Procurement Terms and Conditions

1. INTERPRETATION

The following definitions and rules of interpretation apply in this agreement. 

1.1 Definitions: 

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business. 

Client: the Person, Company, Residential Management Company or Freeholder on whose behalf FirstPort issues the Order as Managing Agent. 

Client Materials: has the meaning set out in Clause 5.3(i). 

Commencement Date: has the meaning given in Clause 2.3. 

Conditions: these terms and conditions as amended from time to time in accordance with Clause 18.8. 

Construction Services: the construction services (or any part of them), including any Deliverables, to be provided by the Supplier under the Contract as described in the Order and/or Construction Services Scope. 

Construction Services Scope: the scope of services and other documents which describe the Construction Services, and which are referred to in or are appended to the Order, or which are agreed in writing by FirstPort and the Supplier. 

Contract: the contract between the Client (acting through FirstPort as its Managing Agent) and the Supplier for the supply of Goods and/or Services in accordance with these Conditions. 

Control: shall be defined as in Section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be construed accordingly. 

Data Protection Legislation: means any applicable laws and regulations in any relevant jurisdiction relating to the use or processing of personal data including: (i) EU Regulation 2016/679 as it forms part of the law of England and Wales by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the “UK GDPR”); (ii) the Data Protection Act 2018 (“DPA”); and (iii) the Privacy and Electronic Communications (EC Directive) Regulations 2003; and the terms “Personal Data”, “processing”, “processor” and “controller” shall have the meanings given in the UK GDPR. 

Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, calculations, designs, graphs, sketches, design details, models, design documents, notes of meetings and specifications. 

FirstPort: means FirstPort Group Limited trading as FirstPort registered in England and Wales with company number 04352396 whose registered office is Fifth Floor, The Lantern, 75 Hampstead Road, London, England, NW1 2PL and/or, if so identified on the Order, one of its subsidiaries as defined in Section 1159 of the Companies Act 2006. 

FirstPort Materials: has the meaning set out in Clause 5.3(i). 

Goods: the goods (or any part of them) described in the Order. 

Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by FirstPort and the Supplier. 

Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. 

Mandatory Policies: FirstPort’s policies as listed in Schedule 1 to these terms and as may be amended, supplemented or added to from time to time. 

Party: means individually the Client or the Supplier, who shall be referred to collectively as the “Parties” from time to time. 

Order: an order issued by FirstPort, acting as Managing Agent for the Client, for the purchase of Goods and/or Services, incorporating these Conditions by reference. 

Services: the services, including any Deliverables, Construction Services and Works, to be provided by the Supplier under the Contract as described in the Service Specification. 

Specification: the description and/or specification for Services. 

Supplier: the person or firm from whom FirstPort purchases the Goods and/or Services. 

Works: the construction works (or any part of them) to be carried out by the Supplier under the Contract as described in the Order and/or Works Specification. 

Works Specification: any drawings, specifications and other documents which describe the Works and which are referred to in or appended to the Order, or which are agreed in writing by FirstPort and the Supplier. 

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). 

(b) A reference to a Party includes its Personal Representatives, successors and permitted assigns. 

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to a legislation or a legislative provision includes all subordinate legislation made under that legislation or  legislative provision. 

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms. 

(e) A reference to writing or written excludes fax and email. 

(f) The Supplier acknowledges and agrees that the Client is the contracting principal in respect of the Order. References in these Conditions and the Order to FirstPort acting as “Managing Agent” mean that FirstPort is acting solely as agent for the Client and not in its own capacity. 

2. BASIS OF CONTRACT

2.1 The Order constitutes an offer by the Client (acting through FirstPort as its Managing Agent) to purchase Goods and/or Services from the Supplier in accordance with these Conditions. Subject to Clause 2.2, any purchase by FirstPort is conditional upon acceptance of these Conditions by the Supplier, which are incorporated by reference to the Order to the exclusion of any other term that the Supplier may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 

2.2  If FirstPort and the Supplier have entered into any written and signed agreement between them that governs the supply of the Goods and/or Services (whether described as a Framework Agreement, Master Services Agreement, Supply Agreement, Services Contract, or otherwise) (“Signed Contract”), then the terms of that Signed Contract shall take precedence over these Conditions to the extent of any conflict or inconsistency. These Conditions shall apply only to the extent they do not conflict with the Signed Contract. 

2.3 The Order shall be deemed to be accepted on the earlier of: 

(a) the Supplier issuing written acceptance of the Order; or 

(b) any act by the Supplier consistent with fulfilling the Order, 

at which point and on which date the Contract shall come into existence (Commencement Date). 

2.4 Unless otherwise stated in the Order, where the Contract relates to the ongoing supply of Services, the Contract shall commence on the Commencement Date and continue for a fixed term of one (1) year less one (1) day (the “Initial Term”).

Following expiry of the Initial Term, the Contract shall continue on a month to month basis unless and until terminated by either party giving not less than one (1) month’s written notice.

For the avoidance of doubt, no provision of this Clause shall operate to require either party to continue the Contract beyond the Initial Term.

2.5 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. 

2.6 These Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specifically stated. 

2.7 Payment to the Supplier shall be made by the Client, with FirstPort administering such payment in its capacity as managing agent. FirstPort, as statutory trustee of the relevant service charge fund, shall make payments to the Supplier using monies available in that fund and shall act on behalf of the Client only. The Supplier acknowledges that the availability of funds within the relevant service charge fund is outside FirstPort’s control and that, subject always to applicable law, FirstPort shall not be personally liable for any delay or failure in payment arising from insufficient funds. Nothing in this clause shall operate to make payment to the Supplier conditional upon the receipt of payment by the Client where such a provision would be prohibited by law.

2.8 The Supplier acknowledges that FirstPort acts solely as Managing Agent for the Client. Accordingly, all liabilities, payment obligations, warranties and indemnities under this Contract are owed by and enforceable against the Client, and not FirstPort. Nothing in this Contract shall impose any liability on FirstPort in its own capacity. FirstPort’s only obligation is to pass to the Client any properly rendered invoices and communications from the Supplier. For the avoidance of doubt, the Supplier shall not bring, or threaten to bring, any claim, demand or proceedings against FirstPort in its own capacity whether the claim arises in contract, tort (including negligence), misrepresentation, restitution or otherwise. Any such claims shall be directed solely to the Client, as the contracting principal.

3. SUPPLY OF GOODS

3.1 The Supplier shall ensure that the Goods shall: 

(a) correspond with their description and any applicable Goods Specification; 

(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by FirstPort, expressly or by implication, and in this respect FirstPort relies on the Supplier’s skill and judgement; 

(c) be free from defects in design, materials and workmanship and remain so for a period of 12 months after delivery or such longer period as would be reasonable taking into account the price and nature of the Goods; and 

(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.  

3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods. 

3.3 FirstPort may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract. 

3.4 If following such inspection or testing FirstPort considers that the Goods do not comply or are unlikely to comply with the Supplier’s undertakings at Clause 3.1, FirstPort shall inform the Supplier, and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. 

3.5 FirstPort may conduct further inspections and tests after the Supplier has carried out its remedial actions. 

4. DELIVERY OF GOODS

4.1 The Supplier shall ensure that: 

(a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; 

(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; 

(c) it states clearly on the delivery note any requirement for FirstPort to return any packaging material for the Goods to the Supplier. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier; and 

(d) it shall observe all health and safety rules and regulations and any other security requirements that apply at any of FirstPort’s premises or developments that FirstPort manages. 

4.2 The Supplier shall deliver the Goods: 

(a) on the date specified in the Order or, if no such date is specified, then within seven (7) days of the date of the Order; 

(b) during FirstPort’s normal hours of business on a Business Day, or as instructed by FirstPort; and 

(c) to the delivery location set out in the Order or, if so notified, to the delivery location notified by FirstPort to the Supplier prior to dispatch, or if no delivery location is set out in the Order and the Supplier has not been so notified, to FirstPort’s usual business premises (“Delivery Location”). 

4.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location. 

4.4 If the Supplier: 

(a) does not deliver the Goods in full, FirstPort may reject the Goods; or 

(b) delivers an excess quantity of Goods ordered, FirstPort may at its sole discretion reject the Goods and/or the excess Goods, 

(c) and any rejected Goods shall be returnable at the Supplier’s risk and expense. 

4.5 The Supplier shall not deliver the Goods in instalments without FirstPort’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time, or at all, or any defect in an instalment shall entitle FirstPort to the remedies set out in Clause 6.1. 

4.6 Title and risk in the Goods shall pass to the Client on completion of delivery (with FirstPort receiving the Goods solely in its capacity as Managing Agent). 

5. SUPPLY OF SERVICES

5.1 The Supplier shall from the date set out in the Order or, if no date is specified, the Commencement Date, and for the duration of the Contract, supply the Services to the Client (with FirstPort acting as the Client’s Managing Agent in administering and overseeing delivery of the Services). 

5.2 The Supplier shall meet any performance dates for the Services specified in the Order and time is of the essence in relation to any of those performance dates. 

5.3 In providing the Services, the Supplier shall: 

(a) co-operate with FirstPort in all matters relating to the Services, and comply with all instructions of FirstPort; 

(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade; 

(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract; 

(d) ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that FirstPort expressly or impliedly makes known to the Supplier; 

(e) provide all equipment, tools and vehicles and such other items as are required to provide the Services; 

(f) use good quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to FirstPort, will be free from defects in workmanship, installation and design; 

(g) obtain and at all times maintain all licences, accreditations and consents which may be required for the provision of the Services; 

(h) observe all health and safety rules and regulations and any other security requirements that apply at any of FirstPort’s premises or developments that FirstPort manages; 

(i) hold all materials, equipment and tools, drawings, specifications and data supplied to the Supplier by the Client (directly or through FirstPort as Managing Agent) (“Client Materials”) and by FirstPort on its own behalf (“FirstPort Materials”) in safe custody at its own risk, maintain Client Materials and FirstPort Materials in good condition until returned to Client or FirstPort, and not dispose or use Client Materials other than in accordance with the Client’s written instructions or authorisation (whether such instructions or authorisations are given directly or through FirstPort as Managing Agent) or FirstPort Materials other than in accordance with FirstPort’s written instructions or authorisation; 

(j) not do, or omit to do anything which may cause the Client to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Client may rely or act on the Services; 

(k) comply with any additional obligations as set out in the Service Specification; and 

(l) ensure that the Services are fit for any purpose held out by the Supplier or made known to the Supplier by FirstPort, expressly or by implication, and in this respect FirstPort relies on the Supplier’s skill and judgement. 

5.4 The Supplier confirms it has reviewed the Service Specification using its skill, judgement and experience and that the Services described therein are suitable and sufficient to meet FirstPort’s requirements for the Services, whether made known expressly or by implication. The Supplier does not recommend that any changes be made to the Service Specification save for those notified to FirstPort in writing prior to the Commencement Date. 

6. FIRSTPORT REMEDIES

6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, the Client (acting through FirstPort as its Managing Agent) shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights: 

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier; 

(b) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make; 

(c) to recover from the Supplier any costs incurred by the Client in obtaining substitute goods and/or services from a third party; 

(d) to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided and/or Goods that it has not delivered; and 

(e) to claim damages for any additional costs, loss or expenses incurred by the Client which are in any way attributable to the Supplier’s failure to meet such dates. 

6.2 If the Goods and/or Services are not delivered or performed by the applicable date, the Client may (acting through FirstPort as its Managing Agent), at its option, claim or deduct 10% of the price of the Goods or Services for each week’s delay in delivery or performance by way of liquidated damages, up to a maximum of 50% of the total price of the Goods or Services (as applicable). If the Client (acting through FirstPort) exercises its rights under this Clause 6.2 it shall not be entitled to any of the remedies set out in Clause 6.1 in respect of the Goods’ late delivery. 

6.3 If the Supplier has delivered Goods that do not comply with the undertakings set out in Clause 3.1, then, without limiting or affecting other rights or remedies available to it, the Client (acting through FirstPort as its Managing Agent) shall have one or more of the following rights and remedies, whether or not it has accepted the Goods: 

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier; 

(b) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense; 

(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods; 

(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make; 

(e) to recover from the Supplier any expenditure incurred by the Client (or FirstPort, acting as its Managing Agent) in obtaining substitute goods from a third party; and 

(f) to claim damages for any additional costs, loss or expenses incurred by the Client arising from the Supplier’s delivery of Goods that do not comply with the undertakings set out in Clause 3.1. 

6.4 If the Supplier has supplied Services that do not comply with the requirements of Clause 5.3(d) then, without limiting or affecting other rights or remedies available to it, the Client (acting through FirstPort as its Managing Agent) shall have one or more of the following rights and remedies: 

(a) to terminate the Contract with immediate effect by giving written notice to the Supplier; 

(b) to return the Deliverables to the Supplier at the Supplier’s own risk and expense; 

(c) to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services; 

(d) to refuse to accept any subsequent performance of the Services which the Supplier attempts to make; 

(e) to recover from the Supplier any expenditure incurred by the Client (or FirstPort, acting as its Managing Agent) in obtaining substitute services or deliverables from a third party; and 

(f) to claim damages for any additional costs, loss or expenses incurred by the Client from the Supplier’s failure to comply with Clause 5.3(d). 

6.5 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier. 

6.6 The Client’s rights under the Contract are in addition to its rights and remedies implied by statute and/or common law.

7. CUSTOMER’S OBLIGATIONS

7.1 The Client (acting through FirstPort as its Managing Agent) shall: 

(a) provide the Supplier with reasonable access at reasonable times to the Client’s premises or developments managed by FirstPort on behalf of the Client for the purpose of providing the Services and the delivery of any Goods; 

(b) provide such necessary information for the provision of the Services and/or the supply of the Goods as the Supplier may reasonably request; and 

(c) co-operate with the Supplier to enable the Supplier to perform the Services and/or supply of Goods. 

8. CHARGES AND PAYMENT

8.1 The price for the Goods and/or Services: 

(a) shall be the price set out in the Order; 

(b) in respect of Goods supplied the price shall be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by the Client (acting through FirstPort as its Managing Agent); and 

(c) in respect of Services provided the price set out in the Order shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Client (acting through FirstPort as its Managing Agent), the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services. 

8.2 The Supplier shall invoice the Client (care of FirstPort as its Managing Agent) within 10 days of the completion of delivery of the Goods and/or completion of the Services. Each invoice shall include such supporting information required by the Client (acting through FirstPort as its Managing Agent) to verify the accuracy of the invoice, including but not limited to the relevant Purchase Order Number. 

8.3 In consideration of the supply of Goods and/or Services by the Supplier, the Client shall pay the invoiced amounts (with such payment administered by FirstPort in its capacity as Managing Agent) to a UK bank account within 60 days of the date of receipt of a correctly rendered invoice. 

8.4 All amounts payable by the Client under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Client, the Client shall (with FirstPort acting as its Managing Agent), on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services. 

8.5 If the Client fails to make a payment due to the Supplier under the Contract by the due date, then the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 8.5 will accrue each day at 2% a year, above the Bank of England’s base rate from time to time, but at 2% a year for any period when that base rate is below 0%. 

8.6 The Supplier shall maintain complete and accurate records of the time spent, materials used in respect of the Services and/or goods supplied, and the Supplier shall allow FirstPort (as Managing Agent for the Client) to inspect such records at all reasonable times. 

8.7 The Client (acting through FirstPort as its Managing Agent) may at any time, without notice to the Supplier, set off any liability of the Supplier to the Client against any liability of the Client to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. Any exercise by the Client (acting through FirstPort as its Managing Agent) of its rights under this Clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise. 

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Subject to Clause 9.5, all Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Client Materials or FirstPort Materials) shall be owned by the Supplier. 

9.2 The Supplier grants to the Client, or shall procure the direct grant to the Client of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding Client Materials and FirstPort Materials) for the purpose of receiving and using the Services and the Deliverables. Such licence shall also be granted to FirstPort in its capacity as Managing Agent of the Client, solely for purposes connected with managing the relevant property. This licence shall carry the right for the Client (and FirstPort as its Managing Agent) to grant sublicences to professional advisers, contractors or successors in title. 

9.3 The Client grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy any materials provided by the Client, or FirstPort as Managing Agent, to the Supplier for the term of the Contract for the purpose of providing the Services to the Client (with FirstPort acting as Managing Agent). 

9.4 All Client Materials are the exclusive property of the Client, and all FirstPort Materials are the exclusive property of FirstPort.  

9.5 Where indicated on the Order (or otherwise agreed in writing between the Parties) the Client shall own the Intellectual Property Rights in the Deliverables: 

(a) The Client shall own the Intellectual Property Rights in the Deliverables and the Supplier hereby irrevocably, unconditionally and absolutely assigns to the Client, with Full Title Guarantee, and without restriction, all right, title and interest in and to all existing and future Intellectual Property Rights subsisting in or relating to all Deliverables whether created, developed or produced before, on or after the Commencement Date. For clarity, FirstPort shall be entitled to use such Deliverables solely in its capacity as Managing Agent on behalf of the Client; 

(b) to the extent that Clause 9.5(a) is not effective to assign legal title to the Intellectual Property Rights in or to the Deliverables, then the Supplier shall assign to the Client such Intellectual Property Rights as and when requested by FirstPort by executing any assignment documents reasonably requested by the Client (or by FirstPort acting on the Client’s behalf); and 

(c) the Supplier shall procure that its personnel and any third party involved in the provision of the Services shall unconditionally and irrevocably waive all of their moral rights described in Chapter 4 of Part 1 of the Copyright Designs and Patents Act 1988 (or any similar or equivalent legislation anywhere in the world) in respect of the Deliverables. Such waiver shall apply in favour of both the Client, as the owner of the Intellectual Property Rights, and FirstPort, in its capacity as Managing Agent for the Client. 

10. LIABILITY

10.1 Nothing in this Contract limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence and fraud or fraudulent misrepresentation. 

10.2 Subject to clause 10.1, the Client shall not be liable for: 

(a) any loss of profit, loss of revenue, loss of use, loss of contract or loss of goodwill; 

(b) any indirect or consequential loss; or 

(c) loss resulting from the liability of the Supplier to any other third party howsoever and whenever arising. 

10.3 Subject to Clause 10.1, the Client’s total liability in connection with the Contract whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise in connection with the Contract shall in no event exceed the Supplier’s fee paid or payable. 

10.4 The rights and remedies provided under this Contract are in addition to, and not exclusive of, any rights or remedies provided by law. 

10.5 The Supplier will be responsible to repair, replace or renew physical damage caused to the Client’s property (or property under the Client’s management) or compensate for personal injury including death to any person to the extent such damage or injury is caused by the Supplier’s negligence, wilful default and/or breach of this Contract, but not otherwise. 

11. INDEMNITY

11.1 The Supplier shall indemnify the Client, and FirstPort solely in its capacity as Managing Agent for the Client, against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Client or FirstPort (as Managing Agent) arising out of or in connection with: 

(a) any claim made for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services or Deliverables (excluding Client Materials and FirstPort Materials); 

(b) any claim by a third party arising out of, or in connection with, the supply of the Goods and/or the supply of Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Contract by the Supplier, its employees, agents or subcontractors; 

(c) any claim by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables and the supply of Services; and 

(d) Any claim made as a result of breaches of Clauses 13, 14 and 15. 

11.2 The Supplier shall indemnify and keep indemnified FirstPort, in its capacity as Managing Agent for the Client, from and against all liabilities, losses, damages, costs, expenses (including legal and professional costs on a full indemnity basis), claims, demands and proceedings suffered or incurred by FirstPort arising out of or in connection with any claim, demand or proceedings brought or threatened by the Supplier against FirstPort in its own capacity, whether arising in contract, tort (including negligence), misrepresentation, or otherwise, contrary to Clause 2.8. 

11.3 This Clause 11 shall survive termination of the Contract.

12. INSURANCE

12.1 Subject to Clause 12.2, during the term of the Contract and for a period of five (5) years thereafter, the Supplier shall maintain in force with a reputable insurance company professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, in an insured sum of not less than £5,000,000 (five million pounds) for any one claim. The Supplier shall, on the Client’s request (which may be made by FirstPort acting as the Client’s Managing Agent), produce both (i) the insurance certificate giving details of such cover and (ii) evidence of payment of the current year’s premium in respect of each insurance. 

12.2 If the Supplier supplies Construction Services and/or carries out Works, the Supplier shall maintain the Professional Indemnity Insurance referred to in Clause 12.1 during the term of the Contract and for a period of 12 years thereafter.

13. DATA PROTECTION

13.1 If the Parties envisage that Personal Data will be Processed in connection with the performance of the Contract, the Parties will enter into a data processing agreement in accordance with the Data Protection Legislation. 

13.2 Without prejudice to Clause 13.1, the Parties shall comply with their respective obligations under the Data Protection Legislation and shall have in place appropriate technical and organisational security measures against unauthorised or unlawful Processing of Personal Data, and against accidental loss or destruction of or damage to Personal Data. 

14. COMPLIANCE WITH LAWS AND POLICIES

14.1 The Supplier shall: 

(a) comply with the Mandatory Policies and all applicable laws, statutes, regulations, and codes including those relating to anti-bribery, anti-corruption, anti-slavery and human trafficking laws and anti-tax evasion or facilitation thereof including but not limited to the Bribery Act 2010, Modern Slavery Act 2015, the Criminal Finances Act 2017 and the Economic Crime and Corporate Transparency Act 2023; 

(b) not engage in any activity, practice or conduct which would, if such activity, practice or conduct had been carried out in the UK, constitute an offence under: 

(i) Sections 1, 2 or 6 of the Bribery Act 2010; 

(ii) Sections 1, 2 or 4, of the Modern Slavery Act 2015; or 

(iii) Sections 45 or 46 of the Criminal Finances Act 2017; 

(c) maintain throughout the term of the Contract its own policies and procedures to ensure its compliance to this Clause; 

(d) except where not permitted by applicable law, include in its contracts with its subcontractors and suppliers, provisions that are at least as onerous as those set out in this Clause 14.1(a); 

(e) promptly report to FirstPort any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the Contract; 

(f) immediately notify FirstPort if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier and the Supplier warrants that it has no foreign public officials as direct or indirect owners, officers or employees at the date of the Contract; 

(g) within 6 months of the date of the Contract, and annually thereafter, certify to FirstPort in writing, signed by an officer of the Supplier, compliance with this Clause 14 by the Supplier and all persons associated with it under Clause 14.2. The Supplier shall provide such supporting evidence of compliance as FirstPort may reasonably request. 

14.2 The Supplier shall ensure that any person associated with the Supplier who is performing services or providing goods in connection with the Contract does so, only on the basis of a written contract which imposes on and secures from such person, terms equivalent to those imposed on the Supplier in this Clause 14 (Relevant Terms). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to FirstPort for any breach by such persons of any of the Relevant Terms. 

14.3 Breach of this Clause 14 shall be deemed a material breach under Clause 16.2(a). 

14.4 For the purpose of this Clause 14, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with Section 7(2) of the Bribery Act 2010 (and any guidance issued under Section 9 of that Act), Sections 6(5) and 6(6) of that Act and Section 8 of that Act respectively. For the purposes of this Clause 14, a person associated with the Supplier, includes, but is not limited to, any subcontractor of the Supplier. 

15. CONFIDENTIALITY

15.1 Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by Clause 15.2. 

15.2 Each party may disclose the other party’s confidential information: 

(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of exercising its rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information must comply with this Clause 15; 

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority; and 

(c) to the extent it is, or becomes, generally available to the public other than as a direct or indirect result of the information being disclosed by the party in breach of this Clause 15. 

15.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract. 

16. TERMINATION

16.1 Without affecting any other right or remedy available to it, the Client may (acting through FirstPort as its Managing Agent) terminate the Contract: 

(a) with immediate effect by giving written notice to the Supplier if: 

(i) there is a change of Control of the Supplier; or 

(ii) the Supplier’s financial position deteriorates to such an extent that, in FirstPort’s opinion, the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or 

(iii) the Supplier breaches any of Clauses 5.3 (g) to (j) (inclusive); and 

(b) for convenience by giving the Supplier one (1) month’s written notice. 

16.2 Without affecting any other right or remedy available to it, either the Client or the Supplier may terminate the Contract with immediate effect by giving written notice to the other party if: 

(a) the other party commits a material breach of any term of the Contract, where the breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; 

(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets, or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or 

(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business. 

16.3 Any notice, election or decision expressed to be made by the Client under this Clause, may be issued or communicated by FirstPort in its capacity as Managing Agent for the Client. 

17. CONSEQUENCES OF TERMINATION

17.1 On termination of the Contract: 

(a) the Supplier shall immediately deliver to the Client (or to FirstPort as Managing Agent for the Client) all Deliverables, whether or not then complete, and return all Client Materials and confidential information. If the Supplier fails to do so, then the Client (acting through FirstPort) may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safekeeping and will not use them for any purpose not connected with the Contract; 

(b) the Supplier shall immediately return all FirstPort Materials. If the Supplier fails to do so, then FirstPort may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safekeeping and will not use them for any purpose not connected with the Contract; 

(c) the Supplier shall provide such information and assistance as reasonably required by the Client (or FirstPort as Managing Agent for the Client) to facilitate the smooth termination of, or transition of the Services; and 

(d) if the Supplier is carrying out Works, the Supplier shall immediately protect and secure the Works and, then, shall immediately leave the premises. 

17.2 On termination of the Contract, the Client shall pay the Supplier, sums properly due to the Supplier, in connection with the provision of the Services, up to the date of termination (with FirstPort authorised to administer such payments solely in its capacity as Managing Agent), provided that,  the Client (acting through FirstPort) has terminated the Contract under Clause 16.1(b). The Client shall not be obliged to pay such sums until the Client’s losses, consequent upon such termination, have been fully determined. 

17.3 Notwithstanding any other provision of the Contract, if the Contract is terminated, the Client shall have no liability to the Supplier for any loss of profit, loss of contracts, loss of revenue or any indirect or consequential losses arising out of or in connection with such termination or suspension.  

17.4 Termination or expiry of the Contract shall not affect the Parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry. For these purposes, “the Parties” means the Client and the Supplier; FirstPort may exercise the Client’s rights on its behalf as Managing Agent. 

17.5 Any provision of the Contract that expressly or by implication is intended to come into, or continue in, force on or after termination or expiry of the Contract shall remain in full force and effect. 

18. GENERAL

18.1 Assignment and other dealings 

(a) FirstPort may, at any time, subcontract, delegate, or otherwise transfer any of its functions, duties or responsibilities arising in its capacity as Managing Agent for the Client, but shall not assign or otherwise transfer any rights or obligations under the Contract (which belong to the Client). 

(b) The Client may, at any time, assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract. 

(c) The Supplier shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Client (acting through FirstPort as its Managing Agent). 

18.2 Notices 

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post, or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); 

(b) A notice or other communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting. 

This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution. 

18.3 Severance 

If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary, to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed, deleted. Any modification to, or deletion of a provision, or part-provision under this clause, shall not affect the validity and enforceability of the rest of the Contract. 

18.4 Waiver 

A waiver of any right or remedy under the Contract, or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure, or delay by a party to exercise any right, or remedy provided under the Contract, or by law shall not constitute a waiver of that, or any other right or remedy, nor shall it prevent or restrict any further exercise of that, or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract, or by law shall prevent or restrict the further exercise of that, or any other right or remedy. 

18.5 No partnership or agency 

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the Supplier and the Client, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. 

The Supplier acknowledges that FirstPort enters into and administers this Contract solely in its capacity as Managing Agent for the Client, and not as principal. Nothing in this Contract authorises the Supplier to act as agent for FirstPort or the Client. 

18.6 Entire agreement 

The Contract constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. 

18.7 Third party rights 

(a) Save that FirstPort shall be entitled to enforce those terms of the Contract which expressly confer rights or benefits on FirstPort, in its capacity as Managing Agent, for the Client, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. 

(b) The rights of the Parties to rescind or vary the Contract are not subject to the consent of any other person, except that the consent of FirstPort shall be required, where the term being rescinded or varied expressly confers a right or benefit on FirstPort, in its capacity as Managing Agent, for the Client. 

18.8 Variation 

Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective, unless it is agreed in writing and signed by the Parties or their authorised representatives. 

18.9 Governing law 

The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of, or in connection with it, or its subject matter, or formation shall be governed by and construed in accordance with the law of England and Wales. 

18.10 Jurisdiction 

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of, or in connection with the Contract or its subject matter or its formation.

18.11 Construction Contracts

Where and to the extent that this Contract constitutes a construction contract within the meaning of the Housing Grants, Construction and Regeneration Act 1996, nothing in this Contract shall operate to exclude or restrict the application of that Act and, to the extent of any inconsistency, the Scheme for Construction Contracts shall apply.

SCHEDULE 1 – MANDATORY POLICIES

Emeria UK Supplier Code of Conduct: https://www.firstport.co.uk/supplier-code-of-conduct/

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Important Notes:

1. These Terms and Conditions apply where FirstPort is the Client. Suppliers can check whether this is the case by looking at the invoicing address on the Purchase Order. If FirstPort is acting as the Client’s Managing Agent, the invoicing address will show the Client’s name followed by “c/o FirstPort”. If Firstport is acting as the Client’s Managing Agent for this purchase, please see Version 1 above.
2. If you already have a supply contract with us, please see Clause 2.2.

Emeria UK Supplier Code of Conduct: https://www.firstport.co.uk/supplier-code-of-conduct/