1.1 Except where condition 8 applies, these terms and conditions apply to every order placed by COBRA SIMULATION LIMITED (“COBRA”) with any individual, firm or company (the “Supplier”). No terms and conditions in or attached to any catalogue, invoice or other sales literature or document or tender or dispatch/delivery note which are inconsistent with these terms and conditions, or which purport to add to or vary them in any way, shall not have any effect unless expressly accepted by COBRA in writing. In the absence of such written acceptance, the Supplier shall be deemed to have withdrawn or waived its terms and conditions and to contract solely on the basis of these terms and conditions, and acceptance of goods and/or services shall not constitute or be deemed to constitute acceptance by COBRA of the Supplier`s terms and conditions. The contract shall commence, and the Supplier will be contractually bound upon the dispatch of a purchase order by COBRA.
2. PURCHASE ORDER
2.1 The Supplier shall ensure that the goods and/or services shall:
(a) correspond with the quantity, type, sort, quality and description set out in the purchase order;
(b) meet the performance standards and dates specified on the purchase order or notified to the Supplier by COBRA;
(c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by COBRA;
(d) where applicable, be free from defects in design, materials and workmanship and remain so for 12 months after delivery;
(e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the goods.
2.2 If the goods and/or services do not comply with the COBRA purchase order and/or instructions, COBRA is entitled at its option to either return the goods at the risk of the Supplier; reject the goods and/or services; require the Supplier to re-perform the services or accept the whole or part of the goods and/or services supplied by the Supplier, but without prejudice to any rights of COBRA to claim compensation or damages for loss or damage suffered as a result of failure to comply.
2.3 If the Supplier fails to deliver the goods and/or perform the services by the date specified in the purchase order COBRA shall be entitled to terminate the contract without notice.
3. PRICE, PAYMENT AND SET OFF
3.1 The price for the goods and/or services shall be the price set out in the purchase order and shall be inclusive but not limited to the costs of packaging, insurance and carriage of the goods and/or provision of the services. No extra charges shall be effective unless agreed by COBRA.
3.2 In respect of goods, the Supplier shall invoice COBRA on or at any time after completion of delivery. In respect of services, the Supplier shall invoice COBRA in full, monthly, or quarterly as agreed. The valid VAT invoice must contain the purchase order number and shall include such supporting information required by COBRA to verify the accuracy of the invoice.
3.3 COBRA will pay the invoiced amounts within 30 days of the date of a valid and correct invoice to a bank account nominated in writing by the Supplier.
3.4 COBRA may, without limiting its other rights or remedies, set off any amount owing to it by the Supplier against any amount payable by COBRA to the Supplier.
4. INDEMNITY AND INSURANCE
The Supplier shall hold and keep COBRA indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by COBRA due to or arising out of the performance of the contract or any breach by the Supplier of these terms and conditions or any term or obligation implied by law or any statutory provision that may be in force from time to time. The Supplier shall at all times have sufficient insurances in place and provide written evidence to COBRA upon request.
The Supplier shall treat all confidential information belonging to COBRA as confidential and safeguard it accordingly and shall not disclose any confidential information without the prior written consent of COBRA.
Confidential Information: all confidential information (however recorded, preserved or disclosed) disclosed by a Party or its Representatives to the other Party and that Party's Representatives in connection with discussions relating to the Field or either Party’s business, before or after the date of this agreement, including but not limited to: -
(i) the existence and terms of this agreement;
(ii) business data, samples, and models;
(iii) any information that would be regarded as confidential by a reasonable business person relating to:
(a) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of either Party; and
(b) the operations, processes, product information, know-how, designs, trade secrets or software of either Party;
(iv) any information or analysis derived from the Confidential Information
but excluding the Excluded Information.
Excluded Information: information that:
(i) Is or becomes public knowledge other than as a direct or indirect result of disclosure by Recipient or its Representatives or anyone to whom the Parties has disclosed the information in breach of this agreement; or
(ii) was available to the Recipient on a non-confidential basis prior to disclosure by the Disclosing Party; or
(iii) was lawfully in the possession of the Recipient before the information was disclosed to it by the Disclosing Party; or
(iv) the Parties agree in writing is not confidential or may be disclosed; or
(v) is trivial, obvious or useless.
Disclosing Party: a Party to this agreement which discloses or makes available directly or indirectly Confidential Information.
Recipient: a Party to this agreement which receives or obtains directly or indirectly Confidential Information.
Representative: employees, agents, officers, advisers and other representatives of the Recipient.
In addition to clause 2.3 and 7.1, if at any time after the commencement of the contract the Supplier commits a material or persistent breach of the contract and (if such a breach is remediable) fails to remedy that breach within 7 days after receiving notice of the breach; commits a material breach which cannot be rectified, then COBRA may terminate the contract with immediate effect.
7.1 Force majeure and the national risk register: Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party, which by its nature could not have been foreseen within the national risk register by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent the Supplier from supplying the goods and/or services for more than 4 weeks, COBRA shall have the right, without limiting its other rights or remedies, to terminate the contract with immediate effect by giving written notice to the Supplier.
7.2 Assignment and subcontracting: The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the contract without the prior written consent of COBRA.
7.3 Notices: Any notice or other communication required to be given under or in connection with the contract shall be in writing and shall be delivered to the other party by prepaid first-class post.
7.4 Waiver: No delay, neglect or forbearance on the part of either party in enforcing against the other party any term or condition of the contract shall either be or be deemed to be a waiver or in any way prejudice any right of that party under this contract.
7.5 No partnership: Nothing in the contract is intended to, or shall be deemed to, constitute a partnership of any kind between any of the parties.
7.6 Contracts (Rights of Third Parties) Act 1999: A person who is not a party to the contract shall not have any rights under or in connection with it.
7.7 Variation: Any variation, including any additional terms and conditions, to the contract shall only be binding when agreed in writing and signed by COBRA.
7.8 Severance of any provision in the contract shall in whole or in part be held to any extent to be unlawful or unenforceable under any enactment or rule of law, the remainder of the provisions shall stand in full force and effect.
7.9 Statutory Requirements: the Supplier shall comply with all statutes, orders, regulations or bye laws applicable to the performance of the contract and shall indemnify COBRA against all losses, claims or liabilities, expenses, proceedings or otherwise as a result of the Supplier`s noncompliance with the same.
7.10 Governing law and jurisdiction: The contract shall be governed by, and construed in accordance with, Scottish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Scotland.
8. TERMS AND CONDITIONS
These terms and conditions will apply unless COBRA specifies different terms and conditions in its tender or quotation documentation or some other contract entered into by the parties. If different terms and conditions are specified by COBRA those terms and conditions will override the purchase order terms and conditions and will apply instead of these.