These Epic Purchase Order Terms (‘PO Terms’) set out the contractual relationship between Epic Communications Limited (‘Epic’) and the Supplier and come into effect on the date of the PO. Supplier’s own terms and conditions are excluded and do not apply to the Order. Capitalised terms are defined below.
- Performance and Delivery
- Supplier shall supply the Products and/or perform the Services in accordance with the Order. Risk and title pass on delivery. Supplier shall comply with all reasonable instructions provided by Epic.
- The Products must be accompanied by the necessary shipping documents and must be packed using suitable material and in accordance with current transport regulations, including in particular current IATA regulations. Each Product is deemed delivered when it has been cleared through customs and with delivered duty paid for the place specified by Epic or indicated in the Order. All shipments are DDP (Incoterms 2010).
- In the event of delays in the delivery of Products or the implementation of Services not attributable to force majeure, the Supplier shall pay to Epic a penalty of one percent (1%) of the value of the Order for each day of delay. Such penalties cover only the late delivery, without prejudice to Epic’s right to claim any further damages. Epic may terminate with immediate effect if the Supplier reaches the maximum of the penalties as set down in this Clause 1.3.
- Epic may cancel the Order up to fifteen (15) days prior to the scheduled date of supply and in such cases the Supplier shall refund Epic any monies already paid after deducting therefrom any costs or expenses reasonably incurred by the Supplier and approved by Epic in relation to the Products/Services.
- In the event that the Supplier cancels the Order at any time prior to the scheduled date of supply, Supplier shall refund Epic in full any monies already paid in advance. Provided that, if Supplier cancels the Order within fifteen (15) days or less from the scheduled date of supply, Epic shall be entitled to a penalty equivalent to ten percent (10%) of the Order value over and above the refund.
- Should Epic discover any defect or damage in the Products and/or incomplete Services, Epic may request the repair or replacement of such Products, or the proper completion of the Services. If the Supplier is unable to satisfy Epic’s request within a reasonable time, Epic shall have the right to rectify such defects and/or repair the damage or engage another Supplier to provide the Services at the Supplier’s expense. In any case, Epic has the right to claim further damages.
- The possible acceptance by Epic of late, incomplete or defective deliveries, or the payment of the relevant due amount, shall not compromise in any way Epic’s right to exercise appropriate judicial actions.
- Price, Invoicing, Payment and Expenses
- All pricing, invoicing and payments shall be in the currency stated in the PO Order.
- The Price is exclusive of sales tax (and any similar tax in any jurisdiction) and inclusive of all other duties, levies, costs or expenses of whatever nature, unless otherwise stated on the PO. Any included expenses will only be paid by Epic if they are incurred in accordance with the PO.
- Supplier shall send Epic an invoice (meeting all requirements of Epic and the relevant tax authorities).
- Epic shall pay invoices meeting the requirements set out in this clause 2 within the Payment Period unless there has been any breach of the Order by Supplier, in which case Epic may withhold payment (in whole or in part and to the extent permitted by Applicable Law) until the breach is rectified.
- Epic may set off any sums owed to Epic by Supplier against the Price.
- If Supplier incorrectly charges sales tax to Epic Supplier shall repay to Epic any overpaid sales tax (where there has been overpayment) and/or any related interest, penalties and costs within 30 days of the error being identified.
- If Epic is required by law to deduct withholding tax from the Price, Epic shall: (i) pay the Price less withholding tax; and (ii) provide evidence to Supplier that it has passed the withholding tax on to the relevant authority.
- Supplier warrants that it is and will be tax resident in its country of incorporation at the time of placement and fulfilment of the Order.
- Supplier warrants that it shall supply all Products and Services in accordance with the Order and Applicable Law and ensure that all work is undertaken by appropriately qualified, trained and skilled personnel.
- Unless otherwise specified in the Order, Supplier warrants that each Product shall remain free from material defects and errors in design, materials and workmanship under normal use and service (save those caused by normal wear and tear) for 24 months from the date of delivery, except in the case of software, that such software shall perform error free in conformance with the Order for 12 months from the date of delivery.
- Either party may terminate this Order immediately on formal written notice and without liability to the other party if: (i) the other party commits a material breach of the Order and, in the case of a breach capable of remedy, fails to remedy such breach within fourteen (14) calendar days after receiving formal written notice to do so; or (ii) if the other party becomes insolvent or otherwise unable to pay its debts as they fall due.
- Additionally, where Supplier is the breaching party, Supplier shall repay within fourteen (14) calendar days any part of the Price which has been paid and Epic may return any Products or part thereof to Supplier (at Supplier’s expense).
- Epic may terminate the Order at any time for convenience without liability to Supplier. In such circumstances, Epic shall pay a reasonable proportion of the Price for any Products and/or Services provided and any committed and substantiated costs reasonably incurred by Supplier prior to termination.
- Liability and Indemnification
- The Supplier shall be liable for any damages caused to Epic in the performance of the Order. The Supplier shall be liable for any damage to persons or things caused directly or indirectly by the Products and/or Services and/or by the Supplier’s staff.
- Except where liability cannot be lawfully limited and without prejudice to Clause 5.3, Epic’s liability in relation to any claims relating to the Order shall be limited to the greater of the Price or €100,000 and Supplier’s liability to Epic in relation to any claims relating to the Order shall be limited to the greater of the Price or €300,000.
- Supplier indemnifies Epic for: (i) any alleged or actual infringement of IPR (including third-party IPR) or applicable software licence terms by or relating to the Products or Services; (ii) any alleged or actual infringement by or on behalf of Supplier in relation to bribery and corruption; (iii) any alleged or actual infringement of Applicable Law governing the protection of personal data (iv) any breach of confidentiality; (v) any alleged or actual infringement of any Applicable Law by Supplier or its personnel; (vi) any claims for loss, death or injury to any person or any damage to property caused by Supplier; (vii) any loss arising from Supplier’s repudiation or wilful breach of these Epic PO Terms; and (viii) any loss arising from any act or omission of fraud or dishonesty. The Supplier’s liability under this indemnity shall be unlimited.
- Intellectual Property Rights
- Each party retains ownership of its own pre-existing intellectual property rights.
- New IPR shall be owned by Epic, and Supplier hereby assigns (by way of present assignment of future rights) all such New IPR to Epic.
- Supplier hereby grants (or shall procure the grant) to Epic a royalty-free, non-exclusive, worldwide, perpetual, irrevocable, sub-licensable and transferable to any third party supplier, licence to use Supplier’s pre-existing intellectual property rights and/or third party owned intellectual property rights used in its fulfilment of the Order to: (i) use, exploit or licence any Products or Services in the course of Epic’s business and for any reasonably incidental purpose (including for use by their direct and indirect customers); (ii) use, exploit, license or enforce any New IPR; and (iii) in relation to software, transfer it to any platform.
- Supplier shall not use any material subject to third party owned intellectual property rights in any Products or Services to the extent such third party material imposes licence obligations on Epic and/or its sub-licensees or otherwise varies the licences provided to Epic in clause 5.3. If Supplier wishes to do so, it shall: (i) notify Epic in advance of any third party material it wishes to use and give details of any licence variations or obligations placed on Epic; and (ii) obtain Epic’s written consent prior to using such third party material in any Products or Services. Upon Epic’s request, Supplier must provide to Epic all details and licensing terms of all third party materials in the Products or Services.
- Where a threat or claim of infringement of intellectual property rights jeopardises Epic’s ability to fully and freely receive, hold and make use of any Products, Supplier shall (without prejudice to any other rights of Epic) either obtain appropriate licences or otherwise supply re-designed Products to enable Epic’s continued exploitation of such Products.
- Each party shall handle the other party’s confidential information received by it in connection with the Order on the following basis: (i) keep it confidential for 3 years after date of disclosure; (ii) use it solely for the purpose of performing its obligations or exercising its rights in respect of the Order; (iii) not disclose it to any person save to its own directors, officers, employees or professional advisors (or those of its group companies) who need it to perform obligations, exercise rights or conduct audits in connection with the Order, or as required by Applicable Law or by any judicial or regulatory authority of competent jurisdiction (provided that, where permitted, the disclosing party informs the other party prior to any such disclosure); (iv) ensure that such persons keep it confidential; and (v) return or destroy it on termination of the Order save where it is necessary to keep it for regulatory reasons in secure archives.
- These provisions do not apply where the confidential information received: (i) is or becomes public knowledge without breach of the Order; (ii) was already in a party’s possession free of obligations of confidentiality; or (iii) is received from a third party free of obligations of confidentiality.
- Each Party, shall: (i) act in accordance with all Applicable Law relating to bribery and corruption; (ii) not do or omit to do anything likely to cause the other Party to be in breach of any of the Applicable Law; (iii) not give, promise, receive or request any bribes; (iv) maintain an effective anti-bribery compliance programme; and (v) reasonably assist the other Party to comply with obligations related to bribery and corruption required by Applicable Law.
- Each Party shall comply with the Applicable Laws, including all economic, trade and financial sanctions laws, regulations, embargoes or restrictive measures administered (“Sanctions”), as well as all trade control laws and regulations (“Trade Control Laws”). Each Party shall have an obligation to notify the other in the event of a breach of such laws or a change of status in respect of Sanctions and Trade controls.
- Each Party hereby indemnifies the other Party and its directors, officers, employees, agents and affiliates against all losses which they may suffer as a result of a breach or deemed breach of clause 8.1 and 8.2 by the Party granting the indemnity.
- Supplier shall: (i) not during the validity of the Order be involved in any litigation, process or investigation that could have a material impact on its ability to perform its obligation set out in the Order; (ii) at all times obtain and maintain all permissions, licences and consents necessary for it to perform its obligations; and (iii) not infringe the rights of a third party in the performance of its obligations.
- Supplier shall: provide Epic with complete and accurate information as requested by Epic in relation to the Products and/or Services and the performance of Supplier’s obligations set out in the Order.
- Data Protection
- The Supplier is not permitted to process, or handle in any way, any personal data in conjunction with the Order.
- Supplier shall: (i) not do, cause or permit anything which may result in a breach by of Data Processing Legislation; (ii) where Supplier will Process Personal Data, enter into Epic’s standard data processing agreement with Epic, including the relevant processing appendix completed to Epic’s satisfaction; and (iii) carry out such Processing in accordance with the terms of such data processing agreement before the Supplier enters into such data processing agreement. If Supplier breaches the obligations in this clause it shall indemnify Epic against any costs, claims and liabilities arising as a result of the breach.
Supplier shall comply with Epic Supplier Policies, as updated from time to time and available at http://www.epic.com.mt/policies, or such other site as notified by Epic.
- Further Provisions
- Supplier shall insure against all foreseeable risks and liabilities which it may face in relation to the Order.
- Supplier shall not assign, novate, subcontract or otherwise transfer any of its rights or obligations under the Order without Epic’s prior written consent. Epic may assign, novate, subcontract or otherwise transfer any of its rights or obligations under the Order.
- The Order shall be governed in accordance with the laws of Malta and each party irrevocably submits to the exclusive jurisdiction of the Courts of Law in Malta in relation to the Order.
- Any change to the Order and any waiver of rights thereunder may be made only by authorised representatives of the parties in writing (but for the avoidance of doubt not electronic mail).
- Any clauses in the Epic PO Terms that are expressly stated, or by implication intended, to apply after termination will continue in full force and effect after such termination.
- In the event of any inconsistency between these Epic PO Terms, any other documents issued in connection with the Order, the documents will prevail in the following order of precedence (highest level of precedence first, lowest last): (i) these Epic PO Terms, (ii) the PO; (iii) any statement of work or work order; and (v) any other document.
“Applicable Law” means all laws, legislation, regulations, binding codes of practice, or rules or requirements of any relevant government or governmental agency, professional or regulatory authority applicable to the Products and/or Services and their procurement;
“Data Processing Legislation” means the General Data Protection Regulation ((EU) 2016/679), the European Directives 95/46 and 2002/59/EC (as amended by Directive 2009/136/EC), the Data Protection Act (Cap 586 of the Laws of Malta) and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them (including but not limited to the Privacy and Electronic Communication (EC Directive) Regulations 2003), and all other applicable laws relating to the processing of Personal Data and privacy that may exist in any relevant jurisdiction, including, where applicable, the guidance and codes of practice issued by the relevant supervisory authorities).
“Intellectual Property Rights or IPR“ mean (a) rights in, and in relation to, any patents, registered designs, design rights, trade marks, trade and business names (including goodwill associated with any trade marks or trade and business names), copyright and related rights, moral rights, databases, domain names, semi-conductor and other topography rights and utility models, and including registrations and applications for, and renewals or extensions of, such rights, and similar or equivalent rights or forms of protection in any part of the world; (b) rights in the nature of unfair competition rights and to sue for passing off and for past infringement; and (c) trade secrets, confidentiality and other proprietary rights, including rights to know how and other technical information;
“New IPR” means intellectual property rights arising from the development, creation, modification or customisation of any new materials in the course of the provision of the Services;
“Order” means the PO, these terms and any associated documentation identified in one of those documents as forming part of the Order (including, without limitation, any statement of work or work order or any other document which sets out the nature, scope and any specific commercial terms of one or more Services and/or Products that are to be supplied under this PO);
“Payment Period“ means, unless otherwise specified in the PO, ninety (90) calendar days from the end of the month in which company receives the invoice;
“PO” means the purchase order issued by Epic;
“Price“ means Supplier’s charges to Epic for the provision of Products or Services as set out in respective PO or Order;
“Process/Processing of Personal Data” has the meanings set out in the Data Processing Legislation;
“Products” means any goods or other products (including software, documentation, and work products of any Services) purchased by Epic from Supplier under the Order;
“Services” means services purchased by Epic from Supplier under the Order;
“Supplier” means the entity named as the Supplier on the PO, including its employees, agents, consultants, contractors and subcontractors;