For purposes of these Terms, unless the context of the instrument requires otherwise, the following definitions shall apply:
- 1.1. "Kaplan" refers to Kaplan Financial Limited, a company incorporated in the United Kingdom, with registration number, 1028790, registered office at 179-191 Borough High St, London, SE1 1HR and registered VAT number, 719 0088 37. It also refers to Kaplan Financial and Kaplan Professional which are trading names of Kaplan Financial Limited.
- 1.2. "Supplier" refers to the individual, company, or organization providing goods or services to Kaplan as specified in a PO.
- 1.3. "Contract" refers to these Terms, along with the Purchase Order issued by Kaplan. The Contract comprises of the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
- 1.4. "Goods and Services" or "Goods" or "Services" means the goods and services to be provided by the Supplier to Kaplan as set out in a Purchase Order.
- 1.5. "Purchase Order" or "PO" refers to the document outlining the specific details regarding the purchase of Goods and Services issued by Kaplan to the Supplier to initiate an order.
2. Orders and acceptance
- 2.1. All orders placed by Kaplan shall be in writing and deemed an offer to purchase Goods or Services from the Supplier. Each order shall be accompanied by a valid PO number provided by Kaplan. The Supplier shall accept or reject Kaplan's order within a reasonable time of not more than 5 days unless otherwise agreed in writing between the Parties. Acceptance may be communicated in writing or by commencing performance of the order.
- 2.2. The Supplier must include the assigned PO number on all shipping documents, invoices, and correspondence related to the order. Failure to provide the correct PO number may result in delay or non-payment of an invoice.
- 2.3. Any additional or different terms proposed by the Supplier, whether contained in any quotation, acceptance, or other document, shall not be binding on Kaplan unless explicitly agreed upon in writing.
3. Change orders
Kaplan may at any time, by written instructions issued to the Supplier (each a "Change Order"), order changes to the Goods or Services required. The Supplier shall, within 5 days of receipt of a Change Order or such other timeframe specified by Kaplan in writing, submit to Kaplan a firm cost proposal for the Change Order. If Kaplan accepts such cost proposal, the Supplier shall proceed with the changed services subject to the cost proposal and these Terms. The Supplier acknowledges that a Change Order may or may not entitle the Supplier to an adjustment in the Supplier's compensation or the performance deadlines under this Contract but does not preclude the Supplier from initiating re-negotiation.
- 4.1. The Supplier shall deliver the Goods or provide the Services in accordance with the specifications and delivery schedule agreed upon in the Contract.
- 4.2. The Supplier shall deliver the Goods in the quantities, on the date (the "Delivery Date"), and to the address (the "Delivery Point") specified in the PO or as otherwise agreed in writing by the Parties.
- 4.3. The Supplier acknowledges that time is of the essence with respect to the Supplier's obligations hereunder and the timely delivery of the Goods and Services.
- 4.4. The Supplier must notify Kaplan of any variance to the agreed Delivery Date as soon as becoming aware ahead of said date, and Kaplan shall have the right to accept or reject such variation.
- 4.5. The Supplier shall be responsible for packaging, labeling, and executing any specific shipping or packaging instruction by Kaplan as well as complying with all relevant laws and regulations. The Supplier must provide Kaplan prior written notice if it requires Kaplan to return any packaging material. Any return of such packaging material shall be made at Supplier's risk of loss and expense.
- 4.6. The risk of loss, damage, or theft of the goods shall not pass to Kaplan until delivery at the Delivery Point.
5. Pricing and payment
- 5.1. The price of the Goods or Services is as stated in the PO and shall be deemed as inclusive of any applicable taxes, duties, and costs unless otherwise stated. All prices shall be in UK pounds sterling (GBP).
- 5.2. No increase in the price is effective, whether due to increased material, labour or transportation costs or otherwise, without the prior written consent of Kaplan.
- 5.3. Kaplan shall pay the Supplier within thirty (30) days from the date of receipt of a correct invoice for the Goods or Services procured or delivery of the Goods, whichever is later, unless alternative payment terms have been mutually agreed upon in writing.
- 5.4. Kaplan reserves the right to withhold or set-off payment against any amount owed by the Supplier to Kaplan.
6. Quality assurance and warranties
- 6.1. The Supplier warrants that all Goods or Services provided shall be of satisfactory quality, fit for their intended purpose, in accordance with Kaplan's instructions, and in compliance with all applicable laws, regulations, and industry standards.
- 6.2. The Supplier warrants to Kaplan that it shall perform the services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with Kaplan's instructions and best industry standards for similar services and shall devote adequate resources to meet its obligations under this Contract.
- 6.3. The Supplier shall replace or rectify any defects, errors, or non-conformities in the Goods or reperform non-conforming Services at its own expense within the timeframe specified in the notice of non-compliance from Kaplan pursuant to this clause.
- 6.4. The warranty period shall be twelve (12) months from the date of delivery, inspection, acceptance of or payment for the Goods or Services, unless otherwise specified in the Contract.
- 6.5. The warranties set forth in this clause 6 are cumulative and additional to any other warranty provided by law or equity.
During the term of this Contract and for a period of twelve (12) months thereafter, the Supplier shall maintain in force, with a reputable insurance company, a policy or policies of insurance insuring the Supplier against their liability under this Contract and the Supplier shall produce on reasonable request to Kaplan, the certificate of policy and the receipt for the current premium payable thereunder.
- 8.1. The Supplier shall:
- comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010, the UK Criminal Finances Act 2017 and any other applicable laws and regulations governing bribery or other corrupt practices in the territory ("Relevant Requirements");
- not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
- have and shall maintain its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements;
- promptly report to Kaplan any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with this Contract; and
- immediately notify Kaplan (in writing) if a foreign public official becomes and officer or employee of the Supplier or acquires a direct or indirect interest in the Supplier, and the Supplier warrants that it has no foreign public officials as direct or indirect owners, officers or employees.
- 8.2. For the purpose of this clause 8, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) and section 8 of the Bribery Act 2010. For the purpose of this clause 8, a person associated with the Supplier includes but is not limited to any agent, delegate or subcontractor of the Supplier.
9. Modern slavery
- 9.1. In performing its obligations under this Contract, the Supplier shall comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force, including but not limited to the Modern Slavery Act 2015. The Supplier agrees to notify Kaplan as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain which has a connection with this Contract.
- 9.2. Suppliers with whom Kaplan transacts above £5,000 (five thousand pounds sterling) worth of orders per year must incorporate Kaplan's Responsible Procurement Policy and demonstrate their compliance. Suppliers with low-cost transactions should generally be guided by this policy.
10. Trade controls
Neither the Supplier nor its representatives or equity holders, partners, officers, directors, employees, representatives or agents is named as a "Specially Designated National" or "Blocked Person" by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC"), or otherwise appears on a list of prohibited persons issued by any governmental authority in the United States, the United Nations Security Council, the European Union or any European Union member state and the United Kingdom or otherwise with jurisdiction over Kaplan or the Supplier.
11. Trade embargoes
Neither the Supplier nor its representative or equity holders is directly or indirectly owned or controlled by, or acting on behalf of, the government of any country that is subject to a trade embargo imposed by the United States, the United Nations Security Council, the European Union or any European Union member state and the United Kingdom or otherwise with jurisdiction over Kaplan or the Supplier.
12. Intellectual property
- 12.1. The Supplier warrants that it has the necessary rights, licenses, or permissions to provide any intellectual property rights associated with the Goods or Services.
- 12.2. Any intellectual property created or developed by the Supplier during and in performance of the Contract shall, unless otherwise agreed and indicated in writing, be the exclusive property of Kaplan or, as applicable, and their related entities.
- 12.3. The Supplier shall notify Kaplan immediately in writing if it becomes aware of any infringement (actual or potential) of Kaplan's intellectual property rights and will provide such assistance as is reasonably required by Kaplan in protecting the same.
- 12.4. The Supplier shall, at its expense, defend, indemnify and hold harmless Kaplan against any and all losses arising out of or in connection with any claim that Kaplan's use or possession of the Goods or use of the Services infringes or misappropriates any intellectual property right of any third party. In no event shall the Supplier enter into any settlement without Kaplan's prior written consent.
The Supplier shall defend, indemnify and hold harmless Kaplan and its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods and Services purchased from the Supplier or the Supplier's negligence, willful misconduct or breach of these Terms. The Supplier shall not enter into any settlement without Kaplan's prior written consent.
14. Data protection
- 15.1. Nothing in this Contract shall limit or exclude the liability of either Party for: (a) death or personal injury caused by its negligence; (b) fraud or fraudulent misrepresentation; or (c) another liability which cannot be limited or excluded by law.
- 15.2. Subject to clause 15.1, neither Party shall under any circumstances be liable to the other, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect, special or consequential loss.
- 16.1. Each Party undertakes that it shall treat this Contract and all non-public information transferred between the Parties, by whatever mode, pursuant to this Contract as confidential and shall not copy or disclose such information to any third party. This restriction does not apply to (a) any disclosure authorised in advance by the other Party in writing; (b) any disclosure required by law; or (c) any information which is already in or comes into the public domain other than through a Party's unauthorised disclosure.
- 16.2. This obligation shall remain in force from the date the Purchase Order was issued and shall survive any termination or expiration of this Contract.
17. Force majeure
Neither Party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control, including without limitation strikes, lockouts or other industrial disputes, failure of a utility service or transport or telecommunication network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. The affected Party agrees to promptly notify the other Party of the existence and nature of such events, and the Parties shall mutually agree in writing on any such extensions to the performance of any of the obligations under this Contract.
- 18.1. In addition to any remedies that may be provided under these Terms:
- either Party may terminate the Contract immediately where the other Party does not remedy a material breach within thirty (30) days of being notified in writing;
- Kaplan may terminate this Contract by giving the Supplier thirty (30) days written notice; or
- if the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it, proceedings relating to bankruptcy, receivership, reorganisation or assignment for the benefit of creditors, then Kaplan may terminate this Contract upon written notice to Supplier.
- 18.2. If Kaplan terminates the Contract under clause 18.1(b), the Supplier's sole and exclusive remedy is payment for the Goods received and accepted, and Services accepted prior to the termination.
A waiver of any right or remedy under this Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- 20.1. The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over, or deal in any other manner with any of its rights and obligations under this Contract without Kaplan's prior written consent.
- 20.2. Kaplan may at any time assign, mortgage, charge, delegate, declare a trust over, or deal in any other manner with any, or all of its rights under this Contract.
A notice or other communication shall be deemed to have been received: (a) if delivered personally when left at the address referred to above; (b) if sent by pre-paid first class post or other next working day delivery service on the second business day following posting; (c) if delivered by commercial courier on the date that the courier's delivery receipt is signed; or (d) of sent by email one business day after transmission. The Parties agree that any notice to the Supplier shall be to the address provided to Kaplan on the PO. Any notices sent to Kaplan under this Contract shall be sent to the Kaplan address at clause 1.1 with a copy by email to: firstname.lastname@example.org
22. Governing law and jurisdiction
This 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 the law of England and Wales. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).
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