Terms and Conditions of Purchase for vendors Supplying Goods and Services to CEMEX
THE PURCHSER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS EXCLUDING OR LIMITING LIABILITY IN CONDITIONS 2, 9 AND 11
1 Definitions and Interpretations
1.1 In these Conditions unless the context otherwise requires:
(a) “Business Day” means a day (other than a Saturday or Sunday) on which the banks are ordinarily open for business in the City of London;
(b) “CEMEX Code of Conduct” means the document headed “Code of Conduct when doing business with us”, available at cemex.com as amended from time to time;
(c) “Conditions” means these terms and conditions and any special terms and conditions agreed in writing between the Purchaser and the Supplier;
(d) “Contract” means any contract between the Purchaser and the Supplier for the purchase of Goods and/or Services;
(e) “Goods” means the goods (including any part or parts of them) which the Supplier is to provide to the Purchaser pursuant to the Order in accordance with these Conditions;
(f) “Goods Legislation” means any applicable statute, statutory rule, order, directive, regulation or other instrument having force of law (including any directive or order promulgated by any competent supra-national body), all British, European and international standards, UKAS (United Kingdom Accreditation Service) and all other legislation for the time being in force relating without limitation to the manufacture (including raw materials or chemicals used in the production process), packaging, delivery, carriage, storage, installation and use of the Goods;
(g) “Incoterms 2010” means the international rules for the interpretation of trade terms of the International Chamber of Commerce 2010;
(h) “Intellectual Property Rights” means any patent, copyright (including software), database right, moral right, design right, registered design, trade mark, service mark, domain name, know-how, utility model, unregistered design or, where relevant, any application for any such right, or other industrial or intellectual property right subsisting anywhere in the world;
(i) “Order” means any order from the Purchaser to the Supplier for the supply of Goods or Services in such form as the Purchaser may determine from time to time;
(j) “Purchaser” means CEMEX UK Operations Limited (Registered in England No. 00658390) (or any other CEMEX group company with whom the Supplier has entered into this Contract) whose registered office is at CEMEX House, Binley Business Park, Harry Weston Road, Coventry, CV3 2TY or such other Purchaser Group Company detailed in the Order as Purchaser;
(k) “Purchaser’s Group Companies” means Purchaser, Purchaser’s holding company, its ultimate holding company and any subsidiary of any of them (and the terms subsidiary and holding company shall have the meanings given to them by Sections 1159 of the Companies Act 2006) and any subsidiaries of any such companies;
(l) “Services” means the services which the Supplier is to provide to the Purchaser pursuant to the Order in accordance with these Conditions;
(m) “Specification” means the Purchaser’s specifications or stipulations for the Goods and/or Services notified in writing to the Supplier; and
(n) “Supplier” means the person, firm or company to whom the Order is addressed.
1.2 The headings to conditions are inserted for convenience only and shall not affect the interpretation or construction of these Conditions.
1.3 Words importing the singular shall include the plural and vice versa. References to persons include an individual, company, corporation, firm or partnership. Words referring to a particular gender include every gender.
1.4 The words and phrases "other", "including" and "in particular" shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
1.5 References to any statute or statutory provision shall include (i) any subordinate legislation made under it, (ii) any provision which it has modified or re-enacted (whether with or without modification), and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
2 Basis of Contract
2.1 The Contract will be subject to these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Supplier purports to apply under any quotation, order acknowledgement or any other document issued by the Supplier).
2.2 The Order is an offer made by the Purchaser to the Supplier and the Contract shall come into effect upon acceptance of the order by the Supplier. Unless previously withdrawn by the Purchaser, Orders shall be deemed accepted if not rejected by the Supplier by notice in writing within seven (7) days of their date. The Order number must be quoted on all correspondence and all invoices relating to such Order.
2.3 No Order shall be capable of acceptance by the Supplier unless:
(a) it is in writing on the Purchaser’s official order form and is signed by an authorised representative on behalf of the Purchaser; or
(b) the Order is made by one of the Purchaser’s authorised representatives using a purchase card to authenticate his/her authority to issue the Order and is for Goods and/or Services permitted to be purchased by that card; or
(c) the Order is made electronically by a system agreed between the parties, and the Order made has characteristics which in the circumstances indicate that it has been made by an authorised representative of the Purchaser.
2.4 The Purchaser may at any time vary the Specification or the Order in any way, including in relation to quantity, quality, design and place and time of delivery. If the Purchaser makes such a change, the parties shall agree an equitable adjustment to the price before any such variation may take effect.
3 Delivery
3.1 Delivery of the Goods shall take place strictly in accordance with the Purchaser’s delivery instructions whether given in the Order or separately. The Purchaser shall have the right to change its delivery instructions at any time. Each delivery must be clearly marked in accordance with the Specification and the Order. If no delivery instructions are provided, then delivery will take place at the Purchaser’s place of business where deliveries of similar Goods normally take place. The Supplier shall be responsible for unloading the Goods.
3.2 Time of delivery of the Goods is of the essence for this Contract. The Purchaser shall be under no obligation to accept delivery of the Goods before the specified delivery time, but reserves the right to do so. The Purchaser shall not be obliged to accept quantities of the Goods which vary from those specified in the Specification or the Order.
3.3 The Supplier shall provide with the Goods:
(a) a detailed advice note quoting the Order number;
(b) a certificate in such form as the Purchaser shall require confirming the conformance of the Goods with the Specification; and
(c) full information and instructions relating to the safe handling, use and storage of the Goods.
3.4 The Goods will be properly packed and secured in such a manner as to reach their destination undamaged and in good condition. The Purchaser shall not be obliged to return to the Supplier any packaging materials for the Goods.
3.5 If any Incoterm is specified in the Order, then that shall apply and if there is any conflict or ambiguity between the Incoterm and those Conditions the Incoterm shall apply.
4 Acceptance and Rejection of Goods and/or Services
4.1 The Purchaser shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect and test them following delivery or after any latent defect has become apparent. For the avoidance of doubt no inspection or testing by the Purchaser whether before or after delivery of the Goods nor the signing of any delivery note or other document acknowledging physical receipt of any Goods shall be deemed to constitute or evidence acceptance or approval of the Goods for the purposes of the Sale of Goods Act 1979 (as amended) nor be deemed a waiver of the Purchaser's rights either to cancel or return all or any part thereof where the Goods are found to be defective or not in accordance with the Contract, Order and Specification.
4.2 The Purchaser reserves the right to carry out such testing and inspections on Goods as the Purchaser considers necessary to ensure that Goods tendered for delivery are supplied in accordance with this Contract including any Specification and to reject any Goods tendered for delivery found to be non-conforming or to advise the Supplier that the Goods do not or will not meet the requirements of this Contract and will be rejected if tendered for delivery. The costs of testing relating to non-conforming Goods shall be charged to and paid by the Supplier.
5 Title and Risk
5.1 The Goods shall be at the risk of the Supplier until they are delivered and unloaded in accordance with the Contract when, without prejudice to any right of rejection which the Purchaser may have under the Contract or by law, title to and risk in the Goods shall pass to the Purchaser, provided that if the Purchaser pays for the Goods prior to delivery, title to the Goods shall pass to the Purchaser when payment is made.
6 Provision of Services
6.1 If the Contract is for or includes Services to be performed by the Supplier then, the Supplier undertakes, represents and warrants to the Purchaser that the Supplier shall carry out the Services strictly in accordance with the Order and the Specification.
6.2 The time of performance of the Services is of the essence of the Contract and the Purchaser shall be entitled to cancel the Order and the Contract if any part of the Services is not performed on the agreed date.
6.3 Any personnel provided by Supplier for carrying out any of the Supplier’s obligations under this Contract shall at all times be deemed to be in the employment of the Supplier, or its sub-contractors and not of the Purchaser. The Supplier shall be responsible for the taking of all disciplinary action in respect of its personnel and for paying any salaries, taxes, contributions and charges payable in respect of its personnel.
6.4 The Supplier shall:
(a) provide the Services with the highest level of skill, care and diligence and in a good and workmanlike manner in accordance with the provisions of this Contract;
(b) comply with and ensure that its personnel comply with:
(i) all relevant legislation (including the Data Protection Act 2018, the Health & Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999), regulations, codes of practice, British Standards, guidance notes and other requirements of any relevant government or governmental agency and, to the extent that such regulations are advisory, compliance with which is advisable but not mandatory, the minimum compliance to be achieved by the Supplier should be the best practice in the relevant industry; and
(ii) any reasonable instructions and guidelines issued by the Purchaser from time to time including any site rules, policies, safety and security arrangements.
(c) comply with the provisions of and not to do anything which might result in the termination of any lease, rental or other agreement or arrangement relating to any applicable property or equipment, any personnel (including the Supplier’s personnel) or any other assets (including hardware and software) used by the Supplier for the purpose of or which are the subject of or are affected by the Supplier providing the Services;
(d) ensure that any agreement or arrangement referred to in Condition 6.4(c) above to which the Supplier is a party may be freely assigned without further charge to the Purchaser and/or a subsequent provider of part or all of the Services;
(e) ensure that all of its personnel will be appropriately qualified and experienced to undertake their tasks and will use professional skill and care of the highest standard in the provision of the Services which will be supplied in a professional and competent manner and will be fully supervised at all times;
(f) provide its personnel with such training as is appropriate and necessary to enable them to perform the Services properly in accordance with the provisions of this Contract and appropriate to enable the Purchaser and the Purchaser’s sub-contractors to operate their businesses effectively;
(g) carry out background, security, immigration and other checks on its personnel, to the extent permitted by law, which would be reasonable for the Supplier to carry out or as reasonably required by the Purchaser;
(h) inform the Purchaser promptly, giving details of the circumstances, reasons and likely duration, in the event it becomes aware of anything of whatsoever nature and whether or not the result of any act or omission on the part of the Supplier or its personnel or sub-contractors which may prevent the Supplier fulfilling its obligations in accordance with this Contract;
(i) have at all times all licences, approvals and consents necessary to allow the Supplier and the Purchaser to be lawful users of any equipment used to provide the Services (including any computer hardware and software);
(j) not (and to procure that its personnel and agents shall not), through any act or omission cause the Purchaser to infringe the terms of any licence or other agreement relating to the use, maintenance or support of any equipment (including any computer hardware or software) used by the Purchaser and/or the Supplier for the purposes of the Contract;
(k) not at any time introduce any computer virus or other contamination, whether knowingly or not onto any equipment (including any computer hardware or software) which is either owned or used by the Purchaser or used by the Supplier in connection with its obligations under the Contract; and
(l) at the reasonable request of the Purchaser (taking account of the Supplier’s legal obligations) remove any member of its personnel from the provision of the Services and from the any premises where the Services are being performed and replace that person within a reasonable period.
6.5 Without prejudice to any other remedy available to the Purchaser where there is any breach of the Supplier’s warranties contained in this Contract then the Purchaser shall be entitled at its sole discretion:
(a) to require the Supplier to re-execute the Services in accordance with this Contract within 7 (seven) days; or
(b) whether or not the Purchaser has previously required the Supplier to re-execute the Services, to treat the Contract as discharged by the Supplier’s breach and require the repayment of any sum payable in respect of the Services that has been paid to the Supplier.
6.6 The Purchaser reserves the right to carry out such testing and inspections on goods and property which may have been directly or indirectly affected by the performance of the Services (and the Supplier shall on request by the Purchaser promptly notify the Purchaser of the details of any such goods and property) or materials which form part of the Services to determine whether the Services have been performed in accordance with the terms of this Contract. The costs of any such testing which relates to Services that do not meet the requirements of this Contract shall be charged to and paid by the Supplier.
7 Prices and Payment
7.1 The price of the Goods and/or Services shall be stated in the Order. Unless otherwise stated in the Order or otherwise agreed in writing with the Purchaser, the price shall be inclusive of all carriage, labour, packaging, packing, labelling, insurance, import, export, delivery costs and all other costs incurred by the Supplier in relation to the Goods and their delivery and any duties or levies of any kind whatsoever unless otherwise specified in the Order.
7.2 All sums payable under the Contract are exclusive of VAT (which shall be added if appropriate at the rate prevailing at the relevant tax point) but are inclusive of any other applicable tax or duty payable upon such sums.
7.3 The price stated in the Order shall be the only sum payable by the Purchaser for or in connection with the supply of the Goods and the performance of the Services. The Purchaser shall not be liable to pay any part of any invoice rendered by the Supplier which contains a sum in excess of the price stated in the Order.
7.4 Subject to Condition 7.5, the Supplier may only invoice the Purchaser on or after delivery of the Goods or completion of the performance of the Services in accordance with this Contract and invoices submitted early shall be deemed received on the date of delivery of the Goods or date of completion of the performance of the Services. Invoices shall be in such form as the Purchaser specifies from time to time and shall be addressed to the department at the address for the Purchaser set out in these Conditions or as the Purchaser notifies the Supplier. The Supplier shall quote the Purchaser’s Order number clearly on each invoice and on all invoice correspondence and advice notes. The Purchaser may require the invoice to be re-issued to take account of any rebates that may apply, and shall not be liable to pay any invoice which is not correctly issued.
7.5 The Purchaser may at any time require the Supplier to comply with any payment procedure that the Purchaser notifies to the Supplier, such as self-billing arrangements.
7.6 Unless otherwise stated in the Order, the Purchaser shall pay the price of the Goods and Services in pounds sterling within 90 days after the end of the month of the later of receipt by the Purchaser of a valid invoice issued in accordance with Condition 7.4 or acceptance of the Goods or Services by the Purchaser.
7.7 In the event that any sum due under this Contract is not paid on or before the due date for payment, then the party which is owed such sum shall be entitled to charge the other party interest on the part of the sum which is unpaid at the due date, at the rate of 2% above the base rate of Barclays Bank plc from time to time from the due date until such sum is paid.
7.8 The prices charged by the Supplier to the Purchaser shall not exceed those prices charged by the Supplier to any other customer purchasing the same or similar goods and/or services in the same or smaller quantities and the Purchaser shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier.
7.9 If the price is stated in the Order to be on a "time and materials" or "cost plus" basis or similar the Supplier shall give the Purchaser access to all documents and information in the Supplier’s possession or under its control to enable the Purchaser to satisfy itself that the amount charged by the Supplier is properly and correctly charged in accordance with the Contract and in default the Purchaser shall be entitled to withhold payment in whole or in part until such default is rectified to the satisfaction of the Purchaser.
7.10 If any sums are due to the Purchaser from the Supplier, then the Purchaser shall be entitled to exercise the right to set-off such sums against any payments due to the Supplier from the Purchaser under or in relation to this or any other Contract. The Supplier shall not be entitled to apply any amount due to the Purchaser under the Contract in or towards payment of any sum owing by the Purchaser to the Supplier in relation to any matter whatsoever.
7.11 Any money paid by the Purchaser to the Supplier in respect of any Goods rejected under these Conditions together with any additional expenditure over and above the price specified in the Order reasonably incurred by the Purchaser in obtaining other goods in replacement of any rejected Goods shall be paid by the Supplier to the Purchaser within 7 days of the date of the Purchaser’s notice demanding the same or, at the Purchaser’s sole option, shall be deducted from the money still to be paid by the Purchaser to the Supplier in relation to such Goods.
7.12 If following receipt of any invoice the Purchaser notifies the Supplier in writing that it disagrees with the amount of such invoice the Purchaser shall be entitled to withhold the amount in dispute and the parties shall cooperate in good faith to resolve the agreement as amicably and promptly as possible. Failing agreement within 15 Business Days the parties shall have recourse to the dispute resolution procedure set out in Condition 20.
8 Quality
8.1 The Supplier warrants and represents to the Purchaser that it has sufficient production capacity and sufficient resource to meet its obligations to supply the Goods and/or perform the Services in accordance with the terms of the Contract and to do so in accordance with all timescales notified to the Supplier by the Purchaser.
8.2 To assure the Purchaser of its quality control the Supplier shall:
(a) carefully inspect the Goods before despatch for compliance with the Specification;
(b) upon request by the Purchaser provide to the Purchaser such representative samples of the Goods for the purposes of quality control inspection or testing as the Purchaser may require;
(c) upon request by the Purchaser demonstrate to the Purchaser's satisfaction that it uses quality procedures and systems for the production of the Goods and for the performance of the Services which will ensure conformity to the Specification, the Order and the Contract; and
(d) agree any changes to the Specification in writing with the Purchaser prior to supplying those Goods during the trading relationship.
8.3 If upon any inspection or testing whether by or on behalf of the Purchaser or the Supplier, any Goods are found to be defective or any Goods or Services are found to not comply with the Contract, the Specification or the Order the Supplier shall forthwith at its own expense make good the defect and/or ensure that the Goods and/or Services do so comply.
8.4 The Supplier shall promptly keep the Purchaser informed of any matter of which it, as supplier of the Goods and performer of the Services, is, becomes or reasonably should be aware relating to the resale, export, storage, transportation, handling, assembly or use of the Goods or materials which form part of the Services by the Purchaser (including legislation or advice from responsible or professional or legal bodies in respect of raw materials or chemicals used in the manufacture of the Goods) and the handling, storage, transportation, assembly, use and sale or any articles, items or property which are or could be affected by the performance of the Services and the actions it has taken or proposes to take and those that the Purchaser should or could take or which the Purchaser could be advised against taking in relation to such matters.
8.5 Without prejudice to any other rights under the Contract, the Purchaser shall have the right at any time and from time to time to conduct (whether at the Supplier’s premises or elsewhere) an audit of the Supplier’s operations, facilities and insurance policies and its quality, environmental and health and safety procedures and systems to ensure that the Supplier has the appropriate facilities, procedures, systems and personnel to perform its obligations under the Contract in accordance with its terms and to comply with all relevant legislation and regulations and for that purpose the Purchaser and its authorised representatives shall be entitled to have access to the Supplier’s premises during normal working hours on giving reasonable notice to the Supplier.
9 Warranties
9.1 The Supplier undertakes, represents and warrants to the Purchaser that the Goods and their packaging and labelling and the materials which are used for the provision of Services shall:
(a) be accompanied with accurate, complete and comprehensible instructions for the treatment, assembly, use and/or storage of the Goods;
(b) conform to the Specification and with any instructions of the Purchaser, and shall otherwise meet the requirements of the Order and this Contract;
(c) be of satisfactory quality, free from defects in materials and workmanship and fit for their intended purpose (whether such purpose is implied or expressly stated in the Specification, Order or Contract);
(d) be free from design and other inherent defects (save to the extent that the Goods have been supplied in accordance with designs of the Purchaser);
(e) comply with all Goods Legislation and other industry and legal requirements;
(f) conform strictly as to quality, quantity and description with any samples provided by the Supplier for the purpose of supply of Goods of that type;
(g) not infringe the Intellectual Property Rights of the Purchaser or any third party; and
(h) be properly labelled, packaged, marked and described in accordance with the Order and the Specification and will be properly packed and secured in such a manner as to reach their destination undamaged and in good condition.
9.2 In performing its obligations under the Contract, the Supplier shall at all times use its best endeavours to take care of and not inflict any damage to or place at risk of harm any of the Purchaser’s personnel, sub-contractors, equipment, plant, materials, tooling and sites.
9.3 If an Order specifies that Goods and/or Services will be provided on a “time and materials” or “cost plus” basis or similar, the Supplier warrants that the Goods and/or Services will be provided efficiently with the optimum use of all resources so as to provide Goods and/or Services at the lowest reasonably obtainable overall cost and to actively seek ways at reducing costs.
9.4 The Supplier shall transfer or assign to the Purchaser or otherwise obtain for the benefit of the Purchaser any guarantee, warranty or other confirmation of quality, title or fitness for purpose given by any manufacturer of the Goods in respect of the Goods (or part thereof) to the extent that the same is capable of such transfer or assignment to the Purchaser or otherwise providing such benefit for the Purchaser.
9.5 The Supplier and all its subcontractors represent and warrant to comply with all applicable laws, Purchaser requirements, approved codes of practice and industry guidance relating to health and safety. A Health and Safety program is in place which sets out arrangements for; the identification, management and control of hazards and risks associated with the activities/services to be provided, training and certification of personnel, formal induction and permit processes before work commences, reporting of all incidents and near misses, periodic auditing for compliance to health and safety rules and the effectiveness of health and safety arrangements.
9.6 Where there is any breach of the Supplier’s warranties in Conditions 3.1, 6, 8 or 9, or if any obligation, warranty or requirement imposed by, given or stated in the Contract in respect of the Goods or Services is not complied with, or the Goods or any instalment of the Goods are not delivered at the specified time or the Goods delivered are damaged the Purchaser shall be entitled at its sole discretion without liability to the Supplier (arising out of such action) and without prejudice to any other right or remedy the Purchaser may have to take one or more of the following actions to:
(a) cancel the Contract and treat the Contract as having never been entered into by the Supplier; and/or
(b) reject the relevant Goods (in whole or in part) and any Goods already delivered which cannot be effectively and commercially used by reason of the non-delivery of any undelivered Goods; and/or
(c) refuse to accept any subsequent delivery of the Goods; and/or
(d) recover from the Supplier any costs reasonably incurred by the Purchaser in obtaining substitute goods or services from another supplier; and/or
(e) require the Supplier at its sole cost to replace, repair the Goods or carry out such work as is necessary within 14 days so that the Goods conform to the Contract, Order and Specification; and/or
(f) require the Supplier at its sole cost to re-execute the Services in accordance with the Contract, Order and Specification within 7 days; and/or
(g) treat this Contract as discharged by the Supplier’s breach and:
(i) delay payment of the price for the Goods and Services until the requirements of this Contract, Order and any Specification are entirely fulfilled,
(ii) refuse to make payment of the price of the Goods or Services; and/ or
(iii) require the repayment of any part of the price of the Goods or Services which the Purchaser has paid whether or not the Purchaser has previously required the Supplier to repair the Goods, supply any replacement Goods or re-execute the Services; and/or
(h) claim such damages as may have been incurred by the Purchaser as a result of the Supplier’s breach of the Contract.
9.7 If the Purchaser claims that an Order has not been fulfilled or has been incorrectly fulfilled the Supplier shall be deemed to accept the validity of the claim unless it serves written notice on the Purchaser disputing the said claim and stating the reasons for its dispute within 7 (seven) days of the date of the said claim.
9.8 If the Purchaser exercises any right under these Conditions the Purchaser may at its absolute discretion require the Supplier to collect the relevant Goods forthwith or return the Goods to the Supplier at the Supplier’s cost and raise a debit note against the Supplier’s invoice for the carriage costs and any other costs incurred in connection with the rejection of and return of the Goods.
9.9 The Purchaser’s rights under these Conditions are in addition to any statutory remedies available to the Purchaser.
9.10 The Supplier shall immediately notify the Purchaser in writing providing all relevant details if it knows or suspects that there is:
(a) any defect in the Goods or Services which have been delivered or provided to the Purchaser at any time; or
(b) any error or omission in the instructions for the use and/or assembly of the Goods;
(c) (whether or not any such defect, error or omission represents a breach of the warranty in Condition 9.1 or any other Condition) which causes or may cause any risk of death, injury or damage to property.
10 Tooling
10.1 All tools, plates, patterns, castings or other materials supplied or paid for by the Purchaser (“Tooling”) shall be and remain solely the Purchaser’s property and shall not be used by the Supplier for any purpose other than the performance of its obligations under this Contract or any other Contract with the Purchaser. The Supplier shall not dispose of the Tooling without the Purchaser’s prior written permission and shall return at the Supplier’s sole risk and cost the Tooling to the Purchaser as the Purchaser requires.
10.2 The Supplier shall:
(a) whilst not in use keep Tooling separate and readily identifiable as the Purchaser’s property;
(b) at its own expense keep Tooling insured for full replacement value against all usual risks and apply proceeds of such insurance for replacement of Tooling;
(c) store safely, treat with due care and keep in good condition (fair wear and tear excepted) all Tooling;
(d) not charge by way of security for any indebtedness nor, without the Purchaser’s prior written consent, sell dispose of or destroy Tooling; and
(e) at own expense make good or replace all Tooling damaged or lost due to its own negligence.
11 Liability and Indemnity
11.1 The Supplier acknowledges that the Purchaser places particular reliance upon the Contract and in addition to any other remedy available to the Purchaser, the Supplier irrevocably and unconditionally agrees to indemnify the Purchaser its employees, sub-contractors and agents in full and on demand and keep them so indemnified against all claims, demands, actions, proceedings and all direct and indirect damages, losses, costs and expenses (including without limitation legal on an indemnity costs basis and other professional advisers’ fees, economic loss, loss of profit, future revenue, reputation, goodwill, anticipated savings) and any consequential loss made against or incurred or suffered by any of them and whether wholly or in part resulting directly or indirectly from the matters listed below whether or not such losses or the consequences of the matters listed below were foreseeable at the date of the Contract:
(a) any claims that the Goods or Services infringe the Intellectual Property Rights of any third party by reason of the use, purchase or sale by the Purchaser of the Goods including any royalties being payable to any third party (save to the extent that the Goods or Services have been supplied in accordance with the Specification or designs of the Purchaser)
(b) any breach of the Contract by the Supplier, its employees, agents or sub-contractors or any act or omission by any of them including any delays and any costs or liabilities incurred by the Purchaser in having to cancel any Order as a result of any such breach, act or omission or any other warranty or condition concerning the Goods or Services whether express or implied by statute or otherwise;
(c) any termination of the Contract pursuant to Condition 15; and/or
(d) any negligent performance or failure in performance of the obligations pursuant to the Contract.
11.2 The Purchaser shall not be liable for any indirect, special or consequential loss or damage howsoever caused or for any economic loss of whatever nature (whether or not such damage was foreseen, direct, foreseeable known or otherwise), including loss of anticipated profits (direct or indirect), loss of anticipated savings, loss of business, and/or any other losses arising as a result of any third party bringing a claim in respect of any nature whatsoever whether in contract, tort or otherwise.
11.3 Nothing in these Conditions excludes or limits the liability of the Purchaser for death or personal injury caused by the Purchaser’s negligence, or for fraudulent misrepresentation.
11.4 The Supplier shall provide all facilities, assistance and advice required by the Purchaser or its insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Supplier's performance, or purported performance of, or failure to perform, the Contract.
12 Insurance
12.1 The Supplier shall at its own cost effect and keep in place with reputable insurers such insurance policies as are appropriate and adequate having regard to its obligations and liabilities under the Contract, including third party liability and employer’s liability insurance. The Supplier shall on the written request of the Purchaser from time to time provide the Purchaser with reasonable details of the insurance maintained in force in accordance with this Condition, and, on the renewal of each policy, the Supplier shall send a copy of the premium receipt to the Purchaser when requested to do so in writing by the Purchaser. The Supplier shall do nothing to invalidate any of the policies maintained in force in accordance with this Condition.
12.2 The Purchaser shall reserve the right to have its interest noted on the insurance policies.
13 Confidentiality
13.1 The Supplier shall keep and procure to be kept secret and confidential all information disclosed or obtained as a result of the relationship of the parties under the Contract including without limitation the contents of any order or agreement incorporating these Conditions and shall not use nor disclose the same save for the purposes of the proper performance of the Contract or with the prior written consent of the Purchaser.
13.2 The obligations of confidentiality in this Condition 13 shall not extend to any matter which the Supplier can show is in, or has become part of, the public domain other than as a result of a breach of the obligations of confidentiality under these Conditions; was in its written records prior to entering into the Contract, was independently disclosed to it by a third party entitled to disclose the same or is required to be disclosed under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
13.3 The Supplier shall not make any announcement or otherwise publicise the existence of or disclose to any person the provisions of the Contract without the prior written consent of the Purchaser.
14 Intellectual Property
14.1 All materials including without limitation any Specifications supplied by the Purchaser, and any copies made by or for the Supplier shall be the property of the Purchaser, shall only be used for the purposes of the Contract, shall be treated by the Supplier as strictly confidential and shall be returned by the Supplier immediately on request to the Purchaser at the Supplier’s sole risk and cost.
14.2 Any and all Intellectual Property Rights of whatever nature created or acquired in the course or as a result of any work carried out by the Supplier under or in pursuance of the Contract, shall, where possible from the date of their creation or acquisition by the Supplier and otherwise promptly upon request by the Purchaser, belong exclusively, throughout the world, to the Purchaser.
14.3 The Supplier shall grant or procure the grant of an irrevocable, worldwide, perpetual and transferable licence or sub-licence to the Purchaser at no extra cost, of any Intellectual Property Rights which the Supplier does not own incorporated or utilised in any work done by the Supplier for the Purchaser in pursuance of the Contract sufficient to enable the Purchaser (without infringing any third party’s Intellectual Property Rights and without paying any royalty or payment) to make full use of the results of such work and to repair, update or maintain the work in which such Intellectual Property Rights are incorporated.
14.4 The Supplier hereby agrees and undertakes promptly at the request of the Purchaser, but at its own cost, to do all such acts or deeds, or execute all such documents as may be required by the Purchaser to give effect to the provisions and intentions of this Condition 14.
15 Termination
15.1 The Purchaser may immediately terminate the Contract without payment of compensation or other damages caused to the Supplier solely by such termination by giving notice in writing to the Supplier if any one or more of the following events happens:
(a) the Supplier commits a material breach of any of its obligations under these Conditions which is incapable of remedy;
(b) the Supplier fails to remedy, where it is capable of remedy, or persists in any breach of any of its obligations under these Conditions after having been required in writing to remedy or desist from such breach within a period of 30 days;
(c) the Supplier proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or an interim order is made in relation to the Supplier under Section 252 of the Insolvency Act 1986, or any other steps are taken or negotiations commenced by the Supplier or any of its creditors with a view to proposing any kind of composition, compromise or arrangement involving the other party and any of its creditors;
(d) the Supplier is deemed to be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or calls a meeting for the purpose of passing a resolution to wind it up, or such a resolution is passed, or a resolution is passed by the directors of the Supplier to seek a winding up or administration order, or the Supplier presents, or has presented, a petition for a winding up order, or presents, or has presented, a petition to appoint an administrator, or has an administrative receiver, or receiver appointed over all or any part of its business, undertaking, property or assets; or
(e) the Supplier suffers or undergoes any procedure analogous to any of those specified in Condition 15.1(c) and (d) above or any other procedure available in the country in which the Supplier is constituted, established or domiciled against or to an insolvent debtor or available to the creditors of such a debtor.
15.2 The Purchaser may terminate the Contract at any time upon giving 14 days written notice to the Supplier.
15.3 Upon termination the Supplier will solely be entitled to payment in relation to goods supplied and/or services performed prior to the notice of termination being served and the Purchaser shall be under no further liability in relation to the Contract or otherwise.
15.4 The Supplier’s sole remedy in the event of termination shall be as provided in this Condition to the exclusion of any other remedies whether in contract, tort or otherwise.
15.5 The termination of the Contract shall be without prejudice to the rights and remedies of either party which may have accrued up to the date of termination.
15.6 Upon termination of the Contract for any reason whatsoever:
(a) the relationship of the parties shall cease save as (and to the extent) expressly provided for in Condition 15.3;
(b) any provision which expressly or by implication is intended to come into or remain in force on or after termination shall continue in full force and effect;
(c) the Supplier shall immediately return to the Purchaser (or if the Purchaser so requests by notice in writing, destroy) all of the Purchaser’s property in its possession at the date of termination including all confidential information, together with all copies of such confidential information and shall certify that it has done so, and shall make no further use of such confidential information.
16 Assignment, Sub-Contracting and The Contract and Third Party Rights
16.1 The Contract is personal to the Supplier. The Supplier shall not assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract without the prior written consent of the Purchaser.
16.2 The Purchaser may assign, delegate, sub-contract, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under the Contract at any time without the prior written consent of the Supplier. The Supplier irrevocably consents to the Purchaser novating its rights and obligations pursuant to the Contract within the Purchaser’s Group Companies.
16.3 The Purchaser’s Group Companies have the right to enforce any provision of the Contract. No other person who is not a party to the Contract (including any employee, officer, agent, representative or subcontractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any provision of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties which agreement must refer to this Condition 16.3.
16.4 Even if a person who is not a party to the Contract (including CEMEX’s Group Companies) has a right to enforce any term of the Contract the parties may vary or cancel the Contract by agreement between them without requiring the consent of such third party.
17 Anti Bribery
17.1 The Supplier shall:
(a) comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with the Purchaser's Ethics, Anti-bribery and Anti-corruption Policies in each case as the Purchaser or the relevant industry body may update them from time to time (Relevant Policies).
(d) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including (but not limited to) adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and Condition 17.1(c), and will enforce them where appropriate;
(e) promptly report to the Purchaser any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this agreement;
(f) within 3 months of the date of this agreement, and annually thereafter, certify to the Purchaser in writing signed by an officer of the Supplier, compliance with this Condition 17 by the Supplier and all persons associated with it under Condition 17.2. The Supplier shall provide such supporting evidence of compliance as the Purchaser may reasonably request.
17.2 The Supplier shall ensure that any person associated with the Supplier who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in this Condition 17 (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Purchaser for any breach by such persons of any of the Relevant Terms.
17.3 Breach of this Condition 17 will entitle the Purchaser to treat the Contract as forthwith terminated in addition to all its other rights and remedies against the Supplier.
17.4 For the purpose of this Condition 17, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this Condition 17 a person associated with the Supplier includes but is not limited to any subcontractor of the Supplier.
18 Modern Slavery Act
18.1 In performing its obligations under the Contract, the Supplier shall comply with:
(a) the Modern Slavery Act 2015; and
(b) the CEMEX Code of Conduct.
18.2 The Supplier represents and warrants that:
(a) neither the Supplier nor any of its officers, employees or other persons associated with it:
(i) has been convicted of any offence involving slavery and human trafficking; and
(ii) has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.
18.3 The supplier shall implement due diligence procedures for its own suppliers, subcontractors and other participants in its supply chains, to ensure that there is no slavery or human trafficking in its supply chains.
18.4 The Supplier shall notify the Purchaser as soon as it becomes aware of:
(a) any breach or potential breach of the CEMEX Code of Conduct; or
(b) any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Contract.
18.5 The Purchaser may terminate this Contract with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of the CEMEX Code of Conduct.
19 General
19.1 The Supplier shall not exercise any right of lien, general or otherwise and howsoever arising, over any Goods or any other property of the Purchaser in the Supplier’s possession, in respect of any sums owed by the Purchaser to the Supplier under the Contract or otherwise.
19.2 Nothing in these Conditions shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the parties and no employee of the Supplier shall be deemed to be or have become an employee of the Purchaser.
19.3 No purported alteration or variation of these Conditions shall be effective unless it is in writing, refers specifically to the Contract and is signed by a duly authorised representative of each of the parties to the Contract.
19.4 The waiver by either party of any breach of these Conditions shall not prevent the subsequent enforcement of that provision and shall not be deemed to be a waiver of any subsequent breach of that or any other provision. Any waiver of any breach of these Conditions shall be in writing.
19.5 If at any time any part of these Conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from these Conditions and the validity and/or enforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired as a result of that omission.
19.6 Any notice, demand or communication in connection with the Contract will be in writing and may be delivered by hand, first class post or Special Delivery post, addressed to the recipient at its registered office or such other address, or person which the recipient has notified in writing to the sender (to be received by the sender not less than seven Business Days before the notice is despatched). The notice, demand or communication will be deemed to have been duly served:
(a) if delivered by hand, at the time of delivery;
(b) if delivered by first class post or Special Delivery post 48 hours after being posted or in the case of Airmail 14 days after being posted (excluding days other than Business Days),
provided that, where in the case of delivery by hand, such delivery or transmission occurs either after 4.00 pm on a Business Day, or on a day other than a Business Day, service will be deemed to occur at 9.00 am on the next following Business Day (such times being local time at the address of the recipient).
19.7 Notices shall not be validly served by email.
19.8 For the avoidance of doubt, where proceedings have been issued in the Courts of England and Wales, the provisions of the Civil Procedure Rules must be complied with in respect of the service of documents in connection with those proceedings.
19.9 All notices and communications shall be in the English language which shall prevail.
19.10 To prove service of any notice it shall be sufficient to show in the case of a notice delivered by hand that the same was duly addressed and delivered by hand and in the case of a notice served by post that the same was duly addressed prepaid and posted in the manner set out above.
19.11 The Supplier shall (and shall use its reasonable endeavours to procure that its staff shall) at all times comply with the provisions of the Human Rights Act 1998 in the performance of this agreement.
19.12 Each party represents and warrants that, in connection to this Contract, it has not and will not directly or indirectly (i) make use of slave, forced or compulsory labour in any form, and/or (ii) engage children under the corresponding minimum ages for employment, as defined in all international labour standards and applicable national legislation on child labour, whether the party knew or should have known of its contribution to such behaviours. Each party will take the necessary action to assure direct and indirect compliance with the aforesaid.
19.13 Each party represents and warrants to comply with all applicable laws relating to the environment, the disposal of materials, the discharge of chemicals, gases or other substances or materials into the environment, or the presence of such materials, chemicals, gases or other substances in or on its facilities and/or its affiliates’ facilities and having an actual or potential effect on any activities related to this Contract.
20 Law and Jurisdiction
20.1 These Conditions and any dispute or claim arising out of or in connection with it shall be governed by, and construed in accordance with, the laws of England and all disputes or claims arising out of or relating to these Conditions shall be subject to the exclusive jurisdiction of the English Courts to which the parties irrevocably submit.
*Updated May 2022