Dotting the i’s
& crossing the t’s
Supplier T&Cs- Download a PDF here
|(1)||BEE LIGHTING LIMITED|
FOR PRODUCTION SERVICES
- definitions and interpretation. 3
- the terms and conditions that apply.. 8
- when the contract is formed. 9
- Quantity.. 9
- changes. 10
- Quality assurance. 10
- ownership, shipping And delivery.. 11
- warranty.. 11
- delivery of non-conforming goods. 13
- price, invoicing and payment terms. 15
- BLL’s intellectual property.. 15
- using the supplier’s technical information. 16
- confidentiality.. 16
- intellectual property rights. 18
- claims of infringement. 20
- Term.. 20
- Termination. 20
- indemnity.. 22
- insurance. 24
- dispute resolution. 24
- force majeure. 27
- sub-contracting.. 27
- no agency.. 27
- variation. 27
- waiver. 27
- assignment. 27
- severance. 28
- further assurance. 28
- notice. 28
- Third party rights. 28
- entire agreement. 28
- law and jurisdiction. 28
THIS AGREEMENT is made the 201[ ]
- BEE LIGHTING LIMITED a company incorporated in England and Wales with registered number 05672520 and having its registered office at Unit 59 Enfield Industrial Estate, Redditch, Worcestershire, B97 6DE (“BLL”); and
- [ ] a company incorporated in England and Wales with registered number [ ] and having its registered office [ ] (“Supplier”)
(each “a Party” and together “the Parties”).
- BLL design and produce component parts for vehicles.
- BLL wishes to procure production goods and services.
- BLL and the Supplier have agreed to enter into this Framework Agreement so as to streamline the process by which BLL will purchase and the Supplier will provide the Goods (as defined below).
IT IS THEREFORE AGREED AS FOLLOWS:
- definitions and interpretation
- In this Agreement the following terms shall, unless the context otherwise requires, bear the meanings given to them:
|Business Day||means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;|
|Confidential Information||means any and all information in whatever form, whether disclosed in writing, orally, visually, electronically or in any other media format, including without limitation, future product plans, the form, materials and design of any relevant plant and equipment or any part thereof, methods of operation and applications, processes, formulae, plans, strategies, data, know-how, designs, trade secrets, patent applications, software, Embedded Software, market opportunities, photographs, drawings, specifications, technical literature and any other material gained or made available by either Party (or any of its representatives or advisors) to the other (or any of its representatives) whether such information is provided:
(a) inside the scope of a Purchase Order;
(b) outside the scope of a Purchase Order to improve collaboration between the Parties; or
|Contract||has the meaning given to it in clause 2.1;
|means software that is embedded in the Goods and performs operating or other functions;
means the tooling, testing and other equipment supplied, financed by or otherwise procured via BLL and provided by or on behalf of BLL to the Supplier or manufactured by the Supplier in connection with this Agreement;
|Force Majeure Event||means a cause or event beyond the reasonable control of a Party that is not attributable to its fault or negligence and shall include:
(a) fire, flood, earthquake, and other extreme natural events, acts of God, riots, civil disorders and war or acts of terrorism whether or not declared as such by a Government;
but shall not include labour problems (including strikes, lockouts, and slowdowns regardless of their lawfulness), or failure of supplies of power, fuel, transport, raw materials or other goods and services, or the failure to comply with applicable law or to take actions reasonably necessary to schedule performance in anticipation of any customs, export-import, or other Government Requirement of which public notice has been given;
|Intellectual Property Rights||means all registered or unregistered trademarks, trade names, patents, inventions whether or not patentable, copyright, database rights, internet domain names, trade secrets, know-how, and registered and unregistered design rights existing or arising anywhere in the world and shall include Embedded Software;
|Insolvency Event||means if a Party:
(a) proposes a voluntary arrangement within the meaning of section 1 or section 253 of the Insolvency Act 1986, or an interim order is made in relation to the Supplier under section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by the Supplier or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other Party and any of its creditors; or
(b) is deemed to be unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; or
(c) calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed; or
(d) presents, or has presented, a petition for a winding up order; or an application to appoint an administrator is made in respect of the Supplier or a notice of intention to appoint an administrator is filed in respect of the Supplier; or any other steps are taken by the Supplier or any other person to appoint an administrator over the Supplier; or
(e) the Supplier has an administrator, administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets; or
(f) the Supplier takes any steps in connection with proposing a company voluntary arrangement or a company voluntary arrangement is passed in relation to it.
|Goods||means the goods, Tooling and/or services to be purchased as described in the Purchase Order;
|Group Companies||Means in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group;
|Government Requirement||means any law or requirement of a Government, or regulatory body (including but not limited to the American Chemical Council) including those that apply to new motor vehicles in general or specific components installed in them, including without limitation: emissions control, safety, substances of concern (SoC) or substances of very high concern (SVHC), REACH, the Global Automotive Declarable Substance List, hazardous materials, recycling and compliance to 2000/53/EC End-of-life vehicle directive in its entirety, including but not limited to Article 4(2)(a) and Annex 2 and any applicable law in relation to anti-bribery, anti-competitive behaviour or unlawful trading. The term Government refers to an entity that claims a right to investigate or regulate the Goods, the vehicles into which the Goods may be installed, BLL, the Supplier or any of its Group Companies;
|Project Term||means the lifetime of the project for which BLL requires the Goods (which for the avoidance of doubt includes the requirements of BLL’s customer) plus an additional 15 years;
|Purchase Order||means a written purchase order issued by BLL for the provision of the Goods;
|Tooling||means all prototype and production tools, dies, fixtures, jigs, gauges, moulds, patterns and related computer software and includes all modifications, repairs, refurbishments and replacements to the aforementioned and any related drawings or CAD data and programming (including CNC) data;
|Warranty Period||has the meaning set out in clause 8.|
- Words importing the singular include the plural and vice versa and references to persons include corporations, partnerships and other unincorporated associations or bodies of persons.
- the words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
- Headings and captions are provided for convenience only and do not create or affect any substantive rights. Examples are provided for illustrative purposes only.
- A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006.
- References to any statutory provision, enactment, order, regulation or other similar instrument shall be construed as a reference to the statutory provision, enactment order, regulation or instrument (including any EU instrument) as amended, replaced, consolidated or re-enacted from time to time and shall include any orders, regulations, codes of practice, instruments or other sub- ordinate legislation made under it.
- In the event of any conflict or ambiguity between the clauses of this Agreement, the Purchase Order and any other document referred to in clause 2.2, the conflict shall be resolved in accordance with the following order of precedence:
- the main body of this Agreement;
- the Purchase Order; and
- document(s) referred to in clause 2.2.
- No provision may be construed against BLL as the drafting Party.
- the terms and conditions that apply
- The contract between BLL and the Supplier for the purchase and sale of the Goods is the Purchase Order (also referred to in this Agreement as the “Contract“).
- The Purchase Order is governed by the terms and conditions set out in this Agreement and any other document (which may include without limitation guidance, quality or technical documentation) issued by BLL to the Supplier.
- The Supplier acknowledges and accepts that any terms and conditions of business of the Supplier shall not be applicable to this Agreement or any Purchase Order submitted under this Agreement, even if it is submitted to BLL in connection with a quote, or order acceptance.
- Without prejudice to any express provision of this Agreement, each Purchase Order shall constitute a separate contract and any default by a Party in respect of one Purchase Order shall not give the other Party any remedy in respect of any other Purchase Order or this Agreement.
- No approval or consent given by BLL shall relieve Supplier of any obligation or liability under this Agreement unless expressly agreed in writing by BLL.
- Nothing in this Agreement shall imply or be construed as a guarantee to the Supplier that it shall receive any Purchase Orders from BLL under this Agreement. For the avoidance of doubt the relationship between the Parties pursuant to this Agreement is non-exclusive.
- This Agreement may only be amended by both Parties in writing.
- when the contract is formed
- When BLL issues a Purchase Order, it makes an offer to purchase the Goods from the Supplier in accordance with the terms specified in this Contract.
- The Supplier shall, within 3 days of the date of the Purchase Order, either issue an acceptance or rejection of the Purchase Order. Except in the case of quotation based Purchase Orders the subject of clauses 3.4 and 3.5, if the Supplier fails to provide such notification within such period, it shall, be deemed to have accepted the Purchase Order.
- The Contract is formed when the Supplier accepts the offer of BLL. This occurs upon the earlier of:
- the Supplier beginning work or performance; or
- the Supplier notifying BLL of its acceptance of the offer; or
- deemed acceptance of the offer of BLL in accordance with clause 3.2.
- Prior to issuing a Purchase Order, BLL may request a written quotation from the Supplier. The Supplier shall provide a quotation within five (5) days of receipt of such request or shall inform BLL in writing, with reasons, if it is unable to present the quotation and when the quotation will be available. Any quotation shall be valid and open for acceptance by BLL for 90 days following the date of the quotation. Following receipt of a quotation, the Supplier shall, at the option of BLL, enter into good faith negotiations with BLL to refine and amend the quotation.
- If BLL issues a Purchase Order based on and/or consistent with a quotation the subject of clause 3.4, the Supplier shall issue an acceptance of the Purchase Order within 3 days of the date of such Purchase Order and if the Supplier fails to do so, it shall be deemed to have accepted such Purchase Order at the expiry of such 3 day period.
- Purchase Orders may be cancelled or modified by BLL at any time, subject to the terms of this Agreement.
- The Supplier will provide BLL’s requirements for the Goods s shown on the Purchase Order. BLL will issue schedules to specify the quantities needed, delivery locations, times and dates. Time and quantity are of the essence in the purchase of the Goods.
- BLL may make changes to its order for the Goods at any time. These may include changes to the design, specifications, engineering level, materials, packaging, shipping date, or time or place of delivery. The Supplier will make all changes requested by BLL and clauses 2 and 5.3 will apply. The Supplier may not make any change to a Purchase Order on its own without first obtaining BLL’s consent by written notice.
- The Buyer will provide the Supplier with notice of any change through an amendment or revision to the outstanding Purchase Order.
- The Supplier will promptly notify BLL by written notice if the proposed change will affect cost or timing and provide substantiation of its claim. If BLL determines that an adjustment is appropriate, BLL and the Supplier will negotiate in good faith on an equitable price adjustment (whether up or down), a change in shipping or delivery terms, or other appropriate adjustment. If BLL determines that no adjustment is appropriate, it will so advise the Supplier.
- Quality assurance
- The Supplier will promote continuous quality improvement in the manufacture, production and distribution of the Goods. The Supplier will comply, and procure that its subcontractors comply, with the quality assurance processes, inspections and standards specified by BLL for suppliers providing Goods or services similar in nature to the Goods and the industry norms and standards applicable to their industry. These standards include, but are not limited to, ISO/TS16949, ISO 9001 or such other applicable standards as are commonly adhered to within the Supplier’s industry.
- The Supplier shall provide safety data sheets (i.e. CoSHH, MDS or other safety data or information sheets as applicable) for all materials supplied.
- The Supplier shall ensure, where specified, all materials are compliant with applicable legislation for hazardous substances, including but not limited to End of Life Vehicles Directive (ELV), Global Automotive Declarable Substance List (GADSL) etc. All material data shall be provided via the International Material Data System (IMDS) web service (mdsystem.com). Preliminary IMDS reporting shall be completed prior to or first sample delivery and final reporting 1 months prior to PPAP or as otherwise agreed in writing.
- BLL and its authorised representatives shall have the right to conduct audits and/or inspections of the Supplier to enable BLL to verify that the Supplier is in full compliance with its obligations under this Agreement and any Component Schedule and the Supplier shall comply with all reasonable requests of BLL (and/or its authorised representatives) during any such audit or inspection. BLL shall be entitled, on giving up to five (5) Business Days’ prior notice, to have access to such parts of the Supplier’s business premises and the Premises as are reasonably necessary in order to carry out any such audit or inspection of test results, inspection data, sub-supplier data or any other relevant process or procedure and may make such use of the Supplier’s testing and measuring equipment (free of charge) as is necessary for audit or inspection purposes. Such inspection may be conducted during or after production the Goods periodically to ensure continued compliance with the terms of this Agreement or in the event of concerns or problems with the Goods.
- ownership, shipping And delivery
- Title and risk of loss or damage in the Goods will pass to BLL at the time of delivery at BLL’s premises or at such other place as BLL specifies in writing to the Supplier that the Goods should be delivered to.
- If requested by BLL, the Supplier will provide supporting documentation to allow the import and export of all Goods, such as certificates of conformity, country of origin codes, mid codes, health and safety data/sheets and any other information necessary to support declarations to and compliance with International Customs regulations.
- For the avoidance of doubt BLL shall retain ownership of all Customer Tooling irrespective of whether (where relevant) BLL has paid the Supplier for such Customer Tooling and shall have the right at any time on giving reasonable notice to access the Supplier’s premises and/or the premises of the Supplier’s subcontractors, associates or own suppliers to retrieve any Customer Tooling.
- The Supplier warrants that during the applicable Warranty Period (as defined in Clause 3) the Goods will:
- conform in all respects to the drawings, specifications (including without limitation in relation to design and performance of the Goods), samples and other descriptions and requirements relating to the Goods that have been furnished, specified or approved by BLL;
- comply with all Government Requirements and applicable safety standards of the countries in which the Goods or the vehicles into which the Goods are to be installed are to be sold;
- be of a high standard and quality in accordance with the quality standards as agreed between the Parties, and shall be free from defects in materials and workmanship;
- be free from defects in design to the extent furnished by the Supplier, its Group Companies or their subcontractors, even if the design has been approved by BLL;
- be suitable and fit for their intended use by BLL and all other end-users, including the specified performance in the component, system, subsystem and vehicle location specified by BLL and the environment in which the Goods are or reasonably may be expected to perform;
- be free from any substance which is banned, any substance which BLL does not wish to use and shall comply with the requirements of the International Material Data System; and
- in respect of services, be provided in accordance with the terms of the Purchase Order and executed with reasonable care, skill and diligence by properly qualified and experienced persons.
- If the Goods do not comply with the requirements set out in this clause 8 throughout the Warranty Period, then the Supplier shall indemnify BLL against all costs, losses and expenses incurred by BLL and the end-user of the applicable vehicle(s) in replacing such parts, including without limitation the costs of obtaining replacement parts (including handling, landing and shipping costs) and the labour charges of undertaking such replacement work.
- The Warranty Period begins on the date the Goods are delivered to BLL (or a Group Company or third party designated by BLL) and expires on the date that is the later of:
- the date on which the period of the applicable warranty given by BLL (or a third party BLL customer) for the Goods ends; or
- the date on which any longer or broader Government Requirement covering the Goods ends.
- BLL may change the warranty offered by it covering the Goods. If the change is made after the Purchase Order has been issued, BLL will notify the Supplier of the change by written notice.
- The Supplier’s obligations under the warranties as described above in this Clause 8 and any rights of BLL to make a claim under it will be effective even if BLL has accepted all or a portion of the Goods.
- The Supplier agrees that any warranties provided by it pursuant to this Agreement shall also benefit BLL’s customers as if such benefits were provided directly to such customers by the Supplier. Accordingly, BLL’s customers may enforce the provisions of this clause as if a party hereto.
- The Supplier shall pass on to BLL the benefit of any additional warranties secured from the Supplier’s suppliers.
- The Supplier warrants that during the applicable Warranty Period (as defined in Clause 3) the Goods will:
- delivery of non-conforming goods
- The Supplier will deliver only Goods that conform in all respects to the requirements described in clause 8.1.
- If the Goods do not conform to all of the requirements described in clause 1 (the “Non-conforming Goods”), BLL will notify the Supplier as soon as reasonably practicable after BLL has discovered it.
- At BLL’s option, the Supplier may rework, replace or otherwise remedy a non-conformity in the Goods as long as:
- the Supplier can perform the remedial work at its location, or at BLL’s site or at the site of a BLL customer (subject to the discretion of BLL), without disruption to BLL’s operations;
- the remedial work will not cause any delay in BLL’s operations or a BLL customers operations, including its production process, or cause BLL or a BLL customer to incur any additional costs; and
- the cure can be completed by such deadline established by BLL.
- If BLL determines in good faith, after consulting with the Supplier, that the remedial work cannot be done within the limits of clause 3, BLL is entitled to:
- reject the Non-conforming Goods and, at BLL’s option, request redelivery of conforming Goods. If the Non-conforming Goods are rejected pursuant to this Clause 4, BLL is entitled to either return them to the Supplier, or to scrap the Non-conforming Goods, both at the cost of the Supplier. BLL may scrap the Non-conforming Goods if they are not collected within ten (10) working days of BLL’s rejection; or
- provide details of the Non-conforming Goods to the Supplier, who shall promptly swap the Non- conforming Goods with conforming Goods, at its own cost. If this remedy is exercised by BLL, BLL shall not formally reject the Non-conforming Goods in the first instance. However, if the Supplier continues thereafter to supply Non-conforming Goods to BLL, BLL shall at its own discretion, formally reject the Non-conforming Goods. The Supplier shall, upon each rejection by BLL in respect of the Goods, be charged an administration fee and any cost incurred by BLL in taking the steps or engaging others to take steps as is required by BLL to remedy the Goods in question; or
- if the Non-conforming Goods have been fitted onto a motor vehicle by the time notice has been given to the Supplier in accordance with Clause 2, BLL shall at its own discretion, carry out or engage others to carry out remedial works on the Non-conforming Goods. The Supplier shall reimburse BLL for all reasonable costs, losses, expenses or damages incurred by BLL in carrying out the remedial works or engaging others to carry out the remedial works; and/or
- charge back to the Supplier any cost incurred by BLL for Non-Conforming Goods. BLL shall provide the Supplier with an 8D Report which the Supplier must complete in the requested timescales in line with closure of any Non-Conformance.
- Without prejudice to BLL’s rights under Clause 9.4.1 and 9.4.2, the Supplier may request that BLL holds and makes available to the Supplier, at the Supplier’s expense, any Non-conforming Goods for up to five (5) working days. After this period, BLL may, at its option, scrap the Non-conforming Goods at the cost of the Supplier.
- The Supplier is liable for all direct, indirect and consequential damages, losses, costs, and expenses incurred by BLL resulting from the failure of the Supplier to deliver conforming Goods punctually or to comply with the shipping and delivery or other requirements of BLL, even if the Supplier has cured the failure under Clause 9.3. These include costs associated with the off lining of vehicles or the Goods, interruptions or delays in production, reduced line-speeds, and plant shutdowns. BLL shall notify the Supplier of such costs, and whether:
- the Supplier is required to reimburse such sums to BLL; or
- BLL will set off such sums from amounts due to the Supplier.
- The Supplier is not liable for damage to the Goods after delivery due to actions directly taken by BLL or third parties. Neither collection nor payment by or on behalf of BLL will constitute acceptance of Non-conforming Goods, nor will it limit or affect any of BLL’s rights.
- price, invoicing and payment terms
- The price for the Goods shall be as set out in the Purchase Order and shall be exclusive of VAT.
- Invoices shall be sent to the address set out on the relevant Purchase Order. Each invoice must refer to the Purchase Order number set out on the Purchase Order. The Supplier shall submit all invoices in accordance with BLL’s accounting requirements and laws (such as, but not limited to, the requirement to provide the Value Added Tax (“VAT”) number, if applicable).
- All invoices that are properly due and owed and that are properly submitted shall be payable within one hundred and twenty (120) days (or if earlier, any mandatory date for payment under any applicable law) of being received by BLL. The Supplier agrees and accepts that this one hundred and twenty (120) days payment period is not grossly unfair to the Supplier and that it has taken account of this payment period within the Price.
- Without waiver or limitation of any rights or remedies BLL shall be entitled to deduct from any amounts due or owing by BLL to the Supplier under this Agreement and Purchase Orders all amounts due or owing at any time by the Supplier to BLL.
- BLL’s intellectual property
- BLL or its Customers may have valuable Intellectual Property Rights in Tooling, documents and information provided to the Supplier. The Supplier may use the Intellectual Property Rights of BLL or its Customers only in the production and supply of the Goods to BLL and only with the prior written permission of BLL.
- The Supplier shall not include any of its branding on the Goods (unless it is a Government Requirement to do so, in which case the Supplier shall immediately inform BLL of such requirement).
- [The Supplier will first obtain BLL’s written approval:
- before it manufactures, sells or otherwise disposes to third parties any Goods made by the Supplier, its Group Companies or one of their subcontractors using any Tooling, equipment or Intellectual Property Rights of BLL; and
- before it uses any Tooling owned by BLL or its Customers for any use other than as authorised in accordance with this Agreement.
- using the supplier’s technical information
- The Supplier will provide BLL with Technical Information required by BLL to install, assemble and otherwise use the Goods, including enabling it to incorporate into BLL’s product. Technical Information includes engineering, package and installation drawings, specifications, testing protocols and results, documents, data, software, inter- face mechanisms and other information relating to the Goods and Tooling. Technical Information must comply with the computer-aided-design and drafting standards of BLL.
- The Supplier will provide BLL with all materials which define in general terms the geometric and functional attributes of the Goods as they interface with BLL’s or BLL’s customer’s products, demonstrate that they meet BLL’s specifications; and, describe how they interact with other vehicle systems or environments. At a minimum, these materials will include those which BLL requires to support its engineering release systems, parts approval process, package and installation drawings with functional requirements. The Supplier agrees BLL may use or disclose any materials provided in accordance with this Clause 12.2 for its exploitation of the Goods without restriction, subject only to any patent or trademark rights of the Supplier. Clause 13 shall not apply in relation to materials and information disclosed in accordance with this Clause 12.
- The Buyer and the Supplier shall keep and procure to be kept secret and confidential all Confidential Information by using at least the same degree of care as it uses to protect its own Confidential Information, but in any event no less than a reasonable degree of care, to prevent the unauthorised use, disclosure, dissemination or publication of the other Party’s Confidential Information.
- Neither Party shall use nor disclose Confidential Information, save for the purposes of the proper performance of the Purchase Order or with the prior written consent of the other Party.
- The obligations under Clause 1 and 13.4 do not apply to the receiving Party with respect to Confidential Information that the receiving Party can show by evidence was:
- in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations under this Agreement;
- disclosed with the prior written approval of the disclosing party by written notice;
- rightfully obtained from a third party entitled to disclose the same;
- in its possession or already known by it prior to entering into the Purchase Order;
- independently developed by it; or
- required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction – this exception shall only apply if the receiving party has, to the fullest extent permitted by law, provided the disclosing party with a Written Notice of the court order, and has fully cooperated with the disclosing party in seeking confidential treatment for the disclosures.
- BLL and the Supplier may share Confidential information of the other Party with their legal or financial professional advisers, provided, that the person or entity with whom or which the information is being shared has agreed in writing to be bound by confidentiality provisions comparable to those specified in this Clause 13.
- The Supplier must first obtain the written consent of BLL if the Supplier wants to share BLL’s Confidential Information with any party (including any of its Group Companies).
- Subject to Clauses 13.1 and 13.2, neither BLL nor the Supplier will share any Confidential Information of the other Party with any third party, including any competitor of the other Party, without the prior written agreement of the other Party, except as may otherwise be permitted under the Purchase Order, this Agreement or in writing between the Parties.
- Neither Party shall use nor disclose Confidential Information, save for the purposes of the proper performance of the Purchase Order or with the prior written consent of the other Party.
- The Supplier shall procure that its employees and contractors shall comply with this Clause 13.
- intellectual property rights
- Unless otherwise expressly agreed in writing between the parties, all right, title and interest in and to all Intellectual Property Rights conceived, created, developed or acquired in and relating to the development and manufacture of the Goods and/or Tooling shall belong to BLL (“Resulting Intellectual Property“).
- The Supplier assigns to BLL with full title guarantee free from any and all liens, charges or third party rights:
- all right, title and interest in any Resulting Intellectual Property Rights and (to the extent allowed by law) by way of present assignment of future rights, all right, title and interest in any Resulting Intellectual Property Rights yet to be created; and
- all rights of action, remedies, powers and benefits relating to any of the rights set out above including the right to sue for damages for infringement occurring before the date of the Purchase Order.
- The Supplier:
- undertakes to do all acts and things (including making declarations and oaths) and execute all documents under the law of any country for completing the vesting in and/or the transfer to BLL of the full right, title and interest to any of the rights referred to at Clauses 1 and 14.2 above and at the request and reasonable cost of BLL provide all reasonable assistance to BLL which may be necessary in connection with bringing or defending any proceedings relating to any of the rights referred to in Clauses 14.1 and 14.2;
- undertakes to hold any and all Resulting Intellectual Property Rights on trust for BLL until such rights vest absolutely in BLL in accordance with the provision of this Clause 14;
- agrees to ensure and procure that any employees or third parties involved or to be involved in the provision of the Goods have, prior to carrying out any services relating to the provision of the Goods, executed all documents necessary to vest all Resulting Intellectual Property Rights created by them (in whole or in part) in the Supplier or BLL such that employees or third parties have no right, title or interest to the same;
- agrees that no party other than BLL shall have any right, title or interest to any of the Resulting Intellectual Property Rights whatsoever, other than as expressly set out in this Clause 14;
- grants to BLL (and where requested, such third party as BLL may specify) a fully paid up, non-exclusive, worldwide, assignable, royalty free, sub-licensable licence of any Intellectual Property Rights owned by the Supplier to the extent necessary to allow BLL to use and exploit the Resulting Intellectual Property Rights and to build and have rebuilt and or manufactured the Goods and Tooling, such licence to survive termination of this Agreement.
- Where the Supplier is to use Intellectual Property Rights owned by a third party (including without limitation in the manufacturing process), then the Supplier shall:
- notify within 3 days of the submission of a Purchase Order or a request for quotation, full details of the third party ownership of the Intellectual Property Rights (including of any know how to BLL);
- ensure it has a written licence (a copy of which is to be provided to BLL) to use such third party Intellectual Property Rights in the development and manufacture of the Goods, such licence to include the right to sub-licence the Intellectual Property to BLL and BLL’s customers;
- grant to BLL (and where requested, such third party as BLL may specify) a sub-licence of the relevant Intellectual Property Rights on the same basis as that licence set out at Clause 14.4.2; and
- procure that the third party concerned enters into a direct licence with BLL (and where requested, such third party as BLL may specify) with respect to the Intellectual Property Rights on the same terms as set out at Clause 14.4.2.
- The Supplier may assign its Know-how and Intellectual Property Rights relating to the manufacture of Goods provided that:
- the Supplier gives BLL prior Written Notice of the assignment;
- such assignment is subject to the explicit acceptance by the assignee of the obligations owed to BLL under this Clause 14, including without limitation the licence granted to BLL under Clause 14.3.5;
- the assignment document includes a term which states expressly that such assignment is subject to the obligations owed and the licence granted to BLL and such term shall be expressed to be binding on all of the assignee’s successors in title; and
- the Supplier provides BLL with a copy of the assignment immediately following its full execution save that the Supplier may redact sensitive commercial terms of the assignment prior to disclosure.
- The Supplier hereby represents and warrants that it understands all of the provisions set out in this Clause and is able to comply with all of its obligations as set out in this Clause accordingly.
- claims of infringement
- The Supplier will, at its sole cost and expense, indemnify and hold BLL, its Group Companies and its directors, officers and employees harmless against any and all claims for any alleged infringement of Intellectual Property Rights (whether present or future) that may be brought against BLL or third parties in respect of the Goods.
- The Supplier will at its cost assist BLL (or such third party as BLL may specify) in its investigation, defence or handling of any such claim. The Supplier will pay all costs, expenses, damages and settlement amounts that BLL and others selling or using BLL’s products incorporating the Goods may sustain by reason of an indemnified claim.
- The Supplier’s indemnification obligations will apply even if BLL furnishes all or a portion of the design and specifies all or a portion of the processing used by the Supplier unless agreed otherwise in writing.
- BLL will determine the Supplier’s financial responsibility under this Clause 15 after taking into account the relative involvement of BLL and the Supplier in the design, whether the Supplier made BLL aware of the potential for the claim, the extent to which the Goods gave rise to the claim, the duration and nature of the relationship with the Supplier and such other factors as BLL may deem relevant.
- This Agreement shall have a duration of the Project Term unless terminated earlier in accordance with clause 17.
- BLL may terminate this Agreement without cause by giving the Supplier not less than ninety (90) days written notice.
- BLL may cancel any Purchase Order without cause immediately on written notice to the Supplier (a “Cancellation Notice”). In such circumstances:
- on receipt of a Cancellation Notice the Supplier shall immediately cease all work in connection with the Purchase Order (but, for the avoidance of doubt, such cancellation will not affect any Purchase Order which is not cancelled) and take all reasonable steps to mitigate the effects of the cancellation of the Purchase Order and to minimise the amount which BLL may be liable to pay under this Clause 17.2.
- BLL shall pay for:
- the amounts referred to in clause 17.8; and
- at BLL’s option, costs that the Supplier may have incurred for work-in-progress.
- BLL shall not be liable for any loss of profit or any other indirect or consequential losses as a consequence of the cancellation of the Purchase Order.
- The amounts payable pursuant to clause 17.2.2 shall be the sole liability of BLL to the Supplier in respect of any Purchase Order cancelled pursuant to this clause 17.2, without prejudice to any rights subsisting as at the date of cancellation.
- BLL may terminate a Purchase Order upon written notice, if the Supplier fails to comply with any requirement of the Purchase Order and where such non-compliance is capable of remedy, has failed to remedy such non-compliance within the timescales specified by BLL.
- Either Party may terminate this Agreement upon written notice if any party has failed to remedy its material breach of any of its obligations. For the purposes of this clause, BLL’s failure to pay an invoice shall not be a material breach for the purposes of this Agreement.
- Either Party may upon written notice terminate this Agreement and a Purchase Order upon the occurrence of an Insolvency Event.
- BLL may upon written notice, terminate a Purchase Order, in whole or in part, in the event of a Force Majeure Event.
- BLL may terminate this Agreement upon written notice in the event that the Supplier undergoes a Change of Control.
- In the event of termination pursuant to clauses 17.1, 17.2, 17.3, 17.4, 17.5, 17.6 and 17.7, BLL shall pay for (subject to BLL’s right of set-off):
- Goods delivered and unpaid for which fully conform with the requirements of the Purchase Order, and
- undelivered finished Goods which fully conform to the Purchase Order; and
- any amounts owing in respect of BLL owned Tooling which fully conforms to the requirements of the Purchase Order.
- The amounts payable pursuant to clause 17.8 shall be the sole liability of BLL to the Supplier in respect of termination pursuant to clauses 17.1, 17.3, 17.4, 17.5, 17.6 and 17.7, without prejudice to any rights subsisting as at the date of cancellation.
- The Supplier shall not be entitled to any compensation, damages or other payment whatsoever, whether in respect of goodwill, loss of profit or otherwise.
- Except as otherwise expressly provided, termination or expiration of this Agreement will not affect any rights and obligations which, from the context thereof, are intended to survive termination or expiration of this Agreement, including but not limited to those clauses that are expressly stated to survive, nor shall it prejudice any other remedies that the parties may have under this Agreement or otherwise in law.
- Upon termination of this Agreement, or any time upon BLL’s request, the Supplier shall promptly:
- at the option of BLL either return or destroy all documents, drawings, designs, specifications (including, but not limited to, hardcopies, electronic files and other data carriers) received by or on behalf of BLL in connection with this Agreement and shall immediately refrain from making any further use of such documents;
- deliver Tooling and undelivered finished Goods at such place as BLL shall request.
- For the purposes of this Clause 18, an “Indemnified Person” includes BLL, its Group Companies, BLL’s customers and their directors, officers, and employees. “Litigation Costs” includes all costs, damages, losses, claims and expenses (including actual fees for legal representatives, experts and consultants, settlement costs and judgments) incurred in defending against a claim under Clause 18.2.
- The Supplier will indemnify and hold an Indemnified Person harmless against all Litigation Costs occasioned by, resulting from, or arising out of any claim by a third party for death, personal injury, or property damage which results from:
- any defect or alleged defect in the Goods supplied by the Supplier;
- any noncompliance or alleged noncompliance by the Supplier with any of its representations, warranties or obligations under this Agreement and/or a Purchase Order; or
- any negligence or fault or alleged negligence or fault of the Supplier in connection with the design or manufacture of the Goods and/or Tooling.
- Upon the filing of any third-party claim against an Indemnified Person that is subject to Clause 18.2, the Supplier and BLL will, in good faith, attempt to reach agreement concerning whether, notwithstanding the provisions of Clause 18.2, it is appropriate under the circumstances of the particular case to apportion Litigation Costs between the Supplier and BLL.
- In determining whether and to what extent Litigation Costs should be apportioned between the Supplier and the Buyer under Clause 18.3, all relevant factors should be considered, including the relative strength of the claim, whether the claimant alleges solely that the Indemnified Person is vicariously liable for the Supplier’s fault (or a defect in the Goods for which the Supplier is primarily responsible), and whether any independent fault alleged on the part of an Indemnified Person consists of a mere failure to discover or guard against the Supplier’s negligence or an alleged defect in the Goods. Absent an agreement on apportioning Litigation Costs, the terms of Clause 18.2 will apply.
- If the Supplier performs any work on an Indemnified Person’s premises or utilises the property of an Indemnified Person, whether on or off the Indemnified Person’s premises, the Supplier will indemnify and hold the Indemnified Persons harmless from and against any liability, claims, demands or expenses (including actual fees of legal representatives and other professionals) for damages to the property of or injuries (including death) to Indemnified Persons, their employees or any other person arising from or in connection with the Supplier’s performance of work or use of the Indemnified Person’s property, except for such liability, claim, or demand arising out of the sole negligence of an Indemnified Person.
- The Supplier will effect and maintain adequate insurance against liability which it may incur for any damage, loss, costs, claims, expenses or injury to any person or property which may arise under this Agreement.
- The Supplier shall ensure that such insurance is effected with a reputable insurance company.
- The Supplier shall procure that any sub‑contractors of the Supplier maintain like insurance cover to that required to be maintained by the Supplier under this Agreement and any such other insurance cover as may from time to time be reasonably required by BLL.
- dispute resolution
- Negotiation In the event of a dispute between the Parties relating to the Purchase Order, the one raising the matter in dispute will notify the other by Written Notice describing in sufficient detail the nature of the dispute. Each Party will then appoint one or more representatives to resolve the dispute. These representatives will promptly meet and negotiate in good faith to reach a fair and equitable settlement. At the end of sixty (60) days, if no settlement has been reached, either Party may end discussions and declare an impasse.
- Mediation If an impasse is declared under Clause 20.1, the Parties will participate in non-binding mediation by a third-party mediator in good faith. Mediation will be by a sole mediator and the language of the mediation will be English. The rules and procedures to be followed will be the applicable Mediation Rules specified by BLL and in place from time to time. The Parties will promptly agree on the mediator and the cost of the mediator will be shared equally. The mediator has ninety (90) days from the date of appointment to help resolve the dispute. If the Parties fail to agree on a mediator within twenty (20) days of an impasse being declared under Clause 20.1, the Parties will seek assistance from the organisation promulgating the applicable Mediation Rules.
- Arbitration A Party may request the other to participate in binding arbitration following the declaration of an impasse under Clause 20.2 or the conclusion of mediation under Clause 20.3. The request will be made by Written Notice provided within thirty (30) days following the end of the applicable resolution time period, and the other Party must respond within thirty (30) days after receipt of the request. Neither Party is required to participate in any arbitration proceeding under this Clause 20.3. If both agree to do so, they will participate in good faith and each of the following requirements will apply to the arbitration:
- arbitration maybe required in the place of litigation based on the country where the principal place of business of BLL is located;
- the Arbitration Rules specified by the Buyer and in place at the time the arbitration is initiated will apply;
- the arbitration will be the sole and exclusive recourse between the Parties for any dispute not amicably resolved directly by them through negotiation under Clause 20.1 or mediation under Clause 20.2;
- arbitration will be by a sole arbitrator, unless the Parties otherwise agree in writing. The Parties will jointly appoint a mutually acceptable arbitrator. If the Parties are unable to agree on an arbitrator within twenty (20) days after the Parties have agreed to arbitration, the Parties will seek the assistance of the organisation promulgating the applicable Arbitration Rules;
- the language of the arbitration will be English, the arbitrator must be fluent in English, and a daily transcript of the proceedings will be prepared in English;
- to the extent not prohibited by the Governing Law, equitable remedies will be available in any arbitration, and punitive or exemplary damages will not be awarded. This limitation will not, however, affect any right of an Indemnified Person to recover any punitive or exemplary damages under Clause 18;
- any monetary award must be denominated in the currency in which payment is required to be made by BLL under the applicable Purchase Order and must stipulate a rate of interest, deemed appropriate by the arbitrator, which will run from the date of breach until the date when the award is fully satisfied. The arbitration award must be promptly and fully satisfied by the Party against whom it is granted. An award or judgment will not be considered satisfied until the money is received by the prevailing Party in available funds in its country of its principal place of business; and
- judgment upon any arbitration award may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be.
- Litigation If the dispute has not been resolved within sixty (60) days after the end of the mediation period specified in Clause 20.2, litigation may be initiated, unless the Parties agree to arbitration under Clause 20.3. In any litigation, the Parties agree that the litigation will be filed only in the courts of England, regardless of where the Supplier may be located or the Goods may have been designed, manufactured, sold or delivered, unless otherwise provided in this Agreement.
- Effect on Buyer’s Rights The dispute resolution processes specified in this Clause 20 are not preconditions to the exercise by BLL of any of its rights or remedies under the Purchase Order or applicable law. BLL’s exercise of its rights will not, however, affect either Party’s obligations to comply with the requirements of this Clause 20.
- Costs The Parties will each bear the costs they incur in preparing for and conducting any negotiation, mediation, arbitration or litigation, and will share equally the costs of any mediator or arbiter (or related costs); however all costs incidental to enforcing the arbitration award (if any) will, to the maximum extent permitted by law, be charges against the Party resisting enforcement.
- Tolling of Statute of Limitations While the dispute resolution provisions of Clause 20 are being followed relating to a dispute, any statute of limitations, or similar time limitation on the filing of a claim or on the enforcement of a judgment or award rendered relating to a claim, under the governing law or any other law that may affect a Party’s right and ability to enforce the judgment or award rendered (such as, for example, the law of the principal place of business of the Supplier), relating to the dispute will be tolled and suspended until such time as the dispute has been resolved in accordance with Clause 20. The requirements of this Clause 20.7 will, however, only apply to the extent not prohibited by the governing law or such other law that may affect a Party’s right and ability to enforce the judgment or award rendered, as applicable.
- The disputing party shall have the right to withhold payment connected to the specific issue in dispute only pending resolution of a dispute. This shall not however preclude the continuation of other associated activities including but not limited to the modification of Tooling or other production of the Goods.
- force majeure
- Neither BLL nor the Supplier will be liable for a delay or failure to perform directly due to a Force Majeure Event.
- The Party claiming the Force Majeure Event will provide the other Party with Written Notice of its occurrence and its termination within five Business Days.
- BLL may terminate a Purchase Order, in whole or in part, upon written notice to the Supplier if a Force Majeure Event has occurred resulting in a failure or delay to perform that has lasted for more than fifteen (15) days after the date of the Force Majeure Event.
- The Supplier shall not sub‑contract the provision of the Goods or any part thereof to any person without the previous written consent of BLL, which consent shall not be unreasonably withheld and if given, shall not relieve the Supplier from any liability or obligation under this Agreement and the Supplier shall be responsible for the acts, defaults or negligence of any sub-contractor or sub-contractor’s agents or employees in all respects as if they were the acts, defaults or negligence of the Supplier or the Supplier’s agents, or employees.
- no agency
- Nothing in this Agreement shall constitute any partnership, agency or agreement of employment between the parties.
- Amendments to this Agreement shall not be effective unless in writing and signed by authorised signatories on behalf of both Parties.
- Neither party shall have been deemed to have waived any right under this Agreement by reason of failure or delay in exercising a right.
- The Supplier shall not be entitled to assign or transfer any right or obligation under this Agreement without the prior written consent of BLL.
- If any provision of this Agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable it may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. The parties shall seek to amend such provision in such reasonable manner as achieves the intention of the parties without illegality.
- further assurance
- At any time after the date of this agreement each of the parties shall execute or procure the execution of such documents and do or procure the doing of such acts and things required for the purpose of giving the full benefit of all the provisions of this agreement.
- Notices given under this Agreement must be in writing and may be delivered by hand or by courier to the relevant party’s address set out at the top of this Agreement or subsequently formally notified to the other party in writing with reference to this clause and Agreement.
- Third party rights
- Save as expressly provided in this Agreement, no person who is not a party to this Agreement shall have any rights to enforce its provisions.
- entire agreement
- This Agreement contains the whole Agreement between the parties relating to its subject matter and supersedes all previous written or oral agreements relating to it.
- law and jurisdiction
- This Agreement shall be governed by and construed and interpreted in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English courts.Signed on the date stated above.
- Signed on the date stated above.
- For and on behalf of Bee Lighting Limited
Signed: …………………………………………….. Name (in block letters):
For and on behalf of
Signed: …………………………………………….. Name (in block letters):