Purchase Order Terms and Conditions
TERMS AND CONDITIONS (“Conditions”) governing the sale and/or rental of the goods (the “Goods”) and/or services (the “Services”) identified in the Order (defined below) to CULTURESHOCK MEDIA LIMITED (“Company”), which issues the order set out in the Purchase Order (“Order”) to the person, firm, company or organisation whose name appears in the Order, or who accepts the order (“Supplier”).
A. Terms relating to Purchases Only
1. Delivery and Ownership of Goods
Delivery shall be made at the address identified in the order but property in the Goods shall not pass until the Company has had a reasonable opportunity to inspect the Goods. The Goods shall be at Supplier’s risk until property has passed to Company. The Company may reject any Goods delivered which are not in accordance with the Order, and shall not be deemed to have accepted any Goods until Company has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defects in the Goods have become apparent. Company shall not be obliged to return to Supplier any packaging or packing materials for the Goods, whether or not the relevant Goods are accepted by the Company.
B. Terms relating to Rental Only
Company acknowledges that (as between Supplier and Company) Supplier is the legal owner of the Goods hired by the Company from Supplier. The Company may not sell, loan, assign, pledge, encumber or part possession with such Goods.
3. Period of hire
The period of hire commences when the Goods are delivered to the address for
delivery of Company as indicated overleaf or collected by Company (as the case
may be) and finishes at the earlier of the end of the agreed hire period or when
the Goods are returned to the premises of Supplier or collected by Supplier (as
the case may be). If the period of hire is extended, these Conditions shall continue to apply to the extended period. Any extension to the period of hire, when arranged verbally, shall be confirmed as soon as reasonably practicable in writing. The Goods shall be at Company’s risk during the period of hire.
4. Hire charges
Unless otherwise agreed, Supplier shall invoice for the hire charge weekly and Company shall pay the hire charges within 30 (thirty) days after receipt of each invoice. All other aspects of calculation and payment of the hire charges shall be governed by Condition 6 below.
C. General Terms relating to all Orders (both Purchases and Rental)
5. Basis of Order
The Order shall be deemed to be an offer by the Company to purchase/rent the Goods and/or Services subject to these terms and conditions and such offer shall be accepted when Supplier (either expressly by giving notice of acceptance or impliedly by beginning to fulfil the Order, whether in whole or in part) accepts the offer.
Subject to the condition below, these Conditions shall apply to the exclusion of any other terms and conditions in any other document or other communication (including, without limitation, any terms and conditions on which any quotation has been given to the Company or subject to which the Order is accepted or purported to be accepted by Supplier).
No variations to the Order or these terms and conditions shall be binding unless agreed in writing between authorised representatives of Company and Supplier.
Company enters into this Order on its own behalf and/or on behalf of one or more of its subsidiaries, any ultimate holding company (from time to time) (each as defined by section 1159 of the Companies Act 2006 or any subsequent amendment thereto) and such companies and/or any associated companies (including, without limitation, financiers and distributors of the Production (as defined below)) may enforce the terms of this Order in accordance with the Contracts (Rights of Third Parties) Act 1999.
6. Price / Hire Charges and Terms of Payment
The price / hire charge shall be EITHER as stated in this Order and, unless otherwise
stated, shall be exclusive of any applicable value added tax or other sales tax; and
inclusive of all charges for packaging, packing and delivery of the Goods to Company and
Any duties, imposts or levies (other than value added tax or other sales tax);
as set out on the most recent rate card agreed in writing between Company and Supplier.
No increase in the price / hire charge may be made (whether because of increased material, labour or transportation costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Company in writing.
Unless otherwise expressly agreed in writing and subject (in the case of rentals) to Condition 4 above, payment shall be made within sixty (60) days after the later of the date on which: (a) Company receives Supplier’s invoice; or (b) the Goods are accepted or the performance of the Services is completed (“Payment Due Date”).
If at any time Supplier would (other than for the effect of this Condition) become entitled to statutory interest under the Late Payment of Commercial Debts (Interest) Act 1998, then that right to statutory interest is hereby ousted and Supplier shall instead be entitled to receive interest as provided in the remainder of this Condition. If Company fails to pay any amount payable by it under these terms and conditions on or before the Payment Due Date, the Company shall, subject to written demand by Supplier, pay interest on the overdue amount at the rate of 2% per annum above Lloyds Bank’s base rate, as such rate is publicly quoted
on the Payment Due Date. Interest shall accrue on a monthly basis (accruing first on the date 30 days after the Payment Due Date and every 30 days thereafter) until the day of actual payment.
7. Delays, Surpluses and Shortages
Without prejudice to the Company’s other rights, the Company reserves the right to cancel, without redress by Supplier, either the whole or the unexecuted part of the Order if unexecuted within the time specified in this Order, or schedules issued pursuant to this Order. Supplier shall deliver the Goods and supply the Services by the date or dates specified in the Order or notified to Supplier by Company or, in the absence of a specified date, within a reasonable time. Should Supplier’s failure to deliver on time necessitate deliveries by special transport, all additional transportation charges shall be paid by Supplier. Company reserves the right to return to Supplier at Supplier’s cost and risk any Goods delivered in excess of the quantities specified in this Order, or in excess of schedules issued pursuant to this Order.
In addition to the Company’s statutory and common law rights and without limitation:‐
8.1 the Goods shall:
conform as to quantity, quality and description with the particulars stated in this Order;
be of sound materials and workmanship and free of defects;
be safe and present no risk to persons or property;
be equal in all respects to the samples, patterns or specification provided or given by either Company or Supplier;
be capable of meeting any standard of performance specified in this Order;
be fit for the purpose for which the Goods are commonly intended and, if the purpose for which the Goods are required is made known to Supplier either expressly or impliedly, also be fit for that purpose; and comply with all applicable statutory and other regulatory requirements.
8.2 the Services shall:
be performed in accordance with any and all of the requirements stated in this Order (and Supplier guarantees that Supplier will achieve any and all of the results specified in this Order);
be performed with all reasonable skill, care and diligence; and comply with all applicable statutory and other regulatory requirements.
In addition to Supplier’s statutory and common law obligations and without limitation, Supplier shall indemnify and hold harmless the Company, its parent(s), subsidiaries, licensees, successors, related and affiliated companies and their officers, directors, employees, agents, representatives and assigns (“Company Parties”) against all claims, costs, losses, damages, demands and expenses whatsoever and whether arising in contract, tort or otherwise from:
any defect in the Goods whether such defect is attributable to faulty design (other than a design made, furnished or specified by Company), materials or
workmanship; any infringement or alleged infringement of any copyright, patent, utility model, trade mark, registered design (and any application for registration of any of those things) or other proprietary right by use or rental of the Goods provided that where the Goods are supplied to a specification or design of Company this indemnity shall not apply to the extent that the infringement or alleged infringement arises from such specification or design; any defect in the Services performed by Supplier; and any negligence or wilful misconduct by Supplier.
10. Health and Safety at Work
In addition to Supplier’s statutory and common law obligations and without limitation,
Supplier warrants and represents to the Company that:
Supplier has carried out all statutory and/or regulatory testing and examination and other work necessary to eliminate any risk to health or safety resulting from use of the Goods for any purpose for which the Goods are designed or intended; (without prejudice to all Company’s rights and remedies) where conditions exist in relation to the Goods or the Services under which there will or may be any risk to health or safety, Supplier shall immediately on receipt of this Order, or immediately Supplier becomes aware of such conditions after acceptance of this Order, bring such conditions to the attention of the Company in writing and shall provide free of cost adequate information about such conditions and the safeguards which are necessary to eliminate the risk; where the Goods contain or consist of rotating or moving parts or where there is any risk from explosion or flying parts, Supplier shall provide, fit and bear the cost of suitable guards and/or protective devices to minimise and so far as practicable eliminate any risk to health or safety resulting from the use of the Goods for any purpose for which the Goods are designed or intended; all Goods supplied by Supplier hereunder conform to all applicable regulatory requirements. Supplier shall supply to the Company within twelve (12) hours of request all test reports, batch identification, random sampling, other evidence of safety and other evidence as required by statute and regulations which relate to the manufacture and sale of the Goods before and during their manufacture;
Supplier will take all precautions necessary to ensure that the Services are performed safely and without risk to persons or property and shall provide and bear the cost of all insurances necessary to indemnify and hold harmless Company Parties in respect of any negligence or act or omission on the part of Supplier, its employees, sub‐contractors or agents.
Supplier shall not disclose this Order or its relationship with the Company to any third party or refer to it in any way in any public announcement, press release, advertisement or other form of public statement.
Supplier will not at any time disclose or make use of any of the Company’s information (including, without limitation, information or photographs relating directly or indirectly to the Production or Company’s drawings or specifications, whether patentable or not, and any information contained therein) which becomes known to Supplier as a result of this Order or discussions with the Company concerning this Order.
13. Company’s Property
Supplier shall be responsible for any property of Company Parties which may be issued to Supplier in connection with this Order and shall indemnify and hold harmless Company Parties against any and all loss or damage to such property howsoever arising and whether or not resulting from any negligence or act or omission on the part of Supplier.
Supplier shall clearly mark and catalogue all such property as the property of Company and store the same on Supplier’s premises and Supplier shall submit stock returns thereof as and when requested by the Company. Supplier shall insure all of such property for its full replacement value at Supplier’s cost and shall return the same to the Company at such time and to such locations as may be designated by the Company without charge to the Company.
14. Force Majeure
“Force Majeure Event” means, in relation to any party, act, event or circumstance, the
cause of which is not of such party’s making nor within that party’s reasonable control, including, without limitation, war, fire, flood, foot and mouth disease, explosion, governmental action or proceeding, act of terrorism, injunction, death of a member of the English Royal Family and any official mourning period relating thereto, disruption in transportation or communications, general/nationalised labour dispute, action of elements or other acts of God.
Provided that the party affected acts reasonably, it will be excused from performance
under this Order to the extent that it is delayed, hindered or prevented from utilising or providing the Goods and/or Services for their intended use by reason of a Force Majeure Event, provided that written notice is given to the other party as soon as practicable after the start of the Force Majeure Event.
15. Assignment / Sub‐Contracting
Supplier shall not assign or sub‐contract the performance of this Order either wholly or partially without the prior consent in writing of the Company. The Company shall be permitted to assign its rights and benefit under this Order to any third party without restriction or need of Supplier’s consent.
16. Special Conditions Relating to Equipment and Materials
This Condition shall apply in respect of all equipment and/or materials made or purchased for the manufacture of piece parts to be supplied under this and any
Where in connection with the Order the Company issues to Supplier equipment or materials (“the Company’s Materials”), the ownership of the Company’s Materials shall remain with the Company.
Supplier undertakes at its own expense to keep all the Company’s Materials in good repair and not to use them for any other customers without the Company’s prior consent in writing.
Supplier further undertakes not to sell or dispose of or agree to dispose of any of the Company’s Materials or allow to be created any lien, charge or other encumbrance over the Company’s Materials.
For as long as any of the Company’s Materials shall be in Supplier’s possession, such the Company’s Materials shall be clearly and permanently marked by Supplier as the property of the Company. The Company’s Materials shall be at the risk of Supplier and Supplier shall be fully responsible for all obligations and liabilities in respect of such tools and their operation as though Supplier were the sole legal and beneficial owner thereof.
The Company (and its agents or contractors) shall have the right at any time, on giving reasonable notice, to enter upon the premises of Supplier (with or without vehicles) to inspect or make tests upon any the Company’s Materials and at its discretion to take possession of and remove from the premises of Supplier any of the Company’s Materials.
To the extent that Supplier has or acquires any rights in the copyright in the Goods or any rights in any copyright arising from the performance of the Services, Supplier hereby assigns to the Company the entire copyright and all rights of a similar nature throughout the world with full title guarantee for the full period of copyright and all renewals and extensions thereof and thereafter (insofar as permissible) in perpetuity (” Period”) (in the case of rental , Supplier hereby grants to the Company an irrevocable worldwide royalty‐free licence of such copyright and all rights of a similar nature for the Period). The Company shall have the right to exploit the Goods and/or the products of the Supplier’s Services (as the case may be) in all media throughout the universe without any additional payment to Supplier at the Company’s complete discretion and such Goods and/or the products of the Supplier’s Services shall be deemed to include without limitation artwork, drawings, drafts, designs, sketches, images, illustrations, data, electronic, digitised or computerized information or files, new media, software, object code, source code, on‐line elements, patents, inventions, improvements, discoveries, processes, know‐how, documents, data, printed materials, notes, translations, instructions, other proprietary material, photographs, plates and film, intermediate films, film elements, final films and tools, materials and moulds referred to in Condition 16 above. Supplier hereby warrants that Supplier has the right to assign or license (as the case may be) the rights as provided for above and has obtained all necessary licences, consents and approvals from third parties in order to make such assignment or grant (as the case may be). Supplier further waives all moral rights and similar rights in respect of the Goods and/or products of the Services, and Supplier shall indemnify and hold harmless the Company Parties in respect of any loss, damage, claim, demand or expense incurred by the Company Parties in respect of the use of the Goods and/or the products of the Supplier’s Services (as the case may be). Supplier also agrees not to use or reproduce the subject matter of the Company’s copyright without the Company’s prior approval in writing.
18. Offset of Amounts Due
The Company shall be entitled to off‐set amounts due from it to Supplier with amounts due from Supplier (and/or its subsidiaries or holding company or other subsidiaries of the same holding company as such expressions are defined by Section 1159 of the Companies Act 2006 or any subsequent amendment thereto) to the Company (and/or its subsidiaries or holding company or other subsidiaries of the same holding company as such expressions are similarly defined).
The Company reserves the right to terminate this Order with immediate effect by giving notice to the Supplier, such notice to become effective on the date of receipt. Goods in the process of manufacture or manufactured in accordance with the Company’s delivery requirements may, at the option of the Company, either be completed and delivered and paid for or, alternatively, the Company may pay reasonable compensation in respect of the cost of materials and labour involved in the production of such Goods up to the time of the termination of this Order.
Without prejudice to any other right the Company may have, the Company shall be at liberty to terminate this Order forthwith and without redress if the Supplier:
breaches any of the terms and conditions of this Order; or
becomes Insolvent (that is (a) makes any voluntary arrangement with its creditors or
(being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of a solvent amalgamation or reconstruction) or anything analogous to any of those events under the law of any relevant jurisdiction occurs in relation to Supplier, (b) an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of Supplier, (c) Supplier ceases (or threatens to cease) to carry on business, (d) the financial position of Supplier deteriorates to such an extent that in the opinion of the Company the capability of Supplier adequately to fulfil its obligations under this Order has been placed in jeopardy, or (e) the Company reasonably believes that any of the events set out in this Condition is about to occur in relation to Supplier).
Upon termination of this Order or upon Supplier’s insolvency the Company shall be entitled to the immediate return of the Company’s property held by Supplier pursuant to Condition 13.
Failure by Supplier to perform any of the obligations or to meet any of the requirements of this Order shall entitle the Company at its option either to retain or reject the Goods without prejudice to such other rights as it may have to compensation, damages and any other remedy whatsoever. Supplier agrees that in the event of any default of any of the terms hereof by the Company, Supplier’s only remedy will be an action at law for damages, if any, actually suffered by Supplier and in no event shall Supplier be entitled to terminate or rescind this Order or receive injunctive or other relief, or enjoin or restrain the distribution, exhibition, advertising or other exploitation of any production incorporating the Goods or of any rights granted and assigned hereunder
21. Compliance with Obligations
Failure by the Company to insist on Supplier’s compliance with any of its obligations shall not be construed as a waiver or relinquishment of the Company’s rights to insist upon strict compliance with those or any other obligations at any other time.
22. Data Protection
Supplier acknowledges to the holding and processing of personal data relating to Supplier and/or Supplier’s personnel (“Supplier Data”), by the Company and the Company’s personnel in any form, both within and outside of the European Union, for purposes connected with the relationship hereunder and where necessary to comply with legal obligations. Supplier acknowledges that the Company may make Supplier Data available to legal and regulatory authorities, future employers, potential purchasers of the Company (or any of its assets or business), the Company’s US affiliates, professional advisors and other parties providing products or services to the Company.
Supplier warrants that Supplier has obtained the consent of Supplier’s personnel, or can otherwise justify the disclosure of Supplier’s personnel’s personal data to the Company in accordance with GDPR, any other regulations or instruments relating thereto and any equivalent applicable legislation in any other country (together the “Data Protection Laws”).
The disclosure and processing of Supplier Data pursuant to this Clause 22 may involve the transfer of such personal data outside the European Economic Area including the US and other jurisdictions where data protection regulations may not offer the same protection as those applicable within the European Economic Area, but in such circumstances the Company shall have adequate measures in place to protect the Supplier Data being transferred. the Company hereby informs Supplier that Supplier has certain rights in respect of its personal data and for the personal data of Supplier personnel (save as access, rectification and portability) and that further information about these rights and the Company’s processing of personal data generally can be obtained upon request from the Company.
Supplier acknowledges that Supplier may process limited business contact information regarding the Company’s personnel in the capacity of data controller. Supplier warrants that Supplier and Supplier’s personnel shall comply with the Data Protection Laws in relation to this processing.
23. Compliance with the Bribery Act and the Foreign Corrupt Practices Act
It is the policy of the Company to comply fully with the anti‐corruption laws of the US (including, without limitation, the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78dd‐1 and 78dd‐2, as amended from time to time, (“FCPA”)), the UK (including, without limitation, the Bribery Act 2010, as amended from time to time (“Bribery Act”)) and any other applicable anti‐corruption laws and legislation anywhere in the world (collectively and individually, the “Anti‐Corruption Policy”). Supplier hereby represents and warrants that Supplier is aware of the FCPA and the Bribery Act, which prohibits the bribery of public officials of any nation and has taken no action and will take no action which would be in violation of the FCPA and/or the Bribery Act, nor will Supplier cause the Company Parties to be in violation of the FCPA and/or the Bribery Act. Without limiting the generality of the foregoing, Supplier represents and warrants that (i) Supplier has not and will not directly or indirectly make any payment(s) or give anything of value to any government employee or official with respect to the Production, or any activity related thereto for the purpose of influencing and decision and/or action of such government employee or official in his/her official capacity; (ii) Supplier shall immediately notify the Company if a foreign public official (as that expression is defined in the Bribery Act) becomes an officer or employee of, or other person authorised to bind, Supplier or acquires a direct or indirect interest in Supplier; and (iii) as at the date hereof, Supplier has no foreign public officials as officers, employees, authorised representatives or direct or indirect owners. Any violation of the Anti‐Corruption Policy by Supplier will entitle the Company to immediately terminate this Order. The determination of whether Supplier has violated the Anti‐Corruption Policy will be made by the Company in its sole discretion.
This Order shall be governed by and construed in accordance with the laws of England and Wales and Supplier agrees to submit to the non‐exclusive jurisdiction of the courts of England and Wales.
The headings of these Conditions shall not affect the construction of these Conditions.