to comply with the provisions of Conditions 22.1 and 22.2 above;
(b)Calor or any Affiliate of Calor being responsible for deducting and accounting for any Employment Taxes as a result of any action, omission or default of the Supplier or any member of the Labour Supply Chain; and/or
(c)any claim brought against Calor or any Affiliate of Calor by any worker not employed by Calor or such Affiliate where such claim is based on or connected with any worker or deemed employment status as a result of assistance or involvement in the provision of the Services.
23. GENERAL
23.1 The rights and remedies of Calor under these Conditions are without prejudice and in addition to any other rights or remedies it may have under or in connection with an Order or at law.
23.2 The Supplier warrants that in providing the Products and/or performing the Services under an Order it has not incurred significant capital expenditure nor has it purchased equipment, fleet or premises nor has it recruited new employees especially for the purpose of the Order. Where it intends to do so, the Supplier agrees it shall notify Calor in writing of such intention and in so doing acknowledges it does so entirely at its own risk and in the knowledge that any Order is not exclusive or perpetual and does not grant the Supplier any guaranteed volume or value of purchases.
23.3 No variation to these Conditions is valid unless it is in writing and signed by the duly authorised representatives of Calor and the Supplier.
23.4 A waiver of any right or remedy under these Conditions or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under these Conditions or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under these Conditions or by law shall prevent or restrict the further exercise of that or any other right or remedy.
23.5 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23.6 If any term of an Order incorporating these Conditions to any extent is held to be invalid, void or unenforceable, then that term or provision shall be inoperative and void to the extent necessary to comply with law, but the remaining terms shall nevertheless continue in full force and effect and the rights and obligations of the parties shall be construed as if such Order did not contain that particular term held to be invalid, void or unenforceable.
23.7 Except as otherwise provided in these Conditions, a person who is not a party to an Order has no right to enforce any of these Conditions.
23.8 The terms of the Order and these Conditions constitute the entire agreement between the parties in relation to the subject matter of the relevant Order and supersede any previous agreements or understandings between the parties in relation to the subject matter of the relevant Order.
23.9 Conditions 1, 2, 3, 4, 5, 7.6, 7.7, 8, 9, 10.4, 10.5, 10.6, 10.7, 11, 12, 13, 16, 17, 19, 20, 22 and this Condition 23 shall survive termination of any Order incorporating them.
23.10 These Conditions and any Order shall be governed and construed in all respects in accordance with the laws of England and Wales and the parties submit to the exclusive jurisdiction of the English courts.
