Conditions of Sale
BAE SYSTEMS (OPERATIONS) LIMITED, a company incorporated in England (Company No. 01996687) and having its registered office at Warwick House, P O Box 87, Farnborough Aerospace Centre, Farnborough GU14 6YU (in these conditions, referred to as “BAE”); and
The person purchasing the Goods and/or Services from BAE and identified as the purchaser on the Order Confirmation (in these Conditions the words, “You” or “Your” are used to refer to the purchaser).
IT IS AGREED AS FOLLOWS:
1 Definitions and Interpretation
1.1 In this document, the following defined terms have the following meanings:-
1.1.1 “Anti-Corruption Law” means all Applicable Laws which have as their objective the prevention of bribery and corruption, including without prejudice to the generality of the foregoing:
a) the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD Convention”);
b) the United States Foreign Corrupt Practices Act as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998 and as may be further amended and supplemented from time to time (“FCPA”);
c) the United Kingdom Bribery Act 2010 and, in relation to conduct prior to the Bribery Act 2010 being brought into force, the United Kingdom Public Bodies Corrupt Practices Act 1889, the Prevention of Corruption Act 1906 and the Anti-Terrorism, Crime and Security Act 2001 (together with the United Kingdom Bribery Act 2010, the “UK Anti-Corruption Laws”); and
d) the laws of England and Wales,
and for these purposes the offences created by the OECD Convention, FCPA, the UK Anti-Corruption Laws and laws of England and Wales are deemed to apply to the Parties, the Shareholders and their Affiliates and any of their directors, employees or agents irrespective of the jurisdictional scope of the OECD Convention, FCPA, the UK Anti-Corruption Laws and laws of England and Wales;
1.1.2 “Applicable Laws” means all laws, including Anti-Corruption Laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal and all codes of practice having force of law, statutory guidance and policy notes;
1.1.3 “Appropriate Authority” means the Civil Aviation Authority, or the United States Federal Aviation Administration, or any other airworthiness authority having proper jurisdiction in respect of the matter in question;
1.1.4 “BAE Group” means
any company that is from time to time (i) a holding company, (ii) a subsidiary or (iii) a subsidiary of a holding company, of BAE;
For the purposes of the definition of the BAE Group the expressions “holding company” and “subsidiary” have the meanings given to them in the Companies Act 1985;
In these Conditions, companies within the BAE Group are called “members” of the BAE Group;
1.1.5 “BAE IPR” means IPR created, owned, or used by or on behalf of BAE or any member of the BAE Group in the course of the design, manufacture and supply of the Goods and/or Services and including IPR in Confidential Information;
1.1.6 “Conditions” means these terms and conditions and, where the context so permits, any Special Conditions;
1.1.7 “Confidential Information” means any information that is disclosed by one party to the other in connection with this Contract in whatever form (whether orally, electronically or in Writing, and whether or not such information is expressly stated to be confidential or marked as such). Confidential Information includes know-how, trade secrets, product and formulation specifications, business plans, technical specifications, unpublished patent specifications, formulae, manufacturing processes, data, drawings, plans, photographs, databases and computer software in disk, cassette, tape or electronic form;
1.1.8 “Contract” means the contract for the sale of the Goods and/or the supply of the Services, which will exist once You have accepted the Conditions in the manner laid down in Clause 2.2;
1.1.9 “Contract Representative” means those persons designated as such by BAE and You and designated as such on the Order Confirmation or as subsequently notified to the other party in Writing from time to time in terms of these Conditions;
1.1.10 “Delivery Address” means such of BAE’s premises at Vickers Drive, Brooklands Business Park, Weybridge, Surrey, England; or Prestwick International Airport, Ayrshire, Scotland, as is specified in the Order Confirmation, or such other place of which BAE gives You notice from time to time;
1.1.11 “Delivery Date” means the date(s) when the Goods will be available for collection for the purposes of this Contract being the date(s) specified in the Order Confirmation, or such other date(s) of which BAE gives You notice from time to time;
1.1.12 “Force Majeure Event” means any circumstance not within a Party’s reasonable control including without limitation: (a) acts of God, drought, earthquake or other natural disaster; (b) terrorist attack, civil war, civil commotion or riots, war; (c) nuclear, chemical or biological contamination or sonic boom; and (d) any labour or trade dispute, strikes, industrial action or lock-outs or other industrial disputes (but only where it involves the workforce of a third party and does not involve a Party or a member of a Party’s group or those of the Supplier’s sub-contractors);
1.1.13 “Goods” means the goods (including any part of them and any part delivered in stages) described in the Order Confirmation. To be clear, “Goods” includes materials, spares, equipment, raw materials, finished or semi-finished materials or articles, machinery or commodities. A reference to Goods includes
22.214.171.124 individual items, or a number of items, whether or not identical or similar; and
126.96.36.199 any materials, spares, equipment, articles, machinery or commodities supplied in connection with the Services;
1.1.14 “IPR” means, without limitation, any patent, copyright (including rights in computer software and database rights), registered design, design right, registered and unregistered trade marks, topography rights, specifications or other industrial or intellectual property rights (whether or not registered) and applications for any of the foregoing rights;
1.1.15 “Order Confirmation” means BAE’s order confirmation overleaf in respect of the provision of the Goods and/or Services;
1.1.16 “Price” means the aggregate price of the Goods and/or the charge for the Services as stated in the Order Confirmation and, where the context permits, the price for any part delivery or performance of the Goods or the Services, where the Goods are to be delivered, or the Services are to be performed, in stages;
1.1.17 “Services” means the services (if any) described in the Order Confirmation being performed by or on behalf of BAE under the Contract;
1.1.18 “Special Conditions” means the special conditions (if any) described in the Order Confirmation;
1.1.19 “TAA” means a technical assistance agreement further to the United States Department of State International Traffic in Arms Regulations.
1.1.20 “Warranties” means the representations and warranties contained in Clauses 9.1 and 9.2;
1.1.21 “Warranty Period” means
188.8.131.52 in the case of Goods, the period of 12 months from the relevant Delivery Date. In the case of any Goods being repaired or replaced by BAE during the Warranty Period, the unexpired Warranty Period will recommence from the date upon which You are notified by BAE that the repairs have been finalised or the replacement Goods are ready and (in either case) available for collection by You; and
184.108.40.206 in the case of Services, the period of 2 months after the date that such part of the Services has been performed; and
1.1.22 “Writing” and any similar expression includes fax transmission and comparable means of communication, but it does not include electronic mail. In the case of BAE, “Writing” means that BAE’s designated Contract Representative or another authorised official of BAE must sign the document concerned.
1.2 In interpreting these Conditions
1.2.1 Any reference to a statute or a provision of a statute will be interpreted as a reference to that statute or provision as amended, re-enacted or extended at the relevant time;
1.2.2 The headings in these Conditions are for convenience only and will not affect their interpretation;
1.2.3 References to one gender will include other genders and reference to the singular will include the plural and vice versa;
1.2.4 A reference to a person such as a company, a firm or an individual will include other corporate bodies and unincorporated associations and vice versa;
1.2.5 Any use of the word “including” will not be limited by the words that follow;
1.2.6 In the event of any conflict or inconsistency between them, the Special Conditions shall prevail over the terms of these Conditions.
2 Formation of the Contract
2.1 The Order Confirmation constitutes an offer by BAE to sell the Goods and/or provide the Services subject always to these Conditions and to the continued availability of the Goods and/or the Services.
2.2 The Order Confirmation will lapse unless unconditionally accepted by You in Writing within 30 days of its date. Once You have accepted the Order Confirmation, a binding contract is formed. Within that 30 day period, BAE may withdraw the offer contained in the Order Confirmation at any time before it has been accepted by You. To be clear, the Order Confirmation and these Conditions will apply to the Contract to the exclusion of any other terms put forward by you as being the terms upon which You contract with BAE for the provision of the Goods and/or Services. This provision, therefore, applies to the terms of any purchase order that You have given to BAE or subject to which the Order Confirmation is accepted or purported to be accepted by You.
2.3 No variation to the Contract will be binding unless agreed in Writing between You and BAE. BAE’s employees or agents are not authorised to vary the Contract nor make any representations concerning the Goods and/or Services unless confirmed by BAE in Writing. In entering into the Contract, You acknowledge that You are not relying on any variations or representations that are not confirmed in Writing.
2.4 Nothing in these Conditions affects the liability that either party may have to the other for fraudulent misrepresentation.
3 Description of the Goods and/or Services
3.1 The quantity, quality and description of the Goods and/or the Services will be as specified or referred to in the Order Confirmation or as otherwise agreed in Writing by BAE.
3.2 BAE reserves the right to make any changes in the specification of the Goods and/or the Services that are required to conform with any applicable statutory or regulatory requirements in force from time to time and to alter or substitute the Goods or the method of supply of the Services provided that
3.2.1 the changes do not materially affect the quality or performance of the Goods and/or the Services (as the case may be); and
3.2.2 such alteration or substitution is approved by any Appropriate Authority where such approval is required.
3.3 You are responsible for
3.3.1 giving BAE any information, documentation and materials relating to the Goods and/or the Services that BAE reasonably requires within a sufficient time to enable BAE to perform the Contract in accordance with these Conditions;
3.3.2 ensuring the accuracy of the terms of all orders (including the terms of any applicable specifications) and other information submitted by You in accordance with Clause 3.3.1; and
3.3.3 (without affecting the generality of Clause 3.3.1) giving BAE upon request by it any information, documentation and materials which BAE reasonably requires in order to comply with its quality control procedures in force from time to time.
4 Price of the goods and services
4.1 The Price will be as stated in the Order Confirmation and, unless otherwise so stated, will be:-
4.1.1 exclusive of any applicable taxes and duties. If BAE is required to pay any taxes or duties on Your behalf, You will reimburse BAE immediately on demand;
4.1.2 exclusive of all reasonable travel (including air travel), accommodation, subsistence and other expenses incurred by or on behalf of BAE where the Services are to be supplied at a location other than at BAE’s premises; and
4.1.3 inclusive of all charges for packaging the Goods for air freight (in compliance with ATA-300 or any amendment to, or replacement of, that standard from time to time).
4.2 BAE reserves the right, by giving You notice in Writing at any time prior to the Delivery Date, in the event that there is any increase in the cost to BAE
4.2.1 of providing the Goods and/or the Services, including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials, fuel, power, transport or other costs of manufacture;
4.2.2 resulting from any change in the Delivery Date, quantities or specifications of the Goods or specification of the Services requested by You or by an Appropriate Authority; or
4.2.3 resulting from any delay caused by any of Your instructions or failure by You to give BAE adequate information, material or instructions
to increase the Price by a reasonable sum that puts BAE in the same position in terms of profitability as it would have been in, had the event not occurred.
4.3 Where the Price is varied in terms of Clause 4.2, such variation will be binding on You and will not give You the right to cancel the Contract.
5 Terms of payment
5.1 BAE will invoice You for the Price (or instalments of the Price) on the invoice dates set out in the Order Confirmation. If no invoice dates are set out in the Order Confirmation, BAE may invoice You on, or at any time after, the date of conclusion of the Contract in terms of Clause 2.2.
5.2 You will pay the Price in the currency specified in the Order Confirmation in cleared funds to BAE’s nominated bank account specified in the Order Confirmation or such other bank account of which BAE gives You notice from time to time, within 30 days of the date of BAE’s invoice. Time of payment of the Price will be of the essence of the Contract.
5.3 If You do not make payment within 30 days of the date of the invoice, then without limiting any other remedy available to BAE, BAE may
5.3.1 immediately terminate the Contract (in whole or in part) or suspend all further work or deliveries until payment has been made in full. Any additional costs and expenses of whatever nature incurred by BAE as a result of any termination or suspension will be paid by You; and/or
5.3.2 charge interest on such outstanding sums from time to time at the rate of 4% per annum above the base lending rate of Barclays Bank plc from the date that payment should have been made until the date that payment in full has been received by BAE, such interest being calculated on a daily basis. In addition You will reimburse all costs and expenses (including legal costs) incurred by BAE in the collection of any overdue amount.
5.4 Whenever under the Contract any sum of money shall be recoverable from, or payable by, You, it may be deducted from any sum then due or which may at any time afterwards become due to You under this or any other contract with BAE or any other member of the BAE Group. The exercise by BAE or members of the BAE Group of their rights under this Clause will not affect any other rights or remedies available to BAE under the Contract, or otherwise howsoever, at law or in equity. You will pay all amounts due under the Contract in full without deduction or withholding other than as required by law and you will not assert any right of set-off or credit in order to justify the withholding of payment of such amounts in whole or in part.
5.5 If You fail to take Delivery of the Goods on the Delivery Date or if BAE is prevented from performing any of its obligations under the Contract as a result of any act or omission on Your part, BAE will be entitled (without affecting any other rights or remedies which BAE may have) to invoice You for the Price and payment will be due as if Delivery of the Goods had been effected or as if the Services had been completed. In such event You will be liable for and will promptly reimburse BAE (if BAE asks You to do so) for all costs and expenses incurred by BAE up to the time of actual collection of the Goods in accordance with Clause 6.3.
6.1 Unless the Contract expressly provides otherwise, delivery of the Goods will be effected by BAE making the Goods available for collection by You at the Delivery Address on the Delivery Date (“Delivery”).
6.2 Where the Contract provides for Delivery of the Goods in stages, each Delivery will be treated as taking place under a separate contract and default or delay by BAE in making any single Delivery will not entitle You to terminate the Contract as a whole.
6.3 You will collect the Goods on the Delivery Date from the Delivery Address. If You fail to take delivery of the Goods on the Delivery Date then, without limiting any other right available to BAE, BAE may in their sole option
6.3.1 store the Goods until actual delivery and charge You for the reasonable costs of storage (including insurance, preservation and demurrage charges) and any other charges reasonably incurred by BAE. To be clear, BAE will be entitled to exercise a right of lien over the Goods in respect of payment of such costs and charges; or
6.3.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to You for the excess over the Price or charge You for any shortfall below the Price.
6.4 You will procure that any of Your representatives attending any of BAE’s premises will comply with all regulations that apply to such premises, including all applicable security and health and safety regulations.
6.5 The Price does not include any carriage, freight (other than packaging for freight in terms of Clause 4.1.3), insurance or any other transport costs. If BAE and You agree that BAE will arrange or undertake the carriage, freight, insurance or transport of the Goods for Delivery other than by collection by You of the Goods on the Delivery Date from the Delivery Address then such costs will be for Your account. If BAE incurs such costs You will reimburse them to BAE and the provisions of Clause 5 will apply subject to such modifications as the context may require.
6.6 Where the place of supply of the Services is not at BAE’s premises, You will notify BAE in Writing in good time beforehand of all regulations that apply to any representatives of BAE because they will be attending at any premises where the Services are to be performed. You will also provide to BAE all accommodation, services, amenities, facilities, utilities and equipment reasonably requested by BAE for the purposes of supplying the Services.
6.7 Unless BAE has agreed otherwise in Writing, the Delivery Date and any time or period agreed for performance of the Services are estimates only made in good faith and BAE will not be liable for the consequences of any delay and time of delivery or performance by BAE will not be of the essence of the Contract. BAE will use its reasonable endeavours to meet any estimated date or agreed period for completion of the Services.
7 Risk and Property
7.1 Risk of damage to, or loss of, the Goods will pass to You on Delivery of the Goods to You or Your representatives or, if You wrongfully fail to take delivery of the Goods, the time when BAE has tendered delivery of the Goods. To be clear, where Clause 6.5 applies, BAE will have no liability for Goods damaged or lost in transit.
7.2 Any Goods returned by You to BAE will remain at Your risk except where the Goods have been returned by prior arrangement with BAE, in which case the Goods will be at the risk of BAE from the time of receipt by BAE.
7.3 Even although risk in the Goods will pass to You in accordance with Clause 7.1, the property in the Goods will remain with BAE until BAE has received in cash or cleared funds, payment in full of the Price and all other debts then due by You to BAE.
7.4 Until such time as the property in the Goods has passed to You, You agree that, unless BAE agrees in Writing that these requirements will not apply:
7.4.1 You will store the Goods in a warehouse or other suitable premises, keep the Goods entirely separate from Your goods and those of third parties and keep the Goods properly protected, insured and identified as BAE’s property;
7.4.2 You will not attach the Goods to real, or in Scotland heritable, property;
7.4.3 BAE or its agent may (without limiting any other rights it may have) recover the Goods. You will allow BAE or its agents all necessary access to enable BAE to exercise its rights in terms of these Conditions and to monitor Your compliance with Your obligations under them;
7.4.4 BAE may require delivery up to it of all or any part of the Goods at Your expense; and/or
7.4.5 You may
220.127.116.11 sell the Goods on a bona fide arm’s length basis to Your Customers on normal commercial terms but you will not otherwise dispose of the Goods; and/or
18.104.22.168 use or install the Goods in aircraft belonging to You in the ordinary course of Your business, but not otherwise.
7.5 Any resale by You of Goods in terms of Clause 22.214.171.124 will (as between BAE and You only) be made by You as agent for BAE and the proceeds of sale of any resale by You will be held in trust for the benefit of BAE and placed in a separate account until accounted for by You to BAE.
7.6 You will not be entitled to pledge any of the Goods which remain BAE’s property or in any way charge them by way of security, but if You do so, all moneys owing by You to BAE will (without limiting any other rights that BAE may have) immediately become due and payable.
8 Project Management
8.1 Both BAE and You will appoint Contract Representatives who will be responsible for the smooth running of the Contract and for other matters remitted to them under the Contract. The Contract Representatives will liaise with each other on all aspects of the Contract. The Contract Representatives at the date the Contract is concluded are those named in the Order Confirmation.
8.2 Without limiting Clause 8.1, You will at Your own cost make available sufficient appropriately trained and experienced personnel to liaise with BAE as necessary in connection with the supply of the Goods and any Services.
8.3 Where appropriate, the Goods and the Services will be inspected in accordance with BAE’s own system of quality assurance as approved by the Appropriate Authority and such inspection will be evidenced by a certificate of inspection signed by or on behalf of BAE’s Head of Quality Assurance which will be accepted unconditionally by You.
9 Warranties and liability
9.1 BAE warrants to You that the Goods will:-
9.1.1 be free from material defects in design, materials and workmanship;
9.1.2 comply with all statutory requirements and regulations relating to the sale of the Goods.
9.2 BAE warrants to You that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such quality standards as it is reasonable for You to expect in the circumstances.
9.3 BAE will indemnify You in full in respect of claims for death or personal injury caused by or on behalf of BAE as a result of negligence or, if it is applicable to the Contract, liability for defective products in terms of the Consumer Protection Act 1987.
9.4 Subject to Clause 9.3, if it is demonstrated to BAE’s reasonable satisfaction that any of the Goods have not been supplied, or the Services have not been performed, in accordance with the Warranties, then BAE’s sole liability to you will be limited to doing either of the following (as BAE in its sole discretion may determine)
9.4.1 repairing or replacing the Goods or re-performing the Services in accordance with the Contract as soon as reasonably practicable thereafter in the circumstances; or
9.4.2 refunding the part of the Price that relates to the affected Goods or Services.
To be clear, You will not have the right to require third parties to repair the Goods or re-perform the Services and, if You do so, You will have no right to require BAE to meet such third parties’ expenses and the Warranty Period will automatically come to an end.
9.5 Save as provided above, and to the fullest extent permitted by law, all representations, warranties, conditions or terms (whether express or implied, statutory or otherwise) as to the quality of the Goods, their fitness for any purpose, their conformity with any sample or description or in any other respect, are excluded.
9.6 So far as permitted by law, BAE’s liability under the provisions of this Clause 9 is limited as follows:
9.6.1 BAE will not be liable for breach of the Warranties unless You have notified BAE promptly in Writing within the relevant Warranty Period that a breach has occurred;
9.6.2 BAE will not be liable for any defects in the Goods, unless the Goods to which the claim relates are promptly returned to the Delivery Address, by prior arrangement with BAE;
9.6.3 BAE will not be liable if the Goods are resold in anything other than their original packaging;
9.6.4 BAE will not be liable in respect of any defect in the Goods arising from fair wear and tear; abnormal working conditions; wilful damage or misuse; negligence on Your part; or alteration or repair of the Goods without BAE’s prior approval in Writing;
9.6.5 BAE will not be liable to You if any of the Goods are manufactured by third parties or if any Services are supplied by third parties. In the case of such Goods or Services BAE will use its reasonable endeavours to procure for Your benefit such warranty or guarantee (if any) as may have been provided to BAE by any such third party; and
9.6.6 BAE will not be liable to You if any defect in the Goods or Services arises from any drawing, design or specification supplied by You.
9.7 BAE will not be responsible for removal or reinstallation costs or any charges relating to dismantling or reassembling any of the Goods and any charges in this connection will be paid by You.
9.8 If any of the Goods are proved to the satisfaction of BAE to be the subject of a valid claim under the Warranties, BAE will bear all reasonable costs of packing, insurance and transport which may be incurred by You in returning them to BAE and, where applicable, in returning the repaired or replaced items to You provided that You will make no charge for use of Your own transport for these purposes.
9.9 Separate from Clause 7, the property in any Goods or any part of them that are returned to BAE by You and for which a refund or replacement is given in terms of Clause 9.4, will belong to BAE.
9.10 Where any Goods supplied by BAE pursuant to the Contract are used or second-hand serviceable Goods, the applicable warranty period will be the Warranty Period, unless another, different warranty period for them is specified in the Order Confirmation.
9.11 A claim by You in respect of any defect in the Goods or in respect of any delay in Delivery of Goods (or any instalment of them) will not entitle You to cancel or refuse such Delivery or payment for such Goods.
9.12 The provisions of this Clause 9 represent the entire liability of BAE, its principal, officers, employees and agents with respect to any matter arising out of or in connection with the quality or condition of the Goods or Services or any part thereof, and all other warranties, guarantees, terms, conditions or representations as to quality, description, standard of workmanship, condition, fitness for purpose or otherwise (whether express or implied by statute or common law) are hereby excluded to the fullest extent permissible by law.
9.13 In no circumstance will BAE be liable for indirect or consequential loss or damages whether caused by breach of contract (including the Contract), negligence, breach of any statutory duty or arising in any other way. For the purpose of this Clause indirect or consequential loss or damage means any loss not directly arising from the breach, negligence or other event concerned.
9.14 You will keep BAE indemnified against all costs, claims, demands, expenses and liabilities of whatever nature (including legal costs and expenses) made by third parties and caused in whole or in part by, or arising out of, any act or omission of You, Your employees or agents in connection with the Goods and/or Services, to the extent that the same are caused by or related to:-
9.14.1 any claim for personal injury or death or loss or damage directly or indirectly occasioned by default (including non-compliance with any statutory or other obligation in relation to the Goods or Services), failure to follow BAE’s instructions (whether oral or written), or misuse or mal-operation of the Goods by or on Your part or on the part of any person or persons other than on behalf of BAE;
9.14.2 any designs, drawings or specifications given to BAE by You in respect of the Goods or the Services;
9.14.3 any materials or products supplied by You to BAE and incorporated or used by BAE in the supply of the Goods or the performance of the Services;
9.14.4 the improper incorporation, assembly, use, processing, storage or handling of the Goods by You.
This indemnity will continue in force even if the Contract is terminated.
9.15 Separate from any other provision of this Contract, BAE will not be liable to You or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or the Services, if the delay or failure is beyond BAE’s reasonable control and BAE has given notice to You accordingly. Without limiting these general words, the following events will be regarded as being beyond BAE’s reasonable control:
9.15.1 acts of God, explosion, flood, tempest, fire or accident;
9.15.2 unavailability of power at the manufacturing plant, breakdown of plant or machinery, or shortage or unavailability of raw materials from normal sources of supply;
9.15.3 strikes, lock-outs or other industrial actions or trade disputes (whether involving BAE’s employees of those of a third party);
9.15.4 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
9.15.5 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any applicable governmental, parliamentary or local authority; and
9.15.6 import or export regulations or embargoes.
9.16 If an event should arise which is of a type to which Clause 9.15 applies, and it affects BAE’s performance of the Contract, the time for performance will be extended accordingly and BAE will take reasonable steps to minimise the effect of any such delay. In the event that any failure to deliver or perform by BAE pursuant to Clause 9.15 results in a delay of more than 30 days, then BAE will be entitled to cancel all or part of the Contract by written notice to You without any liability for loss or damage caused by BAE’s failure to perform.
10 Intellectual property
10.1 Except as expressly provided in this Contract, You will not have any rights in respect of any of BAE’s IPR or in any associated goodwill and You acknowledge that, except as expressly provided in this Contract, You will not acquire any rights in respect of any of BAE’s IPR or any of their licensors’ IPR or any associated goodwill and that all such rights and goodwill are, and will remain, vested in members of the BAE Group or their licensors.
10.2 Where the Order Confirmation refers to, or includes, within the description of the Goods and/or Services, items which incorporate any of BAE’s Confidential Information and/or BAE’s IPR, You are given a licence to use such Confidential Information and/or BAE’s IPR for the purposes contemplated by this Contract, subject to any conditions set out in the Order Confirmation or any Special Condition. The licence will automatically come to an end on the fulfilment or accomplishment of the purposes contemplated by the Contract or breach of any term of the Contract, whichever happens sooner. At the end of the licence the terms of Clause 12.5 will apply.
10.3 You will, at the expense of BAE, take all such steps as BAE may reasonably require to assist the BAE Group in maintaining the validity and enforceability of BAE’s IPR during the continuance of this Contract.
10.4 Any liability of BAE in respect of infringement of any third party IPR by the Goods or any part of them will be limited to Goods of BAE’s designed or manufactured to designs of members of the BAE Group (unless otherwise stated by BAE) and such liability will only be in respect of infringement arising in the United Kingdom. In the event of such infringement, BAE’s obligations will be limited to (at BAE’s option) replacing the infringing Goods by non-infringing Goods, or securing at its own cost, a licence permitting use of the said Goods by You or paying a sum to You in compensation not exceeding the Price of the said infringing Goods. BAE will not have any liability under this Clause to the extent that the indemnity contained in Clause 10.8 applies.
10.5 BAE will, as far as it is reasonably able to do so, allow You the benefit of any reliefs or indemnities received from the supplier of any infringing Goods not of BAE’s design and manufacture.
10.6 No liability will be incurred by BAE in respect of infringements or alleged infringements arising out of a combination of the Goods with any other item or from their use for a purpose not agreed or accepted in Writing by BAE prior to such use.
10.7 BAE’s obligations in terms of Clause 10.4 are conditional upon You promptly and fully notifying BAE of any actual, threatened or suspected infringement of any of BAE’s IPR which comes to Your notice, and of any claim by any third party so coming to Your notice that the sale of the Goods infringes any rights of any other person. You will, at the request and expense of BAE, do all such things as may be reasonably required to assist BAE in taking or resisting any proceedings in relation to any such infringement or claim.
10.8 You warrant that any design or item furnished by You, or compliance by BAE with Your instructions, whether expressed or implied, will not cause BAE to infringe any third party’s IPR and BAE’s liability (whether under this Clause 10 or otherwise) will not extend to any such infringement. You hereby undertake that You will indemnify BAE upon demand against all losses, actions, claims, proceedings, judgements, damages, compensation, obligations, injuries, expenses and costs (including the cost of defending any legal proceedings), incurred by BAE as a result of any such infringement or alleged infringement.
11 Export and Import Approvals
11.1 For the purposes of this Clause, the term “Supplies” means any goods, materials, work, technical data, technology, software, technical assistance and/or services which are to be provided by BAE to You pursuant to the contract. Supplies shall have the same meaning where You are a supplier of Government Furnished X (GFX).
11.2 BAE and You represent and warrant that they will comply with all applicable import and export control laws and regulations, including the UK Arms Export Control Act 2002, the US International Traffic in Arms Regulations (ITAR) and the US Export Administration Regulations (EAR).
11.3 If Delivery is to take place in the United Kingdom, You will be responsible for obtaining any licence or consent for the export of the Goods from the United Kingdom. BAE will, upon request and at Your expense, endeavour to assist You to obtain such licences or consents but BAE will not be liable in the event of the non-issuance or renewal of any licences or consents.
11.4 If Delivery is to take place outside the United Kingdom:-
11.4.1 the supply of any Goods for which a United Kingdom Export licence or other consent is necessary will be conditional upon the granting of such licence, approvals, authorisations, permits, certificates or consent by the United Kingdom Government or other competent authority. BAE will be responsible for obtaining such licence and/or consent but at the cost of and with the assistance of You, and BAE will not be liable in the event of the non-issuance or renewal of any licences or consents; and
11.4.2 You will be responsible for applying for all necessary licences, approvals, authorisations, permits, certificates or other consents required to import and export the Supplies into and from the country of destination and for the payment of any relevant duties.
11.5 You shall provide all reasonable assistance to BAE, including all reasonably requested information and/or documentation, in complying with its obligations under Clause 11.4 above, subject to BAE informing You of the assistance, information and / or documentation that it requires in a timely manner. Following any such request from BAE, You shall promptly comply with the request and provide the relevant assistance, information and /or documentation to BAE, including without limitation:
11.5.1 The completion and signature of all end use and end user certificates within thirty (30) calendar days of them being submitted to You (or such other shorter timescale as BAE may reasonably request); and
11.5.2 The notification to BAE of any dual and / or third country nationals who need to be authorised on any export approval (and any other similar request) within thirty (30) calendar days of such request being submitted to You; and
11.5.3 The signature of TAAs and/or other similar documentation within thirty (30) calendar days of the same being submitted to You (or such other shorter timescale as the Seller may reasonably request) ; and
11.5.4 A completed Export Control Declaration Form for all Supplies provided by You to BAE in connection with the Contract. You shall return to BAE the Export Control Declaration Form for such Supplies within thirty (30) calendar days of the same being submitted to You (or such other shorter timescale as the Seller may reasonably request).
11.6 BAE and You shall, for all ITAR and / or EAR controlled Supplies, each provide to the other, where possible, ITAR / EAR related information and / or documentation, including copies of all provisos and similar restrictions of which BAE and You are aware of that relate to export approvals granted under this Contract, as soon as possible but no later than thirty (30) calendar days prior to the delivery of such Supplies. If any proviso or similar restriction affects the ability of either BAE or You to perform its obligations under this Contract, the Parties shall meet to discuss in good faith the next steps.
11.7 You shall immediately notify BAE if it or any of its employees, personnel or subcontractors is or becomes identified on any list of denied, debarred, embargoed, blocked, prohibited, specially designated, sanctioned or otherwise ineligible parties maintained by any government or international organisation.
11.8 Both BAE and You shall each mark / label the paperwork accompanying deliveries of ITAR or EAR controlled Supplies to the other with the applicable Destination Control Statement.
12.1 Except as provided by Clauses 12.2, 12.3 and 12.4, each party will at all times during the continuance of this Contract and after its termination
12.1.1 use their best endeavours to keep all Confidential Information that they receive from the other party confidential and accordingly not disclose any of that Confidential Information to any other person; and
12.1.2 not use any Confidential Information that they receive from the other party for any purpose other than in terms of this Contract.
12.2 Any Confidential Information may be disclosed by the party who receives it (the “Recipient”) to
12.2.1 an Appropriate Authority;
12.2.2 any of the Recipient’s employees and contractors to such extent only as is necessary for the purposes contemplated by this Contract and subject in each case to the Recipient using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made.
12.3 Any Confidential Information may be used by the Recipient for any purpose, or disclosed by the Recipient to any other person, to the extent only that
12.3.1 it is on the date of this Contract, or becomes, public knowledge through no fault of the Recipient (provided that in doing so the Recipient will not disclose any Confidential Information which is not public knowledge); or
12.3.2 it can be shown by the Recipient, to the reasonable satisfaction of the other party, to have been known to the Recipient prior to its being disclosed by to it by the other party.
12.4 The Recipient may disclose the Confidential Information if and to the extent that it is required to do so by law or to the extent that it is ordered to do so by a court having valid jurisdiction to make such an order.
12.5 The party disclosing the Confidential Information may by notice demand its return and any copies made of it, or any part of it, by the Recipient or, at its option, demand the destruction and verification upon oath of the same following
12.5.1 fulfilment or accomplishment of the purposes contemplated by the Contract; or
12.5.2 breach of any term of the Contract;
whichever shall be the sooner. The Recipient’s obligations of confidentiality shall survive termination of the Contract and/or return of the Confidential Information subject only to the provisions of Clause 12.3 above.
12.6 You agree that BAE’s Confidential Information is, by its nature, valuable proprietary commercial information, the misuse or unauthorised disclosure of which would be likely to cause BAE considerable damage for which monetary damages would not provide adequate compensation. You agree that, in addition to other rights and remedies that may be available to BAE, BAE is entitled to relief by way of injunction (including interim injunctive relief) available from any court having valid jurisdiction over its terms.
13.1 If You cancel the Contract, BAE reserves the right to charge the full Price as liquidated damages without having to prove its actions.
13.2 BAE may cancel the Contract in respect of all or part only of the Goods and/or the Services by giving You at least 30 days’ notice at any time prior to the Delivery Date, in which event BAE’s sole liability will be to repay to You any part of the Price which You have paid to BAE for the Goods or Services in respect of which BAE has exercised its right of cancellation.
13.3 Without limiting any other remedy, either party may terminate the Contract without liability by giving the other party notice at any time if:-
13.3.1 the other party makes a voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) if the other party becomes bankrupt or (being a company) the other party becomes insolvent or is subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction);
13.3.2 a creditor takes possession of, or a receiver or judicial factor is appointed over, any of the other party’s property or assets;
13.3.3 the other party ceases, or threatens to cease, to carry on business;
13.3.4 if the other party is in breach of any of the conditions of this Contract and fails to remedy such breach within 30 days following the receipt of written notice of such from the non-defaulting party. For the purposes of this provision, a failure to pay the Price by the due date for payment will be deemed to be a breach of this Contract which is not capable of remedy;
13.3.5 the other party reasonably believes that any of the events mentioned above is about to occur in relation to the other party; or
13.3.6 any event analogous to any of those set out in Clauses 13.3.1 or 13.3.2 occurs in any jurisdiction outside England and Scotland.
Each party will be bound to give to the other party immediate notice if any of the events listed in Clauses 13.3.1, 13.3.2 or 13.3.3 occurs to it.
13.4 In the event that the Contract is cancelled or terminated:-
13.4.1 You will take all steps necessary to mitigate the costs and liabilities incurred by You in connection with such cancellation or termination; and
13.4.2 You will protect, preserve and deliver in accordance with BAE’s instructions any of BAE’s property related to the Contract, which is in Your possession at the date of such cancellation or termination.
13.5 In addition to any right of lien to which BAE may be entitled BAE will in the event of Your insolvency or bankruptcy be entitled to a general lien on all items of Your property or other property attributable to You then in BAE’s possession (notwithstanding that such items or any of them may have been paid for). Such lien will subsist for the unpaid price of any Goods or Services or other items sold and delivered to You by BAE or any member of the BAE Group under this or any other contract.
13.6 Upon termination of the Contract for whatever reason, BAE will be entitled to set off any claim it might have against You against any sums otherwise due to You by BAE or any other member of the BAE Group in terms of this or any other contract.
13.7 Termination of the Contract will not affect the accrued rights of BAE nor BAE’s other rights and remedies.
14 Force Majeure
14.1 Neither Party shall be deemed in breach of the Contract or liable to the other for delay in performing its obligations, or failure to perform any such obligations, under the Contract, if the delay or failure results from a Force Majeure Event provided that the affected Party:
14.1.1 promptly notifies the other Party, in writing, and promptly provides reasonable evidence, of: (a) the occurrence of such Force Majeure Event; (b) the expected duration of such Force Majeure Event; and (c) the effect of such Force Majeure Event on the affected Party’s ability to perform its obligations under the Contract;
14.1.2 uses all reasonable endeavours to eliminate or minimise the delay in performing or failure to perform its obligations under the Contract and continues to fulfil its obligations to the extent that they are not affected by the Force Majeure Event;
14.1.3 recommences its full performance as soon as is reasonably possible; and
14.1.4 gives prompt notice of the cessation of any Force Majeure Event previously notified to the other Party.
14.2 For the avoidance of doubt, a Party cannot claim relief under this Clause 14 if the Force Majeure Event is one where a reasonable party should have foreseen its effect on such Party’s ability to perform its obligations under the Contract or if the affected Party’s delay in performing, or failure to perform, its obligations is attributable to a failure by such Party to either comply with the provisions of its business continuity plan or to have a business continuity plan in place.
14.3 If a Force Majeure Event has the effect of preventing or delaying the performance of BAE’s obligations for a continuous period of thirty (30) calendar days or more, then You shall have the right by written notice to BAE to terminate the Contract immediately without having any liability to BAE except in respect of that part of the goods/services already delivered to and accepted by You prior to such termination.
15 Anti-Bribery and Corruption
15.1 You undertake as a condition of this Contract:
a) that You shall throughout the duration of this Contract and at all times comply with any and all Applicable Laws;
b) that You shall not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the UK Bribery Act 2010, as if such activity, practice or conduct had been carried out in the UK;
c) that You have not made or offered and that You will not make or offer with respect to the matters which are subject of this Contract, any payment, gift, promise or other advantage (whether financial or not) whether directly or through intermediaries, to or for the use of any public official (i.e. any person holding a legislative, administrative or judicial office, including any person exercising a public function for a public agency, a public enterprise or a public international organisation), or any other third party, where such payment, gift, promise or advantage would violate any Applicable Laws;
d) that You shall comply with a standard of conduct that is, at least, compliant with the BAE Systems’ Code of Conduct issued and updated from time-to-time (a copy of the applicable copy as at the date of this contract can be found on the BAE Systems website: www.baesystems.com/AboutUs/OurglobalCodeofConduct/index.html);
e) that You shall promptly report to BAE any request or demand for any undue financial or other advantage of any kind received by You in connection with the performance of this Contract;
f) that You shall promptly notify BAE (in writing) if:
i) You, Your personnel, or any other persons who perform or have performed services for or on Your behalf are investigated by any law enforcement agency or customer in relation to corrupt practices and/or any breach of this Clause 15;
ii) a public official, within the meaning of Clause [5.1(c) above, becomes a shareholder, director, officeholder, beneficial owner and/or employee of You (or acquires a direct or indirect interest in You). You warrant that You have no such public officials as direct or indirect owners, directors, officeholders or employees at the date of this Contract;
g) that You shall within two (2) months of the date of this Contract, and annually thereafter, certify to BAE in writing signed by an authorised representative, compliance with this Clause 15 by You and all persons associated with You under Clause 15.1(f), and provide such supporting evidence of compliance as BAE may reasonably request;
h) that You shall ensure that any person associated with You, and who is performing services or providing goods in connection with this Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those contained in this Clause 15 (“Relevant Terms”). You shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to BAE for any breach by such persons of any of the Relevant Terms.
15.2 You warrant that You have not and will not in the future, directly or through Your owners, directors, employees, subsidiary companies or any third party, guide, influence, promote, assist or support the sales and marketing efforts and/or the strategic development of BAE Systems plc or its business whether in relation to this Contract or otherwise and no payments or other consideration have been or will be provided under or in connection with this Contract or any Sub-Contract for the performance of such activity.
15.3 Any breach of this Clause 15 shall be deemed an irremediable breach giving rise to the right to BAE to terminate this Contract and/or any Sub-Contract immediately at any time in accordance with Clause 13. In such case, You shall defend, indemnify and hold BAE harmless from and against all claims by any third party, including damages, losses, penalties, costs and/or expenses, arising from or related to the subject matter of any breach by You of Clause 15.
15.4 For the avoidance of doubt, nothing in Clause 15.2 shall prevent You from engaging directly with Your customers and other third parties when acting solely and exclusively in Your own right, on Your own behalf and in connection with Your own business interests.
15.5 You shall keep and maintain until six (6) years after the date of termination or expiry (whichever is the earlier) of this Contract or any Sub-Contract (or as long a period as may otherwise be agreed between the Parties), full and accurate records and accounts of the operation of this Contract and any Sub-Contract agreed between the Parties. You shall afford BAE and its third party auditors, such access to such records and accounts as may be required from time to time. Provisions detailing the scope of audit rights applicable to each Sub-Contract shall be detailed in each Sub-Contract between the Parties and shall be limited to access to records, accounts and other information relating to the activities of the Parties undertaken in connection with the [Programme and/or this Contract or any Sub-Contract].
16.1 Except as may otherwise be stipulated in Writing, this Contract will constitute the entire agreement between BAE and You in respect of an order for any of the Goods and/or Services and will supersede and exclude all prior representations, proposals or agreements whether oral or in Writing.
16.2 Without limiting Clause 9.6.5, BAE may perform any of its obligations or exercise any of its rights in terms of this Contract (including, for the avoidance of doubt, the rights of set off contained in Clauses 5.4 and 13.6) by itself or through any other member of the BAE Group. The terms of this Clause will not extend however to You having the right to pursue any other member of the BAE Group (for payment or otherwise) in terms of this Contract. Except as expressly provided in this Clause 14.2, the parties confirm that it is not their intention to confer any rights on any person who is not a party to this Contract by virtue of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.3 BAE may delegate the performance of any of its obligations or exercise of its rights hereunder to its duly appointed agents and in this event, BAE will tell You accordingly.
16.4 The Order Confirmation is personal to You and You may not assign or transfer or purport to assign or transfer to any other person any of Your rights or sub-contract any of Your obligations under the Contract without the prior consent of BAE in Writing.
16.5 A notice required or permitted to be given under this Contract
16.5.1 by BAE to You must be in Writing, marked for the attention of Your Contract Representative and sent to the address or fax number set out in the Order Confirmation or to such other address or fax number as You may notify to BAE from time to time in accordance with this Contract; or
by You to BAE must be in Writing, marked for the attention of BAE’s Contract Representative and sent to the address or fax number set out in the Order Confirmation, or to such other address or fax number as BAE may notify to You from time to time in accordance with this Contract, and copied to BAE’s Legal Department at Building 37 Prestwick International Airport, Ayrshire KA9 2RW ( fax no. 01292675679 )
16.6 No waiver by BAE of any breach of the Contract by You will be considered as a waiver of any subsequent breach of the same or any other provision.
16.7 If any Clause (or part of a Clause) of this Contract should be found not to be valid, lawful or enforceable by a court having proper authority or if the law changes so that it becomes invalid, unlawful or not enforceable to any extent then this Clause will apply. The Clause (or part affected) will be treated as having been deleted from the remaining terms of this Contract which will continue to be valid. In addition, the parties will use reasonable efforts to replace the deleted Clause (or part of it) with a valid replacement provision which is as close as possible to the one that has been deleted.
16.8 If and to the extent that you would otherwise be entitled to immunity from suit or attachment for either Yourself or any of your assets under the laws of any applicable jurisdiction, you agree not to assert or claim such immunity in any proceedings raised by BAE in relation to the Contract
16.9 The Contract and these Conditions will be governed by and construed in accordance with the laws of England and You agree irrevocably to submit to the exclusive jurisdiction of the English courts.