1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Charges: the charges payable by Crux for the supply of the Services in accordance with Condition 7.
Commencement Date: has the meaning set out in Condition 2.3.
Conditions: these terms and conditions as amended from time to time in accordance with Condition 14.7.
Contract: the contract between Crux and the Supplier for the supply of Services in accordance with these Conditions.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Disclosing Party: has the meaning set out in Condition 10.1.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and neighbouring and related rights, moral rights trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, topography rights, rights in 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 for and renewals or extensions of 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.
Order: Crux’s order for the supply of Services, as set out in Crux’s purchase order form, or in Crux’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
Receiving Party: has the meaning set out in Condition 10.1.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Specification.
Specification: the description or specification for the Services agreed in writing by Crux and the Supplier or as set out in the Order.
Crux: Crux Product Design Limited registered in England and Wales with company number 4893244.
Crux Materials: has the meaning set out in Condition 4.3(i).
Supplier: the person or firm from whom Crux purchases the Services.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(e) a reference to writing or written includes faxes and e-mails.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by Crux to purchase Services in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing written acceptance of the Order; or
(b) any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence (Commencement Date).
3.1 In the event of conflict between these Conditions and a specific Order the terms of that Order shall prevail.
4.1 The Supplier shall from the Commencement Date or, if later, the date set out in the Order and for the duration of this Contract provide the Services to Crux in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by Crux and time is of the essence in relation to any of those performance dates.
4.3 In providing the Services, the Supplier shall:
(a) co-operate with Crux in all matters relating to the Services, and comply with all instructions of Crux;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract;
(d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by Crux;
(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Crux, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services;
(h) observe all health and safety rules and regulations and any other security requirements that apply at any of Crux’s premises;
(i) hold all materials, equipment and tools, drawings, specifications and data supplied by Crux to the Supplier (Crux Materials) in safe custody at its own risk, maintain the Crux Materials in good condition until returned to Crux, and not dispose or use the Crux Materials other than in accordance with Crux’s written instructions or authorisation;
(j) not do or omit to do anything which may cause Crux to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that Crux may rely or act on the Services;
(k) to comply with any additional obligations as set out in the Specification;
(l) not to deliver any nonconforming product or service without obtaining Crux’s prior written authority; and
(m) retain all records pertinent to the Quality of the service for a period of seven [7] years.
5.1 If the Supplier fails to perform the Services by the applicable dates, Crux shall, without limiting its other rights or remedies, have one or more of the following rights:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by Crux in obtaining substitute services from a third party;
(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not rendered and ; or
(e) to claim damages for any additional costs, loss or expenses incurred by Crux which are in any way attributable to the Supplier’s failure to meet such dates.
5.2 These Conditions shall extend to any substituted or remedial services provided by the Supplier.
5.3 Crux’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6.1 Crux shall:
(a) provide the Supplier with reasonable access at reasonable times to Crux’s premises for the purpose of providing the Services;
(b) provide such necessary information and assistance to the Supplier as the Supplier may reasonably request in writing .
7.1 The Charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by Crux, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.2 The Supplier shall invoice Crux on completion of the Services. Each invoice shall include such supporting information required by Crux to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
7.3 In consideration of the supply of the Services by the Supplier, Crux shall pay the invoiced amounts within 30 days of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
7.4 All amounts payable by Crux under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Crux, Crux shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.
7.5 If Crux fails to make a payment due to the Supplier under the Contract by the due date, then Crux shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 7.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%
7.6 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and shall allow Crux to inspect such records at all reasonable times on request.
7.7 Crux may at any time, without notice to the Supplier, set off any liability of the Supplier to Crux against any liability of Crux to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, Crux may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Crux of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.
8.1 In respect of any goods that are transferred to Crux under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Crux, it will have full and unrestricted rights to transfer all such items to Crux.
8.2 The Supplier assigns to Crux, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Deliverables.
8.3 The Supplier shall obtain waivers of all moral rights in the Deliverables, to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
8.4 The Supplier shall, promptly at Crux’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as Crux may from time to time require for the purpose of securing for Crux the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to Crux in accordance with Condition 8.2.
8.5 All Crux Materials are and will remain the exclusive property of Crux.
9.1 The Supplier shall indemnify Crux against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by Crux arising out of or in connection with:
(a) any claim made against Crux by a third party arising out of, or in connection with, the supply of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
(b) any claim brought against Crux for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or supply of the Services.
9.2 For the duration of the Contract and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on Crux’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance. Indemnity levels shall be a minimum of three times contract value or £1M, whichever is greater.
9.3 This Condition 9 shall survive termination of the Contract.
10.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party f the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
10.2 Each party may disclose the other party’s confidential information as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract
10.4 This Condition 10 shall survive termination of the Contract.
11.1 Crux may terminate the Contract in whole or in part at any time before completion of the Supplier’s obligations under the Contract with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Crux shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
11.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other if:
(a) the other party commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing of the breach;
(b) the other party r suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of the other party ;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the other party other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies or the solvent reconstruction of the other party;
(e) a creditor or encumbrancer of either party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over either party;
(g) a floating charge holder over the assets of either party has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of either party or a receiver is appointed over the assets of either party;
(i) any event occurs, or proceeding is taken, with respect to either party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 11.2(b) to Condition 11.2(h) (inclusive); or
(j) either party suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.
12.1 On termination of the Contract for any reason:
(a) the Supplier shall immediately deliver to Crux all Deliverables whether or not then complete, and return all Crux Materials. If the Supplier fails to do so, then Crux 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 their safe keeping and will not use them for any purpose not connected with this Contract;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13.1 Neither Crux nor the Supplier shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent the Supplier from providing any of the Services for more than twenty 20 Business Days, Crux shall have the right, without limiting its other rights or remedies, to terminate this Contract with immediate effect by giving written notice to the Supplier.
14.1 Assignment and subcontracting:
(a) Crux may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Crux.
14.2 Notices:
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, or sent by pre paid first class post, recorded delivery, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 14.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Condition, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
14.3 Severance:
14.4 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract. Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
14.5 No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.6 Third party rights: A person who is not a party to the Contract shall not have any rights under or in connection with it under the Contract (Rights of Third Parties) Act 1999.
14.7 Variation: Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Crux.
14.8 Entire agreement: The Order and these Conditions shall together represent the entire understanding and constitute the whole agreement between the parties and supersede and extinguish any previous agreement, promises, assurances, warranties and understandings whether oral or written relating to its subject matter The Supplier shall not rely upon any statement or representation made by Crux in agreeing to enter this contract.
14.9 Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.