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Purchase Order Standard Terms & Conditions

1. Definitions

In the Contract the following terms shall have the following meanings unless the context otherwise requires:

“Bauer” means Bauer Radio Limited, Bauer Consumer Media Limited, HBVB Media House, Peterborough Business Park, Lynch Wood, Peterborough, PE2 6EA and H Bauer Publishing, The Lantern, 75 Hampstead Road, London, NW1 2PL;

“Contract” means these terms of trade and the Purchase Order;

“Contract Period” means, subject to Clause 15, the period specified in the Purchase Order; “Contract Price” means the price payable by Bauer to the Supplier as specified in the Purchase Order;

“Deliverables” means the Goods, Facilities and/or Services specified in the Purchase Order to be supplied or used in the performance of the Contract;

“Facilities” means any facilities to be provided by the Supplier pursuant to the description in the Purchase Order;

“Goods” means any item(s), including without limitation software and digital codes, to be manufactured and/or provided by the Supplier pursuant to the Contract or in the case of Services the physical or other product(s) of the Services; “IPR” means copyright and related rights, patents, rights to inventions, trade marks, service marks, trade names and domain names, registered design rights, design rights, topography rights, database rights, trade secrets, rights in unpatented know how, rights of confidence, broadcast rights, and any other intellectual or industrial property rights of any nature including all applications (or rights to apply) for, and renewals or extensions of such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

Intellectual Property Rights” means all copyright and other intellectual property rights in any media, including (without limitation) know how, database rights, patents, trademarks, service marks, trade names, moral rights, design rights, domain names and any other intellectual or industrial property rights, together with any applications for the protection or registration of those rights and all renewals and extensions thereof throughout the world;

“Purchase Order” means Bauer purchase order and any other document specifying the Supplier, the Deliverables, the Contract Price, and where appropriate the Contract Period and Special Conditions;

“VAT” means value added tax as provided for in the Value Added Tax Act 1994 or in any primary or secondary legislation promulgated by the European Community, or any official body or agency of the European Community and any similar sales, consumption or turnover tax introduced in addition to the foregoing whether within the European Community or elsewhere in the world;

2. Terms and Conditions of Contract

2.1. The Supplier agrees to be bound by the terms of the Contract by the earlier of either signature of the Purchase Order or commencing the provision of the Deliverables, unless the Purchase Order refers or relates to a specific contract in which case that specified contract shall apply in conjunction with these Terms and Conditions in the order of priority identified in the specified contract.

2.2. The terms and conditions of the Contract shall govern all orders and supply of the Deliverables to the entire exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or confirmation of order, specification or similar document will form part of the Contract and the Supplier hereby waives irrevocably any right which it otherwise might have to rely on such terms and conditions.

2.4. To the extent that any obligations under the Contract have already been performed by either party prior to its execution, such obligations shall for all purposes be deemed to have been performed in accordance with and subject to the provisions of the Contract.

2.5. The Supplier undertakes to deliver the Deliverables in accordance with the Contract. Timely provision of the Deliverables is of the essence of the Contract and the Supplier shall notify Bauer immediately it becomes aware of any likely delay in such provision.

3. Good Faith/Outside Activities/Publicity

3.1. The Supplier shall act in good faith at all times and shall not bring Bauer into disrepute. The Supplier shall not, without the prior written consent of Bauer, make any reference to Bauer or its trade marks in any advertising, promotional or published material nor make any reference to Bauer or its trade marks in a way that may imply an endorsement of the Supplier or its goods and/or services or by making any reference to Bauer or its trade marks.

3.2. The Supplier shall at all times comply with the Bauer Supplier Code of Conduct

4. Contract Price/Payment

4.1. In consideration of the provision of the Deliverables in accordance with the terms of the Contract, Bauer shall pay the Contract Price pursuant to Clause 4.3 below.

4.2. The Contract Price is stated exclusive of VAT (which if applicable, shall be applied at the appropriate rate).

4.3. The Supplier shall submit a valid VAT invoice to Bauer for the whole or any part (as required by Bauer) of the Contract Price the address specified in the Purchase Order quoting the relevant Purchase Order number.

4.4. Bauer shall pay to the bank account specified by the Supplier or which purports, fraudulently or otherwise howsoever, to have been specified by the Supplier such sums as are due by the end of the month following the month in which Bauer considers the invoice to be valid and undisputed, in accordance with the terms of this Clause 4.

4.5. Bauer reserves the right to withhold payment to the extent that the Deliverables have not been provided in accordance with the Contract or if Bauer receives an invoice which it considers is not valid and/or properly due and Bauer shall notify the Supplier accordingly giving reasons for such withholding. Bauer shall only be entitled to withhold an amount equal to the sum which is in dispute.

4.6. Bauer shall be entitled but not obliged at any time to set off any liability of the Supplier to Bauer against any liability of Bauer to the Supplier (in either case howsoever arising and whether any such liability is due and payable or will become payable at a later date, actual or contingent, liquidated or un-liquidated and irrespective of the currency of its denomination including sums payable under the Contract or any other contract between Bauer and the Supplier). Exercise by Bauer of its rights under this Clause 4.6 shall be without prejudice to any other rights or remedies available to it under the Contract or otherwise, at law or in equity.

4.7. Unless stated otherwise in the Contract, the Contract Price is inclusive of all out of pocket expenses which may be incurred by the Supplier, including any time and materials charges, travel and subsistence expenses incurred in the course of provision of the Deliverables (“Expenses”) and Bauer shall not be obliged to pay any Expenses in addition to the Contract Price. Where the Contract does provide that Bauer shall/may reimburse the Supplier in relation to any Expenses, any such payment shall be subject to such Expenses being agreed to in writing in advance by Bauer.

5. Delivery of Goods

5.1. The Supplier shall ensure that any Goods are kept in a suitable and secure manner at the Supplier’s own risk and expense until the relevant Goods are either delivered to and received by Bauer at the Supplier’s own risk and expense or collected by Bauer at Bauer’s own risk and expense from the point of collection in accordance with the delivery instructions specified in the Purchase Order or otherwise specified in writing by Bauer. Bauer shall have the right to change its delivery instructions, including delivery dates, at any time by reasonable notice to the Supplier.

5.2. The Supplier shall, at its own expense, ensure that the Goods are packed in such a manner as to reach Bauer in good condition, clearly labelled in accordance with the delivery instructions and accompanied by delivery notes specifying the quantity and type of Goods and the relevant Purchase Order number. The Supplier shall, at its own expense, repair or replace (at Bauer’s option) Goods lost or damaged in transit, and delivery will not be deemed to have taken place until replacement or repaired items have been delivered to Bauer.

5.3. Ownership of any Goods that are sold under the Contract shall vest in Bauer absolutely at such time as Bauer either takes physical possession or makes payment (whether in full or in part) for the Goods, whichever is the first to occur.

5.4. Where any Goods are found by Bauer upon delivery or collection or subsequently not to conform with the Contract, Bauer may accept or reject the whole or any part thereof and if rejected, without prejudice to any other remedy available to Bauer, may return the Goods to the Supplier at the Supplier’s own risk and expense and promptly recover any sums paid for the rejected part.

6. Equipment/Materials

6.1. The Supplier shall be responsible for the care, control, security and maintenance of any materials and equipment used or provided by the Supplier to perform the Contract. Bauer may provide a storage area for any such equipment/materials but is under no obligation to do so. The Supplier shall ensure that any such storage area is fit for the intended purpose and it is used in a suitable, careful and secure manner at the Supplier’s own risk and expense and Bauer accepts no liability for damage to equipment or material stored on its premises. Bauer reserves the right to reclaim the storage area upon notification.

6.2. The Supplier shall not use any Bauer equipment/materials without the prior written consent of Bauer and shall where relevant be responsible for the care, control, security and maintenance of such materials and equipment which it uses.

7. Liability/Insurance/Indemnity

7.1. Nothing in the Contract excludes either party’s liability for death or personal injury caused by that party’s negligence, wilful default or for fraud.

7.2. The Supplier shall, at its own expense, arrange and maintain with a reputable insurer such insurance policies as are appropriate and adequate having regard to its obligations and liabilities under the Contract including adequate public liability insurance and, where applicable, product liability insurance and/or professional indemnity insurance in each case and with scope of cover appropriate to the Deliverables provided under the Contract in respect of any one claim or incident.

7.3. The Supplier shall arrange and maintain adequate insurance of at least the full value of any such Goods in relation to loss or damage of any Goods provided under the Contract where risk has not yet passed to Bauer. The Supplier shall produce to Bauer on demand copies of the insurance policies maintained in accordance with the terms of the Contract and copies of receipts for premiums required to be paid in relation to such policies.

7.4. The Supplier shall be responsible for insuring any equipment provided by the Supplier to perform the Contract, against loss, damage and liabilities to third parties and anyone carried in or on such equipment.

7.5. The Supplier shall indemnify Bauer on demand and keep indemnified Bauer and hold Bauer harmless from and against all costs and expenses (including legal costs), losses and liabilities which Bauer may incur as a result of the Supplier’s:

7.5.1. breach of or non-compliance with its obligations or warranties under the Contract;

7.5.2. negligence or wilful default; and

7.5.3. any claims from third parties made as a result of its acts or omissions (including relating to infringement of any IPR supplied under or used in connection with the Contract).

7.6. Bauer shall not be liable for any consequential or indirect losses, loss of profits, revenues and/or business, anticipated savings, loss of good will or reputation in each case, whether or not in the contemplation of the parties at the time of entering into the Contract.

8. Warranties

8.1. The Supplier undertakes, warrants and represents that:

8.1.1. except as otherwise agreed in writing prior to performance of the Contract, it shall obtain for Bauer all necessary consents, permissions and/or clearances in third party rights (including IPR) with respect to the Deliverables;

8.1.2. all Goods and Facilities comprised in the Deliverables are fit for the purpose for which they are supplied and are of satisfactory quality, without fault or error, of good construction and workmanship, of suitable and sound material and adequate strength and have been tested prior to delivery;

8.1.3. the Deliverables will conform in all respects with any description of the Deliverables in the Contract and the Deliverables shall be consistent with any sample supplied to, or inspected by Bauer and approved in writing by Bauer;

8.1.4. it shall be competent to fulfil its obligations under the Contract (which includes having relevant experience, training and/or qualifications) and shall use such due care, skill and diligence as would reasonably be expected of a competent supplier of the Deliverables whilst discharging its obligations under the Contract, and it shall perform the Contract in a timely and professional manner in accordance with best industry practice for suppliers of deliverables similar to the Deliverables and hold any licence, permit and/or certificate required by law for the performance of the Contract;

8.1.5. the Deliverables shall comply with all current relevant laws and regulations;

9.   Clearance of Third Party Rights/Copyright

9.1. The Supplier shall obtain all necessary consents, permissions and/or clearances from third parties (whether in respect of copyright, trade mark, patent or other Intellectual Property Rights or otherwise) so that Bauer shall be entitled to use the Deliverables or Facilities provided or the result of the Services without liability to any third party and the Supplier shall indemnify Bauer against any actions, claims, costs, damages, demands or expenses brought against, suffered or incurred by Bauer arising from any breach or non-observance by the Supplier.

9.2. The Supplier hereby assigns to Bauer absolutely and warrants that all Supplier’s relevant officers, servants and/or agents have assigned to the Supplier absolutely all Intellectual Property Rights in any Deliverables in all languages throughout the Universe for the full period of such Intellectual Property Rights (including all rights to renewal and extensions thereof).

9.3. The Supplier hereby assigns to Bauer the unlimited right to edit, copy, alter, add to, take from, adapt or translate any Deliverables and with regard to those Deliverables the Supplier hereby waives irrevocably and warrants that all the Supplier’s relevant officers, servants and/or agents have waived irrevocably the benefits of any provision of law known as “moral rights” (including without limitation any right of the Supplier, its officers, servants and/or agents under sections 77 to 85 inclusive of the Copyright, Designs and Patents Act 1988 or any similar laws of any jurisdiction).

10.  Confidentiality

Except where necessary on a “need to know” basis, the Supplier shall keep confidential any information communicated in confidence or relating to the business of t Bauer and which is obtained as a result of its relationship with Bauer under the Contract.

11.Termination

11.1 Where Bauer considers that the Supplier has failed to perform in part or in whole its obligations and the failure is in the reasonable opinion of Bauer capable of remedy Bauer shall notify the Supplier thereof and the Supplier shall use its best endeavours to remedy the failure. If the failure is not remedied by the Supplier to the satisfaction of Bauer within the period specified by Bauer, Bauer may remedy the failure and recover the cost thereof from the Supplier and/or terminate the Contract under Clause 11.2.

11.2 Notwithstanding Clause 15.1 above, Bauer may terminate the Contract with immediate effect in writing if:

11.2.1 there has been a material breach by the Supplier of its obligations under the Contract; or

11.2.2 the Supplier commits an act of bankruptcy, or makes any composition or arrangement with its creditors, or goes into liquidation whether voluntary or compulsory, or if any order is made or a resolution is passed for the winding up of the Supplier, or if it ceases or prepares to cease trading, or if it suffers the appointment of a receiver or administrator of the whole or part of any of its assets; or

11.2.3 there is a change of control of the Supplier. For the purposes of this Clause 15.2 “control” means the ability to direct the affairs of the Supplier whether by virtue of contract, ownership of shares or otherwise howsoever; or

11.2.4 the continued performance thereof is prevented by reason of any event beyond the reasonable control of Bauer or the Supplier (any such occurrence being deemed an event of force majeure).

11.3     Termination of the Contract howsoever arising shall be without prejudice to any right of action accruing or already accrued to either party at the date of the termination.

11.4     Termination of the Contract howsoever arising shall not in itself give rise to a claim by the Supplier for damages or otherwise beyond a claim for payment due under the Contract up to and including the date of termination.

11.5     Upon termination of the Contract for whatsoever reason the Supplier shall promptly deliver up to Bauer at the Supplier’s own risk and expense the whole or any part of any Deliverables for which payment has been made under the Contract up to and including the date of termination and any Bauer equipment/materials provided under the Contract. Bauer shall be deemed to have irrevocably all powers and authority to enter the Supplier’s premises to recover and remove such items and recover the cost thereof from the Supplier.

12.   Notices

Any notice required to be given pursuant to the Contract shall be in writing and sent by prepaid recorded delivery, registered post or email to Bauer or the Supplier at the address as specified in the Purchase Order and any such notice shall be deemed to have been received by the addressee at the time of delivery.

13.   Waiver

The failure of either party to exercise or enforce any right conferred upon it by the Contract shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time(s) thereafter. No waiver of any term or condition of the Contract shall operate as a waiver of another or constitute a continuing waiver.

14.   Assignment/Sub-contracting

The Supplier shall not assign, sub-licence, sub-contract, transfer or otherwise dispose of any of its rights or obligations under the Contract to any third party.

15.   No Agency, Partnership or Joint Venture

Nothing in the Contract shall be deemed to constitute either party as the agent of the other or create a partnership or joint venture between the parties.

16.   Variation

Any amendment or variation to the Contract shall be made by prior written agreement between the parties.

17.   Severability

The unenforceability of any single provision of the Contract shall not affect any other provision thereof.

18.   Whole Contract

The Contract and any appendices and any documents referred to therein constitutes the entire understanding between the parties with respect to the subject matter thereof and supersedes all prior agreements, negotiations and discussions between the parties relating thereto.

19. Law

The Contract shall be construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English courts.

 

October 2023