Standard Procurement Terms and Conditions

1. General.

These Standard Procurement Terms and Conditions (“Terms”) form a part of any purchase order (“PO”) for goods or services (collectively, “Goods”) between CNA Services (UK) Limited or any other entity listed here Legal Entity Details – CNA Hardy (collectively, “CNA”) and a vendor or service supplier (“Vendor”).

2. Basis of contract.

These Terms, together with the relevant PO(s), constitute the entire agreement and understanding between the parties in respect of its subject matter, and supersede all: (a) prior written or oral inquiries, proposals, agreements, negotiations, warranties, statements, representations, understandings, undertakings or commitments; and (b) any other terms which are implied by law, trade custom, practice or course of dealings, in either case pertaining to the Goods to be provided by Vendor, given or made by or on behalf of the parties and relating to its subject matter before the date of the relevant PO, unless CNA and Vendor have entered into a separate written agreement, in which case the terms and conditions of that agreement will apply. Except as otherwise specified herein, these Terms and the PO shall be governed by the applicable provisions of the Uniform Commercial Code (“UCC”). To the extent the PO entails delivery or performance of services, such services shall be deemed Goods within the meaning of the UCC, except when clearly not appropriate. The headings contained in these Terms are for reference purposes only and have no effect on the interpretation of these Terms or their application. There are no third party beneficiaries to these Terms or any PO unless expressly specified. No amendments, modifications, substitutions, or supplements to these Terms are binding unless in writing and signed by CNA’s designated representative. Unless expressly specified otherwise in the PO, CNA is not obligated to purchase any amount of Goods from Vendor and is not obligated to purchase Goods exclusively from Vendor.

3. Offer/Acceptance of Purchase Order.

Any PO from CNA reflects CNA’s offer to purchase the Goods listed in the PO subject to the PO as supplemented by these Terms. Vendor’s acceptance or performance of a PO shall constitute acceptance of these Terms.

4. Shipment, Delivery and Acceptance of Goods.

1. Goods shall be packaged in a manner which assures that they are protected against damage and deterioration. All Goods shall be delivered to the “ship to” address specified in the PO at Vendor’s expense unless otherwise set forth in the PO. Title and risk in the Goods remains with Vendor until acceptance by CNA as set forth in this section.
2. If a delivery date is set forth in the PO and Vendor fails to meet the specified delivery date (absent an event or occurrence outside Vendor’s reasonable control), CNA reserves the right to terminate the PO with immediate effect by giving written notice to Vendor without incurring any liability.
3. Regardless of prior inspection or payments, all Goods will be subject to final inspection and acceptance at CNA’s facility within a reasonable time after delivery. If an item is defective in material and/or workmanship, or does not conform with the requirements of a PO, CNA will have the right to reject it, to require its correction, or to accept it with an adjustment in price. Any Goods that have been rejected or require correction (including, regardless of any prior acceptance, if the Goods do not comply with the warranties at section 6(a)) must be replaced or corrected by and at the sole expense of the Vendor promptly after notice. Cost of all return shipments will be borne by Vendor with title and risk of loss passing to Vendor at CNA’s facility, unless otherwise specified by CNA at the time of return. Should Vendor fail to promptly replace or correct any defective item, CNA may (i) replace or correct such item and charge to Vendor the cost occasioned thereby, (ii) without further notice, terminate the PO for the Vendor’s material breach, or (iii) require a corresponding reduction in price.
4. Where applicable, Vendor represents that it shall comply with any applicable export/import laws and regulations, as amended, and the rules and regulations issued thereunder insofar as they pertain to the import, export, installation, use and manufacture of Goods provided under a PO. Vendor’s responsibilities under this section shall include filing all required documentation (including all export and import documentation) and obtaining all necessary permits or licenses required to provide and deliver the Goods. Vendor shall act as the exporter of record for all Goods and shall be responsible for payment of all charges attributable to the export or import of the Goods, including all duties, taxes, freight and insurance.

5. Invoicing, Payment and Taxes.

1. Unless otherwise specified and subject to section 5(d), the prices for the Goods shown on a PO are the total amounts owed by CNA for the Goods. Unless otherwise specified, the prices include, without limitation, all shipping, packing, handling and in-transit insurance charges, and Vendor shall not be entitled to charge any other costs or expenses. The acceptance of a PO constitutes a warranty that the prices to be charged for the Goods are not in excess of prices charged to other customers for similar quantities and delivery requirements. CNA will receive the benefit of any price decreases for the Goods up to the date of shipment.
2. Unless expressly agreed between Vendor and CNA in writing, Vendor shall submit an invoice to CNA no later than thirty (30) days after delivery of the Goods referenced on the applicable invoice, or after every thirty (30) days of services, and no later than sixty (60) days following completion of the services referenced on the applicable invoice. Invoices shall include receipts and other documentation sufficient to support itemized charges, including a CNA purchase order number where available, and shall be submitted in accordance with local regulations either through CNA’s purchase order system or via email to [email protected].
3. Within sixty (60) days after receipt of an invoice, CNA shall either remit payment for the invoice or send written notice to Vendor advising of CNA’s reasons for withholding payment. If CNA pays the undisputed amount on any invoice within ten (10) days of receipt, the amount shall be subject to a two percent (2%) discount, or within fifteen (15) days of receipt, the amount shall be subject to a one percent (1%) discount. If CNA disputes an invoice, CNA shall remit the amount CNA determines is properly due in accordance with this section and the parties shall use best endeavours to resolve such dispute as soon as possible. Notwithstanding anything to the contrary, CNA may withhold payment of Vendor’s invoice if CNA reasonably believes that Goods are defective, or that Vendor has failed to substantially perform matters or incur expenses included within the submitted invoice. CNA reserves the right not to pay invoices received more than ninety (90) days after delivery of the Goods or completion of the services referenced on the applicable invoice. Where CNA has failed to pay a validly invoiced and undisputed amount prior to the due date for payment, Vendor may charge CNA interest on such overdue amounts, at the rate of one per cent (1%) over the base rate of the Bank of England from time to time, from the date that such payment is due until payment is made (calculated on an annual basis but accruing daily), whether before or after judgment, provided that Vendor has first given CNA at least seven (7) days' prior written notice (not to be served prior to the expiry of the relevant period allowed for payment under these Terms of its intention to charge interest and such sum remains outstanding at the end of such seven (7) day period.
4. All prices and charges for Goods are exclusive of applicable sales tax, service tax and any other applicable taxes and duties, in each case to the extent payable by CNA under relevant law, at the rate and in the manner from time to time prescribed by such law and provided these are properly set out in a valid tax invoice in accordance with this section 5. Unless otherwise agreed between the parties, Vendor shall be responsible for all other taxes which are incurred as a result of these Terms and the Goods being provided, save that if VAT or other taxes are payable on damages payable or paid under these Terms or a PO, then the party liable for payment of such damages must pay any such VAT or other taxes in addition to the relevant amount of damages upon production of a valid VAT or other appropriate tax invoice by the other party. Notwithstanding the foregoing, CNA shall be entitled to deduct the sums required to pay any withholding taxes demanded by any taxation authority from payment to Vendor, so that Vendor receives an amount net of such withholding taxes. If CNA does deduct such amounts, it shall pay such sums to the relevant taxation authority within the period for payment permitted by law, and furnish Vendor with evidence of payment to the relevant tax authority of the relevant amount.
5. Vendor will keep records to validate invoices for a period of not less than six (6) years from the date of the relevant invoice; provided that in the event CNA provides written notice of the pendency of a tax or other regulatory proceeding requiring a longer retention period, Vendor agrees to retain such information as necessary to accommodate such proceeding. CNA reserves the right to audit all invoices, and Vendor shall afford reasonable access to all supporting documentation to enable CNA to do so.

6. Warranties and Indemnity.

1. Vendor warrants to CNA that the Goods: (i) will conform strictly to specifications, samples and description specified by CNA, furnished by Vendor, and/or set forth in the applicable PO; (ii) will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); (iii) will be fit for any particular purpose for which the Goods are held out by Vendor or otherwise required by CNA, to the extent known by Vendor (whether expressly or by implication); (iv) will be free from defects in material, design, and workmanship; (v) will not infringe any patents, copyrights, trademarks or intellectual property rights of third parties; (vi) are owned by Vendor immediately prior to delivery, will be transferred to CNA without violation of any agreement to which Vendor is a party or by which Vendor is bound and will be free of security interests, liens, and encumbrances; (vii) will be delivered by Vendor using its best care, skill and diligence in accordance with best industry practice; and (viii) will be produced, packaged and shipped in compliance with good manufacturing practices, applicable licenses and all applicable laws, regulations and rules, including without limitation those related to hazardous and toxic materials, the environment, labor, immigration, occupational safety and health, labeling and adulterated, misbranded or banned goods. Vendor further represents and warrants that it will comply with all applicable laws, rules and regulations (“Applicable Laws”) pertaining to the performance of its obligations under each PO and that upon full payment, CNA shall have good and marketable title to the Goods free and clear of all liens, claims and encumbrances of whatever kind and description. Vendor hereby assigns to CNA all warranties provided by any manufacturer or other supplier in the applicable purchase documents pertaining to the Goods to the extent Vendor is not the manufacturer or other original source of the Goods or any part thereof. These warranties will survive any inspection, delivery, acceptance, payment or use by CNA of or for the Goods.
2. Vendor will, at all times and at its expense, indemnify, keep indemnified and hold harmless and, at CNA’s request, defend CNA and CNA’s affiliates, directors, officers, employees, agents and independent contractors from and against all claims, liabilities, damages, losses, costs and expenses, including but not limited to reasonable legal fees, professional fees and costs, and the costs of settlement, compromise, judgment or award incurred by or demanded from CNA, arising out of or in connection with any: (i) infringement or alleged infringement of any third party’s intellectual property rights suffered by CNA or its parents, affiliates or subsidiaries, as a result of CNA’s or their receipt, use or possession of the Goods under these Terms; (ii) claim by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of Vendor, its employees, agents or subcontractors; and (iii) claim by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
3. Confidentiality.
   Each party acknowledges that material and information that has or will come into the possession or knowledge of each in connection with a PO or the performance thereof, may consist of confidential and proprietary data, whose disclosure to or use by third parties will be damaging (“Confidential Information”). Both parties agree to hold such material and information in strictest confidence, not to make use thereof other than for the performance of any PO, to release it only to employees or agents requiring access to such information, and not to release or disclose it to any other party without consent of the disclosing party, which consent shall not be unreasonably withheld. Upon the providing party’s request, the recipient party shall either destroy or return such confidential and/or proprietary information.
4. CNA shall retain ownership of its Confidential Information and any and all of its proprietary systems and methodologies. “Customer Data” shall mean all data and information (i) provided to Vendor by or on behalf of CNA or its customers, (ii) obtained, developed or produced by Vendor in connection with a PO, or (iii) to which Vendor has access in connection with the provision of the Goods. All Customer Data is, or will be, and shall remain the property of CNA, and shall be deemed Confidential Information. Without CNA’s prior written approval the Customer Data shall not be (A) used by Vendor other than is necessary for Vendor’s performance of its obligations under the PO, (B) disclosed, sold, assigned, leased or otherwise provided to third parties by Vendor, or (C) commercially exploited by or on behalf of Vendor. Vendor will comply with all Applicable Laws governing the collection, receipt, access, use, storage, disposal, and disclosure of Customer Data.

7. Vendor Representations and Warranties.

Vendor represents and warrants to CNA that:

1. Vendor has the legal right to enter into and to perform its obligations under the PO and that it has and will keep renewed and up to date all permits and licences required by Applicable Laws to provide the Goods thereunder;
2. No Goods provided by Vendor hereunder and no electronic messages, connections, data and communications (in whatever form) provided or utilized by Vendor will contain either embedded devices or capability that allow Vendor or a third party to disrupt the systems or operations of CNA or its affiliates, or any virus, time bomb, trap door, or other code designed to disrupt, disable, harm or otherwise impede, or to allow unauthorized access to, the operation of any CNA software, firmware, hardware or computer system;
3. Vendor has not provided any commissions, payments, kickbacks, lavish or extensive entertainment, or other inducements of more than minimal value to any employee or agent of CNA, CNA Financial Corporation, or any affiliates or subsidiaries thereof, in connection with the PO;
4. Vendor warrants that (i) it has in place reasonable cybersecurity policies and procedures to protect CNA information systems and Customer Data, including training for employees and permitted subcontractors, and (ii) without limiting the foregoing, it shall maintain its internal security procedures in a manner that meets or exceeds the levels required by Applicable Laws;
5. Except as expressly provided to CNA in writing, none of the personnel who perform or shall in the future perform work under the PO is a former employee of CNA or any CNA affiliate; and
6. Vendor shall comply with all applicable sanctions regulations and restrictions including (without limitation) those of the United Kingdom (UK), the United Nations (UN), the United States of America (U.S.) and any other governmental authority with jurisdiction over Vendor or any part of its business or operations or key subcontractors used in the performance of these Terms, and in each case their respective governmental, judicial or regulatory institutions, agencies, departments and authorities, including (without limitation) the UN Security Council, Her Majesty's Treasury, the UK Office of Financial Sanctions Implementation and Department of International Trade, and the U.S. Treasury’s Office of Foreign Assets Control (“Sanctions Laws”). All payments made or received on behalf of CNA will be reviewed for compliance with the Sanctions Laws. Vendor shall also comply with the U.S. Patriot Act and any regulation promulgated under that act. If, at any time subsequent to the inception of a PO, either: (i) the ownership, control, or management of Vendor is altered or changed, in whole or in part, in such a way that receipt or payment of funds or any other contemplated transaction under these Terms would be prohibited by the Sanctions Laws or other applicable statute, regulation, or law; or (b) Vendor becomes subject to restrictions imposed by the relevant government with jurisdiction pursuant to paragraph (a) above so that receipt or payment of funds or other contemplated transaction under any PO would be prohibited by statute, regulation, or law, then Vendor must immediately notify CNA of the same in writing via certified, registered or internationally recognized overnight courier service, and CNA’s obligation to pay or receive funds or otherwise to perform under such PO shall be suspended until such time, if any, as CNA is authorized by applicable law, regulation or license to perform under the PO. In such case, CNA may also, at its option, terminate the PO.

8. Intellectual Property.

Except for pre-existing software, documentation or other materials which Vendor has expressly identified in writing to CNA as proprietary to Vendor or a third party, all materials or products designed or developed by Vendor under the PO shall be deemed works made for hire belonging exclusively to CNA such that Vendor shall be deemed to have assigned to CNA any and all intellectual property right, title and interest it may have therein immediately upon creation. As to such identified proprietary or third party material, Vendor grants CNA a worldwide, non-exclusive, royalty free, fully paid, perpetual, irrevocable licence of such material, without right to sublicense, to make, use, sell, copy and display the same. Vendor shall execute (and shall procure that any subcontractors execute) such documents, and do such things, as CNA may consider reasonably necessary to give effect to this section 8.

9. Termination.

1. CNA may terminate the PO in whole or in part at any time before delivery of the Goods with immediate effect by giving Vendor written notice. CNA shall pay Vendor fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
2. Without prejudice to its other rights and remedies under the PO, CNA may terminate the PO, whether in whole or in part, in accordance with clauses 4(b), 4(d) or 7(f), or if one or more of the following events occurs:
3. Vendor commits a material breach (being a single event or a series of events which together amount to a material breach) of the PO which (i) is capable of being cured, and following notice from CNA requiring Vendor to cure the breach Vendor does not take measurable steps to cure the breach within 14 days; and/or (ii) in any event, is not cured within 30 days; or
4. any of the following events occur in respect of Vendor:
   1. any proceedings are commenced in relation to Vendor under any law, regulation or procedure relating to the reconstruction or adjustment of its debts;
   2. any moratorium is obtained in respect of Vendor;
   3. any arrangement, compromise or composition is agreed, sanctioned or entered into by or in relation to Vendor with its creditors or any of them, or its members or any of them, in satisfaction or reorganisation of its debts, or for the purpose of eliminating, reducing, preventing or mitigating the effect of any financial difficulties of Vendor;
   4. Vendor passes a resolution or makes a determination for it to be wound up or a petition is presented for the winding up of Vendor;
   5. Vendor has a windingup order made against it;
   6. Vendor has a receiver or administrative receiver appointed of it or of the whole or any part of its assets;
   7. an application is made at court for an order appointing an administrator of Vendor, or notice of intention to appoint such an administrator is given or filed at court, or Vendor appoints or has an administrator appointed of it;
   8. an enforcement notice has been given to Vendor pursuant to the procedure for commercial rent arrears recovery set out in the Tribunals Courts and Enforcement Act 2007 (CRAR), CRAR is exercised over, or a creditor or other encumbrancer attaches or takes possession of, or any distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the assets of Vendor and such attachment or process is not discharged within 30 days; or
   9. Vendor suffers any event or takes any step analogous to the events and steps set out in clauses (d)(i) – (viii) above in any jurisdiction other than England and Wales.

10. Assignment and Subcontracting.

Vendor may not assign any of its rights or delegate any of its obligations under a PO without CNA’s prior written consent, which CNA will not unreasonably withhold. CNA may, at its option, void any attempted assignment or delegation undertaken without CNA’s prior written consent. Vendor may not subcontract any of its rights or obligations under a PO without CNA’s prior written consent. If CNA consents to the use of a subcontractor, Vendor will: (i) guarantee and will remain liable for the acts and omissions of the subcontractor; (ii) indemnify CNA for all damages and costs of any kind incurred by CNA or any third party and caused by the acts and omissions of Vendor’s subcontractors, and (iii) make all payments to its subcontractors. If Vendor fails to timely pay a subcontractor for work performed, CNA will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Vendor by any amount paid to the subcontractor. Vendor will defend, indemnify and hold CNA harmless for all damages and costs of any kind, including without limitation, incurred by CNA and caused by Vendor’s failure to pay a subcontractor.

11. Insurance.

Vendor will obtain and maintain insurance providing coverage in amounts sufficient to cover its potential liabilities pursuant to these Terms. Vendor further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Vendor in the jurisdiction or jurisdictions in which Vendor’s operations take place.

12.Outsourcing Acknowledgment.

CNA has, or may have in the future, agreements with third party outsourcers (“Outsourcing Suppliers”) to provide certain services on CNA’s behalf, including without limitation CNA’s source-to-pay procurement processes. Such outsourcing includes, but is not limited to, management by the Outsourcing Suppliers, on CNA’s behalf, of agreements as may be in place from time to time between Vendor and CNA, however CNA will remain the contracting party. In connection therewith, Vendor hereby authorizes CNA to provide such Outsourcing Suppliers with access to any agreements, POs, statements of work, work orders, schedules, exhibits and other attachments, as well as to the Goods provided thereunder, provided that: (a) such access is solely for the benefit of CNA and its affiliates, (b) the Outsourcing Suppliers may not use or access the Goods for their own internal business purposes, and (c) the Outsourcing Suppliers are bound to CNA by confidentiality obligations that are no less stringent than those set forth in these Terms. Notwithstanding the foregoing, the Outsourcing Suppliers have the right to anonymize and aggregate Confidential Information, which may include Vendor information, and use such anonymized and aggregated information for their own business purposes.

13. Relationship of the Parties.

Nothing in these Terms or any PO is intended to create, or shall be construed as creating, a partnership or joint venture or legal relationship of any kind between the parties that would impose liability upon one party for the act or failure to act of the other party, nor to authorise either party to act as agent for the other, and Vendor is an independent contractor for all purposes. Save where expressly stated otherwise in these Terms or a PO, neither party shall have authority or power to make representations, act in the name or on behalf of, or otherwise to bind, the other. Vendor agrees to assume complete responsibility for its own employees with regard to applicable employers’ liability, workers’ compensation, social security, unemployment insurance, and occupational safety and health administration requirements, and agrees to comply with all other Applicable Laws pertaining to its employees.

14. Applicable Law and Jurisdiction.

Unless otherwise specified in a PO, each PO is governed and shall be construed and enforced in accordance with laws of England and Wales. The parties agree that the courts of England and Wales shall have exclusive jurisdiction to settle all disputes, claims or actions arising out of or in connection with any PO or its subject matter or formation.

15. Publicity.

Any news release, public announcement, advertisement, publicity or any other disclosure concerning a PO to any third party, except as may be necessary to comply with other obligations stated in a PO, requires prior written approval of CNA, which may be withheld in CNA’s sole discretion. Additionally, Vendor shall not use CNA’s trademarks, names, logos, service marks or trade names in connection with any solicitation, press release, announcement, advertisement, promotion or sales marketing publication or advertisement without CNA’s prior written consent, which may be withheld in CNA’s sole discretion.

16. Severability of Provisions.

Each provision of these Terms shall be considered separable; and if, for any reason, any provision of these Terms is determined by a court of competent jurisdiction to be invalid, unlawful, or unenforceable, such determination shall not affect the enforceability of the remainder of these Terms or the validity, lawfulness, or enforceability of such provision in any other jurisdiction. If any court of competent jurisdiction shall deem any provision of these Terms too restrictive, the other provisions hereof shall stand, and the court shall modify the provisions at issue to the point of greatest restriction permissible by law.

17. Waiver.

The rights and remedies of each party under, or in connection with, these Terms may be waived only by express written notice to the other party. Any waiver shall apply only in the instance, and for the purpose for which it is given. No right or remedy under, or in connection with, these Terms shall be precluded, waived or impaired by: (a) any failure to exercise or delay in exercising it; (b) any single or partial exercise of it; (c) any earlier waiver of it, whether in whole or in part; or (d) any of the above in relation to any other right or remedy (be it of similar or different character). The rights and remedies arising under, or in connection with, these Terms are cumulative and, except where otherwise expressly provided in these Terms, do not exclude any rights or remedies provided by law (including equitable remedies) or otherwise.

18. Data Protection.

The parties will comply with their respective obligations under CNA’s UK data processing agreements for Vendors (available here: https://www.cnahardy.com/privacy/processor-and-controller-terms), as applicable, in relation to any Processing of Personal Data (in each case as defined therein) under or in connection with these Terms and/or a PO.