1. Definitions

1.1 In these Conditions the following words have the following meanings:

“Conditions” means these Terms & Conditions of Purchase as varied by the Order Form;

“Intellectual Property Rights” means patents, trademarks (whether registered or unregistered), design rights (whether registered or unregistered), database rights, copyright, know-how, rental rights, industrial property rights, and similar current and future rights throughout the world (including all renewals and extensions);

“UPRIGHT UK IP” means any and all trademarks and service marks (whether registered or unregistered) owned by or exclusively licensed to UPRIGHT UK or its subsidiaries, UPRIGHT UK’s brand names (whether registered or unregistered), references to the company “Upright UK” and/or any of UPRIGHT UK’s logos;

“UPRIGHT UK” means Upright UK Limited (Company No. 5418556), Unit 9, The Courtyard, Whitwick Business Park, Stenson Rd, Coalville, Leicestershire, LE67 4JP

“Order Form” means the order form or email to which these Conditions are attached;

“Products” means the products to be supplied by the Seller under the Order Form;

“Working Days” means Monday to Friday each week.

2. Basis of Agreement

2.1 Subject to clause 2.4 below, these Conditions (as varied by the Order Form) shall govern the contractual relationship between the Seller and UPRIGHT UK to the exclusion of any other terms and conditions (including the Seller’s terms and conditions).

2.2 No variation to these Conditions will be binding on UPRIGHT UK unless expressly agreed in writing by UPRIGHT UK. The Seller should check each Order Form as variations set out by UPRIGHT UK on the Order Form will be valid variations to these Conditions.

2.3 An Order Form will only be valid if (a) it is marked with the UPRIGHT UK logo; (b) it is marked as “Official” and (c) it contains a purchase order number.

2.4 If the Seller and UPRIGHT UK have entered into a separate signed contract then their contractual relationship will be governed by that signed contract and these Conditions will not apply.

In such cases the Order will be subject to the terms of the signed contract.

3. Orders and contract

3.1 Under these Conditions UPRIGHT UK may from time to time, order Products from the Seller. All orders will be subject to these Conditions.

3.2 Unless stated otherwise on the Order Form, nothing in these Conditions will oblige UPRIGHT UK to order any minimum quantity of Products.

3.3 For the avoidance of doubt, these Conditions do not constitute any exclusive agreement between the Seller and UPRIGHT UK.

3.4 A binding contract will have been made when the Seller confirms the order (this may be done verbally, in writing or by conduct).

4. Delivery

4.1 The Seller should use all reasonable efforts to meet the dates for delivery and/or performance. If certain dates are important to UPRIGHT UK then UPRIGHT UK will notify the Seller of these dates.

In such cases time will be of the essence.

4.2 Unless otherwise set out in the Order Form, the cost of the Products will include delivery costs to the delivery address specified by UPRIGHT UK.

4.3 Unless stated otherwise on the Order Form all Products will be shipped to UPRIGHT UK within 30 Working Days from the date of the order.

4.4 UPRIGHT UK shall have the right to reject any Products which are incomplete, do not conform to their description, are faulty, defective or which are in any way not of satisfactory quality.

4.5 UPRIGHT UK will have the right to rescind for late delivery and/or performance if (a) UPRIGHT UK has notified the Seller that time is of the essence and the due date for delivery and/or performance has not been met; or (b) time was not of the essence but the date for delivery/performance has passed and UPRIGHT UK has served on the Seller a written notice requiring the contract to be performed within a specified date and the notice has not been complied with.

4.6 The Seller will either refund the price of or replace free of charge any Products missing from a delivery provided that the missing items are notified by UPRIGHT UK to the Seller within 30 Working Days of delivery or, in the event of total non -delivery, this fact is notified to the Seller within 30 Working Days of the agreed delivery date.

4.7 Any replacements due under clause 4.6 above will be shipped to UPRIGHT UK (at the Seller’s cost) to reach UPRIGHT UK within 15 Working Days from the date of UPRIGHT UK’s notification to the Seller in accordance with clause 4.6 above.

4.8 UPRIGHT UK will be entitled to deduct 5% of the purchase price of the Products as liquidated damages, for each week (or part of a week) in which the Products remain un-delivered to UPRIGHT UK after the due date for delivery.

5. Postponement and Cancellation

5.1 The Seller will use reasonable efforts to comply with reasonable requests by UPRIGHT UK for postponement of delivery of the Products.

5.2 UPRIGHT UK may cancel delivery of the Products at any time up to 20 Working Days before the due date for despatch provided that UPRIGHT UK will remain liable for the costs incurred by the Seller up to the date of cancellation.

6. Price and Payment

6.1 The price of the Products is at set out the Order Form.

6.2 Once an order has been accepted the Seller will not change its prices for that order. If the Seller intends to change its prices for future orders then it must notify UPRIGHT UK in writing before accepting any future orders to check if the price is acceptable to UPRIGHT UK.

6.3 If UPRIGHT UK is liable for any non UK taxes, including United States taxes or federal charges which apply to the sale of the Products to UPRIGHT UK then the Seller will notify UPRIGHT UK of this in writing before accepting the order.

6.4 UPRIGHT UK’s terms of payment are 60 days from the date of receipt of a correct invoice from the Seller.

6.5 If UPRIGHT UK fails to make any payment in full on the due date the Seller may charge UPRIGHT UK simple interest on the amount unpaid at the annual rate of 2% above the base rate of HSBC.

6.6 Unless otherwise agreed, the Seller may not invoice split deliveries separately.

6.7 UPRIGHT UK will be entitled to withhold payment for the Products if it has not received any Products within the delivery time specified by UPRIGHT UK or if any Products received by it do not meet the quality requirements of section 11.1.

6.8 The Seller must ensure that the invoices are clearly detailed and accurate. The Seller agrees to pay to UPRIGHT UK an administration fee of £30 for each incorrect invoice submitted to UPRIGHT UK.

7. Price to be held on trust

7.1 When the Seller receives payment from UPRIGHT UK, if the Products have not already been received by UPRIGHT UK then the Seller will immediately hold those monies (or an amount equal to the price) on trust for UPRIGHT UK. UPRIGHT UK, as beneficiary of the trust hereby authorises the Seller to release such monies to the Seller on delivery of the Products to UPRIGHT UK.

8. Services

8.1 If the Seller is supplying any services under these Conditions, all such services will be (a) provided with professional skill and care; (b) provided by suitably skilled and qualified persons; and (c) provided on the agreed dates and if no dates are agreed then within a reasonable time.

8.2 All of the Seller’s personnel, sub-contractors and agents who enter UPRIGHT UK’s premises will comply with all reasonable health & safety procedures notified to them and will comply with all reasonable security procedures notified to them.

8.3 If the Seller sub-contracts any services then the Seller will remain liable for the actions of its sub-
contractors.

8.4 The Seller will keep in place insurance cover for at least (a) public/product liability insurance of not less than £10 million; and (b) employer’s liability insurance of not less than £10 million.

9. Products designed for UPRIGHT UK

9.1 This section applies to all Products that (a) are designed specifically for UPRIGHT UK; or (b) are manufactured, modified or created based on specifications supplied by UPRIGHT UK; or (c) contain any of UPRIGHT UK’s Intellectual Property Rights.

9.2 The Seller assigns to UPRIGHT UK (or will procure the assignment to UPRIGHT UK of), all rights, title and interest in the Intellectual Property Rights in the Products, with full title guarantee.

9.3 The Seller shall do all such things and sign all such deeds and/or documents as may be required to give effect to the terms of this section 9.

9.4 The Seller must not create or sell any identical Products for any third parties.

10. Property and Risk

10.1 Risk in the Products shall pass to UPRIGHT UK at the time when the Products are received by UPRIGHT UK.

10.2 Title and ownership in the Products shall pass to UPRIGHT UK as soon as the Products have been separately identified and set aside for UPRIGHT UK.

10.3 The Seller will not exercise any lien over the Products.

11. Warranty

11.1 The Seller warrants and represents to UPRIGHT UK that for a period of 12 months from the date of delivery to UPRIGHT UK, all Products will (a) be of satisfactory quality; (b) be free from all defects; (c) be fit for the purpose; and (d) comply with any specification supplied by UPRIGHT UK.

Notwithstanding any specification supplied by UPRIGHT UK, the Seller must test the Products to ensure that they are fit for the purpose required by UPRIGHT UK.

11.2 UPRIGHT UK reserves the right to return the Products to the Seller which UPRIGHT UK reasonably considers to breach the above warranty.

11.3 The Seller agrees that it will repair or replace defective Products and re -perform defective services covered by the warranty above within a reasonable time but in any case, not later than 14 Working Days from being notified by UPRIGHT UK of the defect.

11.4 The warranties referred to in clause 11.1 above shall be extended to the period of extended warranty purchased by UPRIGHT UK (if any).

11.5 Where possible, the Seller will pass on to UPRIGHT UK the benefit of any Product warranties from the original equipment manufacturer (known as OEMs). These will be in addition to any warranties contained in these Conditions.

12. Intellectual Property Indemnity

12.1 The Seller will indemnify UPRIGHT UK and keep UPRIGHT UK indemnified against any and all actions, claims, proceedings, costs (including legal costs on a full indemnity basis), expenses and damages (including any compensation, compromise or settlement of any claim paid by UPRIGHT UK) arising from or in connection with any action, allegation or claim that the Products infringe the Intellectual Property Rights of any third party.

12.2 Clause 12.1 will not apply to any action, allegation or claim in respect of Products which have been manufactured specifically in accordance with specifications supplied by UPRIGHT UK.

12.3 In the event that the Products or any component part of the Products infringe any Intellectual Property Rights of a third party UPRIGHT UK will have the right to cancel all orders immediately without liability to the Seller.

12.4 UPRIGHT UK will be entitled to exercise its rights under this section 12 if it has been advised by its in-house or external counsel that on the balance of probabilities the Products are likely to breach the Intellectual Property Rights of a third party or if UPRIGHT UK has been served with legal proceedings claiming that the Products breach the Intellectual Property Rights of a third party.

13. Default and Termination

13.1 UPRIGHT UK shall have the right, without prejudice to any other remedies, to exercise any or all of the rights set out in clause 13.2 below if the Seller: (a) breaches these Conditions and, if the breach is capable of remedy, has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; (b) persistently breaches any one or more clauses of these Conditions; and/or (c) ceases or threatens to cease to carry on business, is unable to perform its obligations under these Conditions due to its financial affairs, is unable to pay its debts as and when they fall due, proposes to compound with its creditors, applies for any order for insolvency or has a bankruptcy petition presented against it, enters into voluntary or compulsory liquidation, has a receiver, administrator or administrative receiver appointed over all or any of its assets, or takes or suffers any similar action in any jurisdiction.

13.2 If any of the events set out in clause 13.1 above occurs in relation to the Seller then UPRIGHT UK may cancel, terminate and/or suspend any contract with the Seller without liability to the Seller (including but not limited to, any orders which have been placed by UPRIGHT UK).

13.3 If any of the events in clause 13.1(c) occur then: (a) the Seller will immediately, at the request of UPRIGHT UK, deliver to UPRIGHT UK all Products which have been ordered by UPRIGHT UK (and which have not been cancelled by UPRIGHT UK); and (b) the Seller grants to UPRIGHT UK an irrevocable licence to enter the premises where the Products are stored and UPRIGHT UK shall have the right to collect the Products.

14. NOTICE to receivers, administrators, liquidators etc

14.1 If any liquidators, administrators, receivers, administrative receivers or other agents (all referred to as “Agents”) are appointed to manage or otherwise deal with the affairs of the Seller then such Agents are hereby put on notice of clause 7.1 of these Conditions.

14.2 If any Agents misappropriate or otherwise dispose of any monies held on trust for UPRIGHT UK then the Agents will be held personally liable for such monies.

15. Use of UPRIGHT UK name and brands

15.1 The Seller will not, without the prior written consent from a director of UPRIGHT UK, make reference to its relationship with UPRIGHT UK for external advertising, promotion, sales, marketing, presentations or any other purpose. The Seller must not use any UPRIGHT UK IP for any external advertising, promotion, sales, marketing, presentations or any other purpose without prior written consent from a director of UPRIGHT UK.

16. Confidentiality

16.1 Both parties will at all times ensure that they do not, without the other party’s prior consent, disclose or allow to be disclosed any confidential information about the other party (including but not limited to financial information and operational methods). This restriction shall remain in force for a period of 5 years from the date of the Order Form. This restriction does not apply to any information (a) known to the disclosing party before the date of this agreement and not subject to any duty of confidentiality; or (b) already lawfully disclosed into the public domain; or (c) which is required to be disclosed by law.

17. Data protection & database rights

17.1 UPRIGHT UK may send data to the Seller (or give the Seller access to UPRIGHT UK’s data) in order to enable the Seller to supply the Products or services to UPRIGHT UK. If the Seller processes any personal data (as defined in the Data Protection Act 1998 – “DPA”) of UPRIGHT UK then the Seller will: (a) carry out the processing in compliance with the DPA and any other equivalent applicable legislation and any modification or re-enactment of such legislation or regulations; (b) act only on the instructions of UPRIGHT UK in relation to any processing of such data; (c) take all appropriate technical and organisational measures against unauthorised or unlawful processing of such personal data and against accidental loss or destruction of, transfer of or damage to such personal data; (d) not transfer any such data outside the EEC without the prior written consent of UPRIGHT UK; and (e) upon reasonable notice and at the written request allow Upright UK to audit the processing facilities used at any time to process the data.

17.2 UPRIGHT UK may from time to time, request the Seller to insert, create, verify, transfer or migrate certain data into various databases within or in connection with the Products.

17.3 It is the intention of both parties that any and all database rights (as defined in Regulation 13 of the Copyright and Rights in Databases Regulations 1997) created in connection with clause 17.2 above shall be owned by UPRIGHT UK as the first owner of the database and the database rights.

17.4 Where the Seller is the first owner of the database and/or database rights (in connection with any database created in connection with these Conditions) then the Seller assigns to UPRIGHT UK with full title guarantee all such database rights (including future database rights).

18. General

18.1 Neither party will be liable for any loss of profit or loss of opportunity except under clause 12.1 above.

18.2 No waiver by the either party of any breach of these Conditions shall be considered as a waiver of any subsequent breach of the same provision or any other provision.

18.3 The Seller shall not assign its interest in these Conditions (or any part) without the written consent of UPRIGHT UK.

18.4 All third party rights are excluded and no third party shall have any right to enforce these Conditions.

18.5 This Agreement is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.

Copyright © Upright UK Limited 2014