- Definitions and Interpretation
1.1 In these Delmec PTs the following words and phrases shall have the following meanings:
“Acceptance” has the meaning given to it in Schedules 1, 2, 3 and/or 4 (as appropriate);
“Agreement” means an agreement between Delmec and Supplier made via a PO;
“Applicable Laws and Regulations” means all laws, regulatory rules, codes of conduct or practice and guidelines applicable to the Deliverables and any rules, authorisations, licenses, permits, decisions, directions, instructions, guidelines, recommendations, handbooks or codes of conduct issued by a Regulator (or other competent regulatory authority) applicable to the Deliverables;
“Change of Control” means any change in control of the Supplier, “control” having the meaning attributed to it in Section 432 of the Taxes Consolidation Act, 1997;
“Charges” means charges payable for the Deliverables as set out in the PO;
“Completion Date(s)” means dates set for the delivery and/or provision of Deliverables in the PO, or as otherwise agreed by the Parties;
“Confidential Information” has the meaning given to it in clause 25;
“Data Protection Legislation” means all applicable data protection or privacy legislation including but not limited to the Data Protection Acts 1988 to 2018 and any regulations or enactments thereunder; Directive 2002/58/EC; Regulation (EU) 2016/679; and any other EU regulations, directives, decisions or guidelines on data protection or data privacy and guidance issued by the Data Protection Commission; all as amended, modified, consolidated or re-enacted from time to time;
“Defect” means a material error, omission, failure, inefficiency or inconsistency in a Deliverable (and “Defective” is construed accordingly);
“Deliverables” means Goods, Services, Licensed IPR and/or Software (as the context requires);
“Delmec” means the company in whose name a PO (by which an Agreement is made) is placed;
“Delmec Policies and Business Principles” means those policies and business principles set out in Schedule 5;
“Delmec Premises” means premises belonging to or in control of Delmec or such other premises as may be stated on a PO;
“Delmec PTs” means these Delmec purchasing terms as the same may be varied from time to time pursuant to clause 2, a copy of which appears on the Website;
“Documentation” means documentation, if any, required for the proper use of the Deliverables;
“EFM” means an event of force majeure being one or more of the following: riot, civil unrest, military action, terrorism, earthquake, storm, flood, inability to obtain supplies of power, fuel or transport, exercise of emergency powers by any governmental authority;
“Future Supplier” means any third party providing deliverables to Delmec similar to the Deliverables following the expiry or termination of an Agreement;
“Goods” means goods to be supplied under an Agreement, and where relevant includes any Documentation supplied to aid use of such goods;
“Group” means in respect of a Party, any company which is a subsidiary or a holding company to that Party, and any company which is a subsidiary of such holding company, the terms ‘subsidiary’ and ‘holding’ company having the meaning given in Section 7 and Section 8 of the Companies Act 2014;
“Invoicing Process” means the process to be observed by the Supplier in invoicing Delmec;
“IPRs” means any rights subsisting in any patent, petty patent, trade mark, service mark, design right, registered or unregistered design including any applications for the foregoing, copyright, databases, know-how and other trade secret rights, trade or business names and other industrial or intellectual property rights subsisting anywhere in the world;
“Licensed IPR” means the IPR to be licensed to Delmec under an Agreement as described in the relevant PO;
“Manufacturer” means the manufacturer of Goods (whether or not Supplier);
“Media” means the media on which the Software and related Documentation are recorded or printed as provided by Supplier to Delmec;
“Party” means either Delmec or Supplier and “Parties” shall mean both of them;
“PO” means a Delmec purchase order;
“Regulators” means all bodies responsible for regulating the subject matter of an Agreement or the business or operations of either Party, including, but not limited to, the Commission for Communications Regulation, the Office of the Data Protection Commissioner and the Competition and Consumer Protection Commission;
“Services” mean the services to be provided under an Agreement described in the PO;
“Software” means the software to be supplied (whether licensed or assigned) under an Agreement and where relevant, includes any Documentation supplied to aid use of such software;
“Specifications” means the functional and operational description or specification of the Deliverables as described (in order of precedence) in (A) the relevant PO, (B) any written communication (including any applicable proposals or responses to proposals requested by Delmec) sent or submitted to Delmec by or on behalf of Supplier and (C) the Documentation;
“Supplier” means the supplier named in the PO;
“Supplier Personnel” means any person to perform its obligations under an Agreement;
“Warranties” means the warranties provided by Supplier in relation to the Deliverables and those set out in Schedules 1, 2, 3, and/or 4 (as appropriate), and “Warranty” shall mean each of them;
“Warranty Period” has the meaning given to it in Schedules 1, 2, 3 and/or 4 (as appropriate);
“Website” means the website located at www.delmec.ie or such other website as may be notified to the Supplier; and
“Working Day” means between the hours of 0900 and 1730 on any day (other than Saturday or Sunday) on which the main retail banks are open for normal banking business in Ireland.
1.2 In these Delmec PTs (unless the context requires otherwise): (a) any reference to a clause is to the relevant clause of these Delmec PTs, (b) any reference to a Schedule is to a schedule of these Delmec PTs, (c) headings are included for convenience only and shall no affect the construction or interpretation of these Delmec PTs, (d) any reference to “persons” includes natural persons, firms, partnerships, bodies corporate, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether incorporated and whether or not having separate legal personality), and (e) references to any statue, statutory provision or statutory instrument include a reference to that statue, statutory provision or statutory instrument together with all rules and regulations made under it all as from time amended, consolidated or re-enacted.
1.3 Supplier acknowledges that in interpreting these Delmec PT’s or any Agreement the “contra proferentem” rule shall not be applied against Delmec and that any laws or regulations that provide and allow for the terms of the Delmec PT’s or an Agreement will not, to the fullest extent permitted, apply.
- Incorporation of Terms and Order of Precedence
These Delmec PTs are incorporated into and shall govern (to the exclusion of all other terms, including without limitation any terms appearing on Supplier’s invoices or other paperwork) each and every Agreement. Each Agreement shall constitute a separate contract between the Supplier and Delmec subject to these Delmec PTs. No conduct by Delmec shall be deemed to constitute acceptance of any terms put forward by Supplier or any other terms. Delmec shall be entitled to vary the terms and conditions set out herein from time to time and any such variation shall be binding upon Supplier with effect from the date at which the Delmec PTs are updated on the Website. It shall be the Supplier’s responsibility to visit the Delmec Website periodically from time to time for the purpose of familiarising itself with the current Delmec PTs. Delmec hereby agrees to buy, and Supplier hereby agrees to supply the Deliverables in accordance with and subject to this clause. To the extent that any of the terms agreed and set out on a PO are inconsistent with any provision of these Delmec PTs, the variable details set out in a PO shall prevail. In the event of any inconsistency between an Agreement and another agreement which has been formally negotiated and entered in to between Supplier and Delmec and duly executed by an authorised signatory on behalf of Delmec, the terms of such agreement shall prevail. For the avoidance of doubt, Supplier’s Agreement is with Delmec and nothing contained herein shall amount to a guarantee of Delmec’s obligations by any other member of the Delmec Group. The Supplier acknowledges and agrees that Deliverables provided under an Agreement are for the use and benefit of each and every company, entity or organisation registered in Ireland which is owned or controlled by Delmec Limited and the Supplier further acknowledges and agrees, without Limitation, Delmec may use and enjoy the benefit of any deliverables provided in connection with a PO placed by Delmec Limited without additional cost of any kind.
- Changes in Requirements
Acting reasonably, Delmec may at any time direct, by prior notice in writing, make changes to an Agreement. If any such change causes an increase or decrease in the cost of or timing required to provide the Deliverables, either Party (acting reasonably) shall be entitled to request an equitable adjustment to the Charges or Completion Date or both. Any request by Supplier for adjustment under this clause must be made within 15 days from the date of receipt by Delmec of the notification of change. Supplier shall not change Specifications of Deliverables without the prior written consent of Delmec (not to be unreasonably withheld).
- Relevance of Schedules
These Delmec PTs (including the Schedules) shall apply to the sale and purchase of Deliverables as follows:
- The supply of Goods shall be subject to the additional terms of Schedule 1;
- The provision of Services shall be subject to the additional terms of Schedule 2;
- The licence of Software shall be subject to the additional terms of Schedule 3; and
- The licence of Licensed IPRs shall be subject to the additional terms of Schedule 4.
For the avoidance of doubt, Schedules 1 to 4 are not mutually exclusive. Accordingly, one or more of Schedules 1 to 4 may apply to the supply of each Deliverable (or part thereof).
- Delmec Policies and Business Principles
5.1 In providing Deliverables, Supplier shall use its best endeavours to observe the Delmec Policies and Business Principles in all material respects.
5.2 If so required by Delmec, the Supplier will demonstrate to Delmec that it maintains policies to protect and promote good labour standards, good environmental protection and ethical procurement in its supply chains, in accordance with the requirements of the Delmec Policies and Business Principles.
- Charges and Payment Terms
6.1 Charges shall be as set out in the PO and shall remain fixed until completion of an Agreement. Except as expressly stated herein, all Charges are exclusive of VAT (if any) but otherwise fully inclusive including without limitation: (a) inclusive of all royalties, licences fees or other expenses arising from the use of sub-licence (if permitted) by Delmec, any member of the Delmec Group, their employees, sub-contractors or agents of any IPRs supplied by Supplier for the purpose of performing an Agreement, (b) includes supply and, where applicable delivery, off-loading and installation, and (c) in the case of Goods, is inclusive of delivery DDP, Delmec’s premises per Incoterms 2000 (as may be renewed or replaced). Supplier shall, following Acceptance of any Deliverables, be entitled to submit an invoice for the appropriate Charge. Supplier shall comply with the Invoicing Process and each invoice shall contain particulars prescribed in the PO and shall be sent to the address specified in the PO. Payment of a correct invoice submitted in accordance with this clause shall be made by Delmec in Euro within 60 days from the date of receipt. Delmec reserves the right to refuse payment of part or all of any invoice which is not submitted in accordance with these Delmec PTs.
6.2 Delmec and the Supplier agree that remedies set out in the PO (Liquidated Damages) (if any) are a genuine pre-estimate of the loss that Delmec will suffer in the event of a failure or delay in delivery by the Supplier.
6.3 Any claim, demands or proceedings arising in connection with the payment of overdue Charges must be made by Supplier within one year of the date the amount(s) claimed became overdue.
7.1 (A) Subject to clause 7.1 (B), an Agreement may be terminated immediately by notice in writing by either Party if the other Party is in material or continuing breach of any of its obligations.
7.1 (B) Supplier acknowledges and agrees that Supplier has no right to terminate an Agreement for failure on the part of Delmec to pay undisputed Charges unless the amount overdue is in excess of €100,000 and 60 calendar days’ notice of such breach and the Supplier’s intention to terminate an Agreement is provided to Delmec by the Supplier (during which notice period Delmec may remedy the situation). Supplier further acknowledges and agrees that Supplier’s sole remedy for failure on the part of Delmec to pay undisputed Charges where the overdue amount is less that €100,000 is for the recovery of the overdue amount.
7.2 Any Agreement may be terminated by either Party if any of the following events (or any event analogous to any of the following occurs in a jurisdiction other than Ireland) occurs in respect of the other Party: (a) a petition is presented or an order is made or a resolution is passed for its winding-up (unless such order or resolution is part of a voluntary scheme for the reconstruction or amalgamation of the party as a solvent corporation and the resulting corporation, if a different legal person undertakes to be bound by the Agreement); (b) any action is taken by its officers or any other person for its winding-up, dissolution or striking off; (c) it becomes insolvent or is unable to pay its debts as they fall due or it stops or threatens to stop making payments generally or declares or threatens to declare a moratorium with respect to all or any part of its debts or enters into any composition or other agreement with its creditors generally; or (d) any action is taken by any person to appoint a receiver, administrator, administrative receiver, examiner, trustee or similar officer of the other Party or any of its property or assets or any such receiver, administrator, administrative receiver, examiner, trustee or similar officer is appointed.
7.3 In the case of an Agreement related to Goods, Delmec shall be entitles without cost or liability to terminate an Agreement in respect of all or part of a PO at any time up to 30 Working Days prior to the agreed date for shipping of the Goods by serving written notice on Supplier. In the case of an Agreement relating to Deliverables other than Goods, Delmec shall be entitled without cost or liability to terminate the Agreement in respect of all or part of a PO at any time by serving 30 Working Days’ notice on the Supplier. In the event that Delmec terminates an Agreement or any part of an Agreement pursuant to this Clause and without limiting clause 7.5 below, Delmec shall continue to pay any Charges properly due in connection with the Agreement or part which has been terminated up to the date of termination.
7.4 I f at any time during the term of an Agreement the Supplier is subject to a Change of Control, Delmec shall be entitled to terminate absolutely that Agreement without penalty immediately by notice in writing.
7.5 If an Agreement is terminated for any reason: (a) any sums due to Delmec shall become immediately payable by Supplier without set-off or deduction; (b) Supplier shall return to Delmec all tangible property and Confidential Information belonging to Delmec in its possession, custody or control and Delmec shall return to Supplier all of its tangible property and Confidential Information in its possession, custody or control; (c) at Delmec’s option, Supplier shall immediately deliver up or destroy any personal data (as defined in clause 28.4) which it has no contractual right to retain and Delmec may enter any Supplier premises without notice to recover and remove such personal data at Supplier’s cost; (d) each Party will, at its sole option, either return or destroy all records, documentation, data, and any other information and all copies thereof which owned by or licensed to the other Party, and on the other Party’s request, a director of the returning/destroying Party shall certify in writing that the Party has complied with this clause.
7.6 Termination will not prejudice or affect any right of action or remedy already accrued to either Party.
7.7 Notwithstanding any termination of an Agreement the provisions which by their nature are intended to survive such termination will remain in full force and effect including without limitation the obligations of confidentiality.
7.8 If a Party (the first Party) is prevented from performing its obligations under an Agreement by an EFM which continues for more thank 30 days then the other Party will be entitled to terminate that Agreement without liability to the first Party forthwith on giving written notice of termination to the first Party.
7.9 In the event of termination (including partial termination) or expiry of an Agreement, the Supplier is required to ensure the orderly transition of the Services and/or any equivalent services from the Supplier either back to Delmec or to any Future Supplier nominated by Delmec (notwithstanding that any such Future Supplier is or may be a competitor of the Supplier). The Supplier shall assist Delmec and/or any Future Supplier, to the extent reasonably required, to facilitate the migration and replacement of the Services. The Supplier shall seek to achieve the orderly transfer of responsibilities for the provision of any replacement, or equivalent, of the Services or part of thereof and to minimise any material disruption to Delmec during, and as a result of, the transfer. For the avoidance of doubt, the Supplier shall be responsible for the overall management of the exit and service transfer arrangements.
- Force Majeure
8.1 Subject to the remaining provisions of this clause, to the extent that either Party is prevented from performing its obligations under an Agreement by an EFM beyond such Party’s reasonable control, such Party’s obligation to perform its obligations under that Agreement will (during the continuation of the EFM) be read and construed as an obligation to perform such obligations to the best level reasonably achievable in the circumstances.
8.2 Notwithstanding clause 8.1, if Supplier claims that it is affected by an EFM, such claim shall be valid only to the extent that a prudent supplier operating to standards expected of a leading supplier of the Deliverables in question could not have foreseen and prevented or avoided the effect of such event or occurrence.
8.3 A Party claiming to be affected by an EFM will not be entitled to invoke the provisions of clause 8.1 unless it performs fully the following obligations: (a) on becoming aware of any EFM it shall have notified the other Party by the most expeditious method then available, giving details of the EFM, the obligations on its part which are affected and its reasonable estimate of the period for which such failure or delay will continue; and (b) it takes all reasonable steps to prevent, avoid, overcome and mitigate the effects of such EFM.
9.1 Supplier shall indemnify Delmec against: (a) all claims, liability, demands, proceedings, costs and expenses arising as a result of any act or omission of Supplier in the performance or purposed performance of the Agreement; and (b) against any costs, damages, liabilities, losses or expenses (including legal expenses) incurred by Delmec and arising from any legal actions, claims or demands brought against Delmec by any third party which state that Delmec’s (or its sub-contractors or agents) possession and/or use of the Deliverables or Documentation (or any part of thereof) infringes any IPRs of a third party (a “Claim”).If a Claim is made: (A) Delmec shall: (i) informer Supplier of the existence of the Claim; (ii) provide Supplier (at Supplier’s expense) with such assistance as Supplier may reasonably require in connection with defending the Claim; and (iii) make no admission of liability without Supplier’s prior written consent (such consent not to be unreasonably withheld); and (B) Supplier shall: (i) replace the infringing material with non-infringing material that functions and performs at least as well as the infringing material and complies with any relevant Specification or other requirements of an Agreement, or (ii) obtain the right for Delmec lawfully to possess and use in accordance with the provisions of these Delmec PTs all the relevant Deliverables and/or documentation and to exercise the rights granted under an Agreement. In the event that Supplier is unable to provide either of the remedies set out in B(i) or B(ii) above to Delmec’s satisfaction, Supplier shall refund to Delmec all amounts paid to Supplier under the applicable Agreement.
9.2 The following matters shall be excluded from the indemnity contained in clause 9.1 above (except to the extent that such matters are contemplated and agreed by the Parties having regard to the provisions of an Agreement, and Supplier’s actual knowledge of Delmec’s intentions as to the use of Deliverables): (i) infringements arising directly from the use of Confidential Information supplied by Delmec, where the Supplier’s use of such Confidential Information in the performance of an Agreement is the sole and direct cause of such infringement; (ii) infringements arising from the modification of the Deliverables or Documentation by Delmec where such modification is not authorised by or within the reasonable contemplation of Supplier and the claimed infringement arises solely and directly from such modification.
- Limitation of Liability
10.1 Nothing shall exclude or limit the liability of either Party for the death or personal injury caused by its negligence, or for fraud, or for any other liability that may not be excluded or limited by law.
10.2 Except for the liability of the Supplier under clauses 9, 20, 25 and 28, the aggregate liability of either Party to the other under an Agreement for all losses, damages, costs, claims or expenses suffered by the other arising out of or in connection with any breach by such Party of the terms of an Agreement or any tort (including negligence) or breach of statutory duty in connection with such Party’s obligations under an Agreement shall be limited in the following ways: (a) the amount recoverable shall be no more than the greater of €2,500,000 or 125% of the total of all sums paid or due to Supplier to Deliverables in any 12 month period prior to the circumstances giving rise to such claim(s) arise(s), and (b) neither Party shall be liable to the other in respect of any indirect or consequential loss, irrespective of whether such loss was foreseeable or whether the Party has been advised of the possibility that such loss may be incurred.
- Entire Agreement
An Agreement shall constitute the entire agreement between the Parties in respect of matters dealt with in it and supersedes any previous agreement, written or oral, between the Parties relating to such matters. Each of the Parties acknowledges and agrees that in entering into an Agreement, and the documents referred to in it, it does not rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to an Agreement or not) other than as expressly set out in an Agreement.
If any of the provisions of an Agreement is judged to be invalid, illegal or unenforceable, the continuation in full force and effect of the reminder of that Agreement will not be prejudiced but such provision will be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the Parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the Parties as set out in herein.
No forbearance or delay by either Party in enforcing its respective rights will prejudice or restrict the rights of that Party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
- Relationship of the Parties
The relationship between Delmec and Supplier is that of purchaser and supplier. Nothing in an Agreement is intended to create a partnership or joint venture of any kind between the Parties, or to authorise either Party to act as agent for the other. Save where expressly so stated in an Agreement neither Party will have authority to act in the name o on behalf of or otherwise to bind the other.
- Assignment and Sub-Contracting
15.1 Subject to 15.2, neither Party shall be entitled to assign, novate or otherwise to transfer any of its rights and/or obligations under an Agreement without the prior written consent of the other Party (not to be unreasonably withheld).
15.2 Delmec may, at any time, assign, sub-contract, delegate (absolutely or by way of security and in whole or in part), novate, transfer, mortgage, charge or deal in any other manner with its obligations or any benefit arising under an Agreement provided that it shall give written notification to Supplier of any exercise of its rights under this clause.
15.3 For the avoidance of doubt, the Supplier may not subcontract, assign, transfer, novate or otherwise dispose of to any third party, an Agreement without Delmec’s prior written consent and any attempt by the Supplier to do so is a material breach of an Agreement incapable of remedy on the part of the Supplier.
Any notice given under an Agreement by either Party to the other must be in writing and must be delivered either personally or by registered post. In the case of post such notice will be deemed to have been given 2 Working Days after the date of posting. Notices will be delivered or sent to the address of the Parties on the PO or to any replacement address notifies in writing by either Party. Each Party may specify by notice in writing to the other a particular individual or office holder to whom any notices served on it are to be addressed in which event a notice will not be validly given unless so addressed.
Supplier shall provide Delmec with all information required in order to enable Delmec to understand and operate the Goods or Software (including, but not limited to installation, commissioning, operation and maintenance). Delmec shall have the right to copy, reproduce and generally use the Documentation for Delmec’s business purposes and the implementation and operation of the Goods and Software. The right to copy, reproduce and use the Documentation shall also extend to Delmec’s third party suppliers provided that such use is required for the purposes of providing services to Delmec or Delmec’s customers.
Supplier shall ensure that Supplier Personnel conform to all security, safety and works regulations and such other local instructions, as may be notified to it whilst on any Delmec Premises or Delmec customer premises. Delmec may: (a) remove from and refuse entry and re-admission to any Delmec Premises, any person who is, in the reasonable opinion of Delmec, not conforming with these requirements or is otherwise not a fit person to be allowed on premises; and/or (b) search any Supplier Personnel, their vehicles, or Goods upon any Delmec Premises or upon entry to and departure from any Delmec Premises. Supplier shall use its best endeavours to ensure that Supplier Personnel are aware of and comply with these requirements and that no Supplier Personnel unwilling to comply will be employed on any Delmec Premises.
19.1 Subject to the requirements of clause 7.5(c), Supplier shall for so long as an Agreement is current, and for a minimum period of 3 years following its expiry or termination, establish and maintain accurate, complete and up-to-date books and records as are necessary or required to show clearly all enquiries, claims, settlements, payments, compensations, systems, processes and other issues relating to an Agreement and all other information necessary or required to demonstrate compliance by the Supplier with its obligations under an Agreement, including, without limitation, such information as may be requested or required by any Regulators.
19.2 At no cost to Delmec, Supplier shall permit Delmec (and its agents) to inspect, review, verify and take copies of any associated records and documentation in the control or possession of Supplier relating to the provision of the Deliverables for the purpose of auditing the work provided for under an Agreement or where required for the purposes of Delmec responding to any requests for information received by Delmec from a Regulator. At no cost to Delmec, Supplier shall co-operate fully and provide any information or other facility reasonably required by Delmec for the purpose of undertaking such review or audit.
- Transfer Regulations
It is not intended that Delmec shall assume the responsibility for any employees employed by the Supplier or any contractor who supplies the Services (in whole or in part) to Delmec. However, if the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (the “Regulations”) apply in respect of the Services provided by the Supplier hereunder and if a contract of employment between the Supplier (or any third party) and any person has the effect as if originally having been made between Delmec and such a person as a result of the Regulations, then the Regulations shall be complied with and the Supplier shall indemnify Delmec and keep Delmec indemnified on demand against any and all actions, proceedings, claims (regardless of the jurisdiction in which they are the same or issued), liabilities, employment-related costs and expenses (including employee remuneration and taxation and PRSI payments), damages, awards or reasonable costs and expenses including reasonable legal fees arising for and in connection with the employment of the employee and any claim made against Delmec by any employee or former employee of the Supplier or any other contractor who supplied the Services. Delmec agrees to use its reasonable endeavours to mitigate any loss suffered by it and otherwise reduce the amount payable by the Supplier pursuant to the foregoing indemnity which, for the avoidance of doubt, should extend to any costs or expenses incurred by Delmec in doing so.
Delmec shall be entitled to set off any amounts owed to Delmec by Supplier against any amounts Delmec may owe to Supplier. Any exercise by Delmec of its rights under this clause shall be without prejudice to any other rights or remedies available to Delmec under an Agreement.
- Announcements and Publicity
Neither Party shall make any announcements relating to an Agreement or its subject matter without the prior written approval of the other Party except as required by law or regulatory authority.
- Governing Law and Jurisdiction
Each Agreement shall be governed by and interpreted in accordance with Irish law and the Parties submit to the exclusive jurisdiction of the Irish Courts provided that Delmec may apply to any court of competent jurisdiction to defend its IPRs.
- Compliance with Laws and Regulations
In performing its obligations under an Agreement, Supplier shall comply with all applicable laws against bribery, corruption, inaccurate books & records, inadequate internal controls and money laundering.
Supplier shall ensure that disclosure of Confidential Information is restricted to those employees, directors or contractors of Supplier, and/or members of its Group who need access to the Confidential Information for the purposes of an Agreement. Copies or reproductions of the Confidential Information shall not be made by Supplier except to the extent reasonably necessary for the purposes of such Agreement and all copies made shall be the property of Delmec. Supplier shall return all Confidential Information and any copies to Delmec within 30 days of receipt of a written request from Delmec, and on Delmec’s request, a director of Supplier shall certify in writing that Supplier has complied with this clause. In this clause “Confidential Information” shall mean product, business, market, strategic or other information or data (including but not limited to information retained on all types of medium including written, diagrammatical, software or other storage medium) relating to an Agreement or the business or affairs of Delmec disclosed whether in writing, orally or by any other means, and whether or not that information is marked “confidential” to Supplier by Delmec excluding any information which: (a) is in or comes into a public domain in any way without breach of such Agreement by Supplier; (b) Supplier can show was in its possession or known to it prior to receipt from Delmec; (c) Supplier can show was developed by or for Supplier at any time independently of any information disclosed to it by Delmec; (d) Supplier obtains or has available from a source other than Delmec without breach by Supplier or such source of any obligation of party without restriction confidentiality or non-use towards Delmec; (e) is hereafter furnished by Delmec to a third party without restriction on disclosure or use; or (f) is disclosed by Supplier with the prior written approval of Delmec in accordance with the terms of such written approval. Supplier shall maintain Confidential Information in confidence and shall exercise in relation to the Confidential Information no lesser security measures and degree of care than those which Supplier applies to its own confidential information, which Supplier warrants as providing the protection required by these Delmec PTs against unauthorised disclosure, copying or use.
26.1 The Supplier shall at all times and at its own cost, effect and maintain the insurances specified in this Clause 26 for the term of an Agreement and for a period of 3 years thereafter and within thirty (30) Working Days of a request by Delmec, the Supplier shall provide proof by way of certificates or other reasonable evidence that it maintains such insurances.
26.2 All of the insurances described in this Clause 26 shall be effected with a regulated insurer and the Supplier shall ensure that Delmec may benefit from such insurances and shall provide Delmec with at least thirty (30) Working Days prior written notice of any cancellation or a material change to its insurance policies.
26.3 In addition to the insurances listed in this Clause 26, the Supplier shall comply and shall procure that its permitted sub-contractors comply with any and/or all applicable statutory insurance requirements.
26.4 Set out below is a list of the insurance coverage to be procured by the Supplier and maintained in force for the term of an Agreement and for a period of 3 years. Thereafter in each case with a limit of liability per calendar year of not less than the sum of Charges payable under an Agreement or €5,000,000.00, whichever is the higher, and a policy excess of no greater than €20,000.00:
“all risk property damage insurance” to cover Supplier’s and its permitted sub-contractors’ operations and to be written on a replacement cost basis for all materials, plant, machinery and property of whatever nature incorporated or for incorporation in, or used in connection with the Deliverables;
“comprehensive general liability/third party insurance” to cover legal liability for all operations of the Supplier and its permitted sub-contractors to include contractual and product liability cover, cover for death or injury to third parties and loss or damage to property of third parties;
“Employer’s Liability Insurance” to cover claims presented by or on behalf of employees or servants of the Supplier and related to employer’s liability whether the claim arises under statue or otherwise; and
“marine and transit insurance” to cover transport, if relevant, of any materials to be delivered to form part of the Deliverables.
26.5 Where pursuant to an Agreement the Supplier receives or otherwise takes possession of any goods, equipment or other hardware title to which is held or retained by Delmec or any member of the Delmec Group (as the case may be), the Supplier shall from the date of taking possession maintain All Risk Material Damage Insurance to cover all damage or Risk Material Damage insurance policy shall include but not be limited to acts of terrorism, theft and sabotage provided such cover for such events is available in the insurance market.
- Intellectual Property Rights
27.1 All IPRs: (i) in information supplied to Supplier by Delmec and/or its sub-contractor(s) for the purpose of Supplier performing obligations under an Agreement; and (ii) developed in connection with the delivery of any Goods, Software and/or the provision of Services pursuant to an Agreement, shall vest in and remain with Delmec and/or its sub-contractor(s) as the case may be.
27.2 All IPRs in information supplied by the Supplier and/or its sub-contractor(s) authorised by the terms of an Agreement (if any) for the purposes of and in performing the Services shall vest in and remain with the Supplier and/or its sub-contractor(s) as the case may be.
- Data Protection
28.1 Unless otherwise specified in writing by Delmec, the Supplier acknowledges that Delmec is the data controller in respect of any personal data that the Supplier processes in the course of providing Deliverables to Delmec and that the Supplier is the data processor.
28.2 The Supplier shall only process personal data in accordance with the documented instructions of Delmec and in accordance with Data Protection Legislation, including in particular:
28.2.1 the adoption of appropriate technical and organisational measures against unauthorised or unlawful processing of personal data and against accidental disclosure, alteration, loss or destruction of, or damage to, personal data;
28.2.2 taking reasonable steps to ensure; (i) the reliability of Supplier personnel having access to the personal data processed as part of providing the Deliverables; and (ii) that such Supplier personnel are aware of and comply with this clause 28;
28.2.3 Informing Delmec immediately in the event of any incident that gives rise to the risk of unauthorised access, use, disclosure, destruction, alteration or loss of any personal data processed under an Agreement or any other suspected or actual breach or compromise of the security, confidentiality or integrity of personal data (“Security Incident”) which comes to their attention, and to provide Delmec with the Supplier’s proposals to remedy the Security Incident. For the avoidance of doubt, Supplier shall promptly provide all reasonable assistance, information and support required to investigate and mitigate against the effects of a Security Incident. Supplier agrees that it will not communicate with any third party including but not limited to the media, vendors, consumers and affected individuals regarding any Security Incident without the express written consent and direction of Delmec.
28.2.4 Where Delmec provides prior specific or general written authorisation to any subcontracting under clause 15, this consent is provided on the basis of the Supplier ensures that:
(a) such disclosure is made subject to written terms substantially the same as terms contained in this clause 28 and 7.5; and
(b) it shall not transfer personal data disclosed pursuant to an Agreement, outside the European Economic Area (‘EEA’) or any specific EEA jurisdiction specified by Delmec in writing unless: (i) Delmec has approved such transfer in writing; and (ii) Supplier ensured that adequate safeguards are in place to protect such personal data as required under Data Protection Legislation;
(c) in the case of general written authorisation, Supplier shall inform Delmec of any intended changes concerning the addition or replacement of other processors, thereby giving Delmec the opportunity to object to such changes.
28.2.5 Promptly referring to Delmec any requests, notices or other communication from data subjects, the Data Protection Commission or any other law enforcement agency relating to personal data for Delmec to resolve. Supplier agrees that it will not communicate with any third party regarding any such requests, notices or other communication without the express written consent and direction of Delmec;
28.2.6 At no additional cost, providing such information to Delmec as Delmec may reasonably require, and within timescales reasonably specified by Delmec, to allow Delmec to comply with rights of data subjects, subjects (including information, subject access, rectification or erasure, restriction of processing, data portability and the right to object to automated individual decision-making, including profiling);
28.2.7 At no additional cost, providing assistance to Delmec in relation to any complaints made by data subjects or investigations or enquiries made or notices served by the Data Protection Commission or any other relevant supervisory authority; and in carrying out a Data Protection Impact Assessment or engaging in prior consultation with the Data Protection Commission or any other relevant supervisory authority;
28.2.8 Adhering to any data retention policy communicated by Delmec from time to time in respect of personal data processed by Supplier under an Agreement;
28.2.9 Keeping any required written records of processing activities relating to the processing carried out on behalf of Delmec;
28.2.10 Without prejudice to Clause 7, on termination of the Agreement for any reason, Supplier shall, on written instruction from Delmec, either promptly securely delete or return all personal data processed as a part of the Agreement to Delmec at no additional cost to Delmec. Where Delmec requests that the data is deleted, Supplier shall provide certificate of destruction to Delmec on completion of such deletion;
28.2.11 Implementing at its own cost any reasonable change to its data processing operations that is required for Supplier to comply with its obligations in this clause 28.
28.3 Supplier recognises that Delmec has certain obligations in respect of the personal data that Supplier may process on behalf of Delmec or otherwise may have access to. Supplier shall provide such information as Is required by applicable Data Protection Legislation or is reasonably necessary to enable Delmec to satisfy itself of the Supplier’s compliance with this clause 28 and allow Delmec, its employees or authorised agents or advisers, on giving at least seven days’ notice to the Supplier, to inspect all facilities, equipment, documents and electronic data relating to the processing of such personal data by the Supplier. The requirements to give notice will not apply if Delmec believes that the Supplier is in breach of any of its obligations under an Agreement.
28.4 The terms ‘personal data’ (which, for the avoidance of doubt, shall include ‘sensitive personal data’ where applicable), ‘data processor’ and ‘data controller’ shall be as defined in the Data Protection Legislation.
28.5 To the extent that Supplier processes any personal data (as defined in clause 28.4) under an Agreement, Supplier warrants that it shall comply with the provisions of applicable Data Protection Legislation and shall indemnify Delmec from and against any data protection or privacy claims arising out of, or in connection with, any breach of clause 28 by Supplier, its employees, agents and/or sub-contractors or any claim that the use of the Deliverables infringes Data Protection Legislation and shall indemnify and hold Delmec and all Delmec customers or affiliates harmless from and against any losses, damages, costs (including legal fees) and expenses incurred by Delmec and/or any Delmec customers or affiliates or awarded by court of competent jurisdiction against Delmec and/or any Delmec customers or affiliates as a result or in connection with such a claim.
- Survival of Provisions
Clauses 9, 10, 20, 23, 25, 26 and 28 of these Delmec PT’s shall survive termination of each and every Agreement, for whatever reason.
Schedule 1 – Additional Terms Relating to the Supply of Goods
- Right to Inspect
Supplier shall at Delmec’s request allow Delmec to inspect and test the Goods prior to despatch to the Delmec Premises. If as a result of any inspection or testing Delmec is not satisfied that the Goods will comply in all material respects with an Agreement, and Delmec so informs Supplier within 7 days of such inspection or testing, Delmec shall not be deemed to have accepted such Goods, and Delmec shall not be obliged to pay any relevant Charges until the non-compliance is remedied. No such inspection shall diminish or otherwise affect Supplier’s obligations.
- Delivery and Acceptance
2.1 Supplier shall, at its own expense, deliver the Goods during a Working Day, properly packed and secured to the place specified in the PO or such other location as may subsequently be advised in writing by Delmec to Supplier. All Goods shall be delivered by the relevant Completion Dates, and time shall be of the essence in relation to delivery of the Goods.
2.2 Supplier shall supply Delmec in good time with any instruction or other information required to enable Delmec to take delivery of the Goods.
2.3 Delmec shall accept Goods immediately after Supplier has demonstrated to Delmec’s satisfaction that the Goods (i) comply with the PO pursuant to which they are supplied; (ii) comply with the relevant Agreement; and (iii) are in accordance with the Specification, and “Acceptance” shall be construed accordingly for the purposes of this Schedule 1.
2.4 Delmec may reject any Goods delivered earlier or later than the relevant Completion Date, unless previously agreed in writing by the Parties provided that Delmec shall use its reasonable endeavours to accommodate deliveries effected prior to relevant Completion Date.
2.5 If the Goods (or any parts of them) are not delivered by the relevant Completion Date, Delmec may terminate in whole or in part the relevant Agreement without cost or liability. Where Delmec exercises this option: (a) Supplier shall refund to Delmec in full any payments made by Delmec to Supplier in respect of such Goods; (b) no further payment will be due from Delmec in respect of such Goods; (c) following receipt of payment in full of all monies due to it in relation to the Goods in respect of which an Agreement has been terminated (whether in whole or in part) Delmec shall make such Goods available for collection by Supplier and Supplier shall collect such Goods at its own expense within 5 Working Days of the payment, and if Supplier fails to collect within this period, Delmec may dispose of such Goods in its absolute discretion without notice or liability to Supplier; (d) title in the Goods will revert to Supplier following receipt by Delmec from Supplier of payment in full of the refund due to Delmec; and (e) risk in the Goods shall revert immediately to Supplier.
2.6 Supplier undertakes at its own expense to repair or replace (at the option of Delmec) Goods lost or damaged in transit, and Acceptance will not be deemed to have taken place until replacement or repaired items have been delivered to the satisfaction of Delmec.
- Risk and Title
Without prejudice to Delmec’s other rights under an Agreement to reject or return the Goods to the Supplier: (a) title in the Goods shall pass to Delmec on delivery to Delmec in accordance with the PO and the terms of an Agreement. The Supplier expressly acknowledges and agrees that upon delivery of the Goods to Delmec, Delmec may immediately (or at any time thereafter) transfer good title to the Goods to any other person, notwithstanding that the Supplier has not received payment for the Goods at that time. Without prejudice to the generality of the foregoing, transfer by Delmec of title to any Goods to any other person upon or following delivery of such Goods to Delmec shall not prejudice Delmec’s right subsequently to reject or return the Goods (at Supplier’s cost) or any of them to the Supplier pursuant to and in accordance with the terms of an Agreement, and (b) risk in the Goods shall pass to Delmec on Acceptance save where the Agreement includes installation, in which case risk shall not pass to Delmec until completion of the installation work.
4.1 Supplier shall provide Delmec with the benefit of an Manufacturer’s warranties in respect of the Goods and additionally Supplier warrants to Delmec as follows: (a) Supplier holds absolute legal and beneficial title in and to the Goods and has unfettered right to sell and supply them and to pass good unencumbered title to Delmec; (b) the Goods are manufactured, supplied and installed in accordance with Delmec Policies and Business Principles, new and unused, of satisfactory quality and conform in all respects to their description and with the Specification; (c) the Goods will be free from Defects, whether actual or latent and whether in design, material or workmanship; (d) the Goods will comply in all material respects with all relevant statutory requirements and standards issued from time to time by the International Organisation for Standards (ISO), ITU-T and any other applicable organisation or recognised standards body; (e) the Documentation provided by Supplier in respect of the Goods are or will be of such a standard as to enable suitably trained personnel of Delmec to understand, operate and maintain the Goods to a level of competence sufficient for Delmec’s business purposes; and (f) where Supplier modifies the Goods or any part of the Goods for Delmec, such modification will not materially reduce the functionality of the Goods save to the extent that may be agreed by Delmec in writing prior to Supplier carrying out such modification. The Goods shall conform with each Warranty for 12 months from the date of Acceptance (the “Warranty Period”).
4.2 If any of the Goods are in breach of any Warranty during the Warranty Period, Supplier will (at Delmec’s option and without prejudice to its other rights or remedies): (a) repair the Goods promptly at Delmec’s premises (and where that is not possible repair the Goods and redeliver to Delmec) or (b) replace the Goods promptly with Goods that conform with the Warranties. This shall be at no cost to Delmec. If Supplier fails to repair or replace any Goods within a reasonable period determined by Delmec, Delmec may either itself or through a third party, repair or replace the Goods and set off the cost of doing so against any sum Delmec owes or will owe to Supplier and recover any further amount outstanding from Supplier as a debt. Delmec’s rights and remedies are in addition and without prejudice to its other rights and remedies at law.
4.3 Save as expressly provided to the contrary, each of the Warranties is, and shall be construed as, separate and distinct from the other Warranties. Accordingly, a Warranty shall not be limited or restricted by reference to, or inference from, the terms of any other Warranty or any other term of an Agreement.
4.4 The Warranties apply equally to any Goods repaired or replaced in which case the Warranty Period shall be the longer of the reminder of the original Warranty Period or 6 months from the date of receipt of the repaired or replaced Goods by Delmec.
4.5 Delmec’s rights under an Agreement are in addition to the statutory conditions (if any) implied in favour of Delmec by the Sale of Goods and Supply of Services Act, 1980, and any successor or equivalent legislation.
Schedule 2 – Additional Terms Relating to the Provision of Services
Supplier shall provide the Services during Working Day(s) (unless otherwise agreed with Delmec) at the place specified in the PO or such other location as may subsequently be advised in writing by Delmec to Supplier. All Services shall be delivered by the relevant Completion Dates, and time shall be of the essence. If the Services (or any parts of them) are not provided by the relevant Completion Date, Delmec may terminate in whole or in part the relevant Agreement without cost or liability. Where Delmec exercises this option: (a) Supplier shall refund to Delmec in full all payments made by Delmec to Supplier in respect of any Services; (b) no further payment will be due from Delmec in respect of any Services; and (c) full refund shall be due to Delmec in respect of any payments already made. Where Supplier is in possession of Delmec’s property in pursuance of providing the Services, it shall at its own expense repair or replace (at the option of Delmec) any such property that is lost or damaged while in Supplier’s possession to the satisfaction of Delmec.
Delmec shall accept Services immediately after Supplier has demonstrated to Delmec’s satisfaction that the Services (i) comply with the PO pursuant to which they are supplied; (ii) comply with the relevant Agreement; and (iii) are in accordance with the Specification, and “Acceptance” shall be construed accordingly for the purposes of this Schedule 2.
2.1 Supplier warrants to Delmec: (a) that it will ensure that Supplier Personnel will use the skill, care and diligence as would be expected from a skilled and experienced supplier engaged in the same type of business as Supplier and will be performed by employees and sub-contractor possessing the appropriate accreditations, skills and experience for all tasks assigned to them; (b) that Supplier Personnel will carry out the Services in such a was as (i) not to cause any material fault or malfunction in the Deliverables (ii) not to cause any material interruption to the business (other than any agreed downtime and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner) of Delmec (iii) to comply in all material respects with Delmec Policies and Business Principles (iv) to work in a co-operative manner with Delmec and ensure the effective performance of the Services; (c) that the Services will conform in all material respects at the time the relevant Service is performed with all statutory requirements or regulations or any other standards relating to the Services and their supply that have been issued by any recognised and appropriate standards bodies; and (d) that any Deliverables produced by Supplier in the course of performing Services shall comply with the applicable Warranties set out elsewhere in these Delmec
PTs. The Services shall conform with each of the Warranties for 12 months from the date of their Acceptance (the “Warranty Period”).
2.2 If any of the Services performed are found to be in breach of any Warranty during the Warranty Period, Supplier will (without prejudice to its other rights or remedies) re-perform the Services promptly. This shall be at no cost to Delmec. If Supplier fails to re-perform the Services within a reasonable period determined by Delmec, Delmec may either itself or through a third party, re-perform the Services and set off the cost of doing so against any sum Delmec owes or will owe to Supplier and recover any further amount outstanding from Supplier as a debt. Delmec’s rights and remedies are in addition and without prejudice to its other rights and remedies at law.
2.3 Save as expressly provided to the contrary, each of the Warranties is, and shall be construed as, separate and distinct from the other Warranties. Accordingly, a Warranty shall not be limited or restricted by reference to, or interference from, the terms of any other Warranty or any other term of an Agreement.
2.4 The Warranties apply equally to Services re-performed, in which case the Warranty Period shall be longer of the reminder of the original Warranty Period or 6 months from the date of re-performance.
2.5 Delmec’s rights under an Agreement are in addition to the statutory conditions (if any) implied in favour of Delmec by the Sale of Goods and Supply of Services Act, 1980, and any successor or equivalent legislation.
Schedule 3 – Software License Terms
- Delivery and Acceptance
Supplier shall deliver the Software to Delmec and (where appropriate, if not pre-installed by Supplier or installed by Delmec) install the same at Delmec’s Premises in accordance with the relevant PO and the Specification. Supplier shall, in accordance with an acceptance plan mutually agreed between the Parties, conduct acceptance tests in respect of the Software at Delmec’s Premises during a 14 calendar day acceptance period (or such other acceptance period as the Parties may agree in writing), such acceptance period to commence once the Software is operational. Delmec shall accept the Software immediately after Supplier has demonstrated to Delmec’s satisfaction that the relevant Software (i) complies with the PO pursuant to which it is supplied; (ii) complies with the relevant Agreement under which is it supplied; and (iii) is in accordance with the Specification, and “Acceptance” shall be construed accordingly for the purposes of this Schedule 3. Upon Acceptance, Delmec shall if requested by Supplier sign Supplier’s acceptance certificate acknowledging Acceptance of the relevant Software by Delmec.
- Risk and Title
Risk in and title to the Media shall pass to Delmec on the date of Acceptance. If any part of the Media shall thereafter be lost, destroyed or damaged by Delmec, Supplier shall at the request of Delmec replace the same promptly subject to Delmec paying the reasonable costs associated with such replacement. Supplier shall at all times retain ownership of the Software.
Supplier hereby grants to Delmec an irrevocable, non-exclusive, perpetual licence to use, copy, install, maintain, modify, enhance and adapt the Software throughout the world and to allow members of Delmec Group to do the same. Delmec may also assign its licence to use the Software (or any part of thereof) to any third party to which it may outsource the operation or a part of Delmec’s operations or business provided such third party enters into a direct undertaking to observe the terms of this Schedule 3 with Supplier. The grant of rights in this paragraph 3 shall also include implementation (in accordance with the reasonable written instructions of Delmec) of new releases, versions and upgrades to the Software.
4.1 Supplier shall provide Delmec with the benefit of any Manufacturer’s warranties in respect of the Software (if any) and additionally Supplier warrants to Delmec as follows: (a) Supplier’s title to and property in and to the Software is free and unencumbered, and Supplier has the right, power and authority to licence the same to Delmec; (b) the Software conforms in all material respects to their descriptions (if any) and with the Specification; (c) the Software will be free from Defects which materially affect the performance or functionality of the Software; (d) the Software will comply in all material respects with all relevant statutory requirements and any relevant industry standards issued by any applicable organisation or recognised standards body; (e) the Software will be supplied free of any known computer code programming instruction or set of instructions that damages, interferes with, or otherwise adversely affects computer program data files, or hardware, without the consent of the computer user, including self-propagating program instructions (all commonly called “Viruses) and when providing Services, Supplier will not knowingly introduce any Viruses to any of Delmec’s computer systems; (f) any new software releases, versions or upgrades supplied to Delmec under an Agreement will include any data conversion software required to enable Delmec to continue reading and writing data using the Software in the same manner as previous software releases, versions or upgrades; (g) new releases, versions or upgrades shall not cause a material diminution in the functionality or the performance of the Software; (h) neither the performance nor functionality of the Software will be adversely affected by dates; and (i) the Software is capable of performing its functions for more than one currency and also for the Euro, and will comply with all legal requirements applicable to the Euro.
4.2 The Software shall conform to each of the Warranties set out in paragraph 4.1 from Acceptance for the longer of 12 months or the period of any standard warranty as applies to any Software supplied by Supplier (“Warranty Period”). The Warranties in paragraph 4.1 shall not apply to the extent that Delmec makes or causes to be made to the defective Software any modifications in breach of this licence or if Software has been altered, repaired, installed or relocated by any party other than Supplier or Supplier’s agents unless such alteration, repair, installation or relocation shall have been performed in accordance with Supplier’s standards thereof.
4.3 If any Software is in breach of any Warranty during the Warranty Period, Supplier shall, at Delmec’s option and at Supplier’s own expense: (a) carry out all such alterations or corrections as are necessary to cause the Software or Media to comply fully with this Schedule 3 by repairing or replacing it; or (b) refund to Delmec any and all Chargers paid by Delmec for the Software. If Supplier fails to repair or replace the Software within a reasonable period determined by Delmec, Delmec may do so either itself or through a third party and set off the cost of doing so against any sum Delmec owes or will owe to Supplier and recover any further amount outstanding from Supplier as a debt. Delmec’s rights and remedies are in addition and without prejudice to its other rights and remedies at law.
4.4 Save as expressly provided to the contrary, each of the Warranties is, and shall be construed as, separate and distinct from the other Warranties. Accordingly, a Warranty shall not be limited or restricted by reference to, or interference from, the terms of any other Warranty or any other term of an Agreement.
4.5 The Warranties apply equally to Software and Media which have been repaired or replaced, in which case the Warranty Period shall be the longer of the reminder of the original Warranty Period or 6 months from the date of repair or replacement.
4.6 Supplier shall upon request, lodge in escrow any Source Code (which means the computer programming code of any such system or software and any relevant documentation, code or material applicable or critical to the usage of same, both in human-readable form and includes any bespoke adaptation for Delmec) with Delmec’s designated escrow agent on such standard escrow terms as the agent or Delmec may dictate from time to time. In the event of any change or alteration to the materials (including any updates, upgrades or new versions of thereof), revised Source Code shall be duly lodged in the same manner. The Source Code delivered shall be on suitable media and sufficient to enable a reasonably skilled programmer or analyst to understand, maintain, modify and correct same.
- Training and maintenance services
Supplier shall provide such training in respect of the Software as is necessary to allow Delmec to use it. At Delmec’s request, Supplier shall provide such Software maintenance services as Delmec may require and in the event of such request by Delmec, the parties shall (acting reasonably) negotiate in good faith to agree Charges in respect of the same.
Schedule 4 – Additional IPR Licence Terms
- Delivery and Acceptance
Supplier shall deliver the Licensed IPR to Delmec’s Premises in accordance with the relevant PO and the Specification. Delmec shall accept the Licensed IPR immediately after Supplier has demonstrated to Delmec’s satisfaction that the relevant Licensed IPR (i) complies with the PO pursuant to which it is supplied; (ii) complies with the relevant Agreement; and (iii) in accordance with the Specification, and “Acceptance” shall be construed accordingly for the purposes of this Schedule 4. Upon Acceptance, Delmec shall, if requested by Supplier sign Supplier’s acceptance certificate acknowledging Acceptance of the Licensed IPR by Delmec.
Supplier shall at all times retain ownership of the Licensed IPR.
Supplier hereby grants to Delmec an irrevocable, non-exclusive, perpetual licence to use, copy, install, maintain, modify, enhance and adapt the Licensed IPR throughout the world and to allow members of the Delmec Group to do the same. Delmec may also assign its licence to use the Licensed IPR (or any part of thereof) to any third party to which it may outsource the operation of a part of Delmec’s operations or business provided such third party enters into a direct undertaking to observe the terms of this Schedule 4 with Supplier.
4.1 Supplier warrants to Delmec as follows: (a) Supplier’s title to and property in and to the Licensed IPR is free and unencumbered, and Supplier has the right, power and authority to licence the same to Delmec; (b) the Licensed IPR conforms in all material respects to their descriptions (if any) and with the Specification; (c) the Licensed IPR will be free from material Defects; (d) the Licensed IPR will comply in all material respects with all relevant statutory requirements and any relevant industry standards issued by any applicable organisation or recognised standards body.
4.2 The Licensed IPR shall conform to each of the Warranties set out in paragraph 4.1 for 12 months from the date of their Acceptance (“Warranty Period”).
4.3 If any Licensed IPR is in breach of any Warranty during the Warranty Period, Supplier shall, at Delmec’s option and at Supplier’s own expense: (a) carry out all such alterations or corrections as are necessary to cause the Licensed IPR to comply fully with this Schedule 4 by correcting or replacing it; or (b) refund to Delmec any and all Charges paid by Delmec for the Licensed IPR. If Supplier fails to correct or replace the Licensed IPR within a reasonable period determined by Delmec, Delmec may do so either itself or through a third party and set off the cost of doing so against any sum Delmec owes or will owe to Supplier and recover any further amount outstanding from Supplier as a debt. Delmec’s rights and remedies are in addition and without prejudice to its other rights and remedies at law.
4.4 Save as expressly provided by the contrary, each of the Warranties is, and shall be construed as, separate and distinct from the other Warranties. Accordingly, a Warranty shall not be limited or restricted by reference to, or interference from, the terms of any other Warranty or any other term of an Agreement.
Schedule 5 – Delmec Policies and Business Principles
- Comply with all laws, rules and regulatory obligations.
- Compete fairly in our markets, being honest and trustworthy in all our dealings and keep the commitments we make.
- Not offer or accept any gifts, hospitality, bribes or other inducements, which encourage or reward a decision. We will report and record any gifts.
- Avoid or declare conflicts of interest that may lead (or be seen to lead) to divided personal loyalties.
- Not seek gain for others or ourselves through misuse of our position within Delmec.
- Respect the principles of the UN Universal Declaration of Human Rights and the International Labour Organisation declarations.
- Aim to treat everyone fairly, and impartially, without prejudice regardless of race, colour, nationality, ethnic or national origins, religion or religious affiliation, gender, gender status, sexual orientation, marital status, age, disability or caring responsibilities.
- Not tolerate harassment in any form.
- Not use any form of forced or child labour.
- Engender a zero tolerance culture to injury and ill health arising from, or associated with, the work activity.
- Support and follow operational policies that minimise our impact on the environment.
Internal Control and Risks
- Regularly asses the risks to our business and our people and ensure that appropriate controls are in place to manage them.
- Ensure that business records are prepared accurately and reliably and that expenditure is suitably authorised and approved.
- Protect the confidentiality of company, employee and customer information.
- Ensure privacy of communications – it is basic to our business, from a legal stance and because the public trusts our integrity.
- Protect our physical, financial and intellectual assets.
- Ensure company assets are not used for personal benefit and will not allow them to be sold, loaned, or given away without proper authorisation.
Health and Safety
- Care for the health and safety of each other, our customers and the communities in which we operate.
- Disclose any information about our products and services that demonstrates they breach the required safety standards.