V1.0 effective as of [14 August 2019]
1. DEFINITIONS
1.1 In the Contract, unless the context otherwise requires the following words and expressions shall have the following meanings assigned to them.
1.1.2 DNEG: Double Negative Limited; Double Negative Holdings Limited; DNEG Limited (individually or collectively), their successors and assigns.
1.1.3 DNEG Property: All property issued or made available for use by DNEG to the Supplier in connection with the Contract.
1.1.4 The Appendix: Any Appendix to these Conditions.
1.1.5 The Purchase Order: DNEG’s official purchase order which is issued subject to these Conditions.
1.1.6 The Contract: These Conditions including the Purchase Order, any Appendix, any Special Conditions, Specification, Pricing Schedule, Supplier’s tender, acceptance letter and any relevant documents agreeing modifications exchanged before the Contract is awarded, and any subsequent amendments or variations agreed in writing.
1.1.7 The Supplier: The person, firm company or body who undertakes to supply the Goods to DNEG as defined in the Contract.
1.1.8 Contract Period: The time period stated in the Appendix or otherwise provided in the Contract, for the supply of the Goods.
1.1.9 Contract Price: The price exclusive of VAT or other applicable taxes set out in the Contract for which the Supplier has agreed to supply the Goods.
1.1.10 Contract Supervisor: The duly authorised representative of DNEG notified in writing to the Supplier for all purposes connected with the Contract. Any Notice or other written instruction given by or made to the Contract Supervisor shall be taken as given by or made to DNEG.
1.1.11 Intellectual Property Rights: All Intellectual Property Rights including without limitation, patents, patent applications, design rights, registered designs, utility models, trade and service marks and applications for same, copyright know-how, rights in semi-conductor chip topography, and in each case whether protectable at law or not, and if protectable, whether an application has been made for such protection or not, and all similar industrial, commercial, monopoly or other intellectual property rights whether present or future, vested or contingent wherever protected.
1.1.12 Notice: Any written instruction or notice given to the Supplier by the Contract Supervisor, delivered by: a) fax, or hand delivery to the Supplier’s registered office or other address notified for the purposes of the Contract and deemed to have been served at the date and time of delivery; b) first class post to the Supplier’s registered office. Such Notices are deemed to have been served 48 hours after posting.
1.1.13 Permission: Express permission given in writing before the act being permitted.
1.1.14 Goods: All goods detailed in the Specification including any additions or substitutions as may be requested by the Contract Supervisor. Where the Contract is for the provision of Goods and Services, the words “the Goods” shall mean, where the context allows, to include the Services the Contractor has agreed to provide.
1.2 All headings in these Conditions are for ease of reference only, and shall not affect the construction of the Contract.
1.3 Any reference in these Conditions to a statutory provision will include all subsequent modifications.
1.4 All undefined words and expressions are to be given their normal English meaning within the context of this Contract. Any dispute as to the interpretation of such undefined words and expressions shall be settled by reference to the definition in the Shorter Oxford English Dictionary.
2. PRECEDENCE
To the extent that the following documents form the Contract, in the case of conflict of content, they shall have the following order of precedence: Purchase Order; any Appendix; any Special Conditions; Specification; Pricing Schedule; Drawings; these Conditions of Contract.
3. CONTRACT SUPERVISOR
The Supplier shall strictly comply with any instruction given by the Contract Supervisor concerning or about, the Contract. All such instructions shall be in writing.
4. THE GOODS
4.1 Save as agreed in writing, the Supplier shall provide all staff, equipment, materials and any other requirements necessary for the performance of the Contract using all skill, care and diligence, and to the satisfaction of the Contract Supervisor.
4.2 The Supplier shall only employ in the execution and superintendence of the Contract persons who are suitable and appropriately skilled and experienced. The Contract Supervisor shall be at liberty to object to and require the Supplier to remove any person employed in or about the Contract who is unsuitable, misconducts himself, is incompetent or negligent in the performance of his duties or persists in conduct which could endanger the health or safety of others. Such persons shall not be employed again on the Contract without the Permission of the Contract Supervisor.
5. ASSIGNMENT
5.1 The Supplier shall not assign, transfer or sub-contract the Contract, or any part of it, without the Permission of the Contract Supervisor. DNEG shall be free to assign the Contract within the DNEG group with Supplier’s consent not to be unreasonably withheld
5.2 Any assignment, transfer or sub-contract entered into, shall not relieve the Supplier of any of his obligations or duties under the Contract.
5.3 Nothing in this Contract confers or purports to confer on any third party any benefit or any right to enforce any term of the Contract
6. CONTRACT PERIOD
The Supplier shall supply the Goods within the time stated in the Purchase Order or Appendix, subject to any changes arising from Condition 10 (Variations,) and/or Condition 11 (Extensions of time.)
7. PROPERTY
7.1 All property issued by DNEG to the Supplier in connection with the Contract shall remain the property of DNEG, and shall be used in the execution of the Contract, and for no other purpose whatsoever without the prior approval of the Contract Supervisor.
7.2 The Supplier shall keep all DNEG Property in safe custody and good condition, set aside and clearly marked as the property of DNEG.
7.3 On expiry or earlier termination of the Contract the Supplier shall, if so required, either surrender such property to DNEG or otherwise dispose of it as instructed by the Contract Supervisor.
8. MATERIALS
8.1 The Supplier shall be responsible for establishing his own sources of supply for goods and materials and will be responsible for ensuring the reasonable and proper conduct by his suppliers and staff whilst on DNEG’s premises.
8.2 The Supplier shall not place, or cause to be placed, any orders with suppliers or otherwise incur liabilities in the name of DNEG or any representative of DNEG.
9. SECURITY
9.1 The Supplier shall be responsible for the security of all goods and equipment belonging to DNEG and used by the Supplier in the provision of the Goods, belonging to the Supplier, or Supplier’s staff, or sub-contractors whilst on DNEG premises.
9.2 This Condition shall not prejudice DNEG’s rights under Condition 15.
10. VARIATIONS
10.1 The Contract Supervisor may vary the Contract by adding to, deleting or otherwise modifying the Goods to be supplied, by amendment to Purchase Order to the Supplier in writing,
10.2 The value of any such variation, other than any variation arising out of Condition 10.3, shall be determined by reference to the rates contained in the Pricing Schedule. Where the Goods so ordered are not covered in the Pricing Schedule, they shall be valued at a fair and reasonable rate agreed between the Contract Supervisor and the Supplier.
10.3 Where a variation is the result of some default or breach of the Contract by the Supplier or some other cause for which he is solely responsible, any additional cost attributable to the variation shall be borne by the Supplier.
10.4 The Supplier may also propose a variation to the Goods but no such variation shall take effect unless agreed and confirmed in writing by the Contract Supervisor.
10.5 No variation shall have the effect of invalidating the Contract, if that variation is reasonably consistent with the nature, scope and value of the Contract.
11. EXTENSIONS OF TIME
11.1 Should the performance of the Contract be directly delayed by any cause beyond the reasonable control of the Supplier, and provided that the Supplier shall first have given the Contract Supervisor written notice within five working days after becoming aware that such delay was likely to occur, then the Contract Supervisor, if satisfied that this Condition applies:
11.1.1 in the case of any delay of which DNEG is not the cause, may grant the Supplier such extension of time, as in his opinion is reasonable, having regard without limitation, to any other delays or extensions of time that may have occurred or been granted under the Contract. The Contract Price shall not increase as a result of such an extension of time.
11.1.2 in the case of any delay of which DNEG is the cause, shall grant the Supplier a reasonable extension of time to take account of the delay.
11.2 No extension of time shall be granted where in the opinion of DNEG the Supplier has failed to use best endeavours to avoid or reduce the cause and/or effects of the delay.
11.3 Any extension of time granted under this Condition shall not affect DNEG’s rights to terminate or determine the Contract under Conditions 13 and 14.
12. DEFAULT
12.1 The Supplier shall be in default if he:
12.1.1 fails to perform the Contract with due skill, care, diligence and timeliness;
12.1.2 refuses or neglects to comply with any reasonable written instruction given by the Contract Supervisor;
12.1.3 is in breach of the Contract.
12.2 Where in the opinion of the Contract Supervisor, the Supplier is in default, the Contract Supervisor may serve a Notice giving at least seven days in which to remedy the default.
12.3 If the Supplier fails to comply with such a Notice the Contract Supervisor may, without prejudice to any other rights or remedies under the Contract, take over for as such a period as is necessary the performance of the relevant part of the Contract and make other arrangements for its completion. Any extra costs arising from this action will be paid by the Supplier or deducted from any monies owing to him.
13. TERMINATION
13.1 DNEG may immediately, without prejudice to any other rights and remedies under the Contract, terminate all or any part of the Contract by Notice in writing to the Supplier, Receiver, Liquidator or to any other person in whom the Contract may become vested, if the Supplier: a) fails in the opinion of the Contract Supervisor to comply with (or take reasonable steps to comply with) a Notice under Condition 12.2, or b) becomes bankrupt or insolvent, or has a receiving order made against him, or makes and arrangement with his creditors or (being a corporation) commences to be wound up, not being a voluntary winding up for the purpose of reconstruction or amalgamation, or has a receiver, administrator, or administrative receiver appointed by a Court.
14. DETERMINATION
14.1 Without prejudice to any other rights or remedies under the Contract, DNEG reserves the right to determine the Contract at any time by giving not less than one month’s Notice, (or such other time period as may be appropriate).
14.2 DNEG shall pay the Supplier such amounts as may be necessary to cover his reasonable costs and outstanding and unavoidable commitments necessarily and solely incurred in properly performing the Contract prior to determination.
14.3 DNEG will not pay for any costs or commitments that the Supplier is able to mitigate and shall only pay those costs that DNEG has validated to its satisfaction. DNEG’s total liability under this Condition shall not in any circumstances exceed the Contract Price that would have been payable for the Goods if the Contract had not been determined.
15. INDEMNITY
15.1 Without prejudice to DNEG’s remedies for breach of Contract, the Supplier shall fully indemnify DNEG and its staff against any liability, loss, costs, expenses, claims or proceedings in respect of:
15.1.1 death or injury to any person;
15.1.2 loss or damage to any property excluding indirect and consequential loss;
15.1.3 infringement of third party Intellectual Property Rights which might arise as a direct consequence of the actions or negligence of the Supplier, his staff or agents in the execution of the Contract.
15.2 This Condition shall not apply where the damage, injury or death is a direct result of the actions, or negligence of DNEG or its staff.
16. LIMIT OF SUPPLIER’S LIABILITY
16.1 The limit of the Supplier’s liability for each and every claim by DNEG, other than for death or personal injury, whether by way of indemnity or by reason of breach of contract, or statutory duty, or by reason of any tort shall be:
16.1.1 the sum stated in the Appendix;
16.1.2 if no sum is stated, 200% of the Contract Price.
17. INSURANCE
17.1 The Supplier shall insure and maintain insurance against its liabilities to DNEG in the manner and to the values listed in the Appendix to these Conditions.
17.2 If specifically required by DNEG, nominated insurances shall be in the joint names of the Supplier and DNEG.
17.3 The Supplier shall, upon request, produce to the Contract Supervisor documentary evidence that the insurances required are fully paid up and valid for the duration of the Contract.
18. MONITORING AND AUDIT
The Contract Supervisor may inspect and examine the Goods being carried out on the DNEG’s premises, or elsewhere at any reasonable time. Where the Goods are being supplied on other than DNEG’s premises, reasonable notice to inspect shall be given to the Supplier. The Supplier shall give all such facilities as the Contract Supervisor may reasonably require for such inspection and examination.
19. CONTRACT PRICE
19.1 The Contract Price will be paid by DNEG to the Supplier as amended by any Variations ordered under Condition 10 (Variations).
19.2 In addition to the Contract Price, DNEG will pay to the Supplier such Value Added Tax (if any) and/or other applicable tax as may properly be chargeable at rates ruling at the time of invoice.
20. INVOICING AND PAYMENT
20.1 Invoices shall only be submitted for work already satisfactorily completed, and accompanied by such information as the Contract Supervisor may reasonably require to verify the Supplier’s entitlement to payment. Such invoices will be paid in 30 days from receipt by DNEG.
20.2 If any sum is payable under the Contract by the Supplier to DNEG, whether by deduction from the Contract or otherwise, it will be deducted from the next available invoice.
21. INTELLECTUAL PROPERTY RIGHTS
21.1 The Supplier warrants to DNEG that the supply of the Goods, shall not in any way infringe any Intellectual Property Rights belonging to any third party and shall fully indemnify DNEG against all actions, claims, costs, charges, expenses and liabilities of whatsoever nature arising from or incurred by reason of any infringement, or alleged infringement.
21.2 The Supplier shall not be liable under this Condition if such infringement arises from the use of any design, technique or method of working provided by or specified by DNEG.
21.3 If the Supplier is prevented from carrying out his obligations under the Contract due to any infringement or alleged infringement of any Intellectual Property Rights, DNEG may without prejudice to any other rights and remedies under the Contract, exercise the powers and remedies available to it under Conditions 13 and 14, Termination and Determination respectively.
22. WARRANTY
The Supplier warrants that the Goods supplied by him are fit for DNEG’s intended purpose so far as this has been communicated to him, or which he would reasonably be expected to know.
23. STATUTORY REQUIREMENTS
The Supplier shall fully comply with all relevant statutory requirements in the performance of the Contract, including, but not limited to compliance with those relating to modern slavery and data protection and the Supplier shall provide such information in relation to the same as DNEG shall reasonably require.
24. ENVIRONMENT
The Supplier shall in all his operations, including purchase of materials goods and services, adopt a sound proactive environmental approach, designed to minimise harm to the environment and be able to provide proof of so doing to the Contract Supervisor on demand.
25. PUBLICITY
The Supplier shall not advertise or publicly announce that he is supplying Goods or undertaking work for DNEG without the Permission of the Contract Supervisor.
26. LAW
This Contract shall be governed and construed in accordance with English Law, and subject to the jurisdiction of the courts of England and Wales.
27. WAIVER
27.1 No delay, neglect or forbearance by DNEG in enforcing any provision of the Contract shall be deemed to be a waiver, or in any other way prejudice the rights of DNEG under the Contract.
27.2 No waiver by DNEG shall be effective unless made in writing.
27.3 No waiver by DNEG of a breach of the Contract shall constitute a waiver of any subsequent breach.
28. ENFORCEABILITY
If any part of the Contract is found by a court of competent jurisdiction or other competent authority to be invalid or legally unenforceable, that part will be severed from the remainder of the Contract which will continue to be valid and enforceable to the fullest extent permitted by law.
29. GENERAL
29.1 Neither party to the Contract will be liable to the other for any delay in performing or failing to perform its obligations (other than a payment obligation) under the Contract because of any cause outside its reasonable control. Such delay or failure will not constitute a breach of the Contract and the time for performance of the affected obligation will be extended by a reasonable period.
29.2 The Contract contains the whole agreement between the parties and supersedes all previous communications, representations and arrangements, written or oral. It is accepted that the Contract has not been entered into on the basis of any representations that are not expressly contained in the Contract. DNEG reserves the right to vary these terms and conditions from time to time. The latest version of the terms and conditions is available on written request and is currently available at www.DNEG.com
29.3 Any occupation of DNEG’s premises by the Supplier will not confer exclusive occupation on the Supplier who shall occupy as licencee only; not create any relationship of landlord and tenant; be personal to the supplier; and (unless otherwise agreed) be subject to the payment of a licence fee as imposed by DNEG.
29.4 These Terms shall not be taken to constitute a partnership or the relationship of employer and employee.
29.5 [Subject to 29.6] A person who is not a party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms but this does not affect any right or remedy of any third party which exists apart from that Act.
29.6 Each group company may enforce these terms to the extent that it has received services and or materials from the Supplier.