NEC GROUP PURCHASE TERMS

The National Exhibition Centre Limited ("NEC") - Terms and Conditions for the Purchase of Goods and/or Services ("Conditions")

1.   Definitions

In these Conditions, the following definitions apply:

1.1Contract: the contract between NEC and the Supplier for the sale and purchase of Goods and/or Services in accordance with these Conditions;

1.2Deliverables: 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);

1.3Goods: the goods (or any part of them) set out in the Order;

1.4 Order: NEC's order for the supply of Goods and/or Services, as set out in NEC's purchase order form; or, where there is no purchase order form, NEC's acceptance of the Supplier's quotation; or overleaf as the case may be;

1.5 Services: the services, including without limitation the Deliverables, to be provided by the Supplier as set out in the Order or any Service Specification;

1.6 Service Specification: the description or specification for Services agreed in writing by NEC and the Supplier;

1.7 Supplier: the person or firm stated in the Order from whom NEC purchases the Goods and/or Services.

2.  Basis of Contract

2.1 The Order constitutes an offer by NEC to purchase the Goods and/or Services in accordance with these Conditions.

2.2 The Order shall be deemed to be accepted on the earlier of the Supplier issuing a written acceptance of the Order and the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence. NEC may withdraw the offer to purchase at any time prior to the Contract coming into existence.

2.3 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.  For the avoidance of doubt, no terms or conditions endorsed upon, delivered with or contained in the Supplier's quotation, acknowledgement or acceptance of Order, specification or similar document will form part of the Contract.

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.

3.  Supply of Goods

3.1 The Supplier shall ensure that the Goods shall:

      (i)   conform in every respect with their description and any specification, including any related plans and drawings, that is agreed in writing by NEC and the Supplier;

      (ii)  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 NEC, expressly or by implication, and in this respect NEC relies on the Supplier's skill and judgment;

      (iii)  be free from defects in design, materials and workmanship and remain so for 12 months after delivery or such longer period agreed between NEC and the Supplier; and

      (iv) 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 Contract in respect of the Goods.

3.3 NEC shall be entitled to rely on any representation made to NEC by or on behalf of the Supplier concerning the Supplier or any aspect of the Goods.

4.  Delivery of Goods

4.1 The Supplier shall ensure that:

      (i)   the Goods are properly packaged and secured as to enable them to reach their destination in good condition and labelled in accordance with NEC's instructions;

      (ii)  each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

      (iii)  if the Supplier requires NEC to return any packaging material for the Goods to the Supplier, the fact is clearly stated on the delivery note.  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:

      (i)   on the date specified in the Order or, if no such date is specified, then within 5 days of the date of the Order;

      (ii)  to the delivery location as set out in the Order or as instructed by NEC before delivery ("Delivery Location");

      (iii)  during NEC's normal hours of business or as instructed by NEC.

4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.4 Any third party carrier appointed to deliver the Goods shall be deemed to be agent of the Supplier and not of NEC.

4.5 If  for any reason NEC is unable to accept delivery when the Supplier is ready willing and able to deliver, and the date for delivery has passed, at the written request of  NEC the Supplier shall store and keep safe the Goods until delivery is made.

4.6 The Supplier shall not deliver the Goods in instalments without NEC's prior written consent.  Where it is agreed that the Goods are delivered by instalments, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle NEC to the remedies set out in clause 6.

4.7 Title and risk in the Goods shall pass to NEC on completion of delivery.

5.  Supply of Services

5.1 The Supplier shall provide the Services in accordance with the terms of the Contract and shall meet any performance dates for the Services specified in the Order or notified to the Supplier by NEC.

5.2 In providing the Services, the Supplier shall:

(i)   co-operate with NEC in all matters relating to the Services, and comply with all instructions of NEC;

(ii)  perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;

(iii)  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;

(iv) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by NEC;

(v)  provide all equipment, tools, vehicles and such other items as are required to provide the Services;

(vi) 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 NEC, will be free from defects in workmanship, installation and design;

(vii)    obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;

(viii)   observe all health and safety rules and regulations and any other security requirements that apply at any of NEC's premises;

(ix) hold all materials, equipment and tools, drawings, specifications and data supplied by NEC to the Supplier ("NEC Materials") in safe custody at its own risk, maintain NEC Materials in good condition until returned to NEC, and only dispose or use NEC Materials in accordance with NEC's written instructions or authorisation; and

(x)  not do or omit to do anything which may cause NEC to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that NEC may rely or act on the Services.

6.  Remedies

6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, or delivers Goods that do not comply with the undertakings in clause 3.1, then, without limiting any of its other rights or remedies, NEC shall have the right to any one or more of the following remedies, whether or not it has accepted the Goods:

      (i)   to terminate the Contract with immediate effect by giving written notice to the Supplier;

      (ii)  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;

      (iii)  to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;

      (iv) where NEC has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier;

      (v)  to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;

      (v)  to recover from the Supplier any costs incurred by NEC in obtaining substitute goods and/or services from a third party; and

      (vi) to claim damages for any other costs, loss or expenses incurred by NEC which are in any way attributable to the Supplier's failure to comply with its obligations under the Contract.

6.2 NEC's rights under this Contract are in addition to its rights and remedies implied by statute and common law.

7.  Access & Information.NEC shall provide the Supplier with (i) reasonable access at reasonable times to NEC's premises for the purpose of providing the Services; and (ii) such information as the Supplier may reasonably request and NEC considers reasonably necessary for the purpose of providing the Services.

8.  Price and Payment

8.1 The price of the Goods shall be the price set out in the Order (or, if no price is quoted, the price (excluding VAT) set out in the Supplier's published price list in force as at the date the Contract came into existence) and shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by NEC.  No extra charges shall be effective unless agreed in writing and signed by NEC.

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 NEC, 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 The Supplier may invoice NEC on or at any time after completion of delivery of the Goods or provision of the Services in accordance with the Contract. Each invoice shall include such supporting information required by NEC to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.

8.4 NEC shall pay invoiced amounts by the first working day of the third month following the month in which the correctly rendered invoice is received from the Supplier.

8.5 All amounts payable by NEC under the Contract are exclusive of VAT. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to NEC, NEC 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 Contract by the due date for payment, the defaulting party shall pay interest on the overdue amount at the rate of 2% per annum above National Westminster Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. This clause shall not apply to payments that the defaulting party disputes in good faith.

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 NEC to inspect such records at all reasonable times on request.

8.8 NEC may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to NEC against any liability of NEC to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.

9.  Intellectual Property Rights

9.1 In respect of the Goods and any goods that are transferred to NEC as part of the Services 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 NEC, it will have full and unrestricted rights to sell and transfer all such items to NEC.

9.2 The Supplier assigns to NEC, with full title guarantee and free from all third party rights, all copyright, design right and all other intellectual property rights in the products of the Services, including for the avoidance of doubt the Deliverables.

9.3 The Supplier hereby waives or agrees to procure the waiver of any moral rights subsisting in the products of the Services (including the Deliverables).

9.4 The Supplier shall, promptly at NEC's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as NEC may from time to time require for the purpose of securing for NEC the full benefit of the Contract, including all right, title and interest in and to the intellectual property rights assigned to NEC in accordance with clause 9.2.

9.5 All Customer Materials are the exclusive property of NEC.

10.Indemnities -IMPORTANT: THE SUPPLIER IS ADVISED TO READ THIS CLAUSE CAREFULLY

10.1         The Supplier shall keep NEC indemnified against all liabilities, costs, expenses, damages and losses (whether direct, indirect or otherwise and including, but not limited to, 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 NEC as a result of or in connection with:

      (i)   a breach of Contract by the Supplier;

      (ii)  any claim made against NEC for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the supply or use of the Goods, or receipt, use or supply of the Services;

      (iii)  any claim made against NEC by a third party arising out of, or in connection with, the supply of the Goods or provision 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

      (iv) any claim made against NEC by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods.

10.2         This clause 10 shall survive termination of the Contract.

11.Insurance. The Supplier shall at all times 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 Contract, and shall, on NEC'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.

12. Confidential Information. A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products or its services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.  The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

13.Termination

13.1  In addition to any rights NEC may have under these Conditions or at law, NEC shall be entitled to terminate the Contract:

      (i)   in respect of the supply of Services, by giving the Supplier one month's written notice; and

      (ii)  in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier, whereupon the Supplier shall discontinue all work on the Contract.  NEC shall pay to the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

13.2  NEC may terminate the Contract with immediate effect by giving written notice to the Supplier if:

(i)   the Supplier 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;

      (ii) the Supplier 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;

      (iii)  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 Supplier, other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;

      (iv) the Supplier is the subject of a bankruptcy petition or order;

(v)  a creditor or encumbrancer of the Supplier 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;

(vi) 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 the Supplier;

(vii)    a floating charge holder over the Supplier's assets has become entitled to appoint or has appointed an administrative receiver;

      (viii)   a person becomes entitled to appoint a receiver over the Supplier's assets or a receiver is appointed over the Supplier's assets;

      (ix) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2(i) to clause 13.2(viii) inclusive; or

(x)  the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on, all or substantially the whole of its business or the Supplier's financial position deteriorates to such an extent that, in NEC's opinion, the Supplier's capability to adequately fulfil its obligations under the Contract has been put in jeopardy.

13.3  Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.

13.4  On termination of the Contract for any reason, the Supplier shall immediately deliver to NEC all Deliverables whether or not then complete, and return all NEC Materials. If the Supplier fails to do so, then NEC 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.

14.Force Majeure

14.1  Neither party shall be liable to the other for any delay or non-performance of its obligations under the Contract to the extent that such failure results from events, circumstances or causes beyond its reasonable control (excluding any strike of the Supplier's workforce or any other failure in the Supplier's supply chain).

14.2  The Supplier shall use all reasonable endeavours to mitigate the effect of an event of force majeure on the performance of its obligations. If such performance is prevented, hindered or delayed for a continuous period of more than four weeks, NEC may terminate the Contract immediately by giving written notice to the Supplier.  

15. Assignment

15.1  NEC may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.

15.2  The Supplier may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without NEC's prior written consent.

16. Waiver.A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.

17. Severance.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.

18. Notices

18.1         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 clause, and shall be delivered personally, or sent by pre-paid first class post, recorded delivery, commercial courier, fax.

18.2         A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19.1; 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, one business day after transmission.

18.3      The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

19. No partnership or agency.Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

20. Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.

21. Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by NEC.

22. 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.