1link e-procurement Trading Platform – Supplier Terms and Conditions
These terms and conditions combined with the Supplier Registration Form define the Supplier’s use of the Trading Platform.
1.1 In this Contract unless the context otherwise requires:
"Business Day" means a day other than a Saturday, Sunday or public or bank holiday in England;
“Cancellation” means an Order or part of an Order that is cancelled by a Subscriber as described in clause 6.12;
“Catalogue” means a structured listing of products and services which are to be offered for sale by the Supplier to Subscribers via the Trading Platform (which shall include descriptions and representations of all such products and services), details of which are to be uploaded onto the Trading Platform by the Supplier;
“Commencement Date” means the date shown on the Supplier Registration Form;
“Commission” means the fee referred to in the Fees section of the Supplier Registration Form which sum shall be due and payable by the Supplier to the Company in respect of each invoice for Goods supplied or Return Charge;
“Contract” shall have the meaning as defined in the Supplier Registration Form;
“Delivery” means each single delivery of Goods, as recorded via the Trading Platform by the Supplier and as may be confirmed via the Trading Platform by the relevant Subscriber;
“Delivery Notification Date” means the date that the Trading Platform is updated by the Supplier confirming Delivery;
“Dispute” means a dispute as recorded via the Trading Platform by a Subscriber in respect of a Delivery, within seven (7) days of the relevant Delivery Notification Date, as described in clause 6.13;
“Fax/SMS Fee” means the fee referred to in the Fees section of the Supplier Registration Form which sum shall be due and payable by the Supplier to the Company in respect of each Fax or SMS created by the Supplier on the Trading Platform;
“Fees” means the Registration Fee and Transaction Fees as specified within the Contract to be payable by the Supplier to the Company;
“Goods” means any of the products or services which are offered for sale by the Supplier via the Trading Platform and which may be the subject of an Order or Delivery;
“HMRC” means HM Revenue and Customs;
“Intellectual Property Rights” means all the interests and rights of any nature whatsoever to and in any intellectual property, whether such rights and interests exist at the time of this Contract or come into existence afterwards, including without limitation: copyright (including copyright in software) database rights, designs, inventions, know-how, confidential information and any application for and registrations of them and the right to apply for any form of protection for any of these things and rights in every part of the world;
“Internet” means the global data network comprising interconnected networks using TCP/IP (“Transmission Control Protocol/Internet Protocol”);
"Invoicing and Payment Collection Services" means the services described in clause 8;
"Licence" shall have the meaning defined in clause 2;
“Order” means an order for any Goods which is submitted by a Subscriber to the Supplier, and accepted by the Supplier, via the Trading Platform;
“Order Request” means an order for any Goods which is submitted by a Subscriber to the Supplier via the Trading Platform, which may or may not be accepted by the Supplier, and which will result in an Order Request Fee being charged to the Supplier as specified within the Contract;
“Order Request Fee” means a fee referred to in the Fees section of the Supplier Registration Form which sum shall be due and payable by the Supplier to the Company in respect of each Order Request;
“Party” shall have the meaning as defined in the Supplier Registration Form;
“Promotional Information” means the visual, textual or other information which the Supplier may be entitled to submit to the Company from time to time for publication on the Trading Platform in relation to its business and/or any of the Goods which it offers for sale via the Trading Platform;
“Registration Fee” means the annual fee set out in the Fees section of the Supplier Registration Form and which shall be charged to the Supplier on the Commencement Date and on each subsequent anniversary of such date during the Term;
“Return” means the return to the Supplier of Goods that are the subject of a Delivery, unless such Goods are defined as being non-returnable, as recorded via the Trading Platform and as described in clause 6.15, and which may result in a Return Charge;
“Return Charge” means the charge, as specified by the Supplier and displayed, where relevant, to the Subscriber when placing an Order, in respect of any Return;
“Software” means the program(s) which will be made available by the Company to the Supplier for use by the Supplier to gain access to and use the Trading Platform;
"Subscriber" means an organisation that has been permitted to use the Trading Platform by the Company for the purpose of trading with Suppliers;
“Supplier” means the organisation stated in the Supplier Registration Form (including any registered user created on the Trading Platform by the Supplier along with any person who the Company reasonably believes is acting with the Supplier’s authority or knowledge);
“Supplier Registration Form” means the form signed by the Supplier to register to the Trading Platform;
"Term" means the period starting on the Commencement Date and continuing until such time as this Contract is terminated by either Party pursuant to clause 11;
“Transaction Fees” shall mean the fees indicated as such in the Supplier Registration Form;
"Trading Platform" means the electronic trading platform entitled 1link e-procurement, including any computer applications, or interfaces as may be authorised by the Company to connect to 1link e-procurement, which may be accessed via url www.1link.co.uk to which this Contract relates including the Software and any and all documentation supplied by the Company;
1.2 The Contract sets out the entire agreement between the Supplier and the Company in relation to use of the Trading Platform by the Supplier.
1.3 In this Contract, unless stated otherwise:
1.3.1 any gender includes all genders and references to the singular shall include reference to the plural and vice versa;
1.3.2 any reference to either Party shall include a reference to that Party’s employees, agents, sub-contractors and permitted assigns;
1.3.3 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.3.4 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;
1.3.5 any reference to time means the time in England;
1.3.6 “in writing” or “written” shall include facsimile transmission and e-mail, unless otherwise stated in the Contract; and
1.3.7 any reference in this Contract to a statute or provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2. Provision of a Licence to use the Trading Platform
2.1 The Company agrees to grant the Supplier a non-exclusive licence (the “Licence”) to use the Trading Platform, subject to the Supplier's compliance with the terms and conditions of this Contract.
2.2 This Contract does not include the provision of telecommunication services necessary for connection to the Trading Platform. Accordingly, the Supplier is responsible for arranging the appropriate telecommunications service and suitable hardware or communications equipment necessary to enable access to the Trading Platform.
3. Terms of Licence
3.1 The Supplier may not transfer, assign or sub-licence its rights to use the Software or Trading Platform or attempt to do so.
3.2 The Licence may not be transferred or assigned without the prior written agreement of the Company.
3.3 The Supplier must not use the Trading Platform;
3.3.1 fraudulently or in connection with a criminal offence; or
3.3.2 to promote for sale any products that the Company in its sole discretion considers to be inappropriate; or
3.3.3 to promote for sale any products whose sale, distribution or offering for sale is prohibited by any applicable law; or
3.3.4 to send, receive, upload, download, use or re-use any material which is offensive, abusive, indecent, defamatory, obscene or menacing, or in breach of copyright, design right, patent right, confidence, privacy or any other rights; or
3.3.5 to cause annoyance, inconvenience or needless anxiety whether to the Company, any Subscriber or any other person by any means; or
3.3.6 other than in accordance with the acceptable use policies of any networks which the Supplier uses to connect to the Trading Platform; or
3.3.7 in a way, whether knowingly or otherwise, which would impair the operation of the Trading Platform or put it in jeopardy.
3.4 The Company reserves the right, without prior notice, to remove any content which the Supplier has submitted to the Trading Platform (whether as part of its Catalogue, any Promotional Information or otherwise) if the Company has any reason to believe that any such material contravenes the provisions of clause 3.3 in any way.
3.5 All Intellectual Property Rights in the Software remain the property of the Company or its licensors.
3.6 Without written consent and without affecting any applicable statutory rights under the Copyright, Designs and Patents Act 1988 (as amended by the Copyright (Computer Program) Regulation 1992) the Supplier must not and must not permit any other person to:
3.6.1 disassemble, reverse engineer, decompile or in any other way interfere with the Software; or
3.6.2 modify the Software; or
3.6.3 copy, reproduce, download or make the Software available online; or
3.6.4 create any new software partly or wholly based on the Software or otherwise commercially exploit the Software for any purpose.
3.7 The Supplier must tell the Company immediately if any third party makes or threatens to make any claim or issue legal proceedings against the Supplier or the Company relating to the use of the Trading Platform and the Supplier will provide written details of the complaint and will, upon request, immediately stop the act or acts complained of.
3.8 The Supplier’s use of the Trading Platform is solely at the Supplier's risk. In so doing, the Supplier is solely responsible for validating the credit worthiness of each Subscriber together with all other matters which may relate to the Subscriber before entering into any contract for the sale of any Goods with such Subscriber via the Trading Platform.
3.9 If the Supplier uses the Trading Platform to conduct business with any Subscriber, any Order accepted from a Subscriber will be subject to such terms and conditions as the Supplier and that Subscriber agree, but in any event shall be subject to the terms of this Contract.
3.10 The Company does not monitor the content of Subscriber’ websites or any associated websites and any links to such websites are provided for convenience only.
4. The Company Obligations
4.1 The Company shall maintain and develop the Trading Platform during the Term such that the Supplier's Catalogue may be searched by relevant Subscribers and such that Subscribers shall be able to buy Goods from the Supplier via the Trading Platform.
4.2 The Company warrants that proper use of the Software and Trading Platform will not infringe any third party rights.
4.3 The Company will take reasonable steps to ensure that the Software is free of any viruses, but the Company recommends that the Supplier uses their own virus protection software at all times when using the Trading Platform and when communicating with any Subscriber via the Trading Platform.
4.4 The Company will take reasonable steps to ensure that the Trading Platform is continuously available during the hours of 07.00 until 19.00 on any Business Day, and that no interruption in access to the Trading Platform relating to an event within the control of the Company during this period is longer than ninety (90) minutes.
4.5 The Company gives no guarantee that the Software and/or the Trading Platform will never be faulty but the Company agrees to use all reasonable endeavours to correct reported faults as soon as the Company reasonably can. Faults should be reported by telephone, electronic mail or in writing to the Helpline Support Services as described in clause 23.
4.6 The Supplier acknowledges that the Company may vary the technical specification of the Software and the Trading Platform from time to time and offer or carry out updates or modifications to the Software at any time.
4.7 The Company will enable the Supplier to access and upload the Catalogue to the Trading Platform.
4.8 The Company will provide the Invoicing and Payment Collection Services in accordance with the provisions of clause 8.
5. Supply of Goods and Services
5.1 The Supplier agrees that products and services made available for sale via the Trading Platform will comply with any and all laws and regulations applicable to the provision of such products and services and with recognised professional or industry standards or practices as may be relevant, including but not limited to materials handling practices and environmental responsibilities.
6. The Supplier Obligations
6.1 The Supplier warrants and undertakes that:
6.1.1 all necessary licences and consents (including those from any third party licensors) have been obtained in order to enable it to access and use the Trading Platform for the purposes of it offering Goods which it lists in its Catalogue;
6.1.2 the Supplier will comply with all legislation, instructions or guidelines issued by regulatory authorities, relevant licensors and any other codes of practice which relate to its activities on the Trading Platform and/or which are applicable or relevant to the Supplier’s business; and
6.1.3 the Catalogue and all other information which the Supplier makes available for publication via the Trading Platform is accurate in all respects, is not misleading and contains all information which the Supplier is required to make available when offering Goods for sale.
6.2 The Supplier is expressly responsible for the creation, maintenance, design and configuration of all material or other data, including the Catalogue, that the Supplier publishes on the Trading Platform and/or which it otherwise distributes via the Trading Platform and the Supplier shall ensure that any appropriate approvals or authorities to use such data or material and data have been obtained where necessary.
6.3 The Supplier must also ensure that all of its contact details are included in a clear and legible form on the Trading Platform which are sufficient for receipt of any enquiries or complaints from any Subscriber regarding any information relating to the Supplier, the contents of the Catalogue and/or any other material which the Supplier publishes via the Trading Platform. The Supplier expressly acknowledges that the Company has the right to disclose the contact details of the Supplier to any person with an enquiry or complaint if they are unable to locate those details.
6.4 The Supplier agrees to notify the Company immediately of any changes to the information that it provides to the Company when registering to use the Trading Platform and the Supplier warrants that all information supplied at the time of registration to the Trading Platform and any changes notified to those details will be true, complete and accurate in all respects.
6.5 The Supplier expressly agrees that access to Subscriber data is provided for the sole purpose of responding to and fulfilling Orders.
6.6 Whilst the Trading Platform facilitates the sale of Goods to Subscribers, the Supplier agrees that the Company is neither the buyer nor the seller of the Goods and that the Company acts only as the agent of the Supplier in the manner described in clause 8. As such, the Supplier agrees and acknowledges that the Company will not, at any stage, have any interest in the title to any of the Goods and that the Company shall not and is not authorised to sell any of the Goods on its own account or on behalf of the Supplier. All contracts formed by the Supplier in relation to the sale of its Goods to Subscribers as a result of Orders submitted to the Supplier via the Trading Platform shall, on the acceptance of any such Orders by the Supplier, be formed between the Supplier and the relevant Subscriber.
6.7 The Supplier accepts that the Company shall assume no responsibility at any time for product liability in respect of any Goods, which claims and liability shall at all times remain with the Supplier and the Supplier agrees to indemnify the Company and keep the Company indemnified fully and effectively against all actions, proceedings, claims, demands, damages and costs (including legal costs, other direct costs and consequential losses on a full indemnity basis) incurred by the Company directly or indirectly as a result of any product liability claims that may arise and or be brought against it in respect of Goods by any Subscriber and/or any third party.
6.8 The Supplier shall be responsible for ensuring that it has uploaded its latest Catalogue (which shall include all current product prices) together with any other material that it wishes to publish on the Trading Platform in such format that may be required by the Company for such publication. The Supplier shall also ensure that the Catalogue will contain an accurate and unambiguous description of all of the Goods which are offered for sale to Subscribers via the Trading Platform. The Supplier will also provide updates to, and correct errors identified within, the Catalogue in a timely manner and the Supplier shall at all times remain liable for the consequences of all errors in relation to their Catalogue.
6.9 The Supplier agrees with the Company that it shall:
6.9.1 assume full responsibility for the delivery of all Goods to the Subscriber in the timescale defined in the relevant Order;
6.9.2 clearly state any delivery terms and Return Charges via the Trading Platform; and
6.9.3 record on the Trading Platform, as appropriate, that it has delivered the Goods listed in each Order.
6.10 The Supplier will perform its obligations under this Contract in a timely and professional manner, including but not restricted to, responding to any availability requests, Order acceptance, Order fulfilment, Dispute resolution and collection of any Goods in relation to Returns and the Customer hereby confirms that where an Order Request has been received, the Customer shall not fulfil the requirements of such Order Request other than via the Trading Platform.
6.11 The Supplier shall establish and maintain at all times during the Term a direct debit mandate which shall entitle the Company to collect all Fees and amounts due pursuant to clause 8.
6.12 The Supplier agrees that a Subscriber may record a Cancellation via the Trading Platform at any time up until Delivery at no cost to the Subscriber provided always that where an Order comprises a minimum order quantity in respect of any Goods, any Cancellation must be for the minimum order quantity, or a multiple thereof.
6.13 The Supplier agrees that a Subscriber may record a Dispute in respect of a Delivery within seven (7) days following the relevant Delivery Notification Date and will use its reasonable endeavours to resolve such Dispute with the relevant Subscriber, and not with the Company, in a timely manner at no cost to the Subscriber. A Dispute shall be considered as having been resolved when the Supplier shall mark the Dispute as such on the Trading Platform. Where the Supplier accepts the return of any Goods that are the subject of a Dispute, the Supplier agrees that no Return Charge shall apply.
6.14 Any dispute with a Subscriber in respect of a Delivery following a period of seven (7) days after a relevant Delivery Notification Date shall be resolved directly with the Subscriber and not via the Trading Platform and that such dispute, irrespective of how it may be resolved, shall not relieve the Supplier of its obligation to pay the Commission relating to any such Delivery. It is the responsibility of the Supplier to resolve any disputes in respect to Deliveries with the relevant Subscriber though the Company shall, on request, and at the Supplier’s cost, provide information available on the Trading Platform as may be relevant in attempting to settle any such dispute. Where such dispute results in the Supplier electing to refund monies to a Subscriber, the Supplier shall process such refund request via the Trading Platform.
6.15 The Supplier agrees that a Subscriber may record a request for a Return in respect of a Delivery within seven (7) days following a relevant Delivery Notification Date and will use its reasonable endeavours to collect the Goods that are subject to the Return in a timely manner. The Supplier agrees that no costs shall be payable by the Subscriber in respect of the Return other than any Return Charge that may be applicable to the Delivery.
6.16 The Supplier shall, at all times, retain the credit risk of its dealings with each Subscriber via the Trading Platform.
7.1 In consideration of the right to offer Goods for sale via the Trading Platform, the Supplier shall pay the Registration Fee to the Company. On each subsequent anniversary of the Commencement Date, the Company will invoice the Supplier for a renewal Registration Fee in advance. Such Registration Fee and renewal shall be due and immediately payable by direct debit mandate unless the Supplier has provided notice to the Company that it wishes to terminate this Contract in accordance with clause 11.1.
7.2 In addition to the Registration Fee, the Company shall charge the Supplier any Transaction Fees as specified in the Contract, including any Commission pursuant to clause 8.
7.3 Transaction Fees, as incurred, are payable through the use of a pre-payment account (the “Pre-Payment Account”). The Supplier hereby authorises the Company to deduct the appropriate Transaction Fees as detailed in the Contract from this Pre-Payment Account.
7.4 Once the balance of the Pre-Payment Account is rendered negative following the processing of a Transaction Fee the Pre-Payment Account will be automatically “topped up” by an amount pre-selected by the Supplier from the range of top up pricing available on the Trading Platform. If the Supplier has not pre-selected an amount, the Company will use the lowest appropriate value then available on the Trading Platform to return the Pre-Payment Account to a positive balance. The Company shall then submit to the Supplier an invoice to the value of the relevant “top-up” amount (a “Top-Up”).
7.5 Under no circumstances shall any Fees or Top-Ups which are paid by the Supplier be refundable.
7.6 Invoices in respect of all Fees and Top Ups will be made available by the Company to the Supplier in electronic format via the Trading Platform and will be collected immediately by the Company by direct debit from the Supplier’s nominated account.
7.7 The Company may retain or set off any unpaid amount owed to it by the Supplier against any amount due to the Supplier under this Contract.
7.8 The Company reserves the right to amend the Fees at any time and will provide the Supplier with a minimum 30 days prior written notice of its intention to do so.
8. Invoicing and Payment Collection Services
8.1 The Supplier expressly agrees to appoint the Company to perform the Invoicing and Payment Collection Services as defined in this clause 8 as its agent in respect of any Goods transacted via the Trading Platform.
8.2 The Supplier confirms that they are registered for VAT in the United Kingdom and agrees to abide to the HMRC rules regarding the operation by the Company of a self-billing process and Supplier agrees:
8.2.1 to accept all self-billed invoices and self-billed credits raised by the Company on its behalf for the duration of the Term in relation to each Delivery;
8.2.2 to supply to the Company all information and assistance as the Company shall request in order to enable the Company to complete any relevant self-billed invoices or self-billed credits in accordance with this Contract (such information and assistance to be provided as soon as is reasonably practicable);
8.2.3 not to raise its own invoices for any Delivery;
8.2.4 that the Company may, as appropriate, create VAT credit notes in relation to each Delivery; and
8.2.5 to notify the Company immediately if the Supplier changes its VAT registration number, ceases to be VAT registered or sells its business, or part of its business.
8.3 The Company shall in its own name but as agent of and on behalf of the Supplier; following seven (7) days after the Delivery Notification Date of each Delivery and always providing that no outstanding Dispute exists in relation to the Delivery; or, following confirmation by the Supplier that a Dispute is no longer outstanding after seven (7) days of the Delivery Notification Date of each Delivery; or, immediately in the case of a Return;
8.3.1 generate an invoice to the relevant Subscriber for the full value of each Delivery which shall refer to the value of the relevant Goods and any delivery charges; or in the case of a Return, the value of the Return Charge
8.3.2 submit such invoice to the applicable Subscriber electronically via the Trading Platform; and
8.3.3 following the submission of the invoice, instigate collection from the Subscriber via direct debit mandate an amount equal to the value of the invoice.
8.4 In consideration of the provision of the Invoicing and Payment Collection Services, the Company shall;
8.4.1 within seven (7) days of the submission of the invoice referred to in clause 8.3.3, the Company shall submit to the Supplier a self-billing invoice in respect of the value of the applicable Delivery or the Return Charge, and charge the Supplier electronically via the Pre-Payment Account the relevant Commission Fee; and
8.4.2 following seven (7) days of undisputed receipt of the funds in relation to the collection referred to in clause 8.3.3, instigate the transfer of the full value of the sums collected by the Company from the Subscriber in relation to such Delivery (including any delivery charges) or Return Charge (as set out on the invoice referred to in clause 8.3.1).
8.5 Where a Subscriber fails to make payment to the Company in respect of any Order or Delivery, or if the Company, following all reasonable attempts, is unable for reasons outside of its control to collect such funds, the Company reserves the right to suspend its obligations to the Supplier in relation to Invoicing and Payment Collection Services in respect of the relevant Supplier. In such circumstances, the Company will notify the Supplier of such suspension and the Supplier may separately pursue the relevant Subscriber for payment.
8.6 The Company will use reasonable endeavours to ensure the timescales shown in this clause 8 are adhered to, but the Company cannot be held responsible for any minor variations to these dates that may arise.
8.7 In relation to a dispute with a Subscriber in respect of a Delivery following a period of seven (7) days after a relevant Delivery Notification Date, as described in clause 6.14, whereby the Supplier selects the option via the Trading Platform to refund any monies previously paid by a Subscriber, the Company shall issue the relevant self-billed credit notes to the Supplier and credit notes to the Subscriber against the corresponding self-billed invoices and invoices previously issued by the Company and Subscriber respectively, pursuant to clause 8.4.1 and 8.3.1, and the Supplier shall:
8.7.1 in the event the monies are still being held by the Company, authorise the Company to refund such sums to the Subscriber from the monies held by the Company on the Supplier's account; or
8.7.2 if the monies have already been remitted by the Company to the Supplier pursuant to clause 8.4.2, the Supplier agrees that the Company shall be entitled to collect such refunded sum by direct debit from the Supplier before refunding the sum in question to the Subscriber on behalf of the Supplier. In the absence of a direct debit mandate, the Supplier shall, within five (5) days on request from the Company, provide cleared funds equal to the sum refunded.
8.8 The Supplier agrees that in the event where a Subscriber recalls or recovers monies from the Company in respect of Goods sold by the Supplier for whatever reason, the Company shall recover such monies from the Supplier immediately by direct debit. In the absence of a direct debit mandate, the Supplier shall, within five (5) days on request from the Company, provide cleared funds equal to the sum recalled or recovered by the Subscriber.
8.9 The Supplier agrees not to pursue any payment from, or refund any monies to, a Subscriber in respect of any Order or Delivery without the explicit approval of the Company.
8.10 In the event that payment is not tendered in relation to sums due to the Company from the Supplier under the terms of this Contract, the Company shall be entitled to claim a late payment surcharge equal to 5% p.a. of the value due or, if greater, equal to 4% p.a. plus the prevailing Bank of England Bank Rate or alternative rate that may exist from time to time in relation to the period of non-payment.
9.1 In order to access the Trading Platform, the Supplier will be issued with a set of access credentials. The issue and control of access credentials relating to use of the Trading Platform by employees or agents of the Supplier is solely the responsibility of the Supplier and the Supplier is responsible for the security and proper use of all such access credentials and must take all necessary steps to ensure that they are kept confidential, secure, used properly and not disclosed to other people. The Company may periodically require the Supplier to change the access credentials, or may change the access credentials on behalf of the Supplier, and shall notify the Supplier accordingly.
9.2 If the Supplier forgets any access credentials, the Supplier must contact the Company’s Support Centre by telephoning the Helpline Support Services as described in clause 23 and upon satisfaction of such security checks as the Company may determine, the Supplier will be given new access credentials to enable use of the Trading Platform.
9.3 The Supplier must inform the Company immediately if there is any reason to believe that any access credentials have become known to someone not authorised to use them or if any access credentials are being or are likely to be used in an unauthorised way.
10. Data Protection
10.1 In this clause 10, the following definitions apply:
“Categories of Data Subject” has the meaning as set out in the Data Protection Appendix.
“Data Protection Appendix” means the data protection appendix which forms part of the Contract.
“Data Protection Legislation” means GDPR and the Privacy and Electronic Communication Regulations 2003, any amendment, consolidation or re enactment thereof, any legislation of equivalent purpose or effect enacted in the United Kingdom, or, where relevant, the European Union, and any orders or binding guidelines and instructions issued under any of the above by relevant national authorities, a judicial authority in England and Wales or, where relevant, a European Union judicial authority.
“Data Subject” has the meaning given to it in the Data Protection Legislation.
“Duration of Processing” has the meaning as set out in the Data Protection Appendix.
“GDPR” means the General Data Protection Regulations (EU) 2016/679 as in force from time to time.
“Nature of Processing” has the meaning as set out in the Data Protection Appendix.
“Personal Data” has the meaning given to it in the Data Protection Legislation.
“Purpose of Processing” has the meaning as set out in the Data Protection Appendix.
“Subject Matter of Processing” has the meaning as set out in the Data Protection Appendix.
“Types of Personal Data” has the meaning as set out in the Data Protection Appendix.
10.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 10 sets out the obligations and responsibilities of the Supplier and the Company in respect of data protection but is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
10.3 Save for as set out in clause 10.8, the parties acknowledge that in respect of the processing of Personal Data on behalf of the Company, then for the purposes of the Data Protection Legislation, the Company is the data controller and the Supplier is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation) and the following clauses 10.4 to and including clause 10.7 shall apply to such relationship.
10.4 Save in respect of clause 10.8, where the Supplier processes Personal Data as a data processor on behalf of the Company then for the purposes of the Data Protection Legislation the Supplier and the Company agree that:
10.4.1 the subject matter of the processing is the Subject Matter of Processing;
10.4.2 the nature of the processing is the Nature of Processing;
10.4.3 the purpose of the processing by the Supplier is the Purpose of Processing;
10.4.4 the duration of the processing is the Duration of Processing;
10.4.5 the type(s) of Personal Data to be processed are the Types of Personal Data; and
10.4.6 the categories of Data Subject are the Categories of Data Subject.
10.5 Without prejudice to the generality of clause 10.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this Contract:
10.5.1 process that Personal Data only on the written instructions of the Company (which for the avoidance of doubt includes the provisions and obligations included in this Contract), unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier to process Personal Data (Applicable Laws). Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Company of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Company;
10.5.2 ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures and such measures may include those set out in Article 32 of the GDPR;
10.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
10.5.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Company has been obtained and the following conditions are fulfilled:
10.5.4.1 the Supplier or the Company has provided appropriate safeguards in relation to the transfer;
10.5.4.2 the Data Subject has enforceable rights and effective legal remedies;
10.5.4.3 the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
10.5.4.4 the Supplier complies with reasonable instructions notified to it in advance by the Company with respect to the processing of the Personal Data;
10.5.5 assist the Company, at the Supplier's cost, in responding to any request from a Data Subject to exercise their rights under the Data Protection Legislation;
10.5.6 assist the Company, at the Supplier's cost, in ensuring compliance with the Company’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators, subject always to the nature of processing and the information available to the Supplier;
10.5.7 notify the Company within 24 hours of becoming aware of a Personal Data breach;
10.5.8 at the written direction of the Company, delete or return Personal Data and copies thereof to the Company on termination of this Contract unless required by applicable laws to store the Personal Data;
10.5.9 maintain complete and accurate records and information to demonstrate its compliance with this clause 10;
10.5.10 allow for audits by the Company or the Company's designated auditor on reasonable notice and assist with such audits; and
10.5.11 immediately inform the Company if the Supplier is asked to do something which infringes the Data Protection Legislation.
11. Termination and Suspension
11.1 Unless otherwise agreed in writing, this Contract may be terminated at any time, in accordance with this clause 11, by:
11.1.1 the Company giving 1 month’s prior written notice to the Supplier; or
11.1.2 the Supplier giving 1 month’s prior written notice to the Company.
11.2 The Company can suspend the rights of the Supplier to use the Trading Platform and/or terminate this Contract (or both) with immediate effect on giving notice:
11.2.1 for contravention by the Supplier of the terms and conditions of this Contract, and in such instance the Company will not restore the Supplier's rights to access and use the Software and the Trading Platform until the Company receives an adequate assurance from the Supplier that there will be no further contravention;
11.2.2 for operational reasons, suspend the Trading Platform, in which instance the Company will give the Supplier as much notice as is reasonably practical and shall use reasonable endeavours to restore the Trading Platform as soon as reasonably practical;
11.2.3 if the Company reasonably believes that the Supplier‘s use or operation of the Trading Platform contravenes the commercial aims and objectives of the Trading Platform or otherwise undermines the integrity of the Trading Platform;
11.2.4 if the Supplier fails to pay any sum due under this Contract or any payment method tendered is rejected;
11.2.5 in the event of any bankruptcy, administration or insolvency proceedings brought against the Supplier or if the Supplier does not make any payment under a judgement of a Court on time, or the Supplier makes an arrangement with creditors, or a receiver or administrator is appointed over, any of the assets or the Supplier goes into liquidation.
11.3 In the event that this Contract is suspended or terminated for any reason, the rights of the Supplier to promote and sell its Goods via the Trading Platform shall be suspended immediately and may be terminated from close of business on the day on which the notice takes effect, and the Company shall configure the Trading Platform to prevent Subscribers from placing any further Orders with the Supplier. Save as in circumstances where the Company is terminating this Contract for fraud on the part of the Supplier, the terms of this Contract shall continue to apply in relation to all Orders which were accepted by the Supplier before the notice of suspension and/or termination took effect and the Supplier agrees to use reasonable endeavours to fulfil any Orders prior to its rights to use the Trading Platform being terminated.
11.4 For the avoidance of doubt the Supplier will continue to be liable to pay all Fees due for the Invoicing and Payment Collection Services during any period in which the Supplier fails to comply with this Contract including for any period when the Supplier's rights to use the Trading Platform are suspended.
11.5 No delay, forbearance or indulgence in acting upon a breach of this Contract by the Supplier, will be regarded as a waiver of the Company’s rights in respect of that or any subsequent breach.
12. Dispute Resolution
12.1 Save for clause 12.2, any dispute arising under this Contract shall in the first instance be reported to senior management representatives of both Parties who will endeavour to resolve such dispute to the mutual satisfaction of both Parties. In the first instance and within seven (7) days following a written request from either the Supplier or the Company in relation to a dispute or the failure of a Party to perform its obligations as defined, a senior representative of each Party shall meet to attempt to agree a resolution. If the dispute is not resolved within fourteen (14) days of the meeting described above, then directors of both Parties shall meet in an attempt to agree a resolution.
12.2 The dispute resolution process shall not prevent either of the Parties commencing or continuing court proceedings at any time.
13.1 Except as expressly provided in these terms and conditions, all warranties, statements, terms and conditions or undertakings which may be implied by statute, common law, custom or trade or otherwise, other than any liability in respect of death, personal injury or fraudulent misrepresentation, are hereby excluded and this clause 13 specifies the entire liability of both Parties under this Contract, including liability for negligence.
13.2 Whilst the Supplier acknowledges that the Company accepts liability for death and personal injury, or fraudulent misrepresentation, the Company shall not be liable to the Supplier for loss caused by anything beyond the Company’s reasonable control and therefore:
13.2.1 as the Company has no control over the information which can be transmitted by the Supplier and/or any Subscribers using the Trading Platform and as the Company does not examine the use to which the Supplier or any Subscribers put the Trading Platform or the nature of the information the Supplier or Subscribers are sending or uploading, the Company therefore excludes all liability of any kind for:
188.8.131.52 any incorrect use of the Trading Platform, or operator error on the part of the Supplier or any Subscriber, including their employees, contractors or agents;
184.108.40.206 the transmission, publishing or reception of any information via the Trading Platform or accuracy or quality of any such information;
220.127.116.11 any act, omission, default or error by the Supplier or their payee account holder, or on their behalf, or their payee’s account holder’s behalf, by a third party;
18.104.22.168 the terms of any contract or other agreement concluded between the Supplier and any Subscriber;
22.214.171.124 any fault or defect which is beyond the control of the Company.
13.2.2 the Company shall not be liable whether in contract, tort or otherwise for the acts or omissions of providers of internet or telecommunications services or for faults in or failures of such equipment or services.
13.3 The Company shall not be liable in contract, tort or otherwise for special, indirect or consequential loss (including loss of profit) or loss of data, costs or other expenses whatsoever even if such loss was reasonably foreseeable or if the Company had been advised of the possibility of the Supplier incurring the same.
13.4 The Company shall have no liability to the Supplier in respect of any Intellectual Property Infringement to the extent the same is due to any unauthorised alterations, modification or adjustment to the Trading Platform without the Company’s consent.
13.5 Subject to clauses 13.2 to 13.4 the Company’s liability in contract, tort or otherwise (including liability for negligence) under or in connection with this Contract shall not exceed in aggregate the total Fees payable by the Supplier to the Company pursuant to this Contract.
13.6 The Supplier shall maintain appropriate product liability insurance for the duration of the Term with a reputable insurer and shall provide a copy of the insurance policy or broker' confirmation of the terms of cover and proof of payment of the current premium to the Company on request by the Company.
13.7 Subject to clauses 13.2 to 13.4 the Company shall indemnify the Supplier against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation, possession or use of the Trading Platform by the Supplier during the currency of this Contract infringes the Intellectual Property Rights of the said third party (“Intellectual Property Infringement”) provided that:
13.7.1 the Supplier gives notice to the Company of any Intellectual Property Infringement forthwith of becoming aware of the same;
13.7.2 the Supplier gives the Company the sole conduct of the defence, claim or action in respect of any Intellectual Property Infringement and not at any time admit liability or otherwise attempt to settle or compromise the said claim or action except upon the Company’s express instructions; and
13.7.3 the Supplier acts in accordance with the Company’s reasonable instructions and gives the Company such assistance that the Company shall reasonably require in respect of conduct of the said defence.
13.8 The Supplier agrees to indemnify the Company and keep the Company indemnified fully and effectively against all actions, proceedings, claims, demand, damages and costs (including legal costs, other direct costs and consequential losses, on a full indemnity basis) incurred directly or indirectly as a result of any breach of the obligations set out in this Contract and/or in relation to the contents of its Catalogue and/or in relation to any Goods which are sold to any Subscriber via the Trading Platform.
13.9 Each provision of this clause 13 operates separately in itself and survives independently of the others.
14.1 The Company may change the terms and conditions of this Contract at any time upon giving the Supplier fourteen (14) days’ notice of such changes before they take effect, or immediately if required to do so by law.
14.2 In the event that the Supplier does not agree with any such variations, it may exercise its right to terminate this Contract pursuant to clause 11.1.2.
15. Force Majeure
15.1 Neither Party shall be liable for any delay or failure to perform its obligations if such delay and/or failure is due to something beyond its reasonable control.
16.1 Notices given under a Contract must be in writing (excluding e-mail and facsimile) to the addressee as described in clause 16.3.
16.2 Notices given in respect of the termination of the Contract must be in writing (excluding e-mail and facsimile) and delivered to the addressee as described in clause 16.3, and the receiving party reserves the right to request from the other party evidence of such notice having been sent.
16.3 Notices given under a Contract should be sent:
16.3.1 to the Company at Heath Farm, Hampton Lane, Meriden, CV7 7LL or any alternative address which the Company notifies to the Supplier at any time; or
16.3.2 to the Supplier at the address specified when registering for the Trading Platform or any alternative address which is notified to the Company at any time or, to their registered office.
16.4 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to above; if sent by pre-paid first class post, at 9:00 am on the second Business Day after posting; or if delivered by registered method, on the date and at the time that the delivery receipt is signed.
17.1 All information supplied to the Company by the Supplier in connection with this Contract which may reasonably be considered as commercially sensitive shall not be disclosed to any third party unless required by the laws of any competent jurisdiction or by any national or international regulatory authority or is necessary for the proper performance of the Parties’ respective obligations under this Contract. This obligation of confidentiality will not apply to any information which is in the public domain or was known by the recipient prior to disclosure pursuant to this Contract, or is designed to be distributed or displayed in relation to the intended use of the Trading Platform as defined by the Company.
17.2 The Supplier may not undertake any marketing or public relations activity in connection with its subscription to the Trading Platform without the Company’s prior written approval.
18.1 The Supplier and the Company agree to adhere to the provisions of the Bribery Act 2010 (the "Relevant Requirements") and in particular warrant that no financial or other advantage that would contravene the Relevant Requirements has been offered either directly or indirectly from one party to the other party in exchange for the arrangement or performance of any part of the Contract.
18.2 Both Parties shall maintain in place their own policies and procedures to ensure compliance with the Relevant Requirements and shall promptly report to the other party any request or demand for any undue financial or other advantage that would contravene the Relevant Requirements received in performance of their obligations under the Contract.
18.3 If any breach of this clause 18 is suspected or known the suspecting party shall notify the other party of such suspected or known breach immediately.
19. Third Party Rights
19.1 No term of this Contract is intended to confer a benefit on, or be enforceable by, any person other than the Supplier and the Company. Accordingly, any person who is not Party shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract.
20. Severable Conduct
20.1 If any court or competent authority finds that any of the terms of this Contract (or any part of any term) is invalid, illegal or unenforceable as drafted, that term or part-term shall, to the extent required, be deemed to be deleted and the validity and enforceability of the other terms shall not be affected.
20.2 If any invalid, unenforceable or illegal provision of the Conditions or 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.
21.1 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. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
22. Use of Data
22.1The Company will collect specific data about the Supplier when they register for the Trading Platform and when the Supplier transmits or receives information via the Trading Platform and the Supplier expressly acknowledges that the Company and any member of the group of companies of which the Company is a member may use such data or information (excluding any Personal Data) for publicity purposes or for the purposes of encouraging other Subscribers to transact via the Trading Platform or as otherwise permitted through proper use of the Trading Platform.
22.2 The Supplier agrees that the Company may collate data (excluding any Personal Data) from the Trading Platform in order to provide analysis and reports for the benefit of the Company, the Supplier, other Subscribers and third parties.
22.3 The Company and other Subscribers may use “cookies” to collect information. A cookie is a small data file that is written into a visitor’s hard drive for the purposes of record keeping and to make improvements.
22.4 For the avoidance of doubt it is the Supplier’s responsibility to maintain a full and accurate record of all data (including Personal Data and invoices) transmitted through the Trading Platform. The Company reserves the right to delete any such data in accordance with its retention policy, a copy of which is available on request from the Company.
Helpline Support Services:
Call 08700 11 88 00
24. Assignment and Sub-contracting
24.1 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with any or all of its rights or obligations under the Contract.
24.2 The Supplier may not assign, transfer, charge or sub-contract or deal in any manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
25.1 The Supplier and the Company agree to adhere to the provisions of the Modern Slavery Act 2015 (the “Relevant Requirements”) and shall promptly report to the other party if in breach, or likely to breach, the Modern Slavery Act 2015 (“the MSA”), or if it receives a communication from any person alleging breach of the MSA in the arrangement or performance of any part of the Services set out in the Contract.
25.2 Both Parties shall maintain in place their own policies and procedures to ensure compliance with the Relevant Requirements.
25.3 Both Parties shall ensure that all sub-contractors shall be bound in writing by terms equivalent in all respects to those set out in this clause. Both Parties shall provide evidence in writing of their compliance with this clause promptly on request.
25.4 Both Parties shall provide on written request a statement setting out the steps that have been taken during the previous year to ensure that the activities prohibited by the MSA are not taking place in their business or in their supply chain, such statement to include, as a minimum, information on the following:
25.4.1 details of its supply chain;
25.4.2 confirmation of whether it is required (independently of this Contract) to comply with Section 54 of the MSA;
25.4.3 any policies that it has relating to compliance with the MSA;
25.4.4 the parts of the business and supply chain where there is a risk of the activities prohibited by the MSA taking place and the steps it has taken to assess and manage that risk;
25.4.5 its effectiveness in ensuring that the activities prohibited by the MSA are not taking place in business or the supply chain measured against such performance indicators as it has set for Itself; and
25.4.6 details of the training about the activities prohibited by the MSA that are provided to its staff.
25.5 Breach of this clause shall be deemed to be a material breach of the Contract.
26. Law and Jurisdiction
26.1 This Contract and any dispute or claim (including any non-contractual dispute or obligation) arising out of or in connection with it or its subject matter or formation shall be governed by the laws of England and Wales.
26.2 The Supplier and the Company irrevocably submits to the exclusive jurisdiction of the courts of England and Wales to settle any claim or dispute (including any non-contractual dispute or obligation) that arises out of or in connection with this Contract.
Data Protection Appendix to Supplier Terms and Conditions for 1link E-Procurement Trading Platform
Processing by the Supplier as data processor
Subject Matter of Processing
The processing of Personal Data is required for the Supplier and other Subscribers to receive the benefit of the Trading Platform.
Nature of Processing
The Supplier will process Personal Data on behalf of the Company in order for the Supplier to provide goods and service(s) to other Subscribers.
Purpose of Processing
The Supplier processes Personal Data on behalf of the Company in order that the Supplier and other Subscribers may obtain the benefit of the Trading Platform.
Duration of the Processing
The Supplier will process relevant Personal Data on behalf of the Company for the duration of the Contract.
Types of Personal Data
The following list comprises the types of Personal Data that the Supplier may process on behalf of the Company:
• Full name
• Telephone number(s) (including mobile telephone number(s))
• Email address(es)
• Details of employer
• Job title
Categories of Data Subject
The following list comprises the categories of Data Subject to which the types of Personal Data relates:
Users, employees, agents and sub-contractors of other Subscribers of the Trading Platform.