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