Annex: Baringa's Standard Business Terms

1. INTERPRETATION

1.1  In these Business Terms, the following definitions apply (and all other defined expressions have the meaning provided in these Business Terms):

“Affiliate” means in relation to Baringa or the Supplier any entity, whether incorporated or not, that is controlled by or under common control with that party and “control” (or variants of it) shall mean the ability whether directly or indirectly to direct the affairs of another by means of ownership, contract or otherwise.

“Baringa”: means Baringa Partners LLP a limited liability partnership registered in England under number OC303471 and whose registered office is at 62 Buckingham Gate, London, SW1E 6AJ, UK.

“Business Day”: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

“Business Terms”: means the business terms and conditions set out in this Annex as amended from time to time in accordance with Clause 16.6.

“Contract”: means the contract between Baringa and the Supplier for the sale and purchase of the Goods and Services in accordance with these Business Terms and the Order.

“Data Protection Legislation” means any applicable law relating to the processing, privacy and use of Personal Data, as applicable to either party or the Goods and Services, including the General Data Protection Regulation (EU) 2016/679 (GDPR), the UK Data Protection Act 2018 and /or any corresponding or equivalent national laws or regulations; and any laws which implement any such laws; and any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.

“Goods”: means the goods (or any part of them) set out in the Order.

“Intellectual Property Rights” or “IPR” means any and all patents, patent applications, know-how, trademarks, trademark applications, trade names, registered design, copyright, database rights or other similar intellectual property rights whether in existence at the date of the Contract or created in the future.

“Order”: means the front sheet attached to these Business Terms setting out details of the supplier, P.O. Number, Goods and Services and the price.

“Purchase Order” or “P.O.”: means the Order and Business Terms together.

“Services”: means the services (or any part of them) set out in the Order.

“Specification”: means any specification for the Goods and Services, including any related plans and drawings, which are agreed in writing by Baringa and the Supplier.

“Supplier”: means the person or firm from whom Baringa purchases the Goods and Services specified in the Order.

1.2  In these Business Terms, unless the context requires otherwise, the following rules apply: (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 or permitted assigns; (c) a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted and includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted; (d) any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and (e) a reference to “writing” or “written” includes e-mails.

 

2. BASIS OF CONTRACT

2.1  These Business Terms apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate however and whenever, or which are implied by trade, custom, practice or course of dealing. The Business Terms will not apply and will be deemed replaced with the applicable terms and conditions of a goods or services Agreement signed by the parties, currently valid at the date of the Purchase Order and which applies to the items being ordered.

2.2  The Purchase Order when submitted by Baringa to Supplier constitutes an offer by Baringa to purchase the Goods and Services in accordance with these Business Terms. The Purchase Order shall be deemed to be accepted on the earlier of (a) the Supplier issuing a written acceptance of the Purchase Order; or (b) the Supplier doing any act consistent with fulfilling the Purchase Order, at which point the Contract shall come into existence.

 

3. THE GOODS AND SERVICES

3.1  The Supplier shall provide the Goods and Services set out in the Order and shall ensure that the Goods and Services shall:

(a)  correspond with their description in the Order and any applicable Specification and be provided with reasonable skill and care;

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

(c)  where applicable, be free from defects in design, material and workmanship and remain so for six (6) months after Delivery; and

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

3.2  In supplying the Services, the Supplier shall:

(a)  co-operate with Baringa in all matters relating to the Services
and comply with all Baringa’s reasonable instructions;

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

(c)  use personnel who are suitably skilled 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)  provide all equipment, tools and vehicles and other items as are
required to provide the Services; and

(e)  observe all health and safety rules and regulations and any other
security requirements that apply at any of Baringa’s premises.

3.3  The Supplier shall ensure that at all times Supplier has and maintains all the licences, permissions, authorisations, consents and permits that Supplier needs to carry out its obligations under the Contract.

3.4  The Supplier shall ensure that Supplier and its subcontractors engaged in provision of the Goods and Services:

(a)  comply with Baringa’s ‘Anti-Corruption and Bribery Policy’ and the principles of Baringa’s ‘Code of Business Ethics’;

(b)  will, if providing any software, test the software using the most up-to-date industry standard anti-virus software to test for (and delete) all software viruses which, at the date of delivery or access (as applicable) are either commonly known or are known by Supplier; and 

(c)  adhere to the principles of the ‘Baringa Supplier Code of Conduct’ (which can be found at https://www.baringa.com/en/site-support/supplier-code-of-conduct).

3.5  Baringa shall have the right to inspect and test all Goods at any time before delivery and all Services upon completion. if following such inspection or testing Baringa considers that such goods or Services do not conform or are unlikely to comply with the Supplier's undertakings in Clauses 3.1 – 3.4, Baringa shall inform the Supplier and the Supplier shall immediately take such remedial action within a reasonable period of time as is necessary to ensure compliance. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract, and Baringa shall have the right to conduct further inspections and tests of the Goods and Services  after the Supplier has carried out its remedial actions.

 

4. DELIVERY

4.1  The Supplier shall ensure that for all Goods:

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

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

(c)  if the Supplier requires Baringa to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.2  The Supplier shall deliver the Goods and Services:

(a)  on the date specified in the Order, or, if no such date is specified, within twenty-eight (28) days of the date of the Purchase Order;

(b)  to the location as is set out in the Order or (if none), as instructed in writing by Baringa prior to delivery or if not instructed to Baringa's premises at 62 Buckingham Gate, London, SW1E 6AJ, UK (“Delivery Location”); and

(c)  during Baringa's normal business hours, or as instructed by Baringa.

4.3  Delivery of the Goods and Services shall be completed on written acceptance by Baringa’s representative at the Delivery Location.

4.4  If the Supplier delivers less than ninety-five per cent (95%) of the quantity of Goods and Services ordered, Baringa may reject the Goods and Services and any rejected Goods and Services shall be (where tangible products) returnable at the Supplier's risk and expense. If the Supplier delivers less than the quantity of Goods and Services ordered, and Baringa accepts the delivery in accordance with Clause 4.3, a pro rata adjustment shall be made to the invoice for the Goods and Services. Baringa shall not be responsible for, or have a duty to pay for, any over supplied Goods and Services.

4.5  The Supplier shall not deliver the Goods and Services in instalments without Baringa's prior written consent. Where it is agreed that the Goods and Services are to be 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 Baringa to the remedies set out in Clause 5.

 

5. REMEDIES

5.1  If the Goods and Services are not delivered on the date they are due as referred to in Clause 4.2(a), or do not comply with the undertakings set out in Clauses 3.1 and 3.2, then, without limiting any of its other rights or remedies, Baringa shall have the right to any one or more of the following remedies, whether or not it has accepted the Goods and Services:

(a)  to terminate the Contract;

(b)  to reject the Goods (in whole or in part) and where tangible products 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 and Services, or to provide a full refund of the price of the rejected Goods and Services (if paid);

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

(e)  to recover from the Supplier any costs incurred by Baringa in obtaining substitute goods from a third party; and

(f)  to claim damages for any other costs, loss or expenses incurred by Baringa which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.

5.2  These Business Terms shall apply to any repaired or replacement Goods and Services supplied by the Supplier.

5.3  The Supplier shall keep Baringa indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by Baringa as a result of or in connection with:

(a)  any claim made against Baringa for actual or alleged infringement of a third party's intellectual property rights arising out of, or in connection with, the supply or use of the Goods and Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

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

(c)  any claim made against Baringa by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods and Services, to the extent that the defect in the Goods and Services is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.

5.4  Clause 5.3 shall survive termination or expiry of the Contract.

5.5  Baringa's rights and remedies under these Business Terms are in addition to Baringa’s rights and remedies implied by statute and common law.

 

6. TITLE AND RISK

Title and risk in the Goods and Services shall pass to the Baringa on completion of delivery.

 

7. PRICE AND PAYMENT

7.1  The price of the Goods and Services shall be the price set out in the Order.

7.2  The price of the Goods and Services is exclusive of amounts in respect of value added tax (“VAT”), but where tangible products includes the costs of packaging, insurance and carriage of the Goods and Services. No extra charges shall be effective or payable (including Supplier’s expenses) unless agreed in writing and signed by Baringa or set out in the Order. Baringa shall, 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 Services.

7.3  The Supplier may invoice Baringa for the Goods and Services on or at any time after the completion of delivery. Baringa shall pay correctly issued invoices within thirty (30) days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.

7.4  If a party fails to make any payment due to the other under the Contract by the due date for payment (“Due Date”), then the party owed payment may issue a written notice requiring payment and if payment is not made within a further fourteen (14) days the defaulting party shall pay interest on the overdue amount at the rate of two per cent (2%) per annum above the National Westminster Bank's base lending rate from time to time. Such interest shall accrue on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.

7.5  Baringa may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier under the Contract against any amounts payable by it to the Supplier under the Contract or any other contract.

 

8. BARINGA PROPERTY

The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by Baringa to the Supplier (“Baringa Materials”) and all rights (including Intellectual Property Rights) in the Baringa Materials are and shall remain the exclusive property of Baringa. The Supplier shall keep the Baringa Materials in safe custody at its own risk, maintain them in good condition until returned to Baringa, and not dispose or use the same other than in accordance with Baringa's written instructions or authorisation.

 

9. INSURANCE

During the period of delivery of the Goods and Services and for a period of one (1) year thereafter, the Supplier shall maintain in force, with a reputable insurance company and at levels necessary to cover Supplier’s liabilities under the Contract, professional indemnity insurance, product liability insurance and public liability insurance to cover such heads of liability as may arise under or in connection with the Contract, and shall, on the Baringa's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

 

10. CONFIDENTIAL INFORMATION

A party (“receiving party”) shall keep in strict confidence all technical or commercial know-how, Specifications, inventions, processes or initiatives which are disclosed to the receiving party by the other party (“disclosing party”), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its products or its services which the receiving party may obtain in respect of the Contract. The receiving party shall only disclose such confidential information to those of its employees, agents or subcontractors who need to know the same for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents or subcontractors shall keep such information confidential.

 

11. INTELLECTUAL PROPERTY

11.1  Baringa hereby grants to Supplier a royalty free, non-exclusive, revocable licence for the period necessary to provide the Goods and Services (or earlier if terminated by Baringa in writing) to use the Baringa Materials to the extent necessary to perform the Services. Any derivatives, modifications, enhancements or improvements to the Baringa-Provided Materials developed by Supplier will be owned by Baringa.

11.2  Subject to Clause 11.3, Supplier will be the sole and exclusive owner of the Intellectual Property Rights in pre-existing Supplier-provided computer programs, documentation and other materials (“Supplier Materials”) which are part of the Goods or are used by Supplier to provide the Services.  Where Supplier Materials are contained in any Goods or outputs of the Services then Supplier hereby grants to Baringa (and its Affiliates and their sub-contractors) a royalty free, non-exclusive, worldwide, non-revocable licence to use the Supplier Materials to receive the full benefit of the Goods and Services.

11.3  Supplier acknowledges and agrees that all Goods and all outputs of the Services which are newly conceived, created or developed for Baringa, and all Intellectual Property Rights in such Goods and outputs, shall belong to and vest in Baringa upon creation. At the request and expense of Baringa, Supplier will do all such things and sign all documents reasonably necessary to enable Baringa to obtain all such rights in the Intellectual Property Rights vesting in Baringa under a Contract.

 

12. TERMINATION

12.1  Baringa may terminate the Contract in whole or in part at any time before delivery of the Goods and Services with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Baringa shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

12.2  Baringa may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier becomes subject to any of the following events: (a) the Supplier makes a general assignment for the benefit of creditors, (b) the Supplier becomes or is unable to pay debts as they fall due, (c) a trustee, custodian, administrator or receiver is appointed by any court with respect to the Supplier or any substantial part of the Supplier’s assets, (d) an action is taken by or against the Supplier under any bankruptcy or insolvency laws or laws relating to the relief of debtors and such action is not dismissed within thirty (30) days of commencement of the action, (e) the Supplier is the subject of a winding-up petition which is not dismissed within ten (10) days, or a resolution is passed for its winding up or (f) any event analogous to any of the events set out in Clause 12.2(a) – (e) occurs in another jurisdiction.

12.3  Termination of the Contract, however arising, shall not affect either of the parties' rights and remedies that have accrued as at termination. Clauses in these Business Terms which expressly or by implication survive termination of the Contract shall continue in full force and effect.

 

13. FORCE MAJEURE

Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract. If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than fifteen (15) Business Days, Baringa may terminate this Contract immediately by giving written notice to the Supplier.

 

14. DATA HANDLING

14.1  The Supplier shall comply with any notification requirements under the
Data Protection Legislation and shall duly observe all Supplier’s obligations under
the Data Protection Legislation which arise in connection with the Contract.

14.2  When handling Baringa’s data (whether or not personal data), the
Supplier shall ensure the security of the data is maintained in line with the
security requirements of the Baringa as notified to the Supplier from time
to time.

14.3  Notwithstanding the general obligation in Clause 14.1, where the
Supplier is processing personal data for Baringa as a data processor
(as defined by the GDPR) the Supplier shall:

(a)  ensure that Supplier has in place appropriate technical and organisational measures to ensure the security of the Baringa personal data (and to guard against unauthorised or unlawful processing of the personal data and against accidental loss or destruction of, or damage to, the personal data);

(b)  provide Baringa with such information as Baringa may reasonably request to satisfy itself that the Supplier is complying with its obligations under the Data Protection Legislation;

(c)  promptly notify the Baringa of any request for access to or a request to rectify or erase Baringa’s personal data;

(d)  ensure that Supplier does not knowingly or negligently do or omit to do anything which places the Baringa in breach of the Baringa’s obligations under the Data Protection Legislation;

(e)  ensure that Supplier’s staff are suitably trained to comply with Clause 14.1; and

(f)  ensure that Baringa’s personal data is not transferred outside the European Economic Area or UK without Baringa’s prior written consent.

 

15. ENVIRONMENTAL, SOCIAL AND GOVERNANCE (“ESG”)

15.1  Labour rights

15.2.1  Supplier commits to paying all Supplier’s employees and contractors a real living wage in their respective geography. In the UK, this should be in line with the current real living wage requirements as defined by the Living Wage Foundation (https://www.livingwage.org.uk/). Outside of the UK a local, recognised benchmark living wage should be recognised and paid.

15.2  Environmental Impact Management

15.2.1  Supplier shall comply with all applicable laws to Supplier’s business pertaining to the environment and shall operate Supplier’s businesses in an environmentally responsible way.

15.2.2  Supplier shall:

(a)  adopt such practices and utilise such systems that minimise the use of resources, e.g. water efficiency, energy efficiency, etc.;

(b)  ensure that Supplier and its own suppliers use environmentally friendly working practices, tools and equipment, consumables and replacement parts, wherever possible; and

(c)  minimise the generation of waste and ensure that any waste produced is properly identified and disposed of by licensed and competent bodies via authorised and/or licensed means.

15.2.3  Supplier shall have a written ‘Environmental and Sustainability Policy’ appropriate to the size and nature of Supplier’s operation which addresses preventing, mitigating and controlling serious environmental and health impacts from Supplier’s operations.

15.2.4  Supplier shall have a process for measuring, recording, reporting its scope 1, 2 and 3 greenhouse gas emissions.

15.2.5  Supplier shall have meaningful, public targets and to reduce them in line with the most relevant Net Zero guidance by or before 2050.

15.2.6  To support Baringa’s understanding of supply chain carbon emissions, Supplier will calculate Supplier’s Scope 1, 2 & 3 carbon emissions associated with providing the product or service to Baringa and report such emissions to Baringa on an annual basis. The figure will represent a proportion of the Supplier’s own carbon emission footprint.

15.3  Supplier’s service providers

Supplier will, as standard, request and assess ESG related information from critical service providers to Supplier’s business prior to executing new relationships and on a regular basis. A summary of the outcomes of the assessments will be made available to Baringa upon written request.

 

16. GENERAL

16.1  Assignment and subcontracting: Baringa may at any time assign, transfer, charge, or deal in any other manner with any or all of its rights or obligations under the Contract. Supplier may not assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract without Baringa's prior written consent.

16.2  Notices: Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its address on the Order or if none its registered office (if it is a corporate entity) or its principal place of business (in any other case), and shall be delivered personally, or sent by pre-paid first-class post, recorded delivery, commercial courier or by e-mail to the address stated in the Order.

16.3  Severance: If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

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

16.5  Third party rights: A person who is not a party to the Contract shall not have any rights under or in connection with it.

16.6  Variation: Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Baringa.

16.7  Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.