KEE PROCESS LTD - GENERAL CONDITIONS OF CONTRACT(FOR USE WITH OR WITHOUT KEE PROCESS LTD PROCUREMENT AGREEMENT) FOR SUPPLY OF GOODS, PLANT AND MATERIALS WITH SERVICES
1.1 The term “KEE” shall mean KEE Process Limited (registered in England and Wales with company number 5245285) whose registered offices are situated at KEE Process Limited, College Road North, Aston Clinton, Aylesbury, Bucks, HP22 5EZ. who is the buyer of the Goods and/or Services which are the subject of the Contract.
1.2 The term “Supplier” shall mean the person, firm or company to whom the Purchase Order is issued.
1.3 The word “Goods” includes all goods, plant and materials covered by the Purchase Order.
1.4 The term “Purchase Order” shall mean KEE’s Purchase Order.
1.5 The term “Price” shall mean the price or rates specified in the Purchase Order.
1.6 The word “Services” includes all services, labour and workmanship used in the performance of the services required by or to be inferred from the Purchase Order.
1.7 The word “Materials” means any materials or goods used in the performance of the Services.
1.8 The term “Site” shall mean the location(s) where the Goods are to be delivered or the Services are to be performed.
1.9 The word “Maintenance” includes both corrective and preventative maintenance of any building, structure, plant, equipment, machinery or article of KEE Process Limited including the Goods supplied hereunder.
1.10 The term “the Contract” shall mean the contract between KEE and the Supplier consisting of the KEE Materials Procurement Agreement (where used), the Purchase Order, these conditions and any other documents (or parts thereof) specified in the Purchase Order. Should there be any inconsistency between the documents comprising the Contract, they shall have precedence in the order herein listed.
1.11 The term “Statutory Requirements” shall mean each and every obligation imposed by law relevant to the Contract including without prejudice to the generality of the foregoing all statutes, statutory instruments, regulations and by-laws and any requirements of any statutory bodies or local authorities and amendments and modifications of any of the foregoing from time to time.
1.12 ”KEE Policies” shall mean all relevant policies and site rules of KEE Process Limited, including without prejudice to the generality of the foregoing safety, health and environmental rules;
1.13 The words “Completion”, “Completed” and “Complete” mean when the Services have been performed to the entire satisfaction of KEE and in accordance with the Contract.
1.14 “KEE Materials Procurement Agreement” means the agreement so named between the Supplier and KEE for the provision of Services, Goods and Materials signed by the duly authorised representatives of the Supplier and KEE.
2. QUALITY OF GOODS AND FITNESS FOR PURPOSE
The Goods shall be of satisfactory quality and free from defects in material or workmanship or design. If the purpose for which the Goods are required is made known to the Supplier expressly or by implication the Goods shall be fit for that purpose.
Unless otherwise agreed the Goods shall conform with any specifications, drawings, descriptions and samples contained or referred to in the Contract and with all relevant British Standards Statutory Requirements and KEE Policies and shall not be harmful to the property of KEE Process Limited or the environment.
3. STANDARD OF SERVICES
3.1 The Services shall:
3.1.1 Conform to any specification, quality and description specified or referred to in the Purchase Order;
3.1.2 Conform to any relevant British Standards, Statutory Requirements, KEE Policies and best industry practices;
3.1.3 Be performed with the highest care and skill by properly qualified, trained and experienced personnel;
3.1.4 Be performed in accordance with any relevant time or Maintenance schedule or call out requirements specified in the Purchase Order and within such time period or periods as may be required by KEE (time being of the essence in respect of the performance of the Supplier’s obligations);
3.2 Any Materials shall: -
3.2.1 Be of satisfactory quality and free from defects;
3.2.2 Be fit for the purpose required;
3.2.3 Conform with any specification, samples, quality and description specified or referred to in the Purchase Order;
3.2.4 Conform with any relevant British Standards, Statutory Requirements and KEE Policies, and shall not be harmful to the property of KEE Process Ltd or the environment.
4. DELIVERY DATE AND DATE FOR PERFORMANCE
4.1 The date of delivery of the Goods and the date for performance of the Services shall be that specified in the Purchase Order unless agreed otherwise between KEE and the Supplier. In the absence of any date being specified the Goods shall be delivered and the Services shall be performed as soon as practicable or as soon as required by KEE. Time shall be of the essence.
4.2 The Supplier shall furnish such programmes of manufacture and delivery as KEE may reasonably require and the Supplier shall give notice to KEE as soon as practicable if progress in accordance with such programmes is or is likely to be delayed.
4.3 KEE has the right to instruct the Supplier to take such action as is required to bring the Contract to completion in accordance with the terms of the Contract at no extra cost to KEE (save where KEE has caused the delay) or to reject the Goods or the Services for late delivery or performance.
5. INCORRECT DELIVERY OR PERFORMANCE
5.1 All Goods and Services must be delivered or performed at the delivery point and within the times specified in the Purchase Order. If Goods or Services are incorrectly delivered or performed, the Supplier shall be responsible for any additional expense incurred in delivering them to their correct destination or in re-performance at such destination.
5.2 KEE shall not be responsible for any failure to give notice to carriers of non- delivery, loss, damage, or delay in transit.
6. PASSING OF PROPERTY AND RISK IN GOODS TO BUYER
6.1 The Goods shall become the property of KEE on delivery or payment or part payment (whichever occurs first).
6.2 Where KEE pays part of the Price before taking delivery of the Goods or any part thereof then such payments shall be regarded as part payments and not deposits in respect of the Price.
6.3 All risk in the Goods including all risk of loss or damage shall remain with the Supplier until the Goods reach the correct place of delivery and are placed in the possession of KEE.
6.4 KEE accepts no responsibility for Goods delivered in excess of the Purchase Order requirement.
6.5 All Goods rejected or returned shall be at the risk of the Supplier from 5 days from the date KEE gives notice of rejection or return of the Goods and, in any event, during transit back to the Supplier.
6.6 Unless otherwise agreed, the Supplier shall be responsible for collecting rejected or returned Goods and all costs incurred in transporting them.
7. PURCHASE PRICE AND TERMS OF PAYMENT
7.1 Unless otherwise stated in the Purchase Order, all rates and prices are firm and fixed and the Price shall be inclusive of all services and materials necessary for the performance of the Contract, and all taxes and duties, but excluding value added tax.
7.2 The Supplier shall procure that invoices shall include the following particulars as a condition precedent to KEE’s obligation to pay the Price to the Supplier:
7.3 The Supplier shall deliver a valid invoice to KEE promptly after (but not before) the delivery of the Goods and/or the performance of the Services in accordance with the Contract.
7.4 Unless otherwise stated in the Purchase Order, and subject to the delivery of a valid invoice by the Supplier to KEE in accordance with Clause 7.3, KEE shall pay the Price for the relevant Goods and/or Services together with value added tax (where applicable to the transaction) to the Supplier not later than 60 days after the end of the calendar month during which the valid invoice is received by Hope.
7.5 If KEE shall fail to make payment in accordance with Clause
7.4, the Supplier shall be entitled to simple interest at the rate of 2% per annum above the base lending rate from time to time of Lloyds Bank plc calculated on the unpaid sum from the due date for payment until payment is made.
8. INCLUSIONS IN PRICE - SERVICES
8.1 The Supplier is deemed to have understood the nature and extent of the Services and to have inspected the Site (including ground conditions and any existing structures).
No failure on the part of the Supplier to discover or foresee any site conditions, or any failure to discover or foresee any risks, contingencies or circumstances (whether the same ought reasonably to have been discovered or not) shall entitle the Supplier to claim damages or an additional sum or an extension of time for Completion of the Services.
The Supplier shall not be entitled to rely upon any survey, report or other information supplied by or on behalf of KEE regarding the Site or any such matter referred to in this clause, or to make any claim against KEE Process Limited in connection therewith. KEE shall, on request of the Supplier, grant such access to the Site as may be reasonable for this purpose.
8.2 Unless otherwise agreed, the Supplier shall provide all plant, scaffolding, tools, Materials, labour, haulage and other things necessary to complete the Services.
8.3 Unless otherwise agreed, the Supplier shall be responsible for obtaining all those consents, licences and permits from any relevant authority which are necessary for the carrying out of the Services including and without prejudice to the generality of the foregoing planning permission and building regulation approval and the Supplier shall comply with the same.
In the case of Goods or Services delivered by the Supplier not conforming with the Contract whether by reason of being of quality or in a quantity or measurement not stipulated or being unfit for the purpose for which they are required or otherwise not in compliance with the Contract.
KEE shall have the right to reject such Goods or Services within a reasonable time of KEE discovering the non-conformity and to purchase elsewhere goods or services as near as practicable to the same Contract specifications and conditions as circumstances shall permit but without prejudice to any other right which KEE may have against the Supplier.
The making of payment and use of the Goods or Services shall not prejudice KEE’s right of rejection and neither shall the signing of a delivery note notwithstanding anything to the contrary stated therein.
Before exercising the said right to purchase elsewhere KEE shall give the Supplier a reasonable opportunity to replace or to re-perform rejected Goods or Services with Goods or Services which conform to the Contract save where KEE in its absolute discretion determines that the Supplier may not be capable of supplying the Goods or Services in accordance with the Contract and/or within the time required by Hope.
10.1 The Supplier shall not alter any of the Goods or Services, except as directed in writing by KEE, but KEE shall have the right, from time to time during the execution of the Contract, by notice in writing to direct the Supplier to add to or to omit, or otherwise vary, the Goods or Services, and the Supplier shall carry out such variations and be bound by the same conditions, so far as applicable, as though the said variations were stated in the Contract.
10.2 Where the Supplier receives any such direction from KEE which would occasion an amendment to the Price or the delivery date or (in the case of Services) the performance date the Supplier shall, with all possible speed, advise KEE in writing to that effect giving the amount of any such amendment, ascertained and determined at the same level of pricing as that contained in the Supplier’s tender, and giving the period of any delay.
This revised price must be agreed in writing by KEE prior to commencement. If no revised price can be agreed the Supplier shall, subject to the following sub- clause, comply with the direction and a fair and reasonable addition or omission (as the case may be) shall be made to the Price.
10.3 If, in the opinion of the Supplier, any such direction is likely to prevent the Supplier from fulfilling any of its obligations under the Contract it shall so notify KEE and KEEe shall decide whether or not the same shall be carried out and shall confirm its instructions and modify the said obligations to such an extent (if at all) as may be justified in the opinion of KEE. Until KEE so confirms its instructions they shall be deemed not to have been given.
11. CANCELLATION OR SUSPENSION
11.1 If KEE is for any reason beyond its reasonable control unable to accept delivery of the Goods or performance of the Services at the times stated in the Purchase Order, or at all, then KEE may by notice in writing to the Supplier cancel or suspend the delivery of any of the undelivered Goods or the performance of any of the unperformed Services.
11.2 If delivery is suspended for more than 8 weeks, then either party may by notice in writing terminate the Contract forthwith. Upon such termination the Supplier shall be entitled to be paid up to but no more than such portion of the Price as fairly represents the work and/or materials carried out and procured up to the time of the suspension.
11.3 Upon cancellation the Supplier shall be entitled to be paid up to but no more than such portion of the Price as fairly represents the work and/or materials carried out and procured up to the date of cancellation.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 The Supplier shall indemnify KEE Process Limited against any claim for infringement of any patent, design right, registered design, unregistered design, trade mark or copyright or for breach of confidence by the use or sale of any article or material supplied by the Supplier to KEE or any Services supplied by the Supplier to KEE and against all costs and damages, including legal fees on an indemnity basis, which KEE Process Limited may incur in any action for such infringement or for which KEE Process Limited may become liable in any such action.
Provided always that this indemnity is conditional on KEE giving to the Supplier notice in writing of any claim being made or action threatened or brought against Hope and on KEE permitting the Supplier at the Supplier’s own expense to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
12.2 All intellectual property rights in any Services or Materials supplied to KEE by the Supplier or specifically commissioned by the Supplier for KEE shall vest in KEE and the Supplier undertakes to execute all documents required to ensure such ownership.
13. ASSIGNMENT AND SUB-LETTING
13.1 The Contract shall not be assigned by the Supplier nor sub-let as a whole or in part without KEE’s consent.
13.2 When KEE has consented to the placing of sub-contracts copies of each sub- contract as and when requested shall be sent by the Supplier to KEE.
13.3 HKEE may freely assign or charge all or part of the benefit of the Contract.
13.4 For the avoidance of doubt, the Supplier shall be and remain primarily and directly responsible to KEE for all Goods and/or Services supplied by sub- contractors.
14. PROGRESS AND INSPECTION
KEE’s representatives shall have the right to inspect all Goods at the Supplier’s works and the works of sub-contractors at all reasonable times and to reject Goods that do not comply with the terms of the Contract. The Supplier’s sub-contracts shall include this provision. Any inspection, checking, approval or acceptance given on behalf of KEE shall not relieve the Supplier from any obligation under the Contract.
15. FREE-ISSUE MATERIALS
15.1 Where KEE for the purposes of the Contract issues Materials ‘free of charge’ to the Supplier such Materials shall be and remain the property of KEE.
The Supplier shall maintain all such Materials in good order and condition subject, in the case of tooling, patterns and the like, to fair wear and tear.
The Supplier shall use such Materials solely in connection with the Contract. Any surplus Materials shall be disposed of at KEE’s direction.
Waste of such Materials arising from bad workmanship or negligence of the Supplier shall be made good at the Supplier’s expense. Without prejudice to any other of the rights of KEE, the Supplier shall deliver up such Materials whether further processed or not to KEE on demand
15.2 If either party requires a record of the quantity and condition of any free issue materials required to be returned to KEE, then a suitable record shall be agreed and maintained by both parties.
16. SITE REGULATIONS
16.1 The Supplier shall not commence the provision of Services on Site before obtaining the consent of KEE.
16.2 The Supplier shall comply with KEE’s current Safety, Health and Environmental Rules for Contractors (‘SHE Rules’) (available on request) and all other safety requirements applicable to the Site and shall ensure that its employees and sub-contractors so comply.
16.3 KEE shall have the right to require the removal of any person brought to the Site by the Supplier who has:
16.3.1 failed to comply with the SHE Rules, or
16.3.2 has, in the opinion of KEE, misconducted himself or been negligent or incompetent.
17. SITE WORK BY SUPPLIER
17.1 If any work on Site is to be carried out by the Supplier, then the Supplier shall ensure that no work is covered up until KEE has had a reasonable opportunity to inspect it.
17.2 The access to and possession of the Site shall not be exclusive to the Supplier but only such as shall enable it to execute the Services, concurrently with the execution of work by other persons.
17.3 Without prejudice to any other indemnity provisions herein, the Supplier shall at all times prevent any nuisance or trespass (including, but without limitation, any noisy working operations, or interference with access or use of public or private roads and/or footpaths) or other interference with the rights of the owner, or any tenant or occupier of the Site or any adjoining land, arising out of the Services, and shall fully indemnify KEE Process Limited in relation to any claims and legal fees (on an indemnity basis) arising out of any failure in performing its obligations and shall assist KEE Process Limited in defending any action or proceedings which may be instituted in relation thereto.
18. THINGS FOUND ON SITE
All minerals, metals, objects and other things found or discovered on, under or around the Site shall as between the Supplier and KEE be the property of KEE and shall be dealt with as KEE may direct.
19. NOTIFICATION PROCEDURE
The Supplier shall give immediate notice in the event of any accident or damage likely to form the subject of a claim under KEE’s insurance and shall give all the information and assistance in respect thereof that KEE’s insurers may require, and shall not negotiate, pay, settle, admit or repudiate any claim relating to the same subject matter or to any extent relating to the same subject matter without the written consent of KEE’s insurers and shall permit such insurers to take proceedings in the name of the Supplier to recover compensation or secure an indemnity from any third party in respect of any of the matters covered by the said insurance.
20. SPECIFICATIONS, PLANS, PROCESS INFORMATION ETC
20.1 Any specifications, plans, drawings, process information, patterns or designs supplied by KEE to the Supplier in connection with the Contract shall be and remain the property of KEE, and any information derived therefrom or otherwise communicated to the Supplier in connection with the Contract shall be kept secret and shall not, without the consent in writing of KEE, be published or disclosed to any third party, or made use of by the Supplier except for the purpose of implementing the Contract. Any specifications, plans, drawings, process information, patterns or designs supplied by KEE must be returned to KEE when required.
20.2 When the Purchase Order includes manufacture to KEE’s designs the Supplier agrees to inform KEE of any invention or improvement in design or method of manufacture arising out of the performance of the Contract by or on behalf of the Supplier and any such invention or improvement and any patent or registered design rights in respect thereof and copyright in any drawings, documents or specifications relating thereto shall be the property of KEE. The Supplier shall give KEE at KEE’s expense all necessary assistance to enable KEE to obtain patent, registered design and similar rights throughout the world.
20.3 On or before delivery of the Goods (or on termination of the Contract for whatever cause if earlier) the Supplier shall provide to KEE at no extra cost all necessary operating and maintenance manuals.
20.4 The Supplier accepts entire responsibility for the design of Goods (including any design work prepared before or after the date of the Purchase Order and whether carried out by or on behalf of KEE or the Supplier) and for any error, mistake, inaccuracy, or discrepancy contained in the same, provided that the Supplier shall not be liable for any design provided by KEE if the Supplier objects to it prior to manufacturing the Goods.
21. HAZARDOUS GOODS
21.1 Hazardous Goods must be marked by the Supplier with International Danger Symbol(s) and display the name of the material in English. Transport and other documents must also include a declaration of the hazard and name of the material in English.
Hazardous Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings. The Supplier shall observe the requirements of UK and international agreements relating to the packing, labelling and carriage of hazardous Goods.
21.2 All information held by, or reasonably available to, the Supplier regarding any potential hazards known or believed to exist in relation to the transport, handling or use of the Goods supplied shall be promptly communicated to KEE.
22.1 Without prejudice to any other rights or remedies of KEE, KEE may by notice in writing terminate the Contract forthwith if the Supplier:
22.2 KEE shall have the right to terminate the contract by not less than one month’s notice at any time without prejudice to KEE’s rights and remedies in respect of any antecedent breach of the Contract committed by the Supplier.
23. CONDITIONS OF CONTRACT
23.1 No terms and conditions submitted or referred to by the Supplier in any document shall form part of the Contract unless otherwise agreed to in writing by KEE.
23.2 KEE shall not be liable under the Contract unless:
23.3 KEE shall not be bound by any variation, waiver of or addition to the Contract except as agreed in writing and signed by a duly authorised representative of KEE.
23.4 If the performance of the Contract requires KEE to have any permit or licence from any government or other authority, the Contract shall be conditional upon such permit or licence being available at the required time.
23.5 Nothing in these Conditions shall prejudice any conditions or warranties (express or implied) or right or remedy to which KEE is entitled in relation to the Contract or the Goods or Services supplied by the Supplier to KEE by virtue of statute or common law or the laws of the European Union.
The rights and remedies conferred on KEE by these Conditions are in addition to and in no way in substitution for any conditions, warranties or any other rights or remedies conferred on KEE or implied by the law as aforesaid.
24. STATUTORY REQUIREMENTS AND HOPE POLICIES
The Supplier shall comply with the Statutory Requirements and the KEE Policies in connection with the supply of the Goods and/or the performance of the Services.
25. INDEMNITY AND INSURANCE
25.1 The Supplier shall keep KEE Process Limited indemnified against:
25.2 The Supplier shall fully indemnify KEE Process Limited against all loss, damages, costs or expense arising out of or connected with any breach of the Contract and the Supplier shall also indemnify KEE Process Limited in respect of any legal fees incurred in connection therewith.
25.3 The Supplier shall take out and/or maintain such types and levels of cover of insurance as KEE may require including Public Liability Employer’s Liability, Works and Product Liability insurance. If the Supplier fails to take out and/or maintain any such insurance policies KEE may do so and recover the premiums paid from the Supplier as a debt. If so required, the Supplier shall promptly and accurately complete any insurance questionnaire supplied by KEE and KEE shall be entitled to withhold payment of the Price or part thereof until the questionnaire has been fully and accurately completed and returned to KEE.
26. ASSIGNMENT OF WARRANTIES TO BUYER
The Supplier shall pass to KEE the benefits of all and any warranties and/or guarantees received by the Supplier from its suppliers.
27. SET OFF
Any debt or claim on the part of KEE or any of its subsidiary, associated (including any subsidiary of any of KEE’s holding companies) or holding companies (including in each case companies which are from time to time in those categories) with or against the Supplier, whether arising out of the Contract or otherwise howsoever, and whether liquidated or not, may be set off against any sums due to Supplier hereunder.
28. LOCAL CONDITIONS
Unless otherwise agreed in writing, the Supplier shall be deemed to have full knowledge of any local conditions that may be relevant to the proper performance of its obligations hereunder including without prejudice to the generality of the foregoing all relevant means of access to the Site.
29. DISPUTE RESOLUTION
in the event of any dispute arising between the parties in connection with the Contract, the parties will in good faith seek to resolve that dispute through mediation under the auspices of the ADR Group. The Mediator shall be agreed upon within 21 days of one party requesting mediation, failing which either party may apply to the President of the Law Society to appoint a Mediator.
Unless otherwise agreed each party shall share equally the costs of the Mediator, the ADR Group and the President of the Law Society and each party shall bear their own legal and other fees and expenses incurred in relation to the mediation. If the dispute is not resolved within 28 days of the Mediator’s appointment, then either party may commence Court proceedings, but provided that nothing in this clause shall prevent either party seeking an injunction or other interim relief at any time if it reasonably believes such action is necessary to prevent irreparable damage.
30. THIRD PARTY RIGHTS
A natural or legal person who is not a party to the Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of the Contract. This clause does not alter any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
31. LAW, JURISDICTION AND CONSTRUCTION OF CONTRACT
31.1 The construction, validity and performance of the Contract shall be governed by the law of England and the parties submit to the non-exclusive jurisdiction of the English Courts.
31.2 References to any statute or statutory provision shall be construed as a reference to that statute or provision as from time to time amended, consolidated, extended, re-enacted or replaced.
32.1 Any notice to be given to a party under the Contract shall be given in writing in the English language and delivered by hand or sent by first class prepaid post or by facsimile or email to the other party.
32.2 Any notice to be given to KEE shall be addressed to the Company Secretary and sent to its registered office or such other address as KEE may have notified to the Supplier as its proper address for service.
32.3 Any notice to be given to the Supplier shall be sent to its registered office or the address of the Supplier stated on the last Purchase order or the last known address or facsimile number or email address notified in writing to KEE by the Supplier as being its proper address or facsimile number or email address for service.
32.4 Notices given in accordance with this Clause 32 shall be deemed to have been received:
No delay or omission by Buyer in exercising any of its rights or remedies under the Contract or under any applicable law on any occasion shall be deemed a waiver of, or bar to, the exercise of such right or remedy or any other right or remedy upon any other occasion.
The headings herein are for ease of reference only and shall not affect the construction of the Contract.
In the event that any provision of the Contract shall be void or unenforceable by reason of any provision of applicable law, it shall be deleted and the remaining provisions hereof shall continue in full force and effect and, if necessary, be so amended as shall be necessary to give effect to the original intent of the Contract so far as possible.
36.1 The Supplier shall treat as confidential and shall not disclose to any third party without the prior written consent of KEE the terms of the Contract and any information obtained from KEE Process Limited or their holding companies or otherwise obtained in connection with the Contract (“Confidential Information”).
36.2 The Supplier shall not use the Confidential Information for any purpose other than performance of its obligations under the Contract.
36.3 Clauses 36.1 and 36.2 shall not apply to any information to the extent that it:
36.4 The obligations of confidence contained in this clause shall continue after expiry or earlier termination of the Contract.
37. TRADE MARKS
Unless KEE has given its prior written consent the Supplier shall not use any of the trademarks or logos of KEE Process Limited (registered or otherwise). Any written consent of KEE to use any trademarks or logos shall be deemed to be under licence which KEE may terminate at any time by giving written notice to the Supplier.
38. AGENCY AND TRADING NAME
38.1 KEE Process Limited (Company number: 543552, registered in England and Wales) acts as principal in respect of its own business.
COMMITTED TO IMPROVING THE ENVIRONMENT