General Terms and Conditions - Purchase
(v25.02.1)
These Conditions are incorporated in full into each Order between Vorboss Limited, a company incorporated in England and Wales (company number 05678571), with registered office 10 Exchange Square, London, United Kingdom, EC2A 2BR (“Vorboss”) and the counterparty detailed in the Order from whom Vorboss purchases the Goods and/or Services (the “Supplier”) (each a “Party” and together “Parties”).
1. DEFINITIONS AND INTERPRETATION
1.1 In these Conditions and each Order, the following terms and expressions shall have the following meanings:
“Affected Party” has the meaning given in Clause 18.1;
“Affiliate” means, in respect of a Party to this Agreement, any company from time to time directly or indirectly (i) Controlling, (ii) Controlled by or (iii) under common Control with, that Party;
“Agreement” means together these Conditions, the Data Processing Terms, the Privacy Policy, the New Supplier Form and any and all Orders, as applicable;
“Business Day” means any day (other than a Saturday or a Sunday or a public holiday in England) on which banks in London are open for general business;
“Charges” means the charges payable by Vorboss to the Supplier in respect of the Services as further described in the relevant Order;
“Confidential Information” means, in relation to a Party, all information not publicly known and which is used in or otherwise relates to that Party’s (or their Affiliates’) businesses, customers or financial or other affairs; or technical systems, know-how or processes; whether or not marked "confidential information", and all other information clearly designated as "confidential information";
“Commencement Date” has the meaning given to it in Clause 2.2 below;
“Conditions” means these terms and conditions as amended from time to time;
“Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and “Controlled” and “Controlling” shall be construed accordingly;
“Data Processing Terms” shall mean the terms located at https://vorboss.com/legal/data-processing-terms-v25-02-1 as updated from time to time;
“Data Controller”, “Data Processor” (and “process” or “processing”, in relation to Personal Data) shall have the meaning set out in the Data Processing Terms;
“Deliverables” means 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 drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);
“Delivery Location” has the meaning given in Clause 4.2b;
“Force Majeure Event” means any act, event or omission beyond the reasonable control of the Affected Party, including but not limited to: acts of God; acts of civil or military authority; national emergencies; fire; flood; catastrophes; wars; insurrections; riots; strikes; lockouts; industrial disputes; malicious damage; damage to or loss of use of telecommunications cables or equipment; and changes in law or regulation;
“Goods” means the goods (or any part of them) set out in the Order;
“Goods Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by Vorboss and the Supplier;
“Insolvency Event” means, in respect of a Party: (i) any step is taken with a view to the winding-up, dissolution or re-organisation of that Party (other than for the purpose of a solvent liquidation or re-organisation); (ii) any step is taken with a view to the appointment of an administrator, liquidator (other than in respect of a solvent liquidation), receiver, administrative receiver or manager in relation to that Party or any of its assets; (iii) the holder of any security interest in relation to any of the assets of that Party takes any step to enforce that security; (iv) any of the assets of that Party are subject to attachment, sequestration, distress execution or any similar process; (v) that Party is or is deemed to be unable to pay its debts as they fall due, admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness; (vi) any step is taken in relation to a composition, compromise, assignment or arrangement with any creditor of that Party; (vii) any step is taken to obtain a moratorium in relation to that Party or any of its indebtedness; or (viii) anything analogous to any of the circumstances, events, steps, legal proceedings or other procedures described in (i) to (vii) above occurs in any jurisdiction;
“IPR” means rights in patents (including utility models), designs, chip topographies, copyright, moral rights, database rights, trade marks, logos, trade and business names, rights to sue for passing off, rights in the nature of unfair competition rights, trade secrets, confidentiality and other proprietary rights including rights to know-how and other technical information (in each case whether registered or unregistered and including applications to register any of the foregoing) and all rights in the nature of any of the foregoing anywhere in the world;
“New Supplier Form” means any document provided by Vorboss to the Supplier: (i) titled “New Supplier Form”; or (ii) requesting or containing the Supplier’s details and referring to these Conditions.
“Order” means a Vorboss Work Order, or any other order for the supply of Goods and/or Services as set out in Vorboss’ written acceptance of the Supplier’s quotation or in Vorboss’ purchase order form;
“Personal Data” shall have the meaning set out in the Data Processing Terms;
“Privacy Policy” means the Privacy Policy located at https://vorboss.com/legal/privacy-policy-170624 as updated from time to time;
“Services” means the services, including any Deliverables, to be provided by the Supplier in accordance with the Services Specification;
“Services Specification” means the description or specification for Services set out in the Order or as agreed in writing by Vorboss and the Supplier;
“Supplier Content” means any software, data, text, audio, video, images or other content that the Supplier runs on the Services, causes to interface with the Services, uploads to the Services, or transfers, processes, uses or stores in connection with the Services;
“Supplier IPR” means IPR owned by or licensed to the Supplier;
“Term” means the term of each Order as set out in the relevant Order;
“Vorboss Group” means Vorboss and its Affiliates;
“Vorboss Materials” has the meaning given in Clause 5.3(i); and
“Vorboss Work Order” means, where applicable, a work order on Vorboss headed paper which is entered into in relation to the supply of Goods and/or Services.
1.2 In construing this Agreement and each Order, unless otherwise expressly specified:
(A) headings and titles are for convenience only and do not affect the interpretation of this Agreement;
(B) any words following the words “include” or “including” shall be interpreted without limitation to the generality of the preceding words;
(C) any reference to a “day” (including within the phrase “Business Day”) shall mean a period of 24 hours running from midnight to midnight;
(D) references to a “month” are to a calendar month; and
(E) references to times are to London (England) times (including as changed to account for daylight saving time), except where expressly stated to the contrary.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by Vorboss to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 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 Agreement shall come into existence (the “Commencement Date”).
2.3 These Conditions apply to all Orders 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 dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. SUPPLY OF GOODS
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Goods Specification;
(b) 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 by Vorboss, expressly or by implication, and in this respect Vorboss relies on the Supplier's skill and judgement;
(c) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Agreement in respect of the Goods.
3.3 Vorboss may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Agreement.
3.4 If following such inspection or testing Vorboss considers that the Goods do not comply or are unlikely to comply with the Supplier's undertakings at Clause 3.1, Vorboss shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 Vorboss may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that:
(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(c) it states clearly on the delivery note any requirement for Vorboss to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
(a) on the date specified in the Order or, if no such date is specified, then within 5 Business Days of the date of the Order;
(b) to Vorboss’ premises as is set out in the Order or as instructed by Vorboss before delivery (“Delivery Location”); and
(c) during Vorboss’ normal hours of business on a Business Day, or as instructed by Vorboss.
4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 If the Supplier:
(a) delivers less than 95% of the quantity of Goods ordered, Vorboss may reject the Goods; or
(b) delivers more than 105% of the quantity of Goods ordered, Vorboss may at its sole discretion reject the Goods or the excess Goods,
(c) and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Vorboss accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without Vorboss’ prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Vorboss to the remedies set out in Clause 6.1.
4.6 Title and risk in the Goods shall pass to Vorboss on completion of delivery in accordance with Clause 4.3.
5. SUPPLY OF SERVICES
5.1 The Supplier shall from the date set out in the Order and for the duration of the Term, supply the Services to Vorboss in accordance with the Agreement and Services Specification.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or that Vorboss notifies to the Supplier and time is of the essence in relation to any of those performance dates.
5.3 In providing the Services, the Supplier shall:
(a) co-operate with Vorboss in all matters relating to the Services, and comply with all instructions of Vorboss;
(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 the Agreement;
(d) ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that Vorboss expressly or impliedly makes known to the Supplier;
(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 Vorboss, will be free from defects in workmanship, installation and design;
(g) obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
(h) observe all health and safety rules and regulations and any other security requirements that apply at any of Vorboss’ premises;
(i) hold all materials, equipment and tools, drawings, specifications and data supplied by Vorboss to the Supplier (“Vorboss Materials”) in safe custody at its own risk, maintain Vorboss Materials in good condition until returned to Vorboss, and not dispose or use Vorboss Materials other than in accordance with Vorboss’ written instructions or authorisation;
(j) not do or omit to do anything which may cause Vorboss to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Vorboss may rely or act on the Services;
(k) comply with any additional obligations as set out in the Service Specification and/or Order; and
(l) the Supplier shall not use or attempt to provide Services fraudulently, or for committing any other illegal or unlawful act.
6. VORBOSS REMEDIES
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, Vorboss, without limiting or affecting other rights or remedies available to it, shall have any one or more of the following rights and remedies:
(a) to terminate the Agreement with immediate effect by giving written notice to the Supplier;
(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
(c) to recover from the Supplier any costs incurred by Vorboss in obtaining substitute goods and/or 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 provided and/or Goods that it has not delivered; and
(e) to claim damages for any additional costs, loss or expenses incurred by Vorboss which are in any way attributable to the Supplier's failure to meet such dates.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in Clause 3.1, then, without limiting or affecting other rights or remedies available to it, Vorboss shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:
(a) to terminate the Agreement with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by Vorboss in obtaining substitute goods from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by Vorboss arising from the Supplier's failure to supply Goods in accordance with Clause 3.1.
6.3 If the Supplier has supplied Services that do not comply with the requirements of Clause 5.3(d) then, without limiting or affecting other rights or remedies available to it, Vorboss shall have one or more of the following rights and remedies:
(a) to terminate the Agreement with immediate effect by giving written notice to the Supplier;
(b) to return the Deliverables to the Supplier at the Supplier's own risk and expense;
(c) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
(d) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
(e) to recover from the Supplier any expenditure incurred by Vorboss in obtaining substitute services or deliverables from a third party; and
(f) to claim damages for any additional costs, loss or expenses incurred by Vorboss arising from the Supplier's failure to comply with Clause 5.3(d).
6.4 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
6.5 Vorboss’ rights and remedies under the Agreement are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
7. VORBOSS’ OBLIGATIONS
Vorboss shall: (a) provide the Supplier with reasonable access at reasonable times to Vorboss’ premises for the purpose of providing the Services; and (b) provide such necessary information for the provision of the Services as the Supplier may reasonably request.
8. CHARGES
8.1 The price for the Goods:
(a) shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier's published price list in force at the Commencement Date; and
(b) shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by Vorboss.
8.2 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 Vorboss, the Charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3 In respect of the Goods, the Supplier shall invoice Vorboss on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice Vorboss on completion of the Services. Each invoice shall include such supporting information required by Vorboss to verify the accuracy of the invoice, including the relevant purchase order number.
8.4 In consideration of the supply of Goods and/or Services by the Supplier, Vorboss 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.
8.5 All amounts payable by Vorboss under the Agreement are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Agreement by the Supplier to Vorboss, Vorboss 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 Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.6 If a Party fails to make any payment due to the other Party under the Agreement by the due date for payment, then the defaulting Party 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 will accrue each date 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 the base rate is below 0%.
8.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow Vorboss to inspect such records at all reasonable times on request.
8.8 Vorboss may at any time, without notice to the Supplier, set off any liability of the Supplier to Vorboss against any liability of Vorboss to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Agreement. Any exercise by Vorboss of its rights under this Clause shall not limit or affect any other rights or remedies available to it under the Agreement or otherwise.
9. IPR
9.1 Save as otherwise expressly set out in the Agreement, neither Party shall receive any right, title or interest in respect of the IPR owned by the other Party.
9.2 The Supplier hereby grants (and shall procure the direct grant of) to Vorboss a full paid-up, royalty-free, non-exclusive, perpetual and irrevocable (other than in accordance with Clause 16) licence to use the Supplier IPR and the Supplier Content solely to the extent necessary to provide Vorboss with Goods and/or Services in accordance with the Agreement.
10. INDEMNITY
10.1 The Supplier shall indemnify Vorboss against all liabilities, costs, expenses, damages and losses (including 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 reasonable professional costs and expenses) suffered or incurred by Vorboss arising out of or in connection with:
(a) any claim made against Vorboss for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Vorboss Materials);
(b) any claim made against Vorboss by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and
(c) any claim made against Vorboss by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services.
10.2 This Clause 10 shall survive termination of the Agreement.
10.3 The Supplier shall ensure that the Supplier Content, and the use of anything provided under the Agreement by the Supplier, its employees, agents and representatives, will not violate any applicable law. The Supplier acknowledges that it is solely responsible for the Supplier Content, including providing appropriate security, protection and backup of the Supplier Content.
11. INSURANCE
11.1 During the term of the Agreement and for at least one year thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Agreement, and shall, on Vorboss’ request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
12. CONFIDENTIALITY
12.1 Subject to Clauses 12.2 and 12.3, each Party undertakes that, in relation to Confidential Information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), the Receiving Party will at all times during the Agreement and for a period of three years after termination or expiry of the Agreement:
(a) keep the Confidential Information confidential and take reasonable precautions to protect it (including, without limitation, all precautions that the Party employs in relation to its own confidential information); and
(b) will not (without the prior written consent of the other Party) use, reverse engineer, copy or disclose to any third party the Confidential Information of the other Party (except for the purposes of the Agreement).
12.2 The Receiving Party may disclose the Confidential Information to its professional adviser(s) or insurers and any of its Affiliates, provided that in each case the Receiving Party will first advise the recipient of its obligation to keep the Confidential Information confidential and ensure that that recipient is bound by confidentiality obligations in respect of the Confidential Information no less onerous than those contained in this Clause 12.
12.3 The obligations in this Clause 12 shall not apply in relation to: (i) information which is or becomes public knowledge other than as a result of a breach of Clause 12.1 or Clause 12.2; (ii) information that the Receiving Party either knew prior to the Disclosing Party's first disclosure of it or received from a third party entitled to disclose the same; (iii) information that the Receiving Party is required to disclose by law, any court of competent jurisdiction, any Government agency or any regulatory body lawfully requesting the same; or (iv) information that the Receiving Party is required to disclose under the rules of any applicable securities exchange.
12.4 The Receiving Party shall only make a disclosure in the circumstances described in Clauses 12.3(iii) or (iv) if the Receiving Party uses all commercially reasonable efforts to, to the extent possible:
(a) limit disclosure and to obtain confidential treatment or a protective order and enable the Disclosing Party to participate in the disclosure (and any court proceeding); and
(b) notify the details of any disclosure to the Disclosing Party as soon as possible (before any disclosure is made, if possible).
12.5 Nothing in this Clause 12 shall prevent Vorboss mentioning to third parties that it receives goods and/or services from the Supplier (without providing details of these goods and/or services) for reference or marketing purposes.
13. COMPLIANCE WITH RELEVANT LAWS
In performing its obligations under the Agreement, the Supplier shall comply with all applicable laws, statues, regulations and codes from time to time in force.
14. DATA PROTECTION
14.1 All Personal Data provided or disclosed to Vorboss for Processing shall be covered by the Data Processing Terms. Vorboss shall be the Data Controller of Personal Data provided to Vorboss in connection with the creation and administration of Supplier’s account (such as usernames, email address and billing information) and all Personal Data provided or disclosed to Vorboss where Vorboss is the Data Controller shall be covered by the Privacy Policy.
14.2 Vorboss does not consent to the Supplier appointing any third party processor of Personal Data under the Agreement.
15. LIMITATION OF LIABILITY
15.1 Nothing in the Agreement shall exclude or limit the liability of any Party for: (i) death and/or personal injury; (ii) fraud and/or fraudulent misrepresentation; or (iii) any other losses to the extent they are not capable of being excluded or limited by law.
15.2 Subject to Clause 15.1, and save for in relation to Vorboss’ liabilities under Clause 8.4, Vorboss shall not be liable to the Supplier in contract, tort (including negligence), misrepresentation or for breach of any duty (including strict liability) or otherwise under or in connection with the Agreement for any: (i) indirect or consequential loss or damage; or (ii) any loss of profits, loss of revenue, loss of business, loss of opportunity, loss of anticipated savings, loss of goodwill, or loss of or damage to data (in each case, whether direct or indirect).
15.3 Subject to Clause 15.1, the maximum aggregate liability of Vorboss in contract, tort (including negligence), misrepresentation, for breach of duty (including strict liability) or otherwise under or in relation to each Order shall be limited to the Charges paid by Vorboss under that Order during the six (6) months immediately preceding the occurrence of the event giving rise to the claim. In addition, Vorboss’ aggregated liability under or in relation to the Agreement shall never exceed the sum equal to the Charges paid by Vorboss under all Orders during the six (6) months immediately preceding the occurrence of the event giving rise to the claim. Nothing in this Clause limits Vorboss’ liabilities under Clause 8.
15.4 Each Party shall take reasonable steps to mitigate its losses incurred in respect of the Agreement.
15.5 Save as expressly set out in this Agreement, neither Party gives any representation or warranty (express or implied) in respect of the subject matter of the Agreement.
16. TERM AND TERMINATION
16.1 Each Order shall come into force on the date of signature of the relevant Order by both Parties and shall continue in force for the Term of that Order, unless terminated earlier in accordance with its terms. These Conditions, and any terms agreed in the New Supplier Form, shall apply so long as any Order is in force.
16.2 Either Party may terminate the Agreement (or any or all of the Orders if there is more than one Order) by written notice to the other Party with immediate effect if the other Party: (i) is in material breach of the Agreement and such material breach has not, if capable of remedy, been remedied within thirty (30) days of receipt by the other Party of written notice requiring such remedy; or (ii) is subject to an Insolvency Event.
16.3 Vorboss may terminate for convenience the Agreement (or any or all of the Orders if there is more than one Order) by providing thirty (30) days’ written notice to the Supplier.
16.4 Vorboss may terminate any Order prior to the Order’s Commencement Date upon written notice. In such circumstances: (i) a refund of all Charges already paid by Vorboss under the Order shall be promptly refunded to Vorboss on request; and (ii) each Party shall carry its own costs and neither Party shall have any further obligations to the other under, or in relation to, the terminated Order(s).
16.5 Termination or expiry of any Order shall not affect the validity or duration of the Conditions or any other Order.
16.6 Termination or expiry of any or all of the Order(s) shall not affect any rights, liabilities or remedies arising under the Agreement prior to such termination.
16.7 Termination or expiry of any or all of the Order(s) shall be without prejudice to any provision which expressly or by implication is intended to survive termination or expiry, including the provisions of Clauses 1, 15, 16.6, this 16.7, 16.3 and 19.10.
17. CONSEQUENCES OF TERMINATION
17.1 On termination of the Agreement, the Supplier shall immediately deliver to Vorboss all Deliverables whether or not then complete, and return all Vorboss Materials. If the Supplier fails to do so, then Vorboss 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 the Agreement.
17.2 Termination or expiry of the Agreement shall not affect the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
17.3 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Agreement shall remain in full force and effect.
18. FORCE MAJEURE
18.1 Neither Party (the “Affected Party”) shall be liable to the other Party for any delay or failure to perform any of its obligations hereunder to the extent such delay or failure is due to a Force Majeure Event, provided that the Affected Party: has used its reasonable endeavours to mitigate the effect of such circumstances and to continue to perform its affected obligations; and shall not be excused performance of its obligations unaffected by the Force Majeure Event.
18.2 The Affected Party shall notify the other Party in writing as soon as reasonably practicable upon the occurrence of a Force Majeure Event and upon the cessation of the Force Majeure Event.
18.3 Without prejudice to Clauses 18.1 and 18.2, where Vorboss is the Affected Party, Vorboss shall use its reasonable endeavours to commence re-performance of the obligations affected by the Force Majeure Event but, subject to Clause 15.1, Vorboss shall not be liable for any losses suffered by the Supplier arising in connection with such Force Majeure Event.
19. GENERAL
19.1 If there is any conflict or inconsistency between the Conditions, the New Supplier Form and/or any Order,
(a) where a Vorboss Work Order has been entered into by the Parties, the terms of the Vorboss Work Order shall prevail, but only in relation to that particular Vorboss Work Order, and the terms of the New Supplier Form shall take precedence over the Conditions; or
(b) in relation to any other Order, the terms of the New Supplier Form shall prevail, followed by the Conditions which shall take precedence over the relevant Order.
19.2 Vorboss may assign, novate, sub-contract or otherwise dispose of any or all of its rights and obligations under any Order to any member of the Vorboss Group without the prior consent of the Supplier. The Supplier shall not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Agreement without the prior written consent of Vorboss (such consent shall not be unreasonably withheld).
19.3 The Parties do not intend that any term of the Agreement should be enforceable, by virtue of the Contracts (Rights of Third Parties) Act 1999, by any person who is not a party to the New Supplier Form or the relevant Order.
19.4 A notice shall only be effective if it is in writing and in the English language. Email (but not any other form of electronic communication) shall be permitted for the giving of a notice. All notices shall be sent to, in the case of Vorboss:
Legal Department
Vorboss Limited
10 Exchange Square, London, United Kingdom, EC2A 2BR
and in the case of the Supplier, to the address or number and for the attention of the individual set out for the Supplier in the New Supplier Form (or, if no New Supplier Form has been agreed, the Order), or as subsequently notified by either Party in accordance with this Clause. Any notice shall be deemed to have been duly given upon the earlier of actual receipt or as follows: (i) if delivered personally/by courier, upon obtaining signature of receipt of delivery; and (ii) if sent by email, at the expiration of two Business Days after the time it was sent (unless a failed delivery report or similar is received by the sender, in which case no delivery will be deemed).
19.5 If any provision of the Agreement is held to be unenforceable or illegal, in whole or in part, such provision or part shall be deemed excluded from the Agreement but the enforceability of the remainder of the Agreement’ terms shall remain unaffected.
19.6 Nothing in the Agreement, and no action taken by Vorboss or the Supplier under the Agreement, shall constitute a partnership, association, joint venture or other co-operative entity between Vorboss and the Supplier.
19.7 The rights, powers and remedies provided in the Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.
19.8 No delay or omission by any Party in exercising any right, power or remedy provided by law or under the Agreement shall: affect that right, power or remedy; operate as a waiver of it; or operate as an affirmation of any or all of the Agreement.
19.9 The single or partial exercise of any right, power or remedy provided by law or under the Agreement shall not unless otherwise expressly stated preclude any other or further exercise of it or the exercise of any other right, power or remedy.
19.10 The Parties shall attempt to resolve any issue or dispute arising out of or relating to this Agreement or any Order (“Dispute”) through discussions between members of each Parties’ senior management. If this does not resolve the Dispute within 10 Business Days, the Parties may proceed in accordance with Clause 19.17.
19.11 In the event that a good-faith Dispute arises as to the amount payable under an Order, Vorboss may withhold all disputed amounts for the duration of the Dispute but shall pay all Charges that are not disputed. Vorboss shall notify the Supplier in writing of any withheld amounts and the reasons for these.
19.12 Nothing in the Agreement shall prevent a Party from taking steps to preserve or enforce its rights (including by way of interlocutory or other interim or immediate relief in a court of competent jurisdiction).
19.13 The Agreement constitutes the whole and only Agreement between the Parties relating to their subject matter and supersede and exclude all prior agreements or arrangements in that regard made between them. Except in the case of fraud, each Party acknowledges that in entering into the Agreement it is not relying upon any pre-contractual statement which is not set out in the Agreement and no Party shall have any right of action against any other Party arising out of or in connection with any pre-contractual statement except to the extent that it is repeated in the Agreement.
19.14 The New Supplier Form and any Order may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission, email attachment or electronic signature, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile, email attachment or electronic signature page were an original thereof.
19.15 Except as set out in these Conditions, no variation of the Agreement, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
19.16 The Agreement shall be governed by and interpreted in accordance with the laws of England.
19.17 The courts of England shall have exclusive jurisdiction to settle any disputes (including non-contractual disputes) arising out of or in connection with the Agreement, and the Parties hereby submit to the exclusive jurisdiction of the English courts.
