1. Definitions and Interpretation
1.1 "Agreement" means the contract constituted by the Agreement Documents.
1.2 "Agreement Documents" means the Terms, Purchase Order and Purchase Specification.
1.3 "Associated Company" means an associated company (as defined in sections 449 of the Corporation Tax Act 2010) of the Company from time to time and Associated Companies
shall be construed accordingly.
1.4 "Authorised Person" means a director of the Company or other person authorised by the Company to enter this Agreement.
1.5 "Business Day" means any day on which banks are open for business in the City of London.
1.6 "Business Hours" means 9 a.m. to 5 p.m. on any Business Day.
1.7 "Company" means Places for People Leisure Management Ltd (address and details overleaf) and its Associated Companies or the person named on the Purchase Order.
1.8 "Competent Authority" means any government, court of competent jurisdiction and any national or supra-national agency, inspectorate, minister, ministry, official, local authority, public or statutory person (whether autonomous or not) of the United Kingdom or European Community.
1.9 "Confidential Information" means all technical or commercial know-how, specifications, inventions, processes or initiatives disclosed to it by the Company or its staff together with
any other confidential information which the Supplier may obtain concerning the Company's business, products, services and customers.
1.10 "Data Controller" has the meaning set out in section 1(1) of the Data Protection Act 1998.
1.11 "Deliverables" means all Documents, products and materials developed by or on behalf of the Supplier as part of or in relation to the Services.
1.12 "Document" means without limitation, in addition to any document in writing, any drawing, map, plan, diagram, design, picture or other image, webpage, email, tape, disk or other device or record embodying information in any form.
1.13 "Force Majeure Event" means a circumstance beyond the reasonable control of the Company including, without limitation, acts of God, government actions, national
emergency, acts of terrorism, protests, riot, strikes, lockout by employees, or other labour disputes(whether or not relating to either party's workforce), war, civil commotion, cessation or serious interruption of land, sea or air communications or power supplies, exceptionally adverse weather, fire, explosion, flood, epidemic, restraints or delays affecting carriers or delay in obtaining supplies of adequate or suitable materials.
1.14 "Goods" means any Goods agreed in the Agreement to be bought by the Company from the Supplier including any part or parts of them.
1.15 "Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get up, rights in goodwill or to sue for passing off, unfair competition rights, rights to designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual right property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms or protection in any part of the world.
1.16 "Law" means applicable law, enactments, devices, orders, bye-laws, regulations, judgements, rulings, regulator policies and guidelines, industry codes regulatory permits and
licences in each case of Competent Authorities which are in force from time which are relevant to the parties and/or the subject matter of this Agreement.
1.17 "Personal Data" has the meaning set out in section 1(1) of the Data Protection Act 1998 and relates only to personal data of which the Company is the Data Controller and which the Supplier processes as part of or in connection with the Services.
1.18 "process" and "processing" shall have the meaning set out in section 1(1) of the Data Protection Act 1998.
1.19 "Purchase Order" means the written instructions issued by the Company for the Supply, incorporating these Terms.
1.20 "Purchase Specification" means any specification or description of requirements provided by the Company and any proposal made by the Supplier if accepted in writing by the Company.
1.21 "Services" means the Services of whatever nature, to be provided by the Supplier to Company and described in the Purchase Order and the Suppliers obligations under the
Agreement, together with any other services which the Company takes or agrees to take from the Supplier.
1.22 "Supplier" means the person, firm or Company who accepts the Purchase Order.
1.23 "Supply" means the Goods and/or Services as described in the Agreement Documents (including without limitation on the face of the Purchase Order).
1.24 "Terms" means these terms and conditions.
1.25 "VAT" means value added tax chargeable under English law for the time being and any other similar additional tax.
1.26 "Writing" includes facsimile transmission and electronic mail, provided that the electronic mail is acknowledged and confirmed in writing. The headings are for convenience only and shall not affect the construction of this Agreement.
1.27 Reference to a statute or statutory provision is a reference to that statute or statutory provision as it is in force for the time being, taking account of any amendment, extension or re-enactment and shall be deemed to include any bye laws, statutory instruments, rules, regulations, orders, notices, directions, consents or permissions made under them from time to time.
1.28 The singular includes the plural and vice versa and any gender includes the other gender.
1.29 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.30 Any obligation in the Agreement on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
In this Agreement a reference to a party is to a party to this Agreement.
2. Terms of Agreement
2.1 Unless otherwise expressly agreed in writing signed by an Authorised Person, these Terms apply to all Agreements for the supply of goods and services to the Company.
2.2 No terms and conditions put forward by the Supplier (including terms relating to hire, lease or loan) including without limitation any endorsed upon, delivered with or contained in the Suppliers quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Agreement unless agreed by the Company in accordance
with Clause 2.1 and the Supplier waives any right which it otherwise might have to rely on such terms and conditions.
2.3 This Agreement sets out the only conditions upon which the Company is prepared to deal with the Supplier and they shall prevail over any inconsistent terms and conditions implied by law, trade custom, practice or course of dealing.
2.4 Any Supply made in response to a Purchase Order shall be taken as conclusive acceptance of this Agreement and any inconsistent or additional terms accompanying the Supply shall be of no effect.
2.5 In the event of conflict between their terms, the Purchase Order, Terms and Purchaser Specification shall take precedence in that order.
3. The Supply and Quality Standards
3.1 Where the Supply comprises Goods, the Supplier warrants that the Goods shall be of the best available design, of the best quality, material and workmanship and be free from
defects in material and workmanship, comply with the Purchase Specification and be suitable for the purposes intended by Company.
3.2 Where the Supply comprises Services, the Supplier warrants to the Company that in the performance of the Services it will exercise all reasonable skill and care to be expected from a Supplier competent in supplying Services of a similar scope and complexity as the Services comprised in the Supply.
3.3 Without prejudice to Clauses 3.1 to 3.2 (inclusive) above, the Supply shall conform with and fulfil in all respects:
3.3.1 the Agreement Documents;
3.3.2 the requirements of the Sale of Goods Act 1979, and the Supply of Goods and Services Act 1982, as applicable; and
3.3.3 any recommendation or representation or offer made by the Supplier.
4. The Agreement Price and Invoicing
4.1 The price of the Goods and/or Services shall be stated in the Purchase Order and unless otherwise agreed in writing by the Company shall be exclusive of VAT but inclusive of all
4.2 No variation in the price nor extra charges shall be accepted by the Company.
4.3 The Supplier shall send the Company an invoice in respect of the relevant Purchase Order and the Supply (such invoice to be a VAT invoice) upon, but separately from, despatch of Goods to the Company or completion of the Services and the Company shall (subject to Clause 15 and Clause 4.2) pay invoices no later than 30 days from the date of receipt by the Company, but time for payment shall not be of the essence of the Agreement.
4.4 Without prejudice to any other right or remedy, the Company reserves the right to set off against the price of the Goods or Services any sums owed or becoming due to the
Company from the Supplier.
4.5 If the Supplier or the Company defaults in the payment, when due, of any sum payable under the Agreement (whether determined or by agreement or pursuant to an order of the Courts or otherwise) the liability of the Supplier or the Company (as the case may be) shall be increased to include interest on such sum from the date when such payment is due until the date of actual payment at a rate per annum of 2% above the base rate from time to time of Lloyds TSB Bank plc. Such interest shall accrue from day to day and shall be paid subject to any withholding tax.
4.6 The Supplier is not entitled to suspend deliveries of the Goods or performance of the Service as a result of any sums being outstanding.
5. Delivery and Time for Performance
5.1 The date of the delivery and/or the time for performance shall be specified in the Purchase Order, or if no such date is specified then delivery and/or performance shall take place within 28 days of the date of the Purchase Order, time shall be of the essence and subject to Clause 5.3 no extension to the date and/or time for delivery, performance and/or
completion of the Supply shall be permitted without the written consent of the Company (such consent at the sole discretion of the Company).
5.2 If the Supplier requires access to the Company's premises, facilities or storage, the Supplier shall comply with the reasonable requirements of the Company concerning access which shall be at the Suppliers risk.
5.3 The Company reserves the right to defer the date of delivery or payment or to cancel the Agreement or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to Force Majeure.
5.4 Where relevant, and at the completion of the Supply, the Supplier shall remove all materials not forming part of the Supply from the Company's premises (unless otherwise instructed by the Company) and permanently reinstate any damaged areas or surfaces and leave the Company's premises in a clean condition ready for occupation.
5.5 The Goods shall be delivered, carriage paid, to the Company's place of business specified in the Purchase Order or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods. The Supplier shall offload the Goods at its own risk as directed by the Company.
5.6 Unless otherwise stipulated by the Company in the Purchase Order, deliveries shall only be accepted by the Company during business hours.
5.7 If the Goods are not delivered or the Services have not been performed on the due date then, without prejudice to any other rights which it may have, the Company reserves the right without limitation to:
5.7.1 cancel the Agreement in whole or in part;
5.7.2 refuse to accept any subsequent delivery of the Goods or performance of the Services which the Supplier attempts to make;
5.7.3 recover from the Supplier any expenditure reasonably incurred by the Company in obtaining the Supply in substitution from another supplier; and
5.7.4 claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Suppliers failure to deliver on the due date.
5.8 Where the Company agrees in writing to accept delivery/performance in instalments then each instalment may be invoiced and paid for separately, nevertheless failure by the
Supplier to deliver any one instalment shall entitle the Company at its option to cancel subsequent instalments and to enforce any of the remedies set out in Clause 5.7.
5.9 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Suppliers risk and shall be returnable at the Suppliers expense.
6. Property, Risk and Acceptance
6.1 Without prejudice to any of the rights or remedies of the Company (including those under Clause 9), property and risk in any Goods shall pass to the Company on completion of
delivery to the Company's place of business specified in the Purchase Order (including offloading and stacking) or when the Company notifies acceptance in writing where Goods
are to be subject to testing, whichever shall be the later.
7. Loss and Damage in Transit
7.1 The Supplier shall promptly make good, free of charge to the Company, any loss in transit of the Goods or any damage to or defect in the Goods if notified within 21 days of due delivery date or being delivered as is appropriate for the purpose of this clause.
8. Inspection and Rejection
8.1 8.1. The Supplier shall be responsible for the inspection and testing of the Supply and shall ensure the Agreement is complied with prior to delivery to the Company or completion of performance.
8.2 The Company is under no obligation to test or inspect the Supply and in no event shall the Company be deemed to have accepted the Supply until it has had 5 Business Days to
inspect the same following delivery and/or completion of performance ("Completion") and section 35 of the Sale of Goods Act 1979 shall not apply to the Agreement. However, at any time prior to Completion the Company shall have the right to inspect and test the Supply at all times.
8.3 Notwithstanding any deemed acceptance under Clause 8.2 or payment for the Supply the Company shall retain the right to reject the Supply in accordance with Clause 9.1.2 as
though they had not been accepted for 5 Business Days after any latent defect in the Supply has become apparent.
8.4 If the results of any inspection or testing cause the Company to be of the opinion that the Supply does not conform or is unlikely to conform with the Agreement, or to any other
specifications and/or patterns supplied or advised by the Company to the Supplier, the Company shall inform the Supplier and the Supplier shall immediately take such action as is
necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and specification.
8.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Supply and any such inspection or testing shall not diminish or otherwise affect the Suppliers obligations under the Agreement.
8.6 If any of the Supply fails to comply with the provisions set out in this Clause 8 the Company shall be entitled to avail itself of any one or more remedies listed in Clause 9.
9.1 Without prejudice to any other right or remedy which the Company may have, if the Supply is (in whole or in part) not supplied in accordance with, or the Supplier fails to comply with any of the terms of the Agreement the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Supply has been accepted by the Company.
9.1.1 to rescind the Purchase Order;
9.1.2 to reject the Supply (in whole or in part) and return any Goods to the Supplier at the risk and cost of the Supplier on the basis that a full refund shall be paid forthwith by the
9.1.3 at the Company's option to give the Supplier the opportunity at the Suppliers expense either to remedy any defect in the Supply or to supply replacement Goods or to re-perform the Services and carry out any other necessary work to ensure that the terms of the Agreement are fulfilled;
9.1.4 to refuse to accept any further deliveries of the Goods and/or performance of any Services but without any liability to the Supplier;
9.1.5 to carry out at the Suppliers expense any work necessary to make the Supply comply with the Agreement; and
9.1.6 to claim such damages as may have been sustained in consequence of the Suppliers breach or breaches of the Agreement.
10. Labelling and Packaging
10.1 Where the Supply involves the supply of Goods, the contents of the Supply shall be clearly marked. All containers of hazardous Goods (and all relevant documents) shall bear
prominent and adequate warnings in accordance with the Law.
10.2 All packaging materials will be considered non-returnable.
10.3 The Supplier shall ensure that each delivery is accompanied by a delivery note which shows, among other things, the Purchase Order number, date of Purchase Order, number
of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
11. Intellectual Property Rights, Confidentiality and Information
11.1 The Supplier warrants to the Company that the Supply and the Deliverables shall not infringe the Intellectual Property Rights of any third party.
11.2 The Supplier assigns to the Customer, with full title guarantee and free from third party rights, the Intellectual Property Rights in the Deliverables and shall, at the request of the
Company, obtain and produce waivers of all moral rights in the Deliverables.
11.3 All Intellectual Property Rights in any specification, information instructions, plans, drawings, patterns, models, designs or other material furnished to or made available to the Supplier by the Company or obtained by the Supplier in connection with the Agreement shall remain vested solely in the Company and shall be kept confidential by the Supplier.
11.4 If and to the extent that the Services include the processing of Personal Data by the Supplier, then the Supplier shall:
11.4.1 process the Personal Data only to the extent necessary for the provision of the Services and strictly in accordance with the Company's instructions;
11.4.2 promptly comply with any request from the Company requiring it to amend, transfer or delete the Personal Data;
11.4.3 notify the Company promptly of any request, claim or complaint received in relation to the Personal Data
11.4.4 not transfer any Personal Data outside the European Economic Area; and
11.4.5 put in place and maintain throughout the period of Supply appropriate technical and organisational measures against the unauthorised or unlawful processing of the Personal
Data and against accidental loss or destruction of, or damage to, the Personal Data.
11.5 The Supplier shall keep in strict confidence the Confidential Information and not use it for any purpose other than to the extent necessary for the supply of the Supply.
11.6 The Supplier shall take adopt adequate security measures to safeguard the Confidential Information against unauthorised access, copying, or disclosure.
11.7 This Clause 11 shall apply both during the Agreement and after its termination.
12. Health and Safety
12.1 Without prejudice to the generality of Clause 3 the Supplier in making the Supply shall have full regard to the safety of persons who may be affected in any way and shall comply with the requirements of all relevant Law including the Health and Safety at Work etc. Act 1974. The Supplier shall also ensure that such requirements are observed by sub-contractors (if any).
12.2 The Supplier shall conduct all necessary tests and examinations prior to delivery and/or completion of the Supply to ensure that the Supply is designed, constructed and delivered so as to be safe and without risk to the health or safety of persons using the Supply. The Supplier shall give the Company adequate information about the use for which the Supply has been designed and has been tested and about any conditions necessary to ensure that, when put to use, the Supply will be safe and without risk to health and safety.
13. Indemnity and Insurance
13.1 Without prejudice to any rights of the Company (including those under Clause 9), the Supplier shall indemnify and keep the Company indemnified against all direct, indirect or
consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
13.1.1 defective workmanship, quality or materials;
13.1.2 any breach of clause 14;
13.1.3 13.1.3. an infringement or alleged infringement, whether or not under English Law, of any third partys Intellectual Property Rights or other rights caused by the manufacture, supply or use of the Supply; and
13.1.4 any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Companys employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Supply as a consequence of a direct or indirect
breach or negligent performance or failure or delay in performance of the terms of the Agreement by the Supplier.
13.2 The Supplier shall effect and maintain during the Agreement public and employers liability and other insurances with a reputable company necessary to cover the risks contemplated by the Agreement and shall at the request of the Company produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due under such policies. Public liability cover of at least 5 million shall be obtained, unless agreed otherwise with the Company in writing.
14.1 The Supplier shall:
14.1.1 comply with all applicable Law relating to anti-bribery and anti-corruption (including, but not limited to) the Bribery Act 2010 (the "Relevant Requirements");
14.1.2 have in place and maintain throughout the period of supply suitable policies and procedures to ensure compliance with the Relevant Requirements;
14.1.3 promptly report to the Company any request for undue advantage of any kind received by the Supplier in connection with the Agreement; and
14.1.4 comply with the Company's anti-bribery policy, as updated from time to time if a copy of such policy is provided by the Company.
14.2 Any breach by the Supplier of the requirements of this clause 14 shall be considered an irremediable breach for the purpose of clause 15.
15. Modern Slavery
15.1 The Supplier shall:
15.1.1 comply with all requirements of the Modern Slavery Act 2015
15.1.2 have put in place and maintain throughout the period of supply suitable policies and procedures to ensure continued compliance
15.1.3 co-operate with the Company to demonstrate to it from time to time that those policies and procedures are implemented
15.2 Any breach by the Supplier of the requirements of this clause 15 shall be considered and irremediable breach for the purpose of clause 16
16.1 The Company shall have the right at any time for any reason to terminate the Agreement in whole or in part by giving the Supplier written notice whereupon the Supply shall be
discontinued and the Supplier shall remove all its employees and equipment from the Companys premises or site to which the Supplier has been given access and the Company
shall pay to the Supplier fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any
16.2 The Company shall have the right at any time by giving notice in writing to the Supplier to terminate the Agreement forthwith if:
16.2.1 the Supplier has failed to make the Supply within the time specified in the Agreement;
16.2.2 the Supplier has breached the Agreement and (if such a breach is remediable) fails to remedy that breach within one month of being notified in writing of the breach;
16.2.3 the Supplier has (without reasonable cause) failed to proceed diligently with or wholly (without lawful reason) suspends performance of any Services or works or delivery of
16.2.4 any distress, execution or other process is levied upon any of the assets of the Supplier; or
16.2.5 the Supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision
for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation
(whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of a reconstruction or amalgamation, or has a receiver or manager, administrator or
administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Supplier or notice of
intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the
Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Supplier or for the granting of an administration order in respect of
the Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the Supplier; or
16.2.6 the Supplier ceases or threatens to cease to carry on its business; or
16.2.7 the financial position of the Supplier deteriorates to such an extent that in the opinion of the Company the capability of the Supplier adequately to fulfill its obligations under the Agreement has been placed in jeopardy.
16.3 On termination of the Agreement (however arising) the accrued rights of the parties as at termination shall not be affected and the following clauses shall survive and continue in full force and effect:
16.3.1 Clause 1;
16.3.2 Clause 11;
16.3.3 Clause 12;
16.3.4 Clause 13;
16.3.5 Clause 15; and
16.3.6 Clause 21.
17. Transfer and Assignment
17.1 The Company may dispose of any of its rights or obligations under this Agreement, subject to and with the benefit of this Agreement, to another person.
17.2 The Supplier may not dispose of any of its rights or obligations under this Agreement.
18. Third Party Rights
18.1 The parties to this Agreement do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it, save for an Associated Company.
19.1 Any notice to be given under the Agreement shall be in writing and shall be delivered, personally, or by e-mail, or be sent by first class pre-paid post, recorded delivery or by
commercial courier addressed to the party to be served at the address for such party set out in the Purchase Order, or as otherwise specified by the relevant party by notice in writing to the other party or may be transmitted by telefax to the telefax numbers of the party to be served.
19.2 Any notice shall be deemed to have been duly received if delivered personally, when left at the address and for the contact referred to in the Purchase Order or, is sent by email at the time that the email enters the email system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender or, if sent by pre-paid first class post or recorded delivery, at 9 a.m. on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the couriers delivery receipt is signed, or if transmitted by telefax when the recipients telefax machine shall have acknowledged receipt.
19.3 This clause 18 shall not apply to the service of any proceedings or other documents in legal action.
20.1 The failure or delay by the Company in exercising any right, power or remedy of the Company under this Agreement will not in any circumstances impair such right, power or
remedy nor operate as a waiver of it. The single or partial exercise by the Company of any right, power or remedy under this Agreement will not in any circumstances preclude any
other or further exercise of it or the exercise of any other right, power or remedy. Any waiver of a breach of, or default under, any of the terms of this Agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of this Agreement.
21.1 If any condition or part of this Agreement is found by any court, tribunal, administrative body or authority to be illegal, invalid or unenforceable then that provision will, to the extent
required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other condition or part of this Agreement and this will not affect any
other provisions of this Agreement which will remain in full force and effect.
22. Governing Law
22.1 The formation, existence, construction, performance, validity and all aspects whatsoever of this Agreement or of any term of this Agreement will be governed by the law of England and Wales.
22.2 The courts of England and Wales will have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement. The parties irrevocably agree to submit to that jurisdiction.
23. Entire Agreement
23.1 This Agreement constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
24. Liability of Associated Companies
24.1 All rights granted by the Company under this Agreement may be exercised by any Associated Company.
25. Relationship of Parties/No Partnership
25.1 Nothing contained in this Agreement, and no action taken by the parties pursuant to this Agreement, will be deemed to constitute a relationship between the parties of partnership, joint venture, principal and agent or employer and employee. Neither party has, nor may it represent that it has any authority to act or make any commitments on the other parties'/party's behalf.