Standard Terms & Conditions For The Purchase & Hire Of Goods
Standard Terms & Conditions for the Purchase & Hire of Goods – Davro Site Services Limited T/A Davlav
These terms and conditions apply to all Goods and Services purchased or hired by Davro Site Services Limited, a limited company registered in England and Wales (company number 1689131) whose registered office is at Charles Lake House Claire Causeway, Crossways Business Park, Dartford, Kent, DA2 6QA (referred to as “Davlav” or “we” or “us”) from you the Supplier.
These Conditions apply to all Services you provide. If there is any conflict between these Conditions and any specific terms included in the Order Form, then these Conditions shall apply.
If you do not agree to these Conditions you must cease to provide Services to us. Providing any Services to us, will be deemed as conclusive acceptance of these Conditions.
1. Definition and interpretation
1.1 The following definitions and rules of interpretation apply in these terms.
Anti-Bribery Laws: any and all statutes, statutory instruments, bye-laws, orders, directives, treaties, decrees and laws which relate to anti-bribery and/or anti-corruption, including the Bribery Act;
Bribery Act: means the Bribery Act 2010;
Business Day: means a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales;
Conditions: means these standard terms and conditions of purchase together with any special terms agreed in writing between the Supplier and Davlav;
Contract: means the Order Form and these terms, which together form the contract between you and us for the hire of the Goods;
Confidential Information: means all information in respect of the business of Davlav including information contained in the Order Form, know-how and other matters connected with the Goods and Services, information concerning Davlav’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of Davlav and of such persons, any information marked confidential or which are by their nature clearly confidential and any other information which, if disclosed, will be liable to cause harm to Davlav;
Customer: means a hirer of the Goods or Services from us;
Customer Contract: means a contract between us and a Customer for the hire of the Goods from us;
Customer Equipment: means any equipment belonging to the Customer used by the Supplier in the performance of the Services;
Davlav Equipment: means any equipment belonging to Davlav used by the Supplier in the performance of the Services;
Delivery: means delivery of the Goods as set out in clause 7;
Delivery Date: means the date on and the time at which the delivery of the Goods shall be made as stated on the relevant Order Form;
Delivery Location: has the meaning given in clause 7.1;
Force Majeure Event: means any circumstance not within a party’s reasonable control including, without limitation:
- acts of God, flood, drought, earthquake or other natural disaster;
- epidemic or pandemic;
- terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
- nuclear, chemical or biological contamination or sonic boom;
- any law or any action taken by a government or public authority, including without limitation a lockdown, imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
- collapse of buildings, fire, explosion or accident;
- any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
- non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
- interruption or failure of utility service.
Goods: means the items of equipment listed in the Order Form, all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it, agreed to be purchased or hired by Davlav from the Supplier;
Good Industry Practice: means the exercise of skill, diligence, prudence and foresight as would reasonably and ordinarily be expected from a person with appropriate skill and experience exercising all due care and attention in seeking to comply with its contractual obligations and in compliance with all applicable laws and engaged in the same type of undertaking and under the same or similar circumstances and conditions as those in which the relevant matter arises;
Liability: means liability for any and all damages, claims, proceedings, actions, awards, expenses, costs and any other losses and/or liabilities.
Losses: means any losses, claims, judgements, costs (including costs of enforcement and reasonable and properly incurred legal costs), damages, awards, charges, demands, customs duties taxes, proceedings, penalties, fines, expenses and/or any other liabilities incurred or sustained.
Order: means any purchase order of Davlav for the Goods incorporating the Order Form and these Conditions;
Order Confirmation: has the meaning given in clause 2.4;
Order Form: means the standard Davlav purchase order form detailing each order including pricing, delivery address, Goods and Rental Period, which incorporates these Conditions;
PPE: means personal protective equipment;
Price(s): means the price(s) paid by us for the Goods as set out in the Order Form;
Rental Payments: means the payments made by us for hire of the Goods, as specified in the Order Form;
Rental Period: the period of hire as set out in the Order Form, or as otherwise communicated by us to you;
Services: means all services which you have agreed to provide to Davlav under the Contract as set out in the Order Confirmation, including but not limited to the hiring of Goods to Davlav, the sale of Goods to Davlav, together with any other installation, collection, groundworks, maintenance or consultancy services which you provide or agree to provide to Davlav, which will be subject to these Conditions;
Supplier: means the person from whom Davlav orders the Goods;
Supplier Approval Forms: means the forms which must be completed by any Supplier prior to providing goods or services to Davlav;
Specification: means in relation to the Goods, the technical specifications of those Goods; all preparatory, design and development materials which relate to the Goods; all plans, drawings, data or other information of any description which explains the structure, design, operation, functionality of the Goods; all information of any description which relates to the maintenance and/or support of the Goods;
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
VAT: means value added tax chargeable under the Value Added Tax Act 1994; and
you or your: means the party with whom Davlav is contracting in accordance with these terms, being the Supplier of the Goods.
- A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
- A reference to a party includes its personal representatives, successors and permitted assigns.
- A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
- Headings in these Conditions shall not affect their interpretation.
- Any obligation in these Conditions on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. Basis of Contract
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 law, trade custom, practice or course of dealing.
2.2 If there is any conflict between these Conditions and any specific terms included in the Order Confirmation, then the terms contained in these Conditions shall apply.
Order for Hire of Goods or Services
2.3 Our order for Goods or Services constitutes an offer by us to hire the Goods and Services specified on the Order Form from you in accordance with these Conditions.
2.4 Our order for Goods shall be deemed to be accepted on the earlier of:
- you issuing a written acceptance of the order; and
- you doing any act consistent with fulfilling the order,
(“Order Confirmation”) at which point the Contract shall come into existence.
Order for Purchase of Goods
2.5 Each quotation for the Goods from the Supplier will be deemed to be an offer by the Supplier to sell the Goods in accordance with these Conditions. All quotations provided by the Supplier, including the Price, shall be valid for a period of 20 Business Days from its date of issue. The Contract is only formed when a written acceptance of the quotation is served by Davlav on the Supplier. No contract will exist prior to service of such notice of acceptance.
2.6 Delivery of the Goods will be deemed conclusive evidence of the Supplier’s acceptance of the Terms and Conditions.
2.7 The Supplier may not cancel the Contract. Any proposal by the Supplier to alter the quantity, quality and description of the Goods must be notified to Davlav and approved by Davlav in writing prior to such Goods being despatched.
2.8 Davlav may by reasonable notice in writing to the Supplier at any time prior to delivery of the Goods, change the Delivery Location, Delivery Date, method of shipment or packing, alter the Specification or quantity or volume of Goods and/or Service to be provided. In such circumstances, the Supplier shall use all reasonable endeavours to accommodate such request. If such changes result in an increase in cost of, or time required for, performance of the Contract an equitable adjustment will be made to the Price, Rental Payments or both. Any such claim or adjustment must be approved by Davlav in writing before the Supplier proceeds with such changes. If the Supplier is unable to accommodate the request, the Supplier shall notify Davlav accordingly, whereupon Davlav shall have the right to cancel the Order to which the requested amendment related in whole or in part.
2.9 Subject to Condition 2.8, Davlav is entitled to cancel the Contract in whole or in part by giving written notice to the Supplier not less than 48 hours prior to delivery of the Goods, in which event Davlav’s sole liability shall be to pay to the Supplier a reasonable price for any work already completed by the Supplier.
2.10 Davlav shall have no right to cancel the Contract in whole or in part in relation to Goods which are bespoke or made to Davlav’s own specification.
2.11 All Orders are made subject to the Supplier completing Davlav’s Supplier Approval Forms and Davlav shall not be liable to receive delivery of, or make payment for any Goods if the Supplier fails to complete this obligation.
2.12 The Supplier shall not supply any Goods without a valid Order and Davlav shall not be liable to receive delivery of, or make payment for any Goods without proof of an Order.
3. Supply of the Goods and Services
3.1 You will hire the Goods and Services to us, subject to the following terms:
- You will not, other than in the exercise of your rights under these Conditions or applicable law, interfere with the Customer’s (or our) quiet possession of the Goods;
- You agree that we may hire the Goods to a Customer and you will deliver the Goods and Services to the Customer and collect the Goods from the Customer in accordance with these Conditions and our instructions from time to time;
- You will do nothing to cause us to breach a Customer Contract. In the event that a Customer contacts you directly with regards to the Goods and Services, to off-hire Goods directly through you, or in respect of any other matter relating to the Customer Contract, you shall inform us without delay. We shall not be responsible for any related costs in the event that you fail to or delay in doing so and you shall indemnify us in respect of any administrative costs we incur as a result of you not notifying us immediately if a Customer off-hires Goods directly through you, such costs to be paid to us by you within 14 days of the date of our invoice; and
- You will comply with all applicable laws, statutes, regulations and codes from time to time in force.
3.2 You will sell the Goods to us, subject to the following terms:
- The quantity and description of the Goods will be as set out in the Order and/or in any applicable Specification supplied or advised by Davlav to the Supplier with or before the Order;
- The Supplier will comply with all applicable standards, regulations and other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods;
- Davlav will have the right to inspect and test the Goods at any time prior to delivery by providing notice to the Supplier. The Supplier will not unreasonably refuse any request by Davlav to carry out such inspection and testing and will provide Davlav with all facilities reasonably required;
- Davlav shall be under no obligation to accept or pay for any Goods delivered in excess of the quantity ordered. The risk in any over-delivered Goods shall remain with the Supplier unless they are accepted by Davlav. The Supplier shall indemnify Davlav for any Losses incurred by Davlav as a consequence of over delivery;
- If as the result of such inspection or testing Davlav is not satisfied that the Goods will comply in all respects with the Contract and Davlav so informs the Supplier within 30 days of inspection or testing, the Supplier will take all steps necessary to ensure compliance. Without prejudice to any other rights of Davlav under the Contract, any failure of this obligation by the Supplier will be deemed to be a material breach entitling Davlav to terminate the Contract under Condition 15.2.1;
- Notwithstanding any such inspection or testing, the Supplier will remain fully responsible for the Goods and any such inspection or testing will not diminish or otherwise affect the Supplier’s obligations under the Contract;
- The Supplier acknowledges that precise conformity of the Goods with the Contract is of the essence of the Contract and Davlav will be entitled to reject the Goods or terminate the Contract under Condition 15.2.1 if the Goods are not in conformance with the Contract, however slight the breach may be. Any breach of this condition is deemed to be a material breach;
- In respect of the Goods, the Supplier will maintain and observe quality control and supplier quality assurance standards in accordance with the requirements of Davlav, its customs, and statutory and regulatory bodies;
- The Supplier will maintain detailed quality control and manufacturing records for the period of at least 7 years from the date of supply of the Goods;
- The Supplier shall supply to Davlav spare parts for the Goods in such quantities as Davlav may from time to time require for a reasonable charge, where appropriate, for a period of 7 years from the start of the Contract, provided that Davlav shall at all times be free to obtain any spare parts that may be required from sources other than the Supplier. All warranties and undertakings given by the Supplier under these Conditions shall apply to all spare parts supplied under the Contract by the Supplier or any permitted subcontractors and/or its own suppliers; and
- If during the period specified in Condition 3.2.8 above, the Supplier or any permitted subcontractors and/or its own suppliers discontinue the manufacture and supply of spare parts, the Supplier shall (or shall procure that any permitted subcontractors and/or its own suppliers shall) grant Davlav a non-exclusive, irrevocable, royalty-free, transferable, perpetual licence (including the right to grant sub-licences) to manufacture and use such spare parts and the Suppliers shall promptly deliver and disclose to Davlav all requisite manufacturing details, design, detail drawings, manufacturing procedures, know-how and other technical information for this purpose.
3.3 The Supplier warrants that it has and will continue to have for the duration of the Contract, full and unencumbered title to all the Goods and has and will continue to have the full and unrestricted right, power and authority to hire, sell, transfer and deliver all the Goods to Davlav.
4. Rental Period
4.1 The Rental Period starts on the Delivery Date and shall continue for the period stated in the Order Form unless:
- the Contract is terminated earlier in accordance with these Conditions; or
- we extend the Rental Period.
4.2 We may extend the Rental Period at any time on written notice to you to that effect.
5. Nature, Quality and Standards of the Goods and Services
5.1 You will at all times be responsible for ensuring the nature, quality and standard of all Goods supplied to us and/or our Customer and in particular but without limitation you will:
- ensure that the Goods and Services will conform with its specification, be of satisfactory quality and fit for any purpose held out by you;
- provide the Goods and Services, with the best care, skill and diligence in accordance with best practice in your industry, profession or trade;
- provide the Goods and Services in an economic, efficient and safe manner free from any unreasonable and/or avoidable risk to any person’s health and well-being; and
- ensure that at all times you have and maintain all the licences, permissions, authorisations, consents and permits that you need to carry out your obligations under these terms.
5.2 The Supplier may not deliver the Goods by separate instalments unless agreed in writing by Davlav. If Davlav does agree, the Contract will be construed as a separate Contract in respect of each instalment or stage, and without prejudice to any other right or remedy, Davlav will have the right, but not the obligation, to:
- treat all the Contracts for the total Order as repudiated if the Supplier fails to deliver or perform any instalment or stage; and
- reject any or all of the instalments for the total Order if Davlav is entitled to reject any one instalment.
6.1 The Rental Payments and the Price(s) will be as set out in the Order Form.
6.2 The Rental Payments and the Price(s) will:
- exclude amounts in respect of VAT, which we will additionally be liable to pay to you at the prevailing rate, subject to the receipt of a valid VAT invoice; and
- include all related costs, including delivery.
6.3 No extra charges shall be effective unless agreed in writing with us. Any increases to the Rental Payments or Price(s) for any Goods must be communicated to us at least 30 days prior to the Delivery Date for those Goods.
6.4 Subject to the Supplier performing its obligations in accordance with the terms of the Contract, Davlav shall pay the Rental Payments and the Prices to the Supplier in accordance with this clause 6.
6.5 Davlav shall be entitled to set-off any liability which the Supplier has to it against any liability which it has to the Supplier, whether such liability is present or future, liquidated or unliquidated, under the Contract or any other contract between the parties or other cause of action.
6.6 No payment made by Davlav shall constitute acceptance by Davlav of the Goods or otherwise prejudice any rights or remedies which Davlav may have against the Supplier including the right to recover any amount overpaid or wrongfully paid to the Supplier.
6.7 You may invoice us for the Rental Payments plus VAT at the prevailing rate (if applicable) at the end of the calendar month in which you have collected the Goods in accordance with clause 7.10 or, for hires with a duration of more than one calendar month, at the end of each calendar month of hire. You will ensure that the invoice includes the date of the order, the invoice number, our order number, your VAT registration number, and any supporting documents that we may reasonably require.
6.8 Subject to clause 6.5, we will pay correctly presented and undisputed invoices within 60 days of the end of the month of receipt of the invoice. Any invoice which is submitted without proof of delivery of the Goods will be disputed. Payment shall be made to the bank account nominated in writing by you.
6.9 Where any invoice is disputed, the parties shall enter into good faith discussions to resolve such dispute.
7. Delivery and Collection
7.1 Delivery of the Goods or Services shall be made by you to the address specified by us in the Order Form or as otherwise notified by us from time to time (“Delivery Location”). You must not permit our Customer or any other third party to alter the Delivery Location or other delivery instructions without our express consent, and always subject to clause 7.2.
7.2 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location which shall be carried out by you at your risk. You shall ensure that your operatives are properly trained and present in sufficient numbers to ensure safe delivery without causing injury or damage, wearing appropriate PPE and are at all times polite and courteous to our Customers. You must not let our Customer undertake the unloading or assist you with the unloading. If you breach the provisions of this clause, you shall indemnify us and hold us harmless in respect of any damage, loss or injury claims.
7.3 The Supplier will ensure that:
- the Goods are marked in accordance with Davlav’s instructions and any applicable regulations or requirements of the carrier and properly packed and stored so as to reach their destination in an undamaged condition;
- each delivery is accompanied by a prominently displayed delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of delivery in instalments, the outstanding balance remaining to be delivered;
- before delivery or performance, Davlav is provided in writing with a list by name and description of any harmful or potentially harmful properties in the Goods supplied whether in use or otherwise and thereafter information concerning any changes in such properties. Davlav will rely on the supply of such information from the Supplier in order to satisfy its own obligations under the Health and Safety at Work Act 1974 and any other relevant legislation; and
- Davlav is supplied on delivery of the Goods with all operating and safety instructions, warning notices clearly displayed and other information as may be necessary for their proper use, maintenance and repair for Davlav to accept delivery of the Goods;
7.4 You will complete delivery by the Delivery Date and time shall be of the essence in respect of delivery.
7.5 Davlav reserves the right to mark the Goods immediately on delivery. This is undertaken for the purposes of security and Davlav will not be deemed to have accepted the Goods by reason of this nor will the Supplier be entitled to raise an objection on this ground to any subsequent rejection of the Goods.
7.6 No Goods or Services supplied under the Contract earlier than the Delivery Date or performance, will be accepted or paid for unless Davlav notifies the Supplier in writing of its intention to accept and pay for the same.
7.7 Davlav will not be deemed to have accepted the Goods until it has had sufficient time to inspect them following delivery. Davlav reserves the right to reject any Goods that are faulty or any Goods that do not conform to the quality, standard or description specified in the relevant Order or any relevant Specification. Any Goods that are rejected will be held at the Supplier’s risk and may be returned to the Supplier at the Supplier’s risk and expense.
7.8 The Supplier shall be responsible for any defects and for any non-conformity of Goods against the relevant Order or any relevant Specification. The Supplier shall promptly inform Davlav of any adverse safety or other quality defects affecting the Goods and discovered subsequent to delivery, and of any evidence of which it becomes aware indicating that a safety or quality defect may exist or arise.
7.9 Acceptance shall not prejudice any of Davlav’s other rights in respect of the Goods and Davlav will also have the right to reject the Goods as though they had not been accepted for 7 days after any latent defect in the Goods has become apparent or in respect of any hidden defects (i) which could be observed only after use or close inspection (which inspection may not take place until a time subsequent to actual receipt); or (ii) which may not be apparent or discovered by inspection at the time of delivery, but which may be discovered at a later date.
7.10 You will collect the Goods from the Delivery Location at the end of the Rental Period and in accordance with any instructions provided by us. You will load the Goods on your vehicle on collection and will be responsible for the Goods from the point at which the Goods are made available to you by the Customer for loading onto your vehicle. You shall ensure that your operatives are properly trained and present in sufficient numbers to ensure safe collection without causing injury or damage. You must not let our Customer undertake the loading or assist you with the loading. If you breach the provisions of this clause, you shall indemnify us and hold us harmless in respect of any Losses incurred by us or our Customer.
7.11 You shall carry out Delivery, collections and the Services using vehicles that are suitable and practical given the type and size of Goods to be delivered. You shall notify us in advance if you expect to have any access requirements for the Delivery or collection and you shall indemnify us if we incur any Losses due to your failure to make such notification
7.12 If you are unable to complete Delivery, collection or the Services at the Delivery Location for any reason, you must ensure that your operative notifies Davlav of the issue preventing them from delivering the Services whilst the operative is still at the Delivery Location and ensure that the operative does not leave the Delivery Location until this contact has been made.
8. Title, Risk, and Damage
Goods for Hire
8.1 The Goods shall at all times remain your property, and neither Davlav nor the Customer will have any right, title or interest in or to the Goods (save the right to possession and use of the Goods subject to these Conditions).
8.2 The risk of loss, theft, damage or destruction of the Goods shall pass to the Customer on completion of Delivery, provided that you can show evidence of acceptance of delivery by an authorised signatory (being a person at the Delivery Location who is authorised to accept delivery on the Customer’s behalf, and provides suitable identification), and shall pass back to you at the point that you begin collection in accordance with clause 7.10.
8.3 We will give notice to you in writing or by telephone as soon as possible after becoming aware of any loss, accident or damage to the Goods arising out of or in connection with our hire of the Goods for use by our Customer. When you collect the Goods, you shall inspect the Goods and record any damage or missing items on the collection note which should be signed by you and by the Customer. You will provide us with a copy of such collection note in accordance with clause 8.4 below.
8.4 If you wish to make a claim in respect of any loss of, or damage to Goods, you must submit full details of the claim to us within 48 hours after you have collected the Goods. In the event that you fail to do so, we shall have no Liability for any such damage or loss. Any repair or replacement costs we agree to pay to you in respect of the Goods shall be out of scope of VAT and therefore exclude VAT as permitted by HMRC rules applicable from time to time.
Goods for Sale
8.5 Ownership of, and risk in, the Goods will pass to Davlav following inspection and acceptance by Davlav on delivery that the Goods comply with the requirements of the relevant Order and any relevant Specification.
9.1 You will maintain in force, with a reputable insurer, insurances to cover the liabilities that may arise under or in connection with the Contract, including:
- insurance of the Goods to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident;
- insurance for such amounts as a prudent owner or operator of the Goods would insure for to cover any third party or public liability risks of whatever nature and however arising in connection with the Goods; and
- insurance against such other or further risks relating to the Goods as may be required by law.
9.2 You will, on our request, produce both the insurance certificates giving details of cover and the receipt for the current year’s premium in respect of each insurance for our inspection.
10. Supplier Warranties
10.1 The Supplier acknowledges and agrees that Davlav has entered into the Contract in reliance upon the skill and expertise of the Supplier and any statements and representations made by the Supplier.
10.2 Nothing in this Contract or otherwise shall operate to exclude any warranty, guarantee or condition on the part of the Supplier as to quality, fitness for a particular purpose or any other matter implied by common law statute, custom of the trade or otherwise, all of which guarantees and conditions shall
10.3 In relation to Goods for sale, the Supplier warrants, represents and undertakes to Davlav that at the Delivery Date and for a period not less 12 months, the Goods :
- will be of satisfactory quality within the meaning of the Sale of Goods Act 1979, and fit for any purpose held out by the Supplier or made known to the Supplier either in writing or orally at or prior to or at the time of the Contract being formed;
- will be free from defects in material and workmanship and to the extent that the Specification was not provided by Davlav, free from defects in design;
- will correspond in every respect with any Specifications, drawings, samples or descriptions provided by Davlav;
- will comply with all laws, statutory requirements, regulations and voluntary codes of conduct relating to the Goods and their sale including any health and safety standards and that all appropriate registrations, license and authorisations are obtained in respect of its rights and the performance of its obligations under the Contract; and
- will be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health.
10.4 In relation to the Services, the Supplier warrants, represents and undertakes to Davlav:
- that the Services will be performed by appropriately qualified, trained and experienced personnel with a high standard of skill, care and diligence and in accordance with the Contract;
- that all its personnel, to the extent they enter onto any site owned or controlled by Davlav, will comply with any site rules issued to them by Davlav, including the correct use of appropriate PPE;
- that the Supplier shall be responsible for the conduct and discipline of all its personnel in connection with the Contract and shall indemnify Davlav against any Losses incurred by Davlav arising out of or in connection with the advice given or work undertaken by such personnel; and
- that they will exercise all due care and skill when using any Customer Equipment or Davlav Equipment.
10.5 The Supplier will permit Davlav or its representatives or authorised agents to enter the premises of, and to have access to, all documents and information kept by the Supplier, whether electronically (and in such case in machine-readable form and format) or otherwise, relating to the supply of the Goods, during normal business hours during Business Days on 5 Business Days’ notice in writing, as strictly necessary for the sole purpose of ascertaining the Supplier’s compliance with its obligations under the Contract. Davlav shall only be permitted to access the Supplier’s premises and access documents and information as permitted by this Condition 10.5 once in any rolling 12 month period.
10.6 The Supplier shall, and shall ensure that its officers, employees, agents, sub-contractors and any other persons who perform services for or on behalf of it in connection with this Contract shall:
- not commit any act or omission which causes or could cause it or Davlav to breach, or commit an offence under, Anti-Bribery Laws;
- comply fully with all applicable Anti-Bribery Laws and Davlav’s anti-corruption policy as updated from time to time;
- keep accurate and up to date records showing all payments made and received and all other advantages given and received by it in connection with this Contract and the steps it takes to comply with this clause 10.6, and permit Davlav to inspect those records as required;
- promptly notify Davlav of:
- 10.6.4.1 any request or demand for any financial or other advantage received by it; and
- 10.6.4.2 any financial or other advantage it gives or intends to give whether directly or indirectly in connection with this Contract;
- not post negative reviews or defamatory statements regarding Davlav or the Davlav brand on any social media or any internet site;
- immediately upon written request from Davlav, remove or take down any negative reviews or defamatory statements which the Supplier or any of its officers, employees, agents, sub-contractors and any other persons who perform services for Davlav have made regarding Davlav or the Davlav brand on any social media or any internet site; and
- promptly notify Davlav of any breach of this clause 10.6.
10.7 Davlav may terminate this Contract immediately by giving written notice to that effect to the Supplier if the Supplier is in breach of clause 10.6.
11.1 If the Goods and/or Services are not delivered on the Delivery Date, or do not comply with the warranties in clause 10 above, then, without limiting any of our other rights or remedies, and whether or not the Customer has accepted the Goods and/or Services, we may exercise any one or more of the following remedies:
- terminate the Contract;
- reject the Goods and/or Services (in whole or in part) and you will collect the Goods at your own expense;
- require you to repair or replace the rejected Goods and/or Services immediately, or to provide a full refund of the price of the rejected Goods and/or Services (if paid);
- recover from you any costs incurred by us in obtaining substitute equipment from a third party; and
- claim damages for any other Losses incurred by us which are in any way attributable to your failure to carry out your obligations under these terms, including any costs and charges claimed from us by our Customer, in respect of which you shall indemnify us.
11.2 Clause 11.1 shall also apply to any repaired or replacement Goods and/or Services supplied by you.
11.3 Our rights and remedies under this clause 11 are in addition to its rights and remedies implied by statute and common law.
12. Indemnity and Limitation of Liability
12.1 You shall keep us indemnified against all Losses (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us as a result of or in connection with:
- any claim made against us by a third party (including a Customer) for death, personal injury or damage to property arising out of or in connection with the Goods;
- any amounts paid as settlement or compensation to a Customer, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by you, your employees, agents or subcontractors;
- any claim made against us by a third party (including a Customer) arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance by you, your employees, agents or subcontractors;
- any damage caused by your negligence or improper use of the Customer Equipment or Davlav Equipment; and
- any claim made or any action taken against us or fines imposed on us or any reputational damage we suffer arising directly or indirectly through your breach of clause 13.
12.2 This clause 11 shall survive termination of the Contract.
12.3 Our maximum aggregate liability for breach of a Contract, whether arising in contract, tort (including negligence), and misrepresentation or otherwise, shall in no circumstances exceed the net book value of the Goods concerned.
13. Data Protection
13.1 For the purposes of this clause 13, “Personal Data” shall have the meaning given to it in the UK Data Protection Legislation.
13.2 You will use any Personal Data provided to you by us, or by the Customer (“Customer Personal Data”) only for the purposes of the delivery of the Goods to the Customer and shall not use it for any other purpose.
13.3 You will comply with the UK Data Protection Legislation at all times when processing Customer Personal Data.
13.4 You shall notify us immediately on discovery of any security breach concerning Customer Personal Data or any complaint from the Customer or investigation from the Information Commissioner’s Office concerning the processing of Personal Data.
14.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 14.2.
14.2 Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Clause 14; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
14.3 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
15.1 We may terminate an order for Goods in whole or in part at any time before Delivery with immediate effect by giving you written or oral notice.
15.2 Without affecting any other right or remedy available to us and without prejudice to the generality of Clause 15.1, we may terminate a Contract with immediate effect by giving written notice to you if:
- you commit a material breach of these terms;
- a Customer terminates their contract with us for any reason;
- you suspend, or threaten to suspend, payment of your debts or are unable to pay your debts as they fall due or admit inability to pay your debts or are deemed unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986;
- you commence negotiations with all or any class of your creditors with a view to rescheduling any of your debts, or make a proposal for or enter into any compromise or arrangement with your creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with your winding up;
- 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 you;
- the holder of a qualifying floating charge over your assets has become entitled to appoint or has appointed an administrative receiver;
- you suspend or cease, or threaten to suspend or cease, carrying on all or a substantial part of your business; or
- you fail to comply with all applicable laws, statutes, regulations and codes including but not limited to the Bribery Act 2010, the Modern Slavery Act 2015, the Criminal Finances Act 2017 (anti-facilitation of tax evasion) and the General Data Protection Regulation, or if we have reasonable grounds to believe that you (or your associated persons, agents or subcontractors) do not have adequate policies and procedures in place to comply with such legislation, regulations and codes and to evidence good and safe business practice.
15.3 Termination of a Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
15.4 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
16. Force Majeure
16.1 Davlav shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure results from a Force Majeure Event.
16.2 If the period of delay or non-performance continues for more than 3 weeks, Davlav may terminate the Contract immediately by giving written notice to the Customer.
17. Assignment and Other Dealings
17.1 You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under a Contract without our prior written consent nor source Goods from, or procure that orders are fulfilled by, your third party providers without our prior written consent.
17.2 Without affecting any other right or remedy available to us, in the event that you breach this clause 17, we shall be entitled to refuse to pay for that specific order.
No variation of the Contract or these Conditions or of any of the documents referred to in them shall be valid unless it is in writing and signed by or on behalf of each of the parties.
19.1 A waiver of any right under the Contract or law is only effective if it is in writing and it applies only to the circumstances for which it is given. 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.
19.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
20.1 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.
20.2 If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Third party rights
No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
22. No partnership or agency
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between 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.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office; or
(ii) sent by email to Davlav at firstname.lastname@example.org.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 21(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24. Entire agreement
24.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
25. Governing law and jurisdiction
25.1 The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
25.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.