DATED

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Supply of goods and services agreement

Between

S.M.R. (UK) Ltd

and

A N Other

This agreement is dated 2018

Parties

(1) S.M.R. (UK) Ltd, a company incorporated and registered in England and Wales with company number 03844546 whose registered office is at 10 A 10 B, Norman Way, Severn Bridge Industrial Estate, Portskewett, Caldicot, Gwent, Wales, NP26 5PT (Supplier)

(2) A N Other, a company incorporated and registered in England and Wales with company number 0000000 whose registered office is at ??????????? (Customer)

BACKGROUND

(A) The Supplier carries on the business of selling the Products.

(B) The Customer wishes to buy, and the Supplier wishes to supply, the Products on the terms and conditions set out in this agreement.

Agreed terms

  1. Interpretation
  2. The following definitions and rules of interpretation in this clause apply in this agreement.

Affected Party: has the meaning given in clause 19.2.

Area:

Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Claim: has the meaning given in clause 11.2.

Commencement Date: the date of this agreement.

Confidential Information: has the meaning given in clause 14.1.

Delivery: completion of delivery of Products specified in an Order in accordance with clause 5.2.

Delivery Date: the date specified for delivery of Products specified in an Order in accordance with clause 3.2(c).

Delivery Location: the location specified for delivery of Products specified in an Order in accordance with clause 3.2(c).

Force Majeure Event: has the meaning given in clause 19.1.

Group: in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company.

Holding company: has the meaning given in clause 1.6.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Month: a calendar month.

Order: an order for Products submitted by the Customer in accordance with clause 3.

Order Number: the reference number to be applied to an Order by the Supplier in accordance with clause 3.3.

Products: the products set out in Schedule 1, any other products developed by the Supplier during the Term and, where the context requires, the Products ordered by and supplied to the Customer.

Representatives: has the meaning given in clause 14.2.

Services: means

(a) Technical support in relation to the use and application of the Products, to be provided either via telephone or face to face as the Customer shall reasonably determine;

(b) Training for the staff and agents of the Customer in the use and application of the Products;

(c) The production by the Supplier of a WRAP compliant quality protocol to produce the Products;

(d) An annual audit by the Supplier of the WRAP compliant quality protocol to produce the Products set out in clause (c) above;

(e) Technical support for up to 3 months from the date of this agreement to be given in such form as the Customer may determine acting reasonably, to any local customers of the Customer (including but not limited to Norfolk County Council) to include advise on testing of any Product and support with any machinery and/or production.

Specification: means the specification set out in the Order

Subsidiary: has the meaning given in clause 1.6?

Term: the term of the agreement, as determined in accordance with clause 15.

VAT: value added tax chargeable in the UK.

Year: 1 January to the following 31 December.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement includes the Schedules.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 A reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006 and a company shall be treated, for the purposes only of the membership requirement contained in sections 1159(1)(b) and (c), as a member of another company even if its shares in that other company are registered in the name of (a) another person (or its nominee), whether by way of security or in connection with the taking of security, or (b) its nominee. In the case of a limited liability partnership which is a subsidiary of a company or another limited liability partnership, section 1159 of the Companies Act 2006 shall be amended so that: (a) references in sections 1159(1)(a) and (c) to voting rights are to the members' rights to vote on all or substantially all matters which are decided by a vote of the members of the limited liability partnership; and (b) the reference in section 1159(1)(b) to the right to appoint or remove a majority of its board of directors is to the right to appoint or remove members holding a majority of the voting rights.

1.7 Unless the context otherwise requires, words in the singular shall include the plural and vice versa.

1.8 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.

1.9 This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.

1.10 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.

1.11 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.

1.12 A reference to writing or written excludes fax and email.

1.13 Any obligation in this agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.

1.14 References to a document in agreed form are to that document in the form agreed by the parties and initialled by or on their behalf for identification.

1.15 Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English legal term in that jurisdiction.

1.16 References to clauses and Schedules are to the clauses and Schedules of this agreement; references to paragraphs are to paragraphs of the relevant Schedule.

1.17 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

  1. Supply of the products
  2. During the Term, the Supplier shall supply, and the Customer shall purchase, such quantities of Products as the Customer may order for use with its own customers and their projects under clause 3 in accordance with the terms and conditions of this agreement.
  3. In consideration of the obligations on the part of the Customer in this clause 2, the Supplier undertakes and warrants:

(a) To provide at its sole cost the Services to the Customer during the Term as required by the Customer;

(b) Not to supply any Products or associated services to any other third party in the Area during the Term without prior consent of the customer.

2.3 In consideration of the obligations on the part of the Supplier in this clause 2, the Customer undertakes and warrants to:

(a) Use its reasonable endeavours to promote the sales of the Products;

(b) Not promote any competitive product to the Products in the Area during the Term and for a period of 12 months following the end of this agreement PROVIDED THAT if this agreement shall end as a result of any part of clause 16.1 coming into effect, this restriction shall be treated as having been irrevocably waived.

  1. Orders
  2. When required during the Term, the Customer shall give the Supplier its Order for that month.
  3. Each Order shall:

(a) be confirmed via email if given orally within two business days;

(b) specify the type and quantity of Products ordered, provide site contact name and contact number; and

(c) unless the parties agree that the Customer may specify the date and location after placing the Order specify the Delivery Date by which the Products ordered are to be delivered, and the Delivery Location. If the Delivery Date and/or Delivery Location are to be specified after the placing of an Order, the Customer shall give the Supplier reasonable advance notice of the relevant information.

3.3 The Customer shall assign a Purchase Order Number to each Order generated and notify such Purchase Order Numbers to the Supplier. Each party shall use the relevant Purchase Order Number in all subsequent correspondence relating to the Order.

3.4 The Customer may at any time prior to despatch of the Products amend but not cancel an Order by written notice to the Supplier. If the Customer amends an Order, its liability to the Supplier shall be limited to payment to the Supplier of all costs reasonably incurred by the Supplier in fulfilling the Order up until the date of receipt of the notice of amendment, except that where the amendment results from the Supplier's failure to comply with its obligations under this agreement the Customer shall have no liability to the Supplier in respect of it.

  1. Quality and packing
  2. The Supplier shall manufacture, pack and supply the Products in accordance with generally accepted industry standards and practices that are applicable.
  3. The Products supplied to the Customer by the Supplier under this agreement shall:

(a) conform to the Specification;

(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose made known to the Supplier by the Customer;

(c) be free from defects in design, material and workmanship; and

(d) comply with all applicable statutory and regulatory requirements.

4.3 The Supplier shall ensure that the Products are properly packed and secured in such manner as to enable them to reach their destination in good condition.

4.4 The Supplier shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to supply the Products in accordance with the terms of this agreement.

4.5 The Supplier shall comply with all applicable laws, enactments, orders, regulations and other instruments relating to the packing, packaging, marking, storage, handling, and delivery of the Products.

  1. Delivery
  2. The Supplier shall deliver the Products specified in each Order to the Delivery Location by the Delivery Date. The Supplier shall not deliver an Order more than five Business Days in advance of the Delivery Date without the prior written consent of the Customer.
  3. Delivery of an Order shall be complete on its arrival at the Delivery Location.
  4. The Supplier shall supply Orders delivered by instalments for any order exceeding 30 tonnes but shall use its best endeavours to deliver in as few instalments as reasonably possible. Where Orders are to be delivered by instalments, they may be invoiced and paid for separately. References in this agreement to Orders shall, where applicable, be read as references to instalments.
  5. If an Order is not delivered on the specified Delivery Date, then, without limiting any other right or remedy the Customer may have, the Customer may:

(a) refuse to take any subsequent attempted delivery of the Order;

(b) terminate this agreement with immediate effect;

(c) obtain substitute products from another supplier and recover from the Supplier any costs and expenses reasonably incurred by the Customer in obtaining such substitute products (and shall not be held to be in breach of clause 2.3 b) by so doing) ; and

(d) subject to clause 12, claim damages for any other costs, expenses or losses resulting from the Supplier's failure to deliver the Order on the Delivery Date, provided that the Supplier shall have no liability for any failure or delay in delivering an Order to the extent that such failure or delay is caused by the Customer's failure to comply with its obligations under this agreement.

5.5 Each delivery of Products shall be accompanied by a delivery note from the Supplier showing the Order Number, the date of the Order, the type and quantity of Products included in the Order and, in the case of Products being delivered by instalments, the outstanding balance of Products specified in an Order remaining to be delivered.

5.6 If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact must be clearly stated on the delivery note accompanying the relevant Order, and any such returns shall be at the Supplier's expense.

  1. Acceptance and defective products
  2. The Customer shall not be deemed to have accepted any Products until it has had a reasonable time to inspect them following Delivery, or, in the case of a latent defect in the Products, until a reasonable time after the latent defect has become apparent.
  3. If any Products delivered to the Customer do not comply with clause 4.2, or are otherwise not in conformity with the terms of this agreement, then, without limiting any other right or remedy that the Customer may have, the Customer may reject those Products and:

(a) require the Supplier to repair or replace the rejected Products at the Supplier’s risk and expense within five Business Days of being requested to do so; or

(b) require the Supplier to repay the price of the rejected Products in full (whether or not the Customer has previously required the Supplier to repair or replace the rejected Products); and

(c) claim damages for any other costs, expenses or losses resulting from the Supplier's delivery of Products that do not conform with the terms of this agreement.

6.3 The Customer's rights and remedies under this clause 6 are in addition to the rights and remedies available to it in respect of the statutory conditions relating to description, quality, fitness for purpose and correspondence with sample implied into this agreement by the Sale of Goods Act 1979.

6.4 The terms of this agreement shall apply to any repaired or replacement Products supplied by the Supplier.

6.5 If the Supplier fails to promptly repair or replace rejected Products in accordance with clause 6.2(a), the Customer may, without affecting its rights under clause 6.2(c), obtain substitute products from a third party supplier (and shall not be held to be in breach of clause 2.3 b) by so doing), or have the rejected Products repaired by a third party, and the Supplier shall reimburse the Customer for the costs it incurs in doing so.

  1. Title and risk
  2. The risk in Products delivered to the Customer shall pass to the Customer on Delivery.
  3. Title to Products delivered to the Customer shall pass to the Customer on Delivery.
  4. Terms of payment
  5. The Supplier shall be entitled to invoice the Customer for each Order on or at any time after Delivery. Each invoice shall quote the relevant Order Numbers.
  6. The Customer shall pay invoices in full within 30 days of receipt. Payment shall be made to the bank account nominated in writing by the Supplier.
  7. If a party fails to make any payment due to the other under this agreement by the due date for payment, then, without limiting the other party's remedies under clause 16.1, the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
  8. If the Customer disputes any invoice or other statement of monies due, the Customer shall immediately notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. The Supplier shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. The Supplier's obligations to supply the Products shall not be affected by any payment dispute.
  9. Each party may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the other party under this agreement against any amounts payable by it to the other party under this agreement.
  10. All payments payable to the Supplier or the Customer under this agreement shall become due immediately on its termination. This clause 8.6 is without prejudice to any right to claim for interest under the law or under this agreement.
  11. Insurance
  12. During this agreement and for a period of one year afterwards the Supplier shall maintain in force the following insurance policies with reputable insurance companies:

(a) public liability insurance for not less than £5M million per claim; and