Greengage Lighting Ltd hereby appoints Supplier to supply specific Products/Software/Services and they hereby accept such appointment, in each case, subject to the terms and conditions of this agreement.
Greengage Lighting Limited, incorporated and registered in England and Wales with company number 6573320 whose registered office is at c/o Gateley LLP, 112 Edmund St, Birmingham, B3 2HJ (“Greengage”); and Supplier.
This agreement, together with the Confidentiality Agreement (Non-Disclosure Agreement – NDA) constitutes the whole agreement and supersedes all previous agreements (whether written or oral) between the parties. Confidential Information means all information disclosed including, without limitation, any information concerning the business affairs, customers, clients, suppliers, products, operations, processes, plans or intentions, know-how, design rights, trade secrets and/or market opportunities of a party, product features, technical information, electrical and optimum specification and working environment instructions.
Supplier hereby undertake and agree that at all times during the term they shall:
Supply each of the Products so that they conform with the relevant Manufacturing Build Documentation /Statement of Work and are of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose expressly advised by Greengage as being a purpose of a product.
Supplier quotation and related Purchase Order(s) placed by Greengage, may be deemed to constitute the Statement of Work.
Inform Greengage immediately of any changes in component design, manufacturing/installation process, manufacturing equipment, software platform;
Employ a sufficient number of suitably qualified personnel to ensure the proper fulfilment of the Suppliers obligations under this agreement;
Inform Greengage immediately of any change of Control of the Supplier and of any change in its organisation or method of doing business which might affect the performance of the Suppliers duties in this agreement in any way.
PURCHASE ORDER PLACEMENT and ORDER FULFILLMENT
As required Greengage shall provide Supplier with a Purchase Order for request for materials that shall contain:
- Customer part number and description, Quantity, Requested Delivery Date.
- Order routing information, including destination and freight details. If information is not available at the time of PO placement Greengage must provide the information by no later than one week prior to the earliest expected delivery date.
Supplier to provide written acknowledgement within 5 days of receipt of PO. Greengage to be advised of any schedule changes (e.g. slippage) – stating the reason for rejecting or requirement to modify the Purchase Order.
Supplier will procure materials from approved vendors stated in the specification documentation. Supplier will not deviate from approved vendors without prior written approval from Greengage.
Supplier to ensure that all products are properly packed and secured in such manner as to enable them to reach their destination in good condition;
Supplier to provide Greengage with a delivery note and invoice in respect of each shipment of Products, delivery note to include all relevant details in respect of the delivery, including (without limitation) a description of the Products being delivered and the quantity of each Product.
If requested by Greengage, Supplier to supply a full cost breakdown for each product it manufactures, including but not limited to, details of materials, labour, scrap allowance, factory and machine overheads.
Supplier will implement and maintain manufacturing quality standards, control procedures and documentation as may be agreed with Greengage in writing from time to time, including (but not limited to) Work Instructions, Manufacturing Control Plans, Process Risk Assessments and Process Failure Modes Effect Analysis (PFMEA);
Greengage shall have the right to enter the manufacturer’s premises on reasonable notice to:
- Inspect the manufacturing facilities and Equipment used by the Manufacturer in the manufacture of the Products and any document, accounts and records kept by the Manufacturer relating to the Products;
- Inspect stock levels and take samples of the raw materials, the packaging and the Products;
- Carry out such other acts/audits as may be reasonably necessary to ensure that the Manufacturer/Installer is acting in compliance with this agreement.
Following any inspection if Greengage reasonably considers that the Products are not or are not likely to be as warranted and/or the Manufacturer is not acting in accordance with the terms of this agreement in any way, Greengage shall inform Supplier and they shall take any action as is necessary to ensure that this situation is rectified accordingly.
In relation to all Greengage consigned tooling, materials and/or equipment furnished to Supplier or paid for by Greengage in connection with this agreement:
It shall be clearly marked and title to such Equipment shall remain in the name of Greengage;
Supplier shall be responsible for the cost of all general maintenance of such Equipment, including without limiting, all calibration and repair of such Equipment for the duration of the Specified Life of any such Equipment;
Unless otherwise agreed, after the Specified Life of any Equipment, Greengage shall be responsible for the cost of all general maintenance of such Equipment, including without limiting, all calibration and repair of such Equipment, except to the extent such calibration and/or repair is required as a result of the fault or negligence of Supplier (or any of its employees)
If so requested by Greengage from time to time, Supplier will provide Greengage with a schedule and record of all maintenance in respect of the Equipment;
Provide Test review and feedback on equipment and fixtures to best meet customers test strategy.
Greengage shall make payment within 30 days end of month of a valid invoice from Supplier in respect of all Products. Supplier may only raise an invoice once the products to which the invoice relates have been shipped.
Supplier hereby warrant in respect of each product manufactured by it pursuant to this agreement, for a period of 12 months from the date of installation of the respective Product (the “Warranty Period“), that it duly conforms to the Statement of Work and the Product Specification or other information provided by Greengage in writing relating to such Product, it has used genuine materials of components and parts in the manufacture of such Product, acquired from authentic distributors and reputable suppliers; and the Product has been tested and is satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended), fit for any purpose expressly advised by Greengage as being the purpose of the particular Product and is free from any defects in workmanship and material.
In the event that any Product fails at any time within the Warranty Period then, if requested by Greengage, Supplier shall, at its own expense, investigate and analyse any Products (or part of a Product) that Greengage returns to Supplier in order to identify the root cause of the failure. Supplier will provide Greengage with a written test report including (but not limited to) investigation observations, test method, test results and root cause analysis.
In the event that any Product is found not in conformity with any Warranty for any reason Supplier shall, at Greengage’s option and at Supplier expense (including, for the avoidance of doubt, carriage costs), either replace, repair or correct such Product, or compensate Greengage in cash for any such non-conformity (not to exceed the purchase price paid by the End User to Greengage for such Product).
Supplier shall promptly, fully and effectively indemnify and keep Greengage indemnified against all losses, costs, damages, fees or charges incurred by it as a claim for Product Liability (as defined below)
A liability arising out of death, personal injury or loss of or damage to property caused by defective product.
Defective product means product produced and supplied by Supplier Ltd which either is not in compliance or is in defective within the meaning of Part1 of the Consumer Protection Act 1987, save to the extent that any defect arises by reason of a change of the specification by Greengage.
Greengage hereby grants to Supplier the non-exclusive right in the territory to use the Greengage IP during the term for the purposes of the manufacturing and packaging of the Products in accordance with the terms of this agreement. Supplier hereby acknowledges and agree that all rights in the Greengage IP shall remain with Greengage and that Supplier has and will acquire no right in them by virtue of the discharge of its obligations under this agreement, except for the right to use the Greengage IP as expressly set out in this agreement.
Supplier shall not alter or make any addition to the labelling or packaging of the products displaying any Greengage IP without the prior written consent of Greengage. Supplier shall not alter, deface or remove any reference to Greengage IP, any reference to Greengage or any other name displayed to the Products, their packaging or labelling.
Greengage makes no representation or warranty about the validity or enforceability of the Greengage IP, nor as to whether they infringe any intellectual property rights of third parties.
Supplier shall not sub-license, transfer or otherwise deal with the rights of use of any Greengage IP granted under this agreement.
Supplier shall not do, or omit to do, anything in its use of the Greengage IP that could adversely affect their validity or reputation.
Each party shall promptly give notice in writing to the other if it becomes aware of any infringement or suspected infringement of any Greengage IP; or any claim that any Product or the manufacture, use, sale or other disposal of any Product, whether or not under the Trade Marks, infringes the rights of any third party. In respect of any matter arising Greengage shall, in its absolute discretion, decide what action to take in respect of the matter (if any). Greengage shall conduct and have sole control over any consequent action that it deems necessary and Greengage shall pay all costs in relation to that action and shall be entitled to all damages and other sums that may be paid or awarded as a result of that action.
Greengage and Supplier shall agree what steps to take to prevent or terminate the infringement; and the proportions in which they shall share the cost of those steps and any damages and other sums which may be awarded to or against them; and failing agreement between the parties, either party may take any action as it considers necessary or appropriate, at its own expense, to defend the claim and shall be entitled to and responsible for all damages and other sums that may be recovered or awarded against it as a result of that action.
Each party shall, at the request and expense of the other, provide any reasonable assistance to the other in connection with any action to be taken by the other party under this clause 9 (including but not limited to the use of its name in, or being joined as a party to, proceedings), provided that that party is given such indemnity as it may reasonably require against any losses, costs and expenses it may incur as a result of, or in connection with, providing that assistance.
Upon termination of this agreement for any reason, Supplier right to use the Greengage IP shall immediately cease and Supplier shall immediately stop using all or any part of the Greengage IP.
Greengage may without liability suspend or cancel services by giving 30 days written notice.
Without limiting any other rights or remedies to which it may be entitled, either party may give notice in writing to the other terminating this agreement immediately if the other party fails to pay any undisputed amount due under this agreement on the due date for payment and remains in default for more than 30 days;
The other party 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
The other party commits a material breach of any term of this agreement and (if that breach is remediable) fails to remedy that breach within 30 days of that party being required in writing to do so;
The other party suspends or ceases, or threatens to suspend or cease to carry on all or a substantial part of its business;
There is a change of Control of the other party or the other party purports to assign or otherwise transfer its rights or obligations under this agreement;
An order is made or a resolution is passed for the winding up of the other party, or an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or such an administrator is appointed, or a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court or a creditor to appoint a receiver or manager or which entitle a court to make a winding-up order, or the other party takes or suffers any similar or analogous action in consequence of debt, or an arrangement or composition is made by the other party with its creditors or an application to a court for protection from its creditors is made by the other party.
Termination of this agreement for any reason shall not affect any rights or liabilities accrued at the date of termination.
On termination of this agreement for any reason, Supplier shall procure that all outstanding Purchase Orders are fulfilled in accordance with the terms of this agreement;
- Supplier shall, at Greengage’s cost, return all Equipment in its possession to Greengage to such address as Greengage may notify Supplier in writing;
- Greengage shall not be required to pay Supplier for any stock, component parts and/or raw materials in Supplier possession to the extent that they are not required in order to fulfil any Purchase Order;
- Supplier shall comply with such other reasonable requests from Greengage as may be required in order to ensure an orderly handover; and
- the termination of this agreement shall not of itself give rise to any liability on the part of Greengage to pay any compensation to Supplier, including but not limited to, for loss of profits or goodwill.
- all other rights and licences of Supplier under this agreement shall terminate immediately on the termination date.
This clause sets out the entire financial liability of Greengage (including any liability for the acts or omissions of its employees, agents and subcontractors) to Supplier arising out of or in connection with this agreement, including any breach of this agreement however arising.
Nothing in this agreement shall limit or exclude Greengage’s liability for; death or personal injury resulting from negligence; or fraud or fraudulent misrepresentation; or any other liability which may not by law be limited or excluded.
Greengage shall not under any circumstances whatever be liable to Supplier, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any loss of profit; goodwill; loss of business or loss of business opportunity; or loss of anticipated saving; special, indirect or consequential damage suffered by Supplier that arises under or in connection with this agreement.
Supplier hereby undertakes that it shall not:
- sell or attempt to sell any Products to any third party;
- represent itself as an agent of Greengage for any purpose;
- pledge Greengage’s credit;
- give any condition or warranty on Greengage’s behalf;
- make any representation on Greengage’s behalf;
- commit Greengage to any contracts; or incur any liability for or on behalf of Greengage
- No amendment or variation of this agreement shall be effective unless it is in writing and signed by each of the parties (or their authorised representatives).
- This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any of its rights and obligations under this agreement, or purport to do any of the same, without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
- Each party confirms that it is acting on its own behalf and not for the benefit of another person. No person other than a party to this agreement shall have any rights under the Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this agreement.
- The parties declare that they each have the right, power and authority and have taken all action necessary to execute, deliver, exercise their rights and perform their obligations under this agreement.
- Except as expressly provided, nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
- No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties.
Provided that to a reasonably practicable extent, it promptly notifies the other party in writing of the nature and extent of the Force Majeure Event neither party shall be liable for their failure to perform under this agreement due to reasons beyond their reasonable control, including without limitation Fire, Flood, Natural Disasters, Accident, Riot, War, Government Intervention.
COMPLIANCE WITH LAWS AND REGULATIONS
- Unless otherwise agreed in writing with Greengage, Supplier acknowledges that it shall be responsible for obtaining any necessary licences or permits necessary for the manufacture of the Products in the Territory (“Licences“).
- Unless otherwise agreed in writing with Greengage, Supplier warrants to Greengage that it has informed Greengage of all laws, regulations and codes affecting the manufacture of the Products (including, without limitation, in respect of child labour, the environment and/or health and safety) which are in force within the Territory or any part of it (“Local Regulations“) at the date of this agreement. Supplier shall give Greengage as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
- Supplier hereby undertakes that it shall not at any time use or employ child labour in its performance of this agreement or otherwise; and engage or do business with any suppliers who use or employ child labour.
- Supplier hereby undertakes at all times to comply with all applicable Local Regulations and Licences in its performance of its obligations under this agreement and agrees to indemnify and hold Greengage harmless against any loss or damage (including legal costs) that may be incurred by Greengage as a result of the Manufacturer’s failure to comply with such Local Regulations and/or Licences and/or its undertaking pursuant to clause 8.3.
- Supplier hereby undertakes to take reasonable steps to ensure that any suppliers that it engages in the performance of this agreement at all times comply with all applicable Local Regulations and Licences.
- This agreement 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 English law.
- Any notice required to be given pursuant to this agreement shall be in writing and shall be delivered (i) personally, or by commercial courier, or by prepaid post (by airmail post if to an address outside the country of posting) to the relevant party at the address set out in this agreement or any other address as either party notifies to the other from time to time or (ii) by email to such email address as either party may notify to the other from time to time. Any notice given according to (i) above shall be deemed to have been given at the time of delivery (if delivered by hand), on the date and at the time of signature of the courier’s delivery receipt (if sent by commercial courier), or five Business Days after posting (if sent by prepaid post).
- The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement, its subject matter or formation (including non-contractual disputes or claims).