Standard Terms of Purchase
OSKA Standard Terms of Purchase
1. Definitions
Certain definitions and interpretation apply to these Terms. These are set out in clause 31 below.
2. Application of these Terms
2.1 These Terms apply to and form part of the Contract between the Supplier and OSKA. They supersede any previously issued terms and Terms of purchase or supply.
2.2 No terms or conditions contained in the Supplier’s quotation, confirmation of order or other document shall form part of the Contract except to the extent that OSKA otherwise agrees in writing.
2.3 No variation of these Terms or to an Order or to the Contract, shall be binding unless expressly agreed in writing and signed on behalf of OSKA. The Supplier shall not make any changes in the design or composition of the Products nor make any substitution for the Products specified in the Order without the prior written authority of OSKA.
2.4 Where the Products are OSKA branded, the Supplier will not make any change to the manufacturing location nor to the packaging of the Products without OSKA’s prior written authority.
2.5 The Supplier will not sub-contract the manufacture or assembly of the Products without the prior written authorisation of OSKA.
2.6 Each Order by OSKA to the Supplier shall be an offer to purchase Products subject to these Terms.
2.7 An Order may be withdrawn or amended by OSKA at any time before acceptance by the Supplier.
2.8 Acceptance of an Order by the Supplier shall take place when it is expressly accepted or by any other conduct of the Supplier which is consistent with acceptance of the Order.
3. Price
3.1 The price for the Products shall be as set out in the Order and (unless otherwise set out in the Order) includes costs of carriage (Price).
3.2 Unless otherwise agreed in writing between the parties, no increase in the Price may be made without at least three (3) months’ notice to OSKA before the proposed price increase is to take effect. The then current Price will continue to apply to Orders for Products placed before the change in Price is implemented pursuant to this clause.
4. Payment
4.1 The Supplier shall invoice OSKA for the Products no sooner than completion of delivery of the Products or, if later, OSKA’s acceptance of the Products.
4.2 OSKA shall pay each validly submitted invoice of the Supplier within 60 days of receipt of invoice.
4.3 VAT shall be charged by the Supplier and paid by OSKA at the then applicable rate.
5. Cancellation
5.1 OSKA shall have the right to cancel the Order for the Products or for any part of the Products which have not yet been delivered to OSKA.
6. Delivery and performance
6.1 The Products shall be delivered by the Supplier to the Location on the date(s) specified in the Order and between the hours of 07.00-17.00 on business days.
6.2 The Products shall be deemed delivered by the Supplier only on completion of unloading of the Products at the Location.
6.3 The Products shall not be delivered by or performed in instalments unless otherwise agreed in writing by OSKA.
6.4 Each delivery of the Products shall be accompanied by a delivery note stating:
6.4.1 the date of the Order and OSKA’s purchase order number;
6.4.2 the product numbers and type and quantity of Products in the consignment; and
6.4.3 any special instructions, handling and other requests.
6.5 The Supplier shall use its best efforts to achieve the KPIs. Failure to achieve the KPIs may amount to a material breach of contract for the purposes of clause 17.1.1.
6.6 Time of delivery is of the essence. If the Supplier fails to deliver any of the Products by the date specified in the Order, OSKA shall (without prejudice to its other rights and remedies) be entitled at OSKA’s sole discretion:
6.6.1 to terminate the Contract in whole or in part; and
6.6.2 to purchase the same or similar Products from a supplier other than the Supplier.
7. Acceptance, rejection and inspection
7.1 OSKA shall not have accepted, or be deemed to have accepted, the Products until the Products have been delivered to or at the Location.
7.2 OSKA shall be entitled to reject any Products which are not in full compliance with the terms and Terms of the Contract. Any rejected Products may be returned to the Supplier by OSKA at the Supplier’s cost and risk.
7.3 The rights of OSKA in this clause 7 are without prejudice to OSKA’s rights under clause 9.
8. Title and risk
8.1 Risk in the Products shall pass to OSKA on delivery.
8.2 Title to the Products shall pass to OSKA on the sooner of: (a) payment by OSKA for the Products; or (b) delivery of the Productsto OSKA.
8.3 The Supplier warrants and represents that it has at the time the Contract is made full, clear and unencumbered title to the Products, and shall hold such title and right to enable it to ensure that OSKA shall acquire a valid, unqualified title to the Products.
9. Warranty
9.1 The Supplier warrants and represents that the Products shall:
9.1.1 conform to any sample, their description and to the Specification;
9.1.2 be free from defects in design, material and workmanship;
9.1.3 be of satisfactory quality within the meaning of the Sale of Products Act 1979; and
9.1.4 be fit for purpose and any purpose held out by the Supplier and as otherwise required to meet OSKA’s needs.
9.2 Without prejudice to clause 9.1, the Supplier shall give and shall pass on any third party warranties relating to the Products and referred to in the Contract.
9.3 The Supplier agrees that the approval by OSKA of any design or Specification provided by the Supplier shall not relieve the Supplier of any of its obligations under this clause 9.
9.4 OSKA may reject any Products that do not comply with clause 9.1 and the Supplier shall, at OSKA’s option, promptly remedy, repair, replace or refund the price of any such Products.
10. Anti-bribery
10.1 For the purposes of this clause 10 the expressions ‘adequate procedures’ and ‘associated with’ shall be construed in accordance with the Bribery Act 2010 and legislation or guidance published under it.
10.2 Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and use all reasonable endeavours to ensure that all of that party’s personnel and subcontractors involved in performing the Contract so comply.
10.3 Without limitation to clause 10.2, neither party shall make or receive any bribe (as defined in the Bribery Act 2010) or other improper payment, or allow any such to be made or received on its behalf, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.
10.4 Each party shall immediately notify the other as soon as it becomes aware of a breach of any of the requirements in this clause 10.
11. Anti-slavery
11.1 The Supplier undertakes, warrants and represents that:
11.1.1 neither the Supplier nor any of its officers, employees, agents or subcontractors has:
(a) committed an offence under the Modern Slavery Act 2015 (a MSA Offence); or
(b) been notified that it is subject to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015; or
(c) is aware of any circumstances within its supply chain that could give rise to an investigation relating to an alleged MSA Offence or prosecution under the Modern Slavery Act 2015;
11.1.2 it shall comply with the Modern Slavery Act 2015 and the Modern Slavery Policy;
11.1.3 it shall notify OSKA immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or sub-contractors have breached or potentially breached any of the Supplier’s obligations under clause 11.1.
12. Indemnity and insurance
12.1 The Supplier shall indemnify, and keep indemnified, OSKA from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by OSKA as a result of or in connection with the Supplier’s breach of any of the Supplier’s obligations under the Contract.
12.2 The Supplier shall have in place contracts of insurance with reputable insurers insuring the Products against the usual risks, including accident, fire and theft, for their full replacement value until the risk in them passes to OSKA. On request, the Suppliershall supply evidence of the maintenance of the insurance and of its terms.
13. Limitation of liability
13.1 The extent of the parties’ liability under or in connection with the Contract (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation) shall be as set out in this clause 13.
13.2 Subject to clause 13.4, OSKA’s total liability shall not exceed the sum of £[1,000,000].
13.3 Subject to clause 13.4, OSKA shall not be liable for consequential, indirect or special losses, nor for any of the following (whether direct or indirect): loss of profit; loss of use; loss of production; loss of contract; loss of opportunity or; harm to reputation or loss of goodwill.
13.4 Notwithstanding any other provision of the Contract, the liability of the parties shall not be limited in any way in respect of death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or any other losses which cannot be excluded or limited by applicable law.
14. Intellectual property rights
14.1 All specifications provided by OSKA and all Intellectual Property Rights in the Products made in accordance with such specifications shall vest in and remain at all times the property of OSKA and such specifications may only be used by the Supplier as necessary to perform the Contract. The Supplier assigns (or shall procure the assignment) to OSKA absolutely, with full title guarantee, all right, title and interest in any such Intellectual Property Rights, and the Supplier shall do all such things and sign all documents necessary in OSKA’s opinion to so vest all such Intellectual Property Rights in OSKA, and to enable OSKA to defend and enforce such Intellectual Property Rights.
15. Confidentiality and announcements
15.1 The Supplier shall keep confidential all Confidential Information of OSKA and subject to clause 15.4 shall only use the same as required to perform the Contract. The provisions of this clause shall not apply to:
15.1.1 any information which was in the public domain at the date of the Contract;
15.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of the Contract or any related agreement;
15.1.3 any information which is independently developed by the Supplier without using information supplied by OSKA; or
15.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of the Contract.
15.2 This clause shall remain in force for a period of five years from the date of the Contract and, if longer, three years after termination of the Contract.
15.3 The Supplier shall not make any public announcement or disclose any information regarding the Contract, except to the extent required by law or regulatory authority.
15.4 To the extent any Confidential Information is Protected Data such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with the provisions of clause 16.
16. Processing of personal data
16.1 The parties agree that OSKA is a Controller and that the Supplier is a Processor for the purposes of processing Protected Datapursuant to this Contract. The Supplier shall, and shall ensure its Sub-Processors shall, at all times comply with all Data Protection Laws in connection with the processing of Protected Data. Nothing in this Contract relieves the Supplier of any responsibilities or liabilities under Data Protection Laws.
16.2 The Supplier shall only process the Protected Data in accordance with clause 16, this Contract and OSKA’s written instructions from time to time except where otherwise required by applicable law (and in such a case shall inform OSKA of that legal requirement before processing, unless applicable law prevents it doing so on important grounds of public interest). The Supplier shall immediately inform OSKA if any instruction relating to the Protected Data infringes or may infringe any Data Protection Law.
16.3 The Supplier shall at all times implement and maintain appropriate technical and organisational measures to protect Protected Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access. The Supplier shall:
16.3.1 not permit any processing of Protected Data by any agent, subcontractor or other third party (except its own employees that are subject to an enforceable obligation of confidence with regards to the Protected Data) without the prior specific written authorisation of that Sub-Processor by OSKA and only then subject to such Terms as OSKA may require;
16.3.2 ensure that access to Protected Data is limited to the authorised persons who need access to it to for the purposes of fulfilling the Contract;
16.3.3 prior to the relevant Sub-Processor carrying out any processing activities in respect of the Protected Data, appoint each Sub-Processor under a binding written contract containing the same obligations as under this clause 16 in respect of Protected Data that is enforceable by the Supplier and ensure each such Sub-Processor complies with all such obligations;
16.3.4 remain fully liable to OSKA under this Agreement for all the acts and omissions of each Sub-Processor as if they were its own; and
16.3.5 ensure that all persons authorised by the Supplier or any Sub-Processor to process Protected Data are reliable and:
(a) adequately trained on compliance with this clause 16 as applicable to the processing;
(b) informed of the confidential nature of the Protected Data and that they must not disclose Protected Data;
(c) subject to a binding and enforceable written contractual obligation to keep the Protected Data confidential; and
(d) provide relevant details and a copy of each agreement with a Sub-Processor to OSKA on request.
16.4 The Supplier shall (at its own cost and expense):
16.4.1 promptly provide such information and assistance (including by taking all appropriate technical and organisational measures) as OSKA may require in relation to the fulfilment of OSKA’s obligations to respond to requests for exercising the Data Subjects’ rights under applicable Data Protection Laws; and
16.4.2 provide such information, co-operation and other assistance to OSKA as OSKA reasonably requires (taking into account the nature of processing and the information available to the Supplier) to ensure compliance with OSKA’s obligations under Data Protection Laws.
16.5 The Supplier shall (at no cost to OSKA) record and refer all requests and communications received from Data Subjects or any Supervisory Authority to OSKA which relate to any Protected Data promptly (and in any event within 3 days of receipt) and shall not respond to any without OSKA’s express written approval and strictly in accordance with OSKA’s instructions unless and to the extent required by law.
16.6 The Supplier shall not process and/or transfer, or otherwise directly or indirectly disclose, any Protected Data in or to countries outside the United Kingdom without the prior written consent of OSKA.
16.7 The Supplier shall (and shall ensure all Sub-Processors shall) promptly make available to OSKA (at the Supplier’s cost) such information as is reasonably required to demonstrate the Supplier’s and OSKA’s compliance with their respective obligations under this clause 16 and the Data Protection Laws, and permit audits by OSKA for this purpose.
16.8 The Supplier shall promptly (and in any event within 24 hours):
16.8.1 notify OSKA if it (or any of its Sub-Processors) suspects or becomes aware of any suspected, actual or threatened occurrence of any Personal Data Breach in respect of any Protected Data; and
16.8.2 provide all information as OSKA requires to report the circumstances referred to in clause 16.8.1 to a Supervisory Authority and to notify affected Data Subjects under Data Protection Laws.
16.9 The Supplier shall (and shall ensure that each of the Sub-Processors shall) without delay (and in any event within 3 days), at OSKA’s written request, either securely delete or securely return all the Protected Data to OSKA in such form as OSKA reasonably requests.
16.10 This clause 16 shall survive termination or expiry of this Contract for any reason.
17. Termination
17.1 OSKA may terminate the Contract at any time by giving notice in writing to the Supplier if:
17.1.1 the Supplier commits a material breach of the Contract and such breach is not remediable or, if remediable, which is not remedied within 14days of receiving written notice of such breach;
17.1.2 any accreditation or other authorisation held by the Supplier is not renewed, is revoked or modified such that the Supplier is no longer able to comply with its obligations under the Contract; or
17.1.3 it does not accept any increase to the Price proposed by the Supplier pursuant to clause 3.2.
17.2 OSKA may terminate the Contract at any time by giving notice in writing to the Supplier if the Supplier:
17.2.1 stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so;
17.2.2 is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if OSKA reasonably believes that to be the case;
17.2.3 becomes the subject of a company voluntary arrangement under the Insolvency Act 1986;
17.2.4 has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income;
17.2.5 has a resolution passed for its winding up;
17.2.6 has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it;
17.2.7 is subject to any procedure for the taking control of its Products that is not withdrawn or discharged within [seven] days of that procedure being commenced;
17.2.8 has a freezing order made against it;
17.2.9 is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title in those items; or
17.2.10 is subject to any events or circumstances analogous to those in clauses 17.2.1 to 17.2.9 in any jurisdiction;
17.3 OSKA may terminate the Contract at any time by giving not less than four weeks’ notice in writing to the Supplier if the Supplierundergoes a change of Control.
17.4 Termination or expiry of the Contract shall not affect any accrued rights and liabilities of OSKA at any time up to the date of termination.
18. Dispute resolution
18.1 Any dispute arising between the parties out of or in connection with the Contract shall be dealt with in accordance with the provisions of this clause 18.
18.2 The dispute resolution process may be initiated at any time by either party serving a notice in writing on the other party that a dispute has arisen. The notice shall include reasonable information as to the nature of the dispute.
18.3 The parties shall use all reasonable endeavours to reach a negotiated resolution through the following procedures:
18.3.1 Within 7 days of service of the notice, the procurement managers of the parties shall meet to discuss the dispute and attempt to resolve it.
18.3.2 If the dispute has not been resolved within 7 days of the first meeting of the procurement managers, then the matter shall be referred to the chief executives (or persons of equivalent seniority). The chief executives shall meet within 7 days to discuss the dispute and attempt to resolve it.
18.4 If the dispute has not been resolved within 14 days of the first meeting of the chief executives then the matter may be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules.
19. Notices
19.1 Any notice given by a party under these Terms shall:
19.1.1 be in writing and in English;
19.1.2 be signed by, or on behalf of, the party giving it (except for notices sent by email); and
19.1.3 be sent to the relevant party at the address set out in the Contract
19.2 Notices may be given, and are deemed received:
19.2.1 by hand: on receipt of a signature at the time of delivery;
19.2.2 by Royal Mail Recorded Signed For post: at 9.00 am on the secondbusiness day after posting; and
19.2.3 by email provided confirmation is sent by first class post on receipt of a delivery or read receipt email from the correct address.
20. Cumulative remedies
The rights and remedies provided in the Contract for OSKA only are cumulative and not exclusive of any rights and remedies provided by law.
21. Entire agreement
21.1 The parties agree that the Contract and any documents entered into pursuant to it constitutes the entire agreement between them and supersedes all previous agreements, understandings and arrangements between them, whether in writing or oral in respect of its subject matter.
21.2 Each party acknowledges that it has not entered into the Contract in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in the Contract. No party shall have any claim for innocent or negligent misrepresentation on the basis of any statement in the Contract.
21.3 Nothing in these Terms purports to limit or exclude any liability for fraud.
22. Assignment
22.1 The Supplier may not assign or encumber any right or obligation under the Contract, in whole or in part, without OSKA’s prior written consent.
22.2 Notwithstanding clause 22.1, the Supplier may perform any of its obligations and exercise any of its rights granted under the Contract through any Affiliate provided that it gives OSKA prior written notice of such subcontracting or assignment including the identity of the relevant Affiliate. The Supplier acknowledges and agrees that any act or omission of its Affiliate in relation to the Supplier’s rights or obligations under the Contract shall be deemed to be an act or omission of the Supplier itself.
23. Set off
OSKA shall be entitled to set-off under the Contract any liability which it has or any sums which it owes to the Supplier under the Contract.
24. No partnership or agency
The parties are independent persons and are not partners, principal and agent or employer and employee and the Contract does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. None of the parties shall have, nor shall represent that they have, any authority to make any commitments on the other party’s behalf.
25. Severance
If any provision of the Contract (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Contract shall not be affected.
26. Waiver
No failure, delay or omission by OSKA in exercising any right, power or remedy provided by law or under the Contract shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
27. Conflicts within contract
If there is a conflict between the terms contained in the Supply Agreement and the terms of the Order, the terms of the Supply Agreement shall prevail.
28. Third party rights
28.1 Except as expressly provided for in clause 28.2 a person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
28.2 Any Affiliate of OSKA shall be entitled under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the provisions of the Contract.
29. Governing law
The Contract and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.
30. Jurisdiction
The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).
31. Definitions and interpretation
31.1 In these Terms:
Affiliate
means any entity that directly or indirectly Controls, is Controlled by or is under common Control with, another entity;
Bribery Laws
means the Bribery Act 2010 and all other applicable UK legislation, statutory instruments and regulations in relation to bribery or corruption;
Confidential Information
means any commercial, financial or technical information, information relating to the Products, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by OSKA;
Contract
means the agreement between the Supplier and OSKA for the sale and purchase of the Products, incorporating these Terms, the Order and any Supply Agreement;
Controller
shall have the meaning given to it in the GDPR;
Data Protection Laws
shall have the meaning given in applicable Data Protection Laws from time to time;
Data Subject
shall have the meaning given to it in the GDPR;
GDPR
means the General Data Protection Regulation EU 2016/679;
Intellectual Property Rights
means trade marks, trade names, copyright, patents, know-how, trade secrets, design rights, domain names, rights in confidential information, rights to sue for passing off, and all similar rights, whether registered or not, including any applications to protect or register such rights to which the relevant party is or may be entitled, and in whichever part of the world existing;
Location
means the address(es) for delivery of the Products as set out in the Order;
KPIs
any key performance indicators agreed between OSKA and the Supplier from time to time;
Modern Slavery Policy
means OSKA’s anti-slavery and human trafficking policy in force and notified to the Supplier from time to time;
Modern Slavery Policy
means OSKA’s anti-slavery and human trafficking policy in force and notified to the Supplier from time to time;
Order
means OSKA’s order for the Products as set out in OSKA’s order form;
OSKA
OSKA Care Limited, whose registered office address is at Edward House, 5 Penner Road, Havant, Hampshire, England, PO9 1QZ;
Personal Data
shall have the meaning given in the applicable Data Protection Laws from time to time;
Personal Data Breach
shall have the meaning given in the applicable Data Protection Laws from time to time;
Price
has the meaning given in clause 3.1;
Processing
has the meaning given in applicable Data Protection Laws from time to time (and related expressions, including process, processing, processed, and processes shall be construed accordingly);
Processor
shall have the meaning given in applicable Data Protection Laws from time to time;
Products
means the products and related accessories and documentation set out in the Order and to be supplied by the Supplier to OSKA;
Protected Data
means Personal Data received from or on behalf of OSKA, or otherwise obtained in connection with the performance of the Supplier’s obligations under this Contract;
Specification
means the description or specification of the Products set out or referred to in the Order; and
Sub-Processor
means any agent, subcontractor or other third party engaged by the Supplier (or by any other Sub-Processor) for carrying out any processing activities in respect of the Protected Data;
Supplier
means the person who sells the Products to OSKA and whose details are set out in the Order;
Supply Agreement
an agreement which may be entered into between OSKA and the Supplier, which sets out additional terms and which incorporates these Terms;
Terms
means OSKA’s terms of purchase for Products set out in this document;
VAT
means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of products.
31.2 In these Terms, unless the context otherwise requires:
31.2.1 any clause, schedule or other headings in these Terms are included for convenience only and shall have no effect on the interpretation of these Terms;
31.2.2 a reference to a ‘party’ means either the Supplier or OSKA and includes that party’s personal representatives, successors and permitted assigns;
31.2.3 a reference to a ‘person’ includes a natural person, corporate or unincorporated body (in each case whether or not having separate legal personality) and that person’s personal representatives, successors and permitted assigns;
31.2.4 words in the singular include the plural and vice versa; and
31.2.5 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form.