1 DEFINITIONS AND INTERPRETATION
1.1 In these terms and conditions unless the context requires otherwise the following words have the following meanings:
Applicable Laws: all applicable laws, regulations and industry standards or guidance;
Confidential Information: any know-how, documentation and information, whether commercial, financial, technical, operational or otherwise relating to the business, affairs, customers, suppliers or methods of one party and disclosed to or otherwise obtained by the other party in connection with the Contract;
Contract: has the meaning given in clause 2.1;
Good Industry Practice: the degree of skill, care, diligence, prudence and foresight which would be expected in the provision of goods and/or services similar to the Goods and/or Services;
Goods: the goods or any part of them as set out in the Order;
Insurances: all insurance cover being either required by Applicable Laws and/or being adequate to cover all risks and Losses for which Supplier may have liability under the Contract;
Losses: all actions, awards, costs, claims, damages, losses, demands, expenses, fines, loss of profits, loss of reputation, judgments, penalties and proceedings and any other losses and/or liabilities;
MMCG: means Maria Mallaband Care Group Limited (03135910) and/or any of its group of companies operating Maria Mallaband Care Homes and/or Countrywide Care Homes under common management and whose registered office is at Westcourt, Gelderd Road, Leeds LS126DB;
Notice Period: the period of notice to be given by MMCG to terminate the Contract for convenience which shall be 3 months or such other period (if any) set out in the Order;
Order: means an instruction to purchase, letter of engagement or order issued by an authorised representative of MMCG specifying certain Goods and/or Services to be provided by the Supplier;
Services: the services or any part of them as set out in the Order including, if applicable, any deliverables;
Sites: any premises or care homes owned by, leased to or from which MMCG operates any part of its business or business operations from time to time;
Supplier Personnel: all personnel engaged in the supply of the Goods or the performance of the Services on behalf of Supplier, acting in whatever capacity; In these terms and conditions unless the context indicates otherwise:
1.2 any obligation on a party not to do and/or omit to do something includes an obligation not to allow that thing to be done and/or omitted to be done;
1.3 unless a right or remedy of a party is expressed to be an exclusive right or remedy, the exercise of it by a party is without prejudice to that party’s other rights and remedies;
1.4 any phrase introduced by the words including, includes, in particular or for example or similar shall be construed as illustrative and shall not limit the generality of the related general words;
1.5 reference to any statute or statutory provision includes a reference to the same as from time to time amended, extended, re-enacted or consolidated and all subordinate legislation made pursuant to it; and
1.6 business days shall be all days other than Saturdays, Sundays and public holidays in the part of the United Kingdom in which the Goods are delivered or the Services are performed.
2 BASIS OF CONTRACT
2.1 The issue of Order is an offer by MMCG subject to these terms and conditions and shall be deemed to be accepted on the earlier of (i) the Supplier issuing written acceptance of the Order and (ii) the Supplier doing any act consistent with fulfilling the Order; at which point a contract comes into existence (the “Contract”). If any terms in the Order conflicts with these terms and conditions, the terms set out in the Order shall prevail.
2.2 The Contract shall continue in effect until the expiry date as specified, or if no date is specified then upon delivery of all the Goods and/or performance of the Services unless it is terminated earlier by either of the parties in accordance with the Contract.
2.3 The Supplier will be liable under the Contract for the acts and/or omissions of any agent, employee or sub-contractor as if they were its own acts and/or omissions under the Contract.
2.4 Any purchase of Goods and/or Services by MMCG is for the benefit of any MMCG company is non-exclusive.
3 DELIVERY AND PERFORMANCE
3.1 Unless otherwise agreed in writing by MMCG, Goods will be delivered, and Services will be performed by Supplier at the delivery location and at such dates and times as are specified in the Order.
3.2 Supplier shall supply MMCG with any instructions or other information required to enable MMCG to accept delivery of the Goods and/or performance of the Services.
3.3 If Supplier fails to deliver the Goods and/or perform the Services at the dates and times specified then MMCG shall be entitled to refuse to accept any subsequent attempt at delivery of the Goods and/or performance of the Services.
3.4 MMCG shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
4 QUALITY AND STANDARDS
4.1 Supplier undertakes, represents and warrants that the Goods shall conform in all respects to any standards and requirements stated or agreed between the parties; be of satisfactory quality; comply with the specifications and be of at least equal quality to any samples provided; be fit for the purposes indicated in the Order or as agreed between the parties; comply with Applicable Laws; and not infringe the Intellectual Property Rights or any third party.
4.2 The Supplier undertakes, represents and warrants that it will provide the Services to MMCG in accordance with the Order; supply the Services in accordance with Good Industry Practice; use appropriately qualified and trained Supplier Personnel to perform the Services; keep up-to-date records of all work done as part of the Services; comply with the Policies; and comply with any reasonable request or directions in relation the performance of the Services.
4.3 If any of the Goods and/or Services fail to comply with any of the terms of the Contract, MMCG shall be entitled to reject such Goods and/or Services.
4.4 The Supplier shall transfer or assign to MMCG or otherwise obtain for the benefit of MMCG any guarantee, warranty or other confirmation of quality, title or fitness for purpose given by any manufacturer in respect of the Goods (or part thereof) to the extent that she same is capable of such transfer or assignment to MMCG or otherwise providing such benefit for MMCG.
5 SITE ACCESS
5.1 MMCG shall provide the Supplier with reasonable access to Sites, where applicable. Supplier shall ensure that all Supplier Personnel comply with Policies applicable to individuals given access to Sites.
5.2 Where MMCG reasonably believes any of the Supplier Personnel poses a threat to security, the health and safety of themselves or others, or MMCG’s own compliance with Applicable Laws, the Supplier will remove such person from any Sites, and replace with another person with equivalent training and skills.
6 PRICES AND PAYMENT
6.1 MMCG will pay the Price within 45 days of the month following the date of receipt of a valid and undisputed invoice from Supplier.
6.2 All Prices are inclusive of any costs, taxes, duties and expenses (including insurance, carriage and travel expenses) incurred by Supplier in delivering the Goods and/or performing the Services unless specifically stated otherwise in the Order.
6.3 To be valid all invoices must include: invoice number; date, clear description of the Goods and/or Services, Site the good/services are applicable to, name of the person submitting the order. All invoices must be submitted no later than 90 days of the date of the delivery of the Goods and/or performance of the Services.
6.4 MMCG shall be entitled, but not obliged at any time without notice to set off any liability of Supplier to MMCG against any liability of MMCG to Supplier.
6.5 MMCG may withhold payment against any disputed invoice or any incorrectly submitted invoice in accordance with the Contract. MMCG shall notify Supplier in writing if it disputes any invoice raised (whether in whole or in part) and the parties shall work together to resolve the dispute.
6.6 No increase in the Price may be made (whether on account of increased material labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of MMCG in writing.
7 OWNERSHIP OF AND RISK IN GOODS
7.1 Ownership of the Goods shall pass to MMCG upon delivery to the delivery location identified in the Order.
7.2 Supplier warrants that, at the date of the transfer of ownership, Supplier will have full and unrestricted rights to transfer all such Goods to MMCG.
7.3 Ownership of any Goods rejected by MMCG shall revert to Supplier only when MMCG has recovered in full the Price paid for the relevant rejected Goods together with any costs it has incurred in storing and/or returning the Goods to Supplier.
7.4 Risk in the Goods and of damage to or loss of the Goods shall pass to MMCG upon delivery to MMCG being completed in accordance with the Order.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 All intellectual property rights arising directly from the performance of the Services shall vest in MMCG and all such rights (both existing and future) are assigned by Supplier to MMCG with full title guarantee. Supplier undertakes to execute all documents, make all applications, give assistance and do all things reasonably necessary at any time to vest such Intellectual Property Rights in MMCG.
9.1 The Supplier shall keep in strict confidential all Confidential Information relating to MMCG or the Contract and shall not use and/or disclose the Confidential Information except in the proper performance of the Contract or as may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority.
9.2 The obligations of confidentiality and non-use shall not apply to information already in the Supplier’s possession or which is or becomes generally available to the public through no default and/or omission of the Supplier.
9.3 At MMCG's request and in any event upon termination of the Contract for whatever reason, the Supplier will deliver up, or at MMCG's option destroy, all materials containing the Confidential Information in whatever medium which is in the Supplier’s possession or control except that the Supplier may retain one complete copy solely for archive purposes only.
10 ANTI-BRIBERY AND TRADE SANCTIONS
10.1 Supplier shall have and maintain in place its adequate policies and procedures to comply with Applicable Law, including adequate procedures under the Bribery Act 2010
10.2 The Supplier represents and warrants that (i) no undue financial or other advantage of any kind has been offered or received in connection with the performance of the Contract; and (ii) no foreign public official is an officer or employee of the Supplier or has a direct or indirect interest in the Supplier.
10.3 The Supplier shall notify MMCG: (i) promptly if it becomes aware, or has any suspicion, of any request or demand for any undue financial or other advantage of any kind received by the Supplier or on its behalf in connection with the negotiation, conclusion or performance of any of the Contract; or (ii) immediately if a foreign public officer becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier.
11.1 Supplier will take out and maintain (at its own cost and with insurance companies of reasonable repute) the Insurances during the term of the Contract and for such further period as is necessary to ensure that insurance is provided for all Supplier’s liabilities arising under and/or as a result of the Contract usually covered under the Insurances, irrespective of when any claim is made.
11.2 Supplier shall, on reasonable request, in relation to all the Insurances provide to MMCG (i) copies of all policies relating to the Insurances (including all documents evidencing any amendments, extensions, variations or renewals to such Insurances); and evidence satisfactory to MMCG that the premiums payable in respect of all the Insurances have been paid on time and in full and that the Insurances are in full force and effect.
12.1 Nothing in the Contract shall limit or exclude either party's liability for death or personal injury resulting from negligence; for fraud or fraudulent misrepresentation; for damage suffered by the other party as a result of any breach by the other party of the conditions as to title and quiet enjoyment implied by English law; or for any other liability the exclusion or limitation of which is not permitted by English law.
12.2 Subject to clause 12.1, MMCG’ total liability arising from or in connection with the Contract shall not exceed the Price payable for the Goods and/or Services in accordance with its terms.
13 TERMINATION RIGHTS
13.1 Either party may terminate the Contract with immediate effect if the other party:
13.1.1 is in material breach of any of its obligations under the Contract and, if remediable, such breach has not been remedied within 14 days after receiving written notice of the same;
13.1.2 persistently breaches any one or more terms of the Contract (whether a repeated breach of the same term or a cumulative series of breaches of different terms) in such manner as to be inconsistent with an intention or ability to give effect to the Contract; and/or
13.1.3 is declared or becomes insolvent or bankrupt, has a moratorium declared in respect of any of its indebtedness, enters into administration, receivership, administrative receivership or liquidation or threatens to do any of these things, takes or suffers any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application, the entering into of a board resolution or the giving of any notice) by it or by any other person in respect or any of these circumstances.
13.2 MMCG may terminate the Contract at any time by giving to Supplier written notice equal to the Notice Period.
13.3 MMCG may terminate the Contract with immediate effect by giving Supplier written notice if:
13.3.1 Supplier: has provided misleading or materially incorrect information to MMCG during any tendering or re-tendering process;
13.3.2 is the subject of a Change of Control; or causes (by its actions or omission), or
13.3.3 in MMCG’ reasonable opinion is likely to cause: material disruption to MMCG’ business operations; and/or damage to MMCG’ brand or reputation.
13.4 Any right to terminate the Contract by MMCG (whether under this clause 13 or any other express right in the Contract) may be exercised, at MMCG’ discretion, in respect of the whole or any part of the Contract.
13.5 In no circumstances will Supplier be entitled to terminate the Contract for non-payment by MMCG of any part of the Price or any other sums due where a dispute has arisen under or in connection with the Contract and the amount withheld is proportionate to the sums in dispute or the damages claimed.
14 CONSEQUENCES OF TERMINATION
14.1 Save as provided below, each party's rights, liabilities and obligations under the Contract shall cease upon its termination or expiration. Each party's accrued rights and liabilities and the rights and obligations of each party that are expressly or by implication intended to come into force upon, or remain in force following, the termination or expiration of the Contract shall survive any termination or expiration of the Contract.
14.2 Upon expiration or termination of the Contract for any reason Supplier shall provide reasonable assistance required by MMCG to ensure a smooth handover and/or exit.
15 ASSIGNMENT AND SUBCONTRACTING
15.1 Save as provided below neither Supplier nor MMCG shall assign or transfer the Contract or the benefits or obligations under it without the written consent of the other. Such consent shall not be unreasonably withheld or delayed.
15.2 Notwithstanding clause 15.1, MMCG may assign the Contract to a third party provider of services to any other MMCG company.
15.3 Supplier shall not enter into any sub-contract with any person for the performance of any part of the Contract without the prior written consent of MMCG. Such consent from MMCG shall not in any way relieve Supplier of its obligations for the performance of the Contract.
16.1 No purported variation of the Contract shall take effect unless made in writing, referring to the Contract and signed by an authorised representative of each party.
16.2 Nothing in the Contract is intended to or shall operate to create a partnership, agency or joint venture of any kind between the parties or to authorise either party to act as agent for the other party.
16.3 The invalidity, illegality or unenforceability of any of the provisions of the Contract shall not affect the validity, legality or enforceability of the remaining provisions of the Contract.
16.4 No delay or omission of either party in exercising any right shall operate to impair or be construed as a waiver of such right. No single or partial exercise or non-exercise of any right shall in any circumstances preclude any other or further exercise of such right or the exercise of any other right.
16.5 Any waiver of a breach or default of the terms of the Contract shall not constitute a waiver of any subsequent breach or default.
16.6 The Contract contains the whole agreement between the parties and it supersedes any prior written or oral agreement between them and is not affected by any other promise, representation, warranty, usage, custom or course of dealing.
16.7 All third party rights are excluded and no third party shall have the right to enforce the terms of the Contract. This shall not apply to any person, including an MMCG company, being able to enforce the Contract in addition to MMCG. The rights of any third party to enforce the Contract may be varied and/or extinguished by agreement between the parties without the consent of any such third party.
17 GOVERNING LAW AND JURISDICTION
17.1 The Contract is governed by, and shall be construed in accordance with, English law.
17.2 The courts of England have jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with this and, for these purposes, each party irrevocably submits to the jurisdiction of the courts of England so that any proceedings by Supplier shall be brought in the English courts.
17.3 Nothing in the Contract will prevent MMCG from taking proceedings against Supplier in any other court of competent jurisdiction; and the taking of proceedings in any one or more jurisdictions will not preclude the taking of proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction