(A) one or more Purchase Orders (“Order”) and any schedule(s) to such Purchase Order; and
(B) these Purchasing Terms and Conditions; and
(C) any documents expressly incorporated into this contract or expressly referred to in a Purchase Order.
If there is any conflict or inconsistency between any of the above, the following shall have order of precedence:
First, these Purchasing Terms and Conditions,
Second, the Purchase Order and its schedules and
Third, any documents as referenced in paragraph (c) above.
The terms of this Agreement (“Agreement”) supersede all prior drafts, agreements, arrangements, understandings and discussions between Hexagon and the Supplier or their advisors and all statements, representations, terms and conditions, warranties, guarantees, proposals, communications, and understandings whenever given be it orally or in writing. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any such statements, representations, terms and conditions, warranties, guarantees, proposals, communications, and understandings that are not set out in this Agreement.
1. Definitions
1.1 In this Agreement unless the context otherwise requires:
“Agreement” means one or more Purchase Orders and any schedule(s) to such Purchase Order, these Hexagon Leasing Limited Purchasing Terms and Conditions, any documents expressly incorporated into these Purchasing Terms and Conditions or expressly referred to in a Purchase Order. All of which shall form an Agreement between the supplier stated on any Purchase Order and Hexagon Leasing Limited.
“Charges” means the charges from the supplier.
“Confidential Information” means the terms of this Agreement, its Purchase Orders and information disclosed by Hexagon to the Supplier to the extent that such information is designated as such by Hexagon in writing or relates to the business affairs, developments, trade secrets, know-how, personnel, customers, or suppliers of Hexagon or that such information may reasonably be regarded as the confidential information of Hexagon.
“Delivery Date” means the date for delivery of the Product as set out in the Order or agreed between the parties in writing.
“Intellectual Property Rights” means any patents, trademarks, registered designs, applications for any of the foregoing, copyright, database rights, know-how, confidential information, trade, and business and/or domain names and any other similar protected rights (whether registered or unregistered).
“Order” means Hexagon’s purchase order document that states (i) the Product to be provided by the Supplier; (ii) Hexagon’s purchase order number and (iii) it is subject to these Purchasing Terms and Conditions.
“Products” means any supplies, equipment and/or Services described in the Order.
“Product Description” means the description of the Product set out in the applicable Order and in the product, Servicedescription given to Hexagon or published (including electronically) by the Supplier or manufacturer at the time that the Order is placed.
“Programs” means any items referred to as programs or software in the Order (including any associated documentation which may be supplied with them).
“QMS” means the Hexagon Leasing Limited Quality Management System.
“Services” means any Services described in the Order.
“Supplier” means the person to whom the Order is addressed, and person includes partnerships, bodies corporate, corporations, associations, and government bodies and/or departments.
“Warranty Period” means as a minimum a twelve (12) month warranty period after the Delivery Date, or greater as negotiated between the Supplier and Hexagon or the suppliers standard warranty period applicable to the Product or Services provided if greater than twelve (12) months.
1.2 References to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or provision as from time to time amended, modified, extended, re-enacted, replaced and all statutory instruments or orders made pursuant to it.
1.3 Any phrase introduced by the word “including”, “include” or any similar expression shall be construed as illustrative and the words following any such word shall not limit the sense of the words preceding such words. References to the singular shall include the plural and vice versa. The headings in this Agreement are inserted for convenience only and shall not constitute a part of or be referred to in interpreting the Agreement.
2. Suppliers Obligations and Warranties
2.1 The Supplier shall provide the Product in accordance with the terms and conditions of this Agreement. An Order will be deemed accepted under these terms upon receipt by the Supplier unless the Supplier otherwise notifies Hexagon within twenty-four (24) hours of receipt of such Order.
2.2 The Supplier warrants, represents and undertakes that:
(a) the Product will comply with all relevant, applicable legislation from time to time in force, statutory
requirements and all relevant standards issued from time to time by the International Standardization Organisation (ISO), Construction and Use regulations (C&U), Type Approval, any other vehicle or Service required statutes, health and safety, environmental standards and the Supplier will inform Hexagon as soon as it becomes aware of any changes in legislation or statute requirement in relation to the Product or Services ordered; and
(b) the Product will meet any performance criteria and conform in all respects with any Product Description or sample; and
(c) it owns, and is able to provide good title to Hexagon, or in the case of Service or Programs is otherwise licensed to provide the Products which it supplies pursuant to this Agreement; and
(d) all Products will be new, of satisfactory quality in the sole view of Hexagon, and fit for their intended purpose; and
(e) any non-compliant Products may be rejected by Hexagon and returned to the Supplier at the Supplier’s cost; and
(f) all Services, execution and deliveries will be performed diligently, with all appropriate skill and care to at least industry standard by appropriately trained, experienced and qualified personnel and, where applicable, will meet the agreed Serviceand delivery levels and timings; and
(g) it will ensure that the Services execution and deliveries conform with the description set out in the Order and shall allocate sufficient resources to the performance of the Services and deliveries as are necessary to enable it to comply with its obligations under this Agreement; and
(h) it will co-operate fully with Hexagon, its customers, agents, and sub-contractors; and
(i) it will comply with Hexagon’s standards and policies for suppliers as detailed in the Hexagon’s QMS Manual (as may be updated from time to time by Hexagon).
2.3 Health and Safety
the Supplier shall comply with all relevant health and safety legislation and with the policy contained within Hexagon’s QMS Manual (as may be updated from time to time by Hexagon). It will ensure Products that are potentially dangerous to health or safety, are delivered in suitable protective packing and that the external surface of such packing is clearly labelled to indicate any such hazards involved in handling and using the Product and the method of safe handling. A copy of any information relating to the safety aspects or proper use of the Product should be sent to Hexagon under separate cover prior to delivery. The Supplier shall be responsible for ensuring that any of its employees or other persons fulfilling the Order who enter Hexagon’s or its customers’ premises are suitably trained and licenced in the use and operation of the Product or Service provision, are suitably clothed, issued with appropriate protective equipment, duly warned of hazards which they may encounter on Hexagon’s or its customers premises and that they adhere to all health and safety at work rules and regulations and any other reasonable security or other requirements that apply at any of Hexagon’s or its customers’ premises from time to time.
2.4 Security Checks
(a) The Supplier shall comply with all security and related policies notified by Hexagon and shall promptly provide such information regarding its compliance as may be required by Hexagon:
(b) The Supplier shall only use employees, agents, or contractors (“Personnel”) who are authorised to work for the duration of this Agreement or any Order in the country where the Product are being provided. The Supplier shall provide information evidencing such approvals, clearances and right to work at any time on request by Hexagon.
(c) Where Hexagon and/or Hexagon’s customers carries out security, immigration and/or work permit checks directly on the Personnel, the Supplier shall obtain demonstrable consent from such Personnel permitting release of their personal data for such purpose.
2.5 Business Continuity
the Supplier shall ensure that it has adequate security, business continuity and disaster recovery procedures in place to cope with the risk of major operational disruptions that may in any way effect the Suppliers delivery and performance of the Order.
3. Delivery of Product & Service
3.1 The Supplier shall, at its own expense, properly pre-delivery, inspect equipment prior to delivery and rectify any faults or shortfalls, package and secure where appropriate, and deliver on the Delivery Date to the place specified in the Order or such other location as may be subsequently requested by Hexagon.
3.2 The Supplier shall ensure that one copy of a delivery note stating the Order number, and delivery company accompanies the Product and a copy with the recipients’ signature is electronically sent to Hexagon.
3.3 For Product delivered in instalments, the Order shall be construed as a single contract in respect of each instalment. However, where Hexagon has a right to reject any instalment, it may at its option reject the entire Order or the instalment.
3.4 Upon request and notice from Hexagon, Hexagon, and its customers (or their representatives) may verify at source that the Product conforms to the requirements of the Order. Such verification shall not absolve the Supplier from any of its responsibilities under this Agreement nor affect Hexagon’s right to reject the Product nor shall it constitute evidence of effective quality control.
4. Delivery and Performance of the Product
4.1 The Product may not be delivered or performed earlier or later than the Delivery Date without Hexagon’s permission, otherwise Hexagon may reject them. Time shall be of the essence of this Agreement and of each Order in relation to delivery of the Product.
4.2 If the Product or any part thereof are not delivered or performed on or by the required Delivery Date Hexagon shall be entitled to terminate this Agreement and/or cancel the Order, in each case without cost or liability, in respect of the Products undelivered or the Services not performed. Where other Product (“Associated Product”) have previously been delivered to or performed for or on behalf of Hexagon by the Supplier and, in the opinion of Hexagon, the Associated Product cannot be effectively and commercially used by reason of such non-delivery or non-performance of the Product then, without prejudice to Clause 7, Hexagon shall be entitled to reject the Associated Product and claim a full refund.Where Hexagon exercises its option to reject any Associated Product, Hexagon agrees to return to the Supplier, at the Supplier’s expense, any Products or other materials which comprise Associated Product as soon as reasonably practicable after it has received a full refund in respect thereof.
5. Product Title and Risk
5.1 Title and risk in the Products shall pass to Hexagon on either the delivery or acceptance of the Product by Hexagon, except that if the Products are paid for before delivery ownership shall pass to Hexagon once payment has been made.
5.2 Where Hexagon exercises its right to reject Product pursuant to Clause 4, risk and title therein shall revert to the Supplier upon Hexagon notifying the Supplier that it wishes to exercise its right to reject the Product.
6. Software
6.1 Where the Product include Programs and Software and/or where and to the extent that any Intellectual Property Rights subsist in the Product, then, subject always to Clause 10.2, the Supplier hereby grants Hexagon an irrevocable, non-exclusive licence, with authority to sell or grant sub-licences directly or indirectly to Hexagon’s customers, to use and/or to permit third parties to use each copy of such Programs and to make such other copies as are reasonably necessary to support such licensed use unless waivered by Hexagon.
6.2 Where the Products are created or modified for Hexagon, the Supplier hereby grants Hexagon a licence in the terms of Clause 6.1 above (save that such licence shall be exclusive) for the period commencing immediately upon their creation until such time as all Intellectual Property Rights are fully and completely vested in Hexagon pursuant to Clause 10.2unless waivered by Hexagon.
6.3 Where the Supplier grants Hexagon a periodic licence and the fees are payable on a recurring basis, Hexagon shall have the right to terminate the licence in writing on not less than thirty (30) days’ notice, such notice to take effect at the end of the then current period.
7. Remedies
7.1 In relation to the Product, the Supplier undertakes that:
(a) in the case of Product, if within the Warranty Period or a reasonable time thereafter, Hexagon notifies the Supplier that the Products are in breach of warranty or the provisions of this Agreement then, at Hexagon’s option.
(i) the Supplier will promptly repair or replace, the Products so as to remedy the matter constituting the breach without cost (including transportation costs) to Hexagon; or
(ii) the Supplier will accept rejection and return of the Product by Hexagon, whether any of the Product has been accepted, and the Supplier shall immediately upon receipt return any payments made by Hexagon in respect of those Product. For the avoidance of doubt, risk, and title in rejected Products shall immediately on rejection revert to the Supplier; and
(b) in the case of Services, if within the Warranty Period or a reasonable time thereafter, Hexagon gives notice that the Services are in breach of warranty or the provisions of this Agreement, the Supplier shall re-perform the Services at no cost to Hexagon. Where the Supplier fails to provide such remedy, Hexagon may remedy or have remedied the matter constituting the breach at the cost of the Supplier; and
(c) in any case, if during the Warranty Period the Product are in breach of warranty or otherwise in breach of this Agreement, Hexagon may, at its option, cancel the Order, at no cost or liability to Hexagon, and/or refuse to accept any further deliveries and/or performance of Product. The Supplier shall immediately refund any charges paid in advance by Hexagon in respect of the Product.
7.2 Without prejudice to Hexagon’s rights under Clauses 7.1,
if during the Warranty Period or within two (2) years of its expiry, the Products develop any persistent defects, failures or non-conformities, the Supplier will, on Hexagon’s request, review such defects, failures or non-conformities with Hexagon and indicate steps or recommendations which in the Supplier’s reasonable judgement would remedy the same. Subject to an agreed rectification plan, the Supplier shall at its own cost remedy the defects, failures, and non-conformities. Where the Supplier fails to provide such remedy, Hexagon may remedy or have remedied the failure, defect or non-conformity at the Supplier’s cost and reject deliveries of Product until the source of failures, defects and non-conformities has been cured.
7.3 Hexagon’s rights and remedies under Clause 7 are in addition to its other rights and remedies under this Agreement or at law.
8. Product Payment Terms
8.1 The Charges for the Product shall be stated in the Order and shall be exclusive of VAT or similar duty but inclusive of all other charges. Unless otherwise agreed in writing, Hexagon shall not be liable to make any payments to the Supplier other than the Charges.
8.2 Subject to Clauses 8.3, 8.4 and 8.5, Hexagon shall pay each undisputed invoice properly due, issued and submitted to it by the Supplier sixty (60) days after the date of receipt or acceptance whichever is the latter unless other Product Payment Terms have been agreed prior to the order and stated upon the order.
8.3 The Supplier must be in possession of an approved Order before commencing any supply under this Agreement. The Supplier shall ensure that Hexagon’s Order number is referenced on any invoice sent to Hexagon and acknowledges that without an such approved Order number, any invoice will be rejected.
8.4 All invoices must be submitted within three (3) months of delivery or performance of the Product. Unless previously agreed in writing by Hexagon, invoices submitted more than three (3) months after the period to which they refer will be rejected and not considered for payment.
8.5 All invoices must be sent to:
Hexagon Leasing Limited
Accounts Payable Department
Parkway House, Second Avenue,
Centrum One Hundred,
Burton Upon Trent.
DE14 2WF
8.6 Where all or part of an invoice is disputed:
(a) the Supplier shall issue Hexagon with a credit note as soon as reasonably practicable and reissue an invoice in respect of the undisputed amount, which will be paid in accordance with Clause 8.2; and
(b) upon resolution of the dispute, the Supplier may issue an invoice in respect of the amount that has been resolved that Hexagon should pay, which Hexagon shall pay within thirty (30) days of receipt of the new invoice or the date on which the payment would otherwise have fallen due under Clause 8.2, whichever is the latter.
8.7 Hexagon may set off sums due from Hexagon to the Supplier under any Order (without prejudice to any other rights or remedies) against sums due from the Supplier to Hexagon under such Order or any other agreement.
9. Taxes, Import and Export
9.1 The Supplier is responsible for all taxes and duties that are due in the country of origin and receipt of the Product and for obtaining at its expense any import or export licence or government consents necessary for the provision of the Product including those required under any export regulations.
9.2 The Supplier shall inform Hexagon immediately which of the Product, if any, are subject to Import and Export control restrictions and shall indemnify Hexagon against all claims, losses, liabilities, damages, costs (including legal costs) and expenses incurred by or awarded against Hexagon as a result of the Supplier’s failure to protect Hexagon from such Charges.
10. Intellectual Property Rights and Indemnity
10.1 The Supplier shall indemnify and hold harmless Hexagon, its affiliates and its customers against any and all claims, liabilities, direct, indirect or consequential losses (including loss of profits, loss of business, depletion of goodwill and similar losses whether of a direct, indirect or consequential nature), costs and expenses (including legal costs) howsoever arising which Hexagon, its affiliates or its customers may incur or suffer as a result of a claim by a third party arising from any infringement, actual or alleged, whether or not under English law, of any Intellectual Property Rights resulting from the possession, use, licensing, sale or other use of the Product.
10.2 Where the Supplier generates any Intellectual Property Rights in performing Services, or creating or customising Products to Hexagon’s specification (including without limitation by the creation or customisation of a Products, Program or marketing, technical or training material or the internal or external design of an article), all such Intellectual Property Rights shall, on their creation, vest in Hexagon exclusively and in consideration of the Charges the Supplier hereby, by way of future assignment with full title guarantee, assigns all such rights to Hexagon unless waivered by Hexagon in writing.
11. Dispute Resolution
11.1 Any question, difference or dispute which may arise out of or in connection with this Agreement shall in the first instance be referred to the representatives of Hexagon and the Supplier nominated for discussion and resolution.
If the matter is not resolved within fourteen (14) days of such referral, the escalation will continue through two (2) more levels of management. If the unresolved matter is having a serious effect on the performance of this Agreement, the parties will use best endeavours to minimise the escalation time. Neither party may initiate any legal action until the process has been completed, unless such party has reasonable cause to do so to avoid damage to its business or to protect or preserve any right of action it may have, including without limitation to seek injunctive relief in respect of any breach of its rights.
11.2 If the dispute is not resolved by escalation in accordance with Clause 11.1 above, the parties may seek to resolve disputes between them by an alternative dispute resolution technique.
12. Agreement Termination
12.1 If the supplier:
(a) being a company, has a petition presented for its liquidation or calls a meeting to propose a resolution for its liquidation or has a petition presented for the appointment of an administrator or has a receiver or administrative receiver appointed over it or any of its assets or makes any voluntary arrangement with its creditors; or
(b) being an individual (or if a firm or partnership, any of its partners or members), has a petition presented for his/their bankruptcy, or has a receiver appointed over his/their affairs, or makes any voluntary arrangement with his creditors or (in the case of a firm or partnership) proposes or has presented against it a petition for its dissolution,
in either case Hexagon may terminate this Agreement and/or any Order to the Supplier taking immediate effect.
12.2 Hexagon reserves the right to cancel the Agreement or any Order for any reason and without cost or liability (save for any Product already delivered or performed) by giving the Supplier notice of at least thirty (30) days prior to the agreed time for delivery or performance.
12.3 Upon termination of this Agreement or, where relevant, an Order for whatever reason:
(a) the Supplier shall reimburse any sums paid in advance by Hexagon for Product ordered but not yet received as at the date of termination; and
(b) the parties will return Confidential Information of the other party and the Supplier shall at its cost forthwith return all Hexagon Property and Hexagon may enter any premises to recover such items at the Supplier’s cost; and
(c) the Supplier shall give Hexagon all reasonable assistance necessary to facilitate the orderly transfer of the Product to an alternative Supplier or Service provider.
12.4 The exercise of rights of termination by Hexagon shall be without prejudice to any other rights or remedies available to it under this Agreement.
13. Confidentiality
13.1 The Supplier undertakes that it will take all necessary precautions to ensure that all Confidential Information is treated as confidential and that it (and any person employed or engaged by it in connection with the Product) uses Confidential Information only for the purposes of this Agreement and shall not disclose any such Confidential Information to any third party without the prior written consent.
13.2 The Supplier may disclose Confidential Information:
(a) pursuant to a duty imposed by law or the requirements of a regulatory authority but only to the extent so required; and
(b) to give proper instructions to any professional adviser under an obligation to keep such Confidential Information confidential.
13.3 Confidential Information shall not include, and the obligations contained in this Clause 13 shall not apply, in respect of information:
(a) which was in the public domain at the time of disclosure; or
(b) independently developed by the Receiving Party or its employees or agents where the Supplier can show it has no access to that information as Confidential Information of the Supplier received under this Agreement.
13.4 Without prejudice to the generality of Clauses 13.3 (a) – (b) above, information shall not be deemed to be in the public domain by reason only that it is known to only a few of those people to whom it might be of commercial interest and a combination of one or more items of Confidential Information with information in the public domain shall not cause such Confidential Information to be deemed to be in the public domain.
13.5 The Supplier undertakes to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of Clauses 13.1 and 13.2 by its employees, agents, consultants, and sub-contractors. For the avoidance of doubt, the Supplier acknowledges that Hexagon may require, and the Supplier shall procure undertakings as to confidentiality directly from its employees no less onerous than the terms contained in this Clause 13.
13.6 Neither the Supplier nor any person engaged by it whether as an employee, servant, agent, or sub-contractor shall use the Confidential Information for the solicitation of business from Hexagon.
13.7 The Supplier shall not advertise or publicly announce its involvement in the Agreement without the prior written consent of Hexagon.
14. Liability
14.1 The Supplier’s liability to Hexagon for any loss, damage, costs, claims or expenses suffered by Hexagon under or in connection with this Agreement, whether arising from a breach of contract, negligence or howsoever, shall be limited as follows:
(a) in the case of breach of Clause 10 (Intellectual Property Rights and Indemnity) and Clause 13 (Confidentiality) or liability arising from death or injury to persons as a result of any act or omission of the Supplier, which is negligent (as defined by the Unfair Contract Terms Act 1977 section 1) or of any fraud on the part of the Supplier or of the acts, omissions or frauds of others for whom the Supplier is at law responsible, there shall be no limit;
(b) in respect of any other liability the Supplier’s aggregate liability shall be three (3) times the Charges paid or payable under the Agreement or £1,000,000, whichever is greater.
14.2 Notwithstanding any other provision of this Clause 14, for the purposes of this Agreement, losses for which the Supplier assumes responsibility, and which shall be recoverable by Hexagon, shall include, but not be limited to, the following:
(a) monies paid by Hexagon to the Supplier pursuant to this Agreement, in respect of any Product not provided in accordance with the terms of this Agreement; and
(b) the costs and expenses incurred by Hexagon in procuring and implementing alternative or replacement equipment and/or Services including consultancy costs, the additional costs of management time and other personnel costs and other equipment and materials; and
(c) the costs and expenses incurred by Hexagon in contemplation of and pursuant to this Agreement to the extent that such costs and expenses are wasted if alternative or replacement Services are procured; and
(d) the costs and expenses of reconstituting or reloading lost or corrupted data; and
(e) the costs and expenses of implementing and performing workarounds following a failure in the Product or to achieve any Service levels; and
(f) losses incurred by Hexagon arising out of or in connection with any claim, demand, fine, penalty, action, investigation or proceeding by any third party (including any customer, sub-contractor, Supplier personnel, regulator of Hexagon) against Hexagon caused by the act or omission of the Supplier, any sub-contractor of the Supplier or any Supplier personnel.
14.3, In no event will Hexagon be liable to the Supplier for any direct, indirect, or consequential damage including loss of profit, loss of revenue, loss of anticipated savings, loss of goodwill or injury to reputation or loss of business or opportunity arising out of or in connection with this Agreement.
14.4 Where the Supplier send its employees to Hexagon’s and/or Hexagon’s customers’ premises in connection with this Agreement then, notwithstanding any technical supervision exercised by Hexagon or any instructions issued by Hexagon, such employees shall remain the Supplier’s employees alone. It is an express condition of this Agreement and each Order that the Supplier effects and maintains in force for the benefit of the Supplier and Hexagon employer’s liability insurance in respect of such employees. Further the Supplier shall effect and maintain for the duration of this Agreement, or if any Order survives its termination, for the duration of that Order, such other insurance as is appropriate in the circumstances taking into account industry practice, the availability of insurance in the market place and the risks and liabilities which it is accepting under this Agreement. The Supplier shall provide Hexagon with reasonable evidence of its compliance with this obligation when requested by Hexagon to do so.
14.5 The Supplier shall indemnify and hold harmless Hexagon against any loss of or damage to Hexagon Property and/or Hexagon’s customers’ property caused by the Product or by the act or default of the Supplier or its employees, agents, or sub-contractors. All risk of loss or theft of or damage to any property of the Supplier or belonging to the Supplier’s personnel while at Hexagon’s premises and/or Hexagon’s customers’ premises for any reason whatsoever shall be and remain the sole risk and responsibility of the Supplier.
15. General Conditions
15.1 Force Majeure Neither party will be liable for delay in or for failure to perform obligations if that delay or failure is caused by circumstances beyond the reasonable control of the party affected including, but not limited to any of the following: act of God, governmental act, war, fire, flood, explosion, or civil commotion (a “Force Majeure Event”) provided that:
(a) a claim for relief by the Supplier shall not be valid to the extent that a prudent supplier of Product similar to the Product could have foreseen and/or prevented or avoided the Force Majeure Event; and
(b) the affected party’s obligation to perform the relevant obligations under this Agreement shall (during the continuation of the Force Majeure Event) be read and construed as an obligation to perform such obligations to the best level reasonably achievable in the circumstances; and
(c) an inability to obtain sub-contracted Services or Product shall not constitute a Force Majeure Event except where no substitute is available; and
(d) industrial action, strikes and lockouts by employees of the Supplier shall not constitute a Force Majeure Event unless affecting the relevant industry on a national basis; and
(e) if the Supplier is prevented from performing its obligations under an Order by a Force Majeure Event which continues for more than thirty (30) days, Hexagon may at its option terminate any affected Order without liability to the Supplier forthwith by giving notice.
15.2 Assignment the Supplier may not assign, transfer or sub-contract any of its rights or obligations under this Agreement in whole or in part without the prior written consent of Hexagon and any purported assignment or transfer shall be null and void and all acts and omissions by the assignee or transferee are deemed to be those of the Supplier. Delegation, whether authorised or not, shall not relieve the Supplier of any of its liability or obligations under this Agreement.
15.3 Notices All notices hereunder shall be in writing addressed to the parties at their respective addresses set forth in the Order or such other address as may be notified from time to time by either party to the other.
15.4 Waiver No terms or conditions hereof shall be deemed waived, and no breach or default excused unless such waiver or excuse shall be in writing and signed by the party issuing the same.
15.5 Variations No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of both parties.
15.6 Non-solicitation During this Agreement and for a period of six (6) months after either its termination or the end of the provision of the Product (whichever is later), the Supplier shall not solicit the employment or Services of any Hexagon personnel who has been engaged in connection with the Product.
15.7 Severance If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Agreement, which shall remain in full force and effect.
15.8 Survival The following clauses shall survive termination of this Agreement: Clauses 10 (Intellectual Property Rights and Indemnity), 13 (Confidentiality), 15 (Limitation of Liability and Insurance), 15.12 (Governing Law and Jurisdiction).
15.9 Right to Audit: During this Agreement and for a period of two (2) years thereafter, Hexagon (or its third-partyappointee) reserves the right after giving reasonable prior written notice (such notice to include timescales and location) to the Supplier to undertake a review and audit of all or any of the Product and all records, operational controls and processes relating thereto. The Supplier shall cooperate fully and shall provide any information or other facility reasonably required by Hexagon for the purpose of undertaking such review or audit. Where following such audit Hexagon establishes reasonable grounds that the Supplier has received Charges and/or other payments from Hexagon more than the payments to which it is entitled under this Agreement, the Supplier shall (without prejudice to Hexagon’s rights arising under this Agreement or generally) forthwith pay to Hexagon the full amount of such excess receipts plus Hexagon’s reasonable costs of carrying out the audit.
15.10 Relationship of Parties Nothing in this Agreement shall create a partnership or a fiduciary relationship or the relationship of employment between Hexagon and the Supplier. The Supplier shall not make any direct or indirect approach to Hexagon’s customer to provide Services or products the same as or similar to Hexagon’s without Hexagon’s prior written consent unless already provided to the Supplier prior to this Agreement.
15.11 Cumulative Remedies The rights and remedies of the parties under this Agreement are cumulative and without prejudice and in addition to any rights or remedies at law or in equity.
15.12 Governing Law and Jurisdiction The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by English law and, without prejudice to Clause 11 (Dispute Resolution), the parties submit to the exclusive jurisdiction of the English courts.
Hexagon Leasing Limited Purchasing Terms and Conditions (February 2022 Edition)
