1. Basis of Contract
    • The Order constitutes an offer by FACTCO to purchase Goods and/or Services in accordance with these Conditions.
    • The Order shall be deemed to be accepted on the earlier of:
      • the Supplier issuing written acceptance of the Order; or
      • any act by the Supplier consistent with fulfilling the Order,

at which point and on which date the Contract shall come into existence (Commencement Date).

  • These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
  1. Supply
    • The Supplier shall from the date set in the Order and for the duration of the Contract provide the Goods and/or Services to FACTCO in accordance with the terms of the Contract.
    • The Supplier shall meet any performance dates for the supply of the Goods and/or Services specified in the Order or notified to the Supplier by FACTCO and time is of the essence in relation to any of those performance dates.
    • In supplying the Goods, the Supplier shall ensure that the Goods:
      • correspond with their description and any applicable Specification;
      • be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by FACTCO expressly or by implication, and in this respect FACTCO relies on the Supplier’s skill and judgement;
      • where they are manufactured products, be free from defects in design, material, and workmanship and, unless otherwise agreed in the Order, remain so for not less than 12 months after delivery;
      • comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling, and delivery of the Goods.
    • In providing the Services, the Supplier shall:
      • co-operate with FACTCO in all matters relating to the Services, and comply with all instructions of FACTCO;
      • perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
      • ensure that the methods used are properly risk assessed and all equipment required for the performance of the Services are appropriate for the purpose, risk assessed, in good working order, free from defects and fit for their intended purpose;
      • use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
      • ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by FACTCO;
      • obtain and at all times maintain all necessary licences and consents;
      • comply with all applicable laws, statutes, regulations and codes from time to time in force;
      • observe all health and safety rules and regulations and any other requirements and policies that apply at any of FACTCO’s premises from time to time;
      • hold all materials, equipment and tools, drawings, specifications and data supplied by FACTCO to the Supplier (FACTCO Materials) in safe custody at its own risk, maintain FATCO Materials in good condition until returned to FACTCO, and not dispose or use FACTCO Materials other than in accordance with FACTCO’s written instructions or authorisation;
      • not do or omit to do anything which may cause FACTCO to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that FACTCO may rely or act on the Services; and
      • Comply with any additional obligations as set out in the Order and/or Specification.
  1. FACT Remedies
    • The Supplier shall assist FACTCO (free of charge) to make any inspection or tests that FACTCO may reasonably require of the Goods and/or Services at any time prior to acceptance.
    • FACTCO may suspend the Supply in whole or in part without paying compensation if FACTCO is reasonably of the opinion that the Supplier is in breach of clause 2.3 and/or 2.4.
    • Without prejudice to any of its rights or remedies FACTCO shall be entitled to reject the Goods in whole or in part where, prior to acceptance (or until the end of any warranty period) the Goods do not conform to the terms of the Contract and FACTCO shall be entitled to:
      • have the Goods repaired, re-done or replaced by the Supplier with Goods which comply with in all respects with the requirements of the Contract;
      • where FACTCO has paid for the Supply either following performance or in advance; have all such sums plus any additional costs incurred refunded by the Supplier; or
      • without prejudice to Clause 5.8 make a reasonable deduction from the Charges.
    • If the Supplier fails to supply the Goods and/or perform the Services by the applicable dates or otherwise in accordance with the Specification, FACTCO shall, without limiting its other rights or remedies, have one or more of the following rights:
      • to terminate the Contract with immediate effect by giving written notice to the Supplier;
      • to refuse to accept any subsequent performance which the Supplier attempts to make;
      • to recover from the Supplier any costs incurred by FACTCO in obtaining substitute goods and/or services from a third party;
      • where FACTCO has paid in advance for the Goods and/or Services that have not been provided by the Supplier, to have such sums refunded by the Supplier; or
      • to claim damages for any additional costs, loss or expenses incurred by FACTCO which are in any way attributable to the Supplier’s failure to meet such dates.
    • These Conditions shall extend to any substituted or remedial goods and/or services provided by the Supplier.
    • FACTCO’s rights under the Contract are in addition to its rights and remedies implied by statute and common law.
  2. FACTCO’s Obligations
    • FACTCO shall:
      • provide, or procure for, the Supplier reasonable access at reasonable times to any premises at which the Services are to be provided for the purpose of supplying the Goods and/or Services; and
      • provide such information to the Supplier as the Supplier may reasonably request and FACTCO considers reasonably necessary for the purpose of supplying the Goods and/or Services.
  1. Charges and Payment
    • The Charges for the Goods and/or Services shall be set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the supply of the Goods and/or the performance of the Services. Unless otherwise agreed in writing by FACTCO, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the supply of the Goods and/or the performance of the Services.
    • Unless otherwise agreed in the Order, the Supplier shall invoice FACTCO on completion of the supply of the Goods and/or Services. Unless agreed otherwise, each invoice shall include such supporting information required by FACTCO to verify the accuracy of the invoice.
    • In consideration of the supply of the Goods and/or Services by the Supplier, FACTCO shall pay the invoiced amounts within the time frame specified in the Order and in any event within 28 days of receipt of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
    • All amounts payable by FACTCO under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to FACTCO, FACTCO shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
    • If FACTCO fails to make any payment due to the Supplier under the Contract by the due date for payment, then without limiting the Supplier’s remedy under clause 10, FACTCO shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. FACTCO shall pay the interest together with the overdue amount.
    • In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
    • The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services and shall allow FACTCO to inspect such records at all reasonable times on request.
    • FACTCO may at any time, without notice to the Supplier, set off any liability of the Supplier to FACTCO against any liability of FACTCO to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by FACTCO of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
  2. Title, Risk and Acceptance
    • Without prejudice to any of the rights or remedies of FACTCO (including those contained in Clause 7), title and risk in any goods shall pass to FACTCO on delivery or when FACTCO notifies acceptance in writing where goods are to be subject to testing, whichever shall be the later.
  3. Employees, Environmental and Health and Safety
    • The Supplier warrants that all persons providing or assisting in the provision of the Services are entitled to work in the United Kingdom. In particular, the Supplier shall comply with relevant UK employment and immigration legislation as amended from time to time.
    • Without prejudice to the generality of clause 2 the Supplier in supplying the Goods and/or Services shall have full regard to the safety of persons who may be affected in any way and shall comply with the requirements of all applicable laws and regulations. The Supplier shall also ensure that such requirements are observed by sub-contractors (if any).
    • Where the Services comprise works where the Specification states, throughout the progress of any such works, the site shall be in the Supplier’s control and the Supplier shall keep the site in an orderly state and shall provide and maintain at its own cost all lights, guards, fencing and warning signs for the protection of the works and the safety and convenience of the public and others.
    • Where the Services comprise works, and unless expressly indicated otherwise in the Order or Specification, the Supplier shall be responsible for the storage, treatment (if any) and disposal of all and any waste created by or arising out of the Services and shall provide FACTCO, on request, with all information relating to the same. Without prejudice to any other provision in the Contract, the Supplier shall comply with and obtain all permits, consents and licenses required pursuant to all applicable laws and regulations relating to waste management.
    • The Supplier warrants that it shall adhere to all applicable laws and regulations in respect of health and safety and if in the event that the Supplier becomes aware of any illegal act or breach, or the site in respect of which the Supplier is providing the Services becomes the subject of a health and safety inspection by a relevant authority, it shall immediately notify FACTCO in writing.
  4. Intellectual Property Rights
    • In respect of any Goods that are transferred to FACTCO under the Contract, including the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to FACTCO, it will have full and unrestricted rights to transfer all such items to FACTCO.
    • The Supplier assigns to FACTCO, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Goods and the products of the Services, including the Deliverables or, to the extent that the Supplier is unable to assign such rights, the Supplier grants, or shall procure the grant of, a fully paid, worldwide, royalty free, perpetual and irrevocable licence to allow FACTCO to copy, use and modify the products of the Services and any Deliverables.
    • The Supplier shall obtain waivers of all moral rights in the products, including the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
    • The Supplier shall, promptly at FACTCO’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as FACTCO may from time to time require for the purpose of securing for FACTCO the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to FACTCO in accordance with clause 2.
    • All FACTCO Materials are the exclusive property of FACTCO.
  5. Indemnity
    • The Supplier shall keep FACTCO indemnified against all liabilities, costs, expenses, damages and losses (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 reasonable professional costs and expenses) suffered or incurred by FACTCO as a result of or in connection with:
      • any claim brought against FACTCO for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the receipt, use or supply of the Goods and/or Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
      • any claim made against FACTCO by a third party arising out of, or in connection with, the supply of the Goods and/or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
    • This clause 9 shall survive termination of the Contract.
  6. Insurance

During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on FACTCO’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

  1. Termination
    • Without affecting any other right or remedy available to it, FACTCO may terminate the Contract:
      • for convenience by giving the Supplier 30 days written notice;
      • with immediate effect by giving written notice to the Supplier if:
        • the Supplier’s financial position deteriorates to such an extent that in FACTCO’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
        • the Supplier commits a breach of clause 4.7,
      • the Supplier commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
      • the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
      • the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
    • Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
  2. Consequences of Termination

On termination of the Contract for any reason, the Supplier shall immediately deliver to FACTCO all Deliverables whether or not then complete and return all FACTCO Materials. If the Supplier fails to do so, then FACTCO may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

  1. Assignment and Other Dealings
    • The Supplier many not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of FACTCO.
    • The Supplier may subcontract any or all of its rights or obligations under the Contract subject to the prior written consent of FACTCO, provided that:
      • the Supplier procures that any third-party subcontractor or assignee is made aware of the Supplier’s obligations and under these Conditions and agrees to comply with the terms of these Conditions;
      • the Supplier shall remain responsible for the acts and omissions of any third-party contractor as if they were its own; and
      • indemnifies and holds FACTCO harmless from any damage or loss arising out of the acts or omissions of any third-party subcontractor.
  1. Confidentiality
    • The Supplier undertakes that it shall not at any time use any purpose other than the fulfilment of its obligations under these terms and conditions or disclose to any person any confidential or proprietary information relating to:
      • the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of FACTCO and/or its customers and suppliers; and
      • the operations, processes, product information, know-how, technical information, designs, trade secrets or software of FACTCO;
      • any information, findings, data or analysis derived from confidential information; and
      • any other information that is identified as being of a confidential or proprietary nature;

               except where information falls within the exceptions in clause 14.2.

  • Information is not Confidential Information if:
    • it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the Supplier or its Representatives in breach of this agreement (except that any compilation of otherwise public information in a form not publicly known shall still be treated as confidential information);
    • it was available to the Supplier on a non-confidential basis prior to disclosure by FACTCO;
    • it was, is, or becomes available to the Supplier on a non-confidential basis from a person who, to the Supplier’s knowledge, is not under any confidentiality obligation in respect of that information;
    • it was lawfully in the possession of the Supplier before the information was disclosed by FACTCO; and
    • the parties agree in writing that the information is not confidential.
  • The Supplier shall not use FACTCO’s confidential information for any purpose other than to perform its obligations under the Contract.
  1. General
    • Entire Agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
    • No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
      • waive that or any other right or remedy; or
      • prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
    • Notices.
      • Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first-class post or other next working day delivery service, commercial courier, fax or email.
      • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 5; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the 2nd Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
      • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    • Third Parties. No one other than a party to the Contract shall have any right to enforce any of its terms.
    • Governing Law and Jurisdiction. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

Schedule 1

  1. Interpretation
    • Definitions:

Business Day

a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.

Charges

the charges payable by FACTCO for the supply of the Goods and/or Services in accordance with clause 5.

Commencement Date

has the meaning set out in clause 1.2.

Conditions

these terms and conditions as amended from time to time in accordance with clause 15.2.

Contract

the contract between FACTCO and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.

Deliverables

all documents, products and materials developed by the Supplier or its agents, contractors, and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications, and reports (including drafts).

FACTCO Materials

has the meaning set out in clause 2.4.9.

Goods

the goods to be provided by the Supplier under the Contract as set out in the Specification

FACTCO

means FACTCO Limited incorporated and registered in England and Wales with FACTCO LTD Company Registration Number: 12235635 Registered Address: Unit 303, Century Building, Tower Street, Liverpool, L3 4BJ

 

Intellectual Property Rights

patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Order

FACTCO’s order for the supply of Goods and/or Services, as set out in FACTCO’s purchase order form, or in FACTCO’s written acceptance of the Supplier’s quotation.

Services

the services and/or works, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Specification.

Specification

the description or specification for the goods and/or services that the Supplier will be supplying to FACTCO as agreed in writing.

Supplier

the company or entity from whom FACTCO purchases the Goods and/or Services.

  • Interpretation:
    • A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
    • Any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
    • A reference to writing or written includes fax and email.