VOHKUS LIMITED
TERMS AND CONDITIONS OF PURCHASE
1 Definitions
In these terms and conditions of purchase the following words shall
have the following meanings:
“Acceptance” means acceptance of the Deliverable by Vohkus or
the Deliverable Recipient in accordance with the ATP or other
agreed acceptance criteria;
“Agreement” means these terms and conditions of purchase, the
applicable Purchase Order and/or Statement of Work;
“Applicable Laws” means all laws, legislation, regulation, codes of
practice, or requirements of any relevant government or
governmental agency, applicable to Vohkus or the Deliverable
Recipient and in the country in which the delivery address is located;
“ATP” means the process of measurement, examination, and other
activities required to verify that a Deliverable supplied by the
Supplier has been supplied in accordance with the Purchase Order
including all applicable specifications;
“Background Materials” includes materials, hardware, software,
work, devices, documents (including Specifications) information,
methods, concepts, approaches, tools, generic industry
information and/or item provided by either Party or the Deliverable
Recipient and which is generated independently;
(a) of any Development Work; or
(b) of the Supplier providing Services
either prior to or after the commencement date of the
Development Work or the provision of such Services;
“Change of Control” means as defined in section 416 of the Income
and Corporation Taxes Act 1988;
“Commodity Code” means the code for the Deliverable under the
Integrated Tariff of European Communities or local equivalent.
“Confidential Information” means, all information, disclosed by
the Disclosing Party, or its employees, officers, advisers, agents or
representatives (“Representatives”), pursuant to this Agreement,
including but not limited to, financial, business or technical or other
data and all other confidential information (whether written, oral,
visual or in electronic form or in magnetic or other media):
(a) concerning the business and affairs of a Party including their
respective sub-contractors, suppliers, customers, clients or
other contacts (as applicable) that the other Party obtains,
receives, or which it has access as a result of any discussions
or dealings or which is learned by a Party through
observations made during visits to any premises of the other
Party; or
(b) which arises out of the performance of any Services.
“Data Subject” shall have the meaning ascribed to it in the Data
Protection Legislation;
“Deliverables” means Goods, Services and/or Software as
applicable;
“Deliverable Recipient” means the end user customer of Vohkus;
“D.D.P.” means Delivery Duty Paid in accordance with the
Incoterms 2020;
“Development Work” means any development or customisation
Services provided by the Supplier under the applicable Purchase
Order;
“Disclosing Party” means a party to this Agreement, that discloses
or makes available Confidential Information directly or indirectly,
under or in connection with this Agreement;
“Documentation” means documentation, if any, required for the
use of the Deliverables;
“Goods” means the tangible equipment (including firmware) and
associated Documentation as set out in Vohkus’ Purchase Order;
“Good Industry Practice” means the exercise of reasonable skill,
care, prudence, efficiency, foresight and timeliness which would
reasonably be expected from a person properly skilled and
experienced in providing products and/or services similar to the
Services;
“Key Milestone” means where applicable, delivery date, ready for
acceptance date, or any other important milestone identified
within the applicable Statement of Work;
“Manufacturer” means the manufacturer of Goods (including the
Supplier or any third party, as applicable);
“Intellectual Property Rights” (“IPR”) means (a) patents, designs
and trade marks (whether registered or unregistered), copyright,
database rights, topography rights and know how; (b) all other
intellectual property rights and similar or equivalent rights
anywhere in the world which currently exist or are recognised in
the future; and (c) applications, extensions and renewals in relation
to any such rights;
“Personal Data” has the meaning as defined under the Data
Protection Legislation;
"Purchase Order" means an order in respect of the Goods and/or
Services issued by Vohkus to the Supplier which shall include
requirements for the Goods and/or Services together with all
documents referred to in it;
“Receiving Party” means a Party that receives or obtains
Confidential Information, directly or indirectly, under or in
connection with this Agreement;
"Services" includes, but is not limited to, installation, maintenance,
technical support, acceptance testing, and warranty provided by
the Supplier pursuant to the Purchase Order or Statement of Work;
“Software” means any computer program (including any upgrade
or new release) that has been developed and/or licenced by the
Supplier and any associated Documentation;
“Statement of Work” the various Statements of Work agreed in
writing by the Parties from time to time setting out the Services,
Deliverables, timelines and charges for each work project to be
undertaken by the Supplier in accordance with the terms of this
Agreement;
"Supplier” means the company, firm, body or person to whom a
Purchase Order is addressed;
“System” means a combination of Goods and Services which are
integrated and operate together or are required to complete the
objectives specified in the Specifications, a project plan or
Statement of Work and which are subject to Acceptance as a
‘system’ according to a Purchase Order;
“Virus” means any computer virus, spyware, disabling program
(including worms and Trojan horses) or device;
"Vohkus" means Vohkus Limited (company number 04142508) and
having its registered office at Centurion House, Barnes Wallis Road,
Segensworth, Hampshire, PO15 5TT who is the purchaser of the
Goods and/or Services;
“Vulnerability” means a weakness in the computational logic (for
example, code) found in software and hardware components
within any Deliverable that, when exploited, results in a negative
impact to confidentiality, integrity, or availability, and the term
Vulnerabilities shall be interpreted accordingly;
“Warranty Period” means, unless Vohkus and the Supplier
otherwise agree in writing or in a Purchase Order, with respect to:
(a) Goods, a period of twenty four (24) months from the actual
delivery date or Acceptance (whichever is later); and (c) Services, a
period of three (3) months from the later of the date of
performance of the Services or Acceptance (if applicable); and
“Working Day” means Monday to Friday, other than Public
Holidays in England when the banks are open or the jurisdiction in
which the Deliverable Recipient is based.
2 Incorporation of Terms and Order of Precedence
2.1 A Purchase Order shall constitute an offer by Vohkus to
purchase Deliverables subject to this Agreement. Any
acceptance of the Purchase Order by the Supplier shall create
a contract for the sale and purchase of that Deliverable in
accordance with this Agreement.
2.2 These terms and conditions are incorporated into and shall
govern the Purchase Order, superseding any and all other
Supplier terms and conditions. No conduct by Vohkus, direct
or indirect, shall be deemed to constitute acceptance of the
Supplier’s terms and conditions.
2.3 Notwithstanding anything to the contrary in the Agreement,
Vohkus shall be entitled to terminate any Purchase Order,
with no cost or liability, regardless of the Supplier’s
acceptance, at any time prior to delivery of the Deliverables.
3 Warranty
3.1 The Supplier warrants and represents that:
(a) it is not (at the time of entering into this Agreement)
involved in any litigation, process, contract or
investigation that could materially impact on the ability of
the Supplier to perform its obligations;
(b) it has obtained and shall obtain all permissions, licences
and consents necessary for the Supplier to supply the
Deliverables in accordance with the Purchase Order;
(c) the use, possession, marketing or selling of any
Deliverable does not and will not infringe the Intellectual
Property Rights of a third party;
(d) all Documentation provided and, if applicable, any
training given to Vohkus or any Deliverable Recipient shall
be complete, accurate and enough to enable Vohkus
and/or the Deliverable Recipient to make full and proper
use of the applicable Deliverable.
3.2 The Supplier warrants and represents that the Deliverables
provided shall:
(a) be fully functional, without defect, and conform to
quantity, quality, description, specification and standards
stated or referred to in the Purchase Order, or if no
description or specification is provided in the Purchase
Order, the description and specification provided in the
Supplier’s marketing materials;
(b) be of suitable materials and workmanship and executed
with reasonable care and skill by suitably qualified and
experienced personnel in accordance with Good Industry
Practice;
(c) be equal in all respects to any samples, patterns or
demonstration provided by the Supplier;
(e) be safe and without risk to health when used in
accordance with the necessary information/instructions
provided by the Supplier;
(f) if the purpose for which they are required is indicated in
the Purchase Order, either expressly or by implication, be
fit for that purpose;
(g) if the purpose for which they are required is not indicated
in the Purchase Order, they will be fit for any purpose that
the Supplier, or the Supplier’s marketing material,
specifies they are suitable for; and
(h) be free from all Viruses and Vulnerabilities and the
Supplier shall not introduce any Vulnerabilities or Viruses
into the Deliverables or the network and information
systems of Vohkus or the Deliverable Recipient whether
via the provision of the Services or Deliverables, or
otherwise.
(i) be tested for Viruses and Vulnerabilities before their
delivery to Vohkus or the Deliverable Recipient and the
Supplier shall mitigate, at their expense, against any
Vulnerabilities or Viruses present, or which may become
present during the Warranty Period.
(j) comply with Applicable Law relating to such Deliverable,
including law relating to security of network and
information systems and security breach and incident
reporting requirements, including the Network and
Information Systems Regulations 2018.
3.3 In the event of a breach of any warranty, including but not
limited to those in Clause 3.1 or 3.2, during the Warranty
Period, without prejudice to any other remedies available to
Vohkus and/or the Deliverable Recipient under this
Agreement, the Supplier shall pay all reasonable costs and
expenses relating to:
(a) the return of any affected Deliverables to the
Supplier (including where applicable, de-installation)
and repair or replacement;
(b) additional Deliverables supplied by the Supplier
required to remedy the breach of warranty;
(c) the operation and maintaining of the additional
Deliverables; and
(d) obtaining Services from a third party.
3.4 If the Supplier fails to comply with Clause 3.3, then Vohkus or
the Deliverable Recipient may correct, or arrange for a third
party to correct, any defect or failure at the Supplier’s cost.
3.5 The Deliverables shall conform to the warranties in this
Clause (3), and the terms of this Agreement, for the duration
of the Warranty Period.
4 Services
4.1 Both Parties shall perform their obligations in accordance
with the provisions of this Agreement and any Statements of
Work or Purchase Order.
4.2 The Supplier shall keep Vohkus informed as to the progress
of the Services.
4.3 The Supplier shall perform the Services and deliver the
Deliverables in accordance with the timing requirements of
Vohkus as set out in any Purchase Order or Statement of
Work or as amended in writing between the Parties from time
to time. If the Supplier becomes aware of any circumstances
which may prevent the Services from being performed
and/or the Deliverables from being delivered, in accordance
with the timing requirements, of any Statement of Work or
subsequent written amendment, the Supplier shall
immediately notify Vohkus of such delay forthwith.
4.4 If the Supplier fails to meet a Key Milestone, Vohkus shall be
entitled to claim any loss caused by such delay. Without
prejudice to any other remedy available in this Agreement,
Vohkus may at its option terminate the applicable Statement
of Work, upon failure to meet a Key Milestone.
4.5 If requested by Vohkus, the Supplier shall perform installation
of the Deliverable. Vohkus or the Deliverable Recipient shall
have the right to observe the installation and check that such
installation is in accordance with the specifications or the
Deliverable Recipient’s quality assurance requirements
before being obligated to pay any invoices raised by the
Supplier.
4.6 Any failure in respect of the Services shall entitle Vohkus to
service credits on the terms and in the manner agreed within
the applicable Statement of Work, or where no service credits
are documented in the Statement of Work Vohkus shall, at
Vohkus’ sole option, be entitled to terminate the applicable
Statement of Work at no cost or loss, and/or receive a refund
or reduction in price from the Supplier.
4.7 Vohkus may request the Supplier to assign a designated point
of contact to supervise the performance of the Services in
accordance with this Agreement and Statement of Work, as
applicable.
4.8 The Supplier shall not change its designated point of contact
without first notifying Vohkus in writing;
4.9 If, in the reasonable opinion of Vohkus or the Deliverable
Recipient, the performance or conduct of the designated
point of contact has been unsatisfactory, Vohkus or the
Deliverable Recipient may request the Supplier to replace the
designated point of contact and, will inform the Supplier of
its reason for such request. On receipt of such notice, the
Supplier shall promptly replace the designated point of
contact with an employee of at least the equivalent skill and
training.
4.10 The Supplier shall comply with any applicable Vohkus or
Deliverable Recipient policies provided by Vohkus.
4.11 If the Supplier has supplied Services that do not comply with
the requirements of Clause 3.1, 3.2 or this Agreement then,
in addition to the rights and remedies outline in Clause 3.3
and without limiting or affecting other rights or remedies
available to it, Vohkus shall, at its some option, be entitled to
one or more of the following rights and remedies:
(a) to terminate the Agreement with immediate effect by
giving written notice to the Supplier;
(b) to require the Supplier to provide repeat performance of
the Services, or to provide a full refund of the price paid
for the Services;
(c) to refuse to accept any subsequent performance of the
Services which the Supplier attempts to make;
(d) to recover from the Supplier any expenditure incurred by
Vohkus in obtaining substitute services or deliverables
from a third party; and
(e) to claim damages for any additional costs, loss or
expenses incurred by Vohkus arising from the Supplier's
failure to comply with Clause 3.1, 3.2 or this Agreement.
This Clause 4.11 shall extend to any substituted or remedial
services or repaired or replacement goods supplied by the
Supplier.
5 Delivery
5.1 Goods shall be delivered D.D.P.
5.2 Vohkus shall reserve the right to inspect and/or test the
Deliverables prior to delivery, save that such testing or
inspection shall not amount to Acceptance.
5.3 Packages of Goods must bear the exact description and
quantity of the contents and Vohkus’ Purchase Order number.
5.4 Notwithstanding any other rights and remedies available to
Vohkus, any delivery:
(a) under the specified quantity requested in the Purchase
Order, unless agreed otherwise in writing, shall be
remedied by the Supplier at the Supplier's risk and
expense within three (3) working days.
(b) over the specified quantity requested in the Purchase
Order shall become the property of Vohkus at no
additional cost to Vohkus and, for the avoidance of doubt,
the Supplier shall have no right to invoice for such overage
or claim possession or title.
5.5 Vohkus has no obligation to return cases, cartons, boxes,
wrapping and other containers, the Goods were delivered in.
the Supplier shall remove from the location and dispose of all
cases, cartons, boxes, wrapping, containers and other
packaging related to the Goods.
5.6 Vohkus will not be responsible for any failure to give notice
to carriers of loss, damage, delay, detention or transit or non-
delivery.
5.7 The Supplier agrees on request to provide Vohkus with any
necessary declarations and documents stating the origins of
the Goods.
6 Risk and Title
6.1 Title to the Goods shall pass to Vohkus on delivery to the
place specified in the Purchase Order. This shall be without
prejudice to any right of rejection or other right which may
accrue or have accrued to Vohkus under these terms and
conditions or otherwise.
6.2 All Goods rejected or returned for any reason shall be at the
risk of the Supplier during transit back to the Supplier.
6.3 Any designs, drawings, materials, specifications and other
items which may be supplied by Vohkus or the Deliverable
Recipient shall be maintained by the Supplier, kept
confidential and not be used for any purpose other than
carrying out the Supplier’s obligation under this Agreement
and any associated Purchase Order and shall be returned or
delivered to Vohkus upon request.
7 Price and Payment
7.1 The price for the Deliverables shall be as outlined in the
Purchase Order or applicable Statement of Work
7.2 Invoices shall be raised 30 days after the Deliverables are
received by Vohkus in accordance with this Agreement,
unless agreed otherwise in writing by the parties. Vohkus
shall not be liable to pay any invoices raised after this time.
7.3 Provided that invoices submitted are undisputed, payments
will be made by Vohkus sixty (60) days after the last day of
the calendar month in which Vohkus receives a valid invoice.
7.4 Failure to make payment within the specified period shall
incur interest at an annual rate of 1% above the base rate of
the Bank of England.
7.5 Vohkus shall not be liable for any VAT, costs, penalties,
interest or other charges arising from any incorrect VAT
treatment by the Supplier of any supply hereunder, save to
the extent that Vohkus is able to recover such costs from the
relevant taxation authority, and the Supplier shall indemnify
and keep indemnified Vohkus against such costs which
Vohkus is not able to recover.
7.6 If the Deliverables are subject to an import duty, the Supplier
shall use all reasonable endeavours to ensure that where
there is scope for those Goods to fall under more than one
Commodity Code, the Deliverables are classified under the
code which attracts the lowest duty rate as possible.
7.7 The Supplier shall clearly mark the Purchase Order number
on the consignment package, packing notes, invoices,
monthly statements and all other correspondence relating to
them.
7.8 Vohkus may set off and withhold against invoiced amounts
any debt or sum owing to Vohkus by the Supplier in
connection with an accepted Purchase Order.
7.9 In the event that withholding tax or deduction is required to
be paid by Vohkus under Applicable Law, Vohkus shall pay the
charges net of the withholding or deduction to the Supplier.
8 Acceptance of Deliverable
8.1 Where the Deliverable is a Service, Vohkus or the Deliverable
Recipient may define an ATP (which may include where
appropriate network stability periods) and supply a copy to
the Supplier. The Supplier shall be responsible for ensuring
that the Deliverables achieve Acceptance in accordance with
the ATP.
8.2 Where the Deliverable is anything but a Service (to which
Clause 8.1 will be applicable), Acceptance shall not be
deemed on delivery and Acceptance shall not occur until such
a time as Vohkus notifies the Supplier in writing that the
Deliverables have been accepted.
8.3 If, following such inspection or testing, Vohkus or the
Deliverable Recipient considers that the Deliverables do not
comply or are unlikely to comply with Clause 3.1 and/or 3.2
or this Agreement, Vohkus shall, and without limiting or
affecting other rights or remedies available to it, inform the
Supplier and, at Vohkus’ sole option, either:
(a) the Supplier shall immediately take such remedial action
as is necessary, at their expense, to ensure compliance;
(b) Vohkus may reject the Deliverables and return the
Deliverables to the Supplier at the Supplier’s cost and risk
without liability.
9 Confidentiality
Each Party shall:
9.1 protect the Confidential Information of the Disclosing Party
and, in doing so, must use no less than the equivalent degree
of care that such Party applies to its own Confidential
Information which shall in no case be less than a reasonable
standard of care;
9.2 have internal systems to ensure that Confidential Information
is stored and handled in such a way as to prevent
unauthorised disclosure;
9.3 procure that its personnel and any third parties do not;
disseminate, copy, employ, exploit, adapt, modify or in any
other manner whatsoever utilise the Confidential
Information other than strictly for the performance of the
Agreement. For the avoidance of doubt, the Receiving Party
shall be liable for all acts and/or omissions of their personnel
and any third parties.
9.4 The obligations contained in Clauses 9.1 to 9.3 shall not apply
to any Confidential Information which:
(a) is lawfully in the possession of the Receiving Party prior to
receipt from the Disclosing Party, as reasonably
evidenced in writing;
(b) is or becomes publicly known, other than as a
consequence of a breach of this Agreement;
(c) is required to be disclosed by a court of competent
jurisdiction or operation of law, provided the Receiving
Party, where reasonably practicable, provides notice to
the Disclosing Party of such disclosure;
(d) is received from a third party without breach of any other
relevant confidentiality obligations;
9.5 For the avoidance of doubt and pursuant to Clause 9.4(b),
information will not be considered to be in the public domain,
by it being known to a few of those people to whom it might
be of commercial interest.
10 Data Protection
10.1 Both parties acknowledge and agree that they will comply
with the applicable data protection and privacy legislation in
force from time to time in the UK including, but not limited
to, the UK GDPR, the Data Protection Act 2018 (and
regulations made thereunder) and the Privacy and Electronic
Communications Regulations 2003 (the “Data Protection
Legislation”).
10.2 Without prejudice to the generality of Clause 10.1, the
Supplier shall, in relation to any Personal Data (as defined in
Data Protection Legislation) processed in connection with the
performance by the Supplier of its obligations under this
Agreement:
(a) process that Personal Data only on the documented
written instructions of Vohkus unless the Supplier is
required by Applicable Law to otherwise process that
Personal Data. Where the Supplier is relying on Applicable
Law as the basis for processing Personal Data, the Supplier
shall promptly notify Vohkus of this before performing the
processing required by the Applicable Law unless the
Applicable Law prohibits the Supplier from so notifying
Vohkus.
(b) not transfer, or process, any Personal Data outside the UK
or EEA.
(c) ensure that all personnel who have access to and/or
process Personal Data are obliged to keep the Personal
Data confidential.
(d) notify Vohkus promptly if the Supplier become aware of a
Personal Date Breach (as defined in Data Protection
Legislation)
(e) at the written request of Vohkus, delete or return
Personal Data and copies thereof to Vohkus on
termination of the Agreement unless required by
Applicable Law to store the Personal Data.
11 Indemnity and Liability
11.1 Nothing in this Agreement shall be construed as limiting or
excluding either party’s liability for: (i) death and personal
injury caused by that party’s negligence, (ii) fraud or
fraudulent misrepresentation, (iii) any indemnity obligations
under this Agreement and (iii) any liability which cannot be
limited or excluded by law.
11.2 The Supplier shall not limit any liability and keep Vohkus
indemnified against any claim for:
(a) loss or damage to any moveable or immovable property
(including any third-party property);
(b) for breach of any obligations implied by Section 12 of the
Sale of Goods Act 1979 or Section 2 of the Supply of Goods
and Services Act 1982;
(c) breach of Clause 15 (‘Virus’);
(d) breach of Clause 10 (‘Data Protection’)
(e)breach of any Applicable Law.
11.3 The Supplier will keep Vohkus indemnified in respect of all
loss, damage, injury, costs and expenses which result, directly
or indirectly, from defective Deliverables, fault, workmanship,
design or construction of the Deliverables and the
performance of the Services or for any breach of the
Agreement.
11.4 Without prejudice to Clause 11.1, in no event shall Vohkus be
liable for any indirect, incidental, special or consequential
damages, loss of anticipated savings, loss of business,
economic loss, loss of profit or loss of goodwill.
11.5 Subject to Clause 11.1, Vohkus’ aggregate liability for all loss
or damages under the Purchase Order shall be limited to one
hundred percent (100%) of the charges paid under the the
Purchase Order to which the liability arose.
12 Anti-Bribery and Corruption
12.1 Each party, including its employees, agents, consultants,
contractors and sub-contractors, shall:
(a) act in accordance with all Applicable Laws relating to
bribery and corruption;
(b) not do, or omit to do anything likely to cause the other
party to be in breach of Applicable Laws;
(c) not give, promise, receive or request any bribes (financial
or other advantage), including but not limited to in
relation to any public official;
(d) maintain an effective anti-bribery (including gift and
hospitality) compliance programme, designed to ensure
compliance with Applicable Laws including the monitoring
of compliance and detection of violations; and;
(e) reasonably assist the other party, to comply with
obligations related to bribery and corruption required by
Applicable Laws. Any related costs shall be borne by the
party requesting assistance.
12.2 The Supplier shall promptly notify Vohkus of any allegation of
fraud, bribery or corrupt practices made against the Supplier
in court, arbitration or administrative proceedings, or if any
investigation is commenced in respect of such allegations; at
any time during the term of this Agreement.
12.3 The Supplier hereby indemnifies Vohkus and its directors,
officers, employees, agents and affiliates against all losses
which they may suffer as a result of a breach or deemed
breach of this Clause by the Supplier.
13 Health and Safety
The Supplier shall procure that (a) all its employees and
agents; and (b) those employees and agents of the Supplier’s
current or prospective contractors or sub-contractor comply
with the provisions of any Applicable Laws and regulations,
including health and safety legislation.
14 Licensed Software
14.1 In the event that Vohkus wishes to procure Software
pursuant to a Purchase Order, the Supplier grants to Vohkus
a non-exclusive, irrevocable, perpetual licence to use,
execute, store and display the object code version of the
Software, on behalf of Vohkus and the Deliverable Recipient,
in accordance with the type of Licence selected under the
applicable Purchase Order.
14.2 The Supplier shall be responsible for the transfer of any
applicable end user licence agreements to Vohkus or the
Deliverable Recipient. Where the Supplier fails to transfer or
provide such end user licence agreement, and such
agreement places obligations on Vohkus or the Deliverable
Recipient, neither Vohkus nor the Deliverable Recipient shall
be required to comply with such obligations.
14.3 The Supplier shall indemnify, and keep indemnified, Vohkus
and the Deliverable Recipient from any and all loss Vohkus or
the Deliverable Recipient may incur from their failure to
comply with the terms of the end user licence agreement.
15 Virus
15.1 The Supplier shall ensure that:
(a) It has not introduced a Virus into any products or Software
on Vohkus or the Deliverable Recipient’s network;
(b) It has taken precautions in accordance with industry best
practice to ensure that no Virus is contained in any
products or software including ensuring that industry
leading Virus protection software is kept up to date.
15.2 If the Supplier finds a Virus in any Deliverable which has been
provided under this Agreement, the Supplier shall at its own
cost:
(a) Immediately report its findings to Vohkus and provide all
information reasonably requested by Vohkus on behalf of
the Deliverable Recipient in relation to that Virus;
(b) Promptly take all steps necessary to eliminate the Virus
from the affected Deliverable and prevent re-introduction
of the Virus;
(c) Provide all necessary assistance to Vohkus and the
Deliverable Recipient, to minimise the effects of a Virus
on Vohkus or the Deliverable Recipient’s network;
(d) If the Virus results in a loss of data or has an impact on the
operation of the products and/or Software, the Supplier
shall mitigate the loss, restore the data and ensure the
operation of the affected product, Software and/or the
Deliverable Recipient’s network is remedied.
15.3 The Supplier shall indemnify, and keep indemnified, Vohkus
and the Deliverable Recipient from any and all loss Vohkus or
the Deliverable Recipient may incur from the Supplier’s
failure to comply with the provisions of this Clause 15.3 or the
introduction by the Supplier, directly or indirectly, of any
Virus or Vulnerability in to any Deliverable or Vohkus’, or the
Deliverable Recipient’s, network or infrastructure systems.
16 Intellectual Property Rights
16.1 Each party retains all rights in any Background Materials.
Nothing in this Agreement or use of the other party’s IPR shall
be construed as a transfer or grant of any interest in such
rights.
16.2 All rights, title and interest in any Deliverable created by the
Supplier and/or its personnel and all rights, title and interest
in any Intellectual Property Rights developed hereunder,
excluding third party IPR, are hereby, upon the personnel’s
creation thereof, transferred and assigned to Vohkus or the
Deliverable Recipient.
16.3 The Supplier shall indemnify Vohkus and hold it harmless on
demand, from and against all direct actions, claims, liabilities,
demands, proceedings, costs (including reasonable legal
costs) suffered or incurred by Vohkus arising by reason of
claims that the possession or use of the Supplier’s IPR in
connection with the provision of the Services infringes the IPR
of a third party.
16.4 Without prejudice to Clause 16.3 where any claim causes
Vohkus or the Deliverable Recipient’s quiet enjoyment of
Deliverables or any part thereof to be disrupted or impaired,
the Supplier shall at its own cost and expense and at Vohkus
or the Deliverable Recipient’s option:
(a) procure for the benefit of Vohkus or the Deliverable
Recipient the right to continue to use and exploit the
Deliverable without disruption or impairment;
(b) modify the infringing Deliverable(s) so that it becomes non-
infringing provided that whenever practicable such
modifications are in accordance with the specification
agreed between the Supplier and Vohkus and/or the
Deliverable Recipient and are made in a reasonable time;
or
(c) cancel all outstanding Purchase Orders or Statements of
Work for each such Deliverable(s) that are subject to the
claim and have any infringing Deliverables returned to the
Supplier at the Supplier’s expense. The Supplier shall repay
Vohkus the full price paid for any affected Deliverable, plus
VAT, that is returned or is in, Vohkus’ opinion not usable by
Vohkus or the Deliverable Recipient.
17 Termination
17.1 Vohkus may terminate a Purchase Order at any time with
immediate effect if:
(a) a resolution is passed, or an order is made for the winding
up (or equivalent order in the relevant jurisdiction) of the
Supplier, otherwise than for the purposes of a bona fide
scheme of solvent amalgamation or reconstruction;
(b) the Supplier becomes subject to an administration order;
a liquidator, receiver or administrative receiver or similar
is appointed over any of its property or assets;
(c) The Supplier enters into an arrangement or composition
with its creditors, ceases or threatens to cease to carry on
business, becomes insolvent or ceases to be able to pay
its debts as they fall due;
(d) The Supplier commits a breach under Clause 13 (Anti-
Bribery and Corruption);
(e) If the Supplier is subject to a Change of Control.
17.2 Either Party shall be entitled to terminate the Purchase Order
if the other Party is in material breach of any provision(s) of
this Agreement, which is either (a) not capable of remedy; or
(b) being capable of remedy, has not been remedied within
thirty (30) days after written notice from the other Party.
17.3 Vohkus shall have the right to terminate without cause, and
at any time, the Purchase Order or Statement of Work, by
giving thirty (30) days’ prior written notice to the Supplier.
17.4 On termination of this Agreement, any Purchase Order or any
Statement of Work, the Supplier shall provide, to Vohkus, a
final valid invoice in respect of Deliverables provided on or
prior to the date of termination. Vohkus will pay such an
invoice in accordance with Clause 7 of this Agreement.
17.5 On termination of the Agreement, Purchase Order or
Statement of Work, the Supplier shall immediately deliver to
Vohkus all Deliverables whether or not then complete, and
return all materials, equipment, documentation or items
belonging to Vohkus or the Deliverable Recipient. If the
Supplier fails to do so, then Vohkus 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 the safe keeping of the Deliverable and will not use them
for any purpose not connected with the Agreement.
17.6 Termination of this Agreement shall not affect any rights,
remedies, obligations, or liabilities of the parties.
18 Audit
18.1 The Supplier shall keep full and accurate records (where
applicable) of all processes, personnel, equipment, number
of licences and premises used in performing its obligations in
connection with a Purchase Order (the “Records”) for a
period of six (6) years from their date of production.
18.2 The Supplier shall:
(a) allow Vohkus, its auditors, authorised agents and/or
representatives, access on any Working Day and upon
giving reasonable notice, to such Records (including the
right to make copies thereof) and any equipment or
premises; and
(b) provide all reasonable assistance for the purposes of
auditing Supplier’s compliance with a Purchase Order.
18.3 If any audit or inspection by or on behalf of Vohkus reveals
any non-compliance by the Supplier of its obligations
pursuant to this Agreement and/or the Purchase Order,
Vohkus shall, without prejudice to any other remedies it may
have, require Supplier to:
(a) remedy the cause of such non-compliance as soon as
reasonably practicable;
(b) promptly refund Vohkus all costs and expenses relating to
such audit or inspection (including those of third-party
advisors).
19 Assignment and Sub-Contracting
19.1 Supplier shall not transfer or sub-contract the Purchase Order
without Vohkus’ prior written consent. In the event that
Vohkus permits Supplier to sub-contract any of its obligations
under this Agreement, Supplier shall remain liable for the
performance of its obligations under this Agreement and
Supplier shall procure that the sub-contractor complies with
the obligations of Supplier under this Agreement. Supplier
shall contractually impose terms which are no less onerous,
than those contained in this Agreement, in its contract, with
its permitted sub-contractor(s).
19.2 Vohkus shall be entitled to assign the benefit of this
Agreement and any Purchase Order with written notice to
Supplier (without obtaining Supplier’s prior written consent).
20 Insurance
20.1 Supplier agrees to take out and maintain:
(a) Adequate public liability insurance cover with a reputable
insurance company to a minimum indemnity limit of
£10,000,000 per claim; and
(b) Adequate professional indemnity insurance cover with a
reputable insurance company to a minimum indemnity
limit of £10,000,000 per claim.
and provide Vohkus with evidence of its insurance coverage
upon reasonable request.
21 Force Majeure
Neither party shall be in breach of this Agreement or
otherwise liable for any failure or delay in the performance
of its obligations if such delay or failure results from events,
circumstances or causes beyond its reasonable control (a
Force Majeure Event). The time for performance of such
obligations shall be extended accordingly. If the period of
delay or non-performance continues for 1 month, from the
date the delay or non-performance is first reported, the party
not affected may terminate the Agreement by giving 30 days'
written notice to the affected party.
22 Notices
22.1 Any notice or other document to be served under this
Agreement must be in writing and may be delivered or sent
by prepaid first-class post or courier service.
22.2 Any notice or document shall be deemed served: if delivered,
at the time of delivery; if posted, 48 hours after posting.
23 Non-Solicitation
Supplier undertakes (for itself and for its Affiliates) that it
shall not employ (whether as employee or consultant) solicit
or entice away Vohkus’ employees for the duration of any
Purchase Order and for a period of twelve (12) months after
the performance of the last Purchase Order.
24 Modern Slavery Act
In performing its obligations under this Agreement, Supplier
shall comply with all Applicable Anti-Slavery and Human
Trafficking laws, statutes, regulations and codes from time to
time in force including the Modern Slavery Act 2015. Supplier
shall ensure that any contracts with sub-contractors require
compliance with such laws.
25 General
25.1 A person who is not a Party to this Agreement may not
enforce any of its terms under the Contracts (Rights of Third
Parties) Act 1999.
25.2 These terms and conditions shall be without prejudice to any
condition, warranty (expressed or implied), or any other right
or remedy to which Vohkus is entitled to by virtue of statute
or common law.
25.3 Supplier has been engaged on a non-exclusive basis and
nothing in this Agreement places an obligation on Vohkus to
place a minimum order value or issue any Purchase Orders to
Supplier.
25.4 Vohkus shall not be bound by any variation, waiver of, or
addition to these terms conditions unless agreed in writing
and signed by a duly authorised representative of Vohkus.
25.5 This Agreement shall have precedence over any conditions
appearing on any quotation, acceptance form, delivery form,
invoice or other document or letter emanating from Supplier
and such conditions shall have no effect unless they are
expressly accepted by Vohkus in writing.
25.6 If any provision(s) under this Agreement are deemed or found
to be invalid or unenforceable by a court of competent
jurisdiction, such provisions shall be deemed omitted, all
other provisions shall remain in full force and effect.
26 Governing Law and Jurisdiction
26.1 This Agreement shall be governed by English law and the
parties hereby submit to the exclusive jurisdiction of the
English courts.
Complaints Policy
Introductions
Vohkus aims to provide our valued customers with the best possible customer service experience. If in the unlikely event, you are dissatisfied with your service from us please contact us as soon as possible.
Making a complaint
In the first instance, we highly recommend contacting your Account Manager with details of your complaint, however, you also have the option of contacting the Complaints Team directly by emailing complaints@vohkus.com or by writing to Complaints Team, Vohkus Limited, Centurion House, Barnes Wallis Road, PO15 5TT.
Please supply us with your name, preferred contact method and company name, and state clearly why you want to make a complaint and explain the nature of your complaint.
Response and Resolution Times
We will respond to any complaint within 72 hours of receipt. We aim to resolve all complaints within 28 days.
Escalation
If you do not receive a satisfactory initial response to your complaint by speaking to your Account Manager then please ask for your complaint to be escalated to the Complaints Team.