1. Definitions
(a) “Buyer” means the company who place the order from us.
(b) “Buyer’s Code Of Practice” means the code drawn up by the Buyer setting out standards relating to equality, diversity and working conditions of individuals engaged in manufacture and supply of Goods or performance of Services; a copy of which has been
supplied to the Seller;
(c) Delivery” means the physical delivery of the Goods into the possession of the Buyer (for the avoidance of doubt this shall not include the carriers unless agreed otherwise) or to the location specified in the Order;
(d) “Goods” means the articles or things or any of them described in the Order and supplied under the terms of the Contract;
(e) “Conditions” means these standard terms and conditions of purchase;
(f) “Contract” means the contract for the purchase of Goods and/or Services by the Buyer governed by these Conditions;
(g) “Intellectual Property Rights” means any patent, design model, copyright, registered design, know how, trade or service marks, rights in databases, and any applications for any of the foregoing;
(h) “Order” means the order placed by the Buyer for the supply of the Goods and/or Services;
(i) “Seller” means the person, firm or company to whom the Order is addressed;
(j) “Services “means any services described in the Order and supplied under the terms of the Contract;
(k) “Special Condition” means any term or condition incorporated in the Contract not contained herein;
(l) “Specification” means the description, whether technical, general or both, of the Goods and/or Services contained or referred to on the Order.
2.Scope of Agreement
(a) These Conditions apply to all Goods and Services supplied by the Seller to the Buyer and shall govern the Contract to the exclusion of any other terms and conditions. In particular, these Conditions shall override and supersede any terms or conditions of sale of the Seller purported to be incorporated expressly or impliedly into the Contract. The Seller accepts these Conditions by supplying the Goods and /or Services.
(b) The Buyer shall be bound by its Order only:
(i) if it is placed on its official Order form;
(ii) if the Seller accepts it within 10 days of the date of the Order by signing and returning the acknowledgement copy of the Order.
(c) In relation to a Contract, neither the Buyer nor the Seller shall be bound by any variation, waiver of, or addition to these Conditions except as agreed by the Buyer and Seller as a Special Condition and stated in the Order, or subsequently agreed in writing and signed on their behalf. Any such specified terms will override any conflicting provisions contained herein.
(d) All correspondence and documentation relating to the Order shall be in English language. If translations exist in other languages, the
English version shall prevail if in conflict.
3. Risk and Title in and Delivery of Goods and Services
(a) The Goods shall be at the sole risk of the Seller until Delivered. Title in the Goods shall pass to the Buyer upon Delivery or in the case of delivery by instalments, upon delivery of each instalment, unless payment or part payment has been made prior to Delivery in which event title in any materials, components or goods purchased or allocated by the Seller for the purpose of this Contract shall immediately vest in the Buyer.
(b) If any Goods are delivered or Services provided which fail to comply with the provisions of this Contract by reason of quality, quantity or any other reason, or are delivered in error, then, without prejudice to any other rights, the Buyer may, at the Seller's risk and expense, either: -
(i) return the Goods or any instalment or any part thereof and require the Seller to immediately pay a full refund of the price of the Goods; or
(ii) require immediate replacement or rectification by Delivery of Goods or performance of Services which are in accordance with the Contract; or
(iii) repair or remedy the defects or deficiencies itself or by others; or
(iv) purchase equivalent goods or services elsewhere; or
(v) refuse to accept any further delivery of goods or performance of any further services, without liability.
The Buyer shall have the right to claim compensation for all its resulting costs and expenses on an indemnity .basis. The making of any prior payment shall not prejudice the rights set out in this clause 3.
(c) Delivery shall be to the address shown on the Order. In the absence of a Special Condition to the contrary the Buyer will be entitled to stipulate the method of shipment of the Goods and the Seller shall comply with such stipulation.
(d) Time shall be of the essence in relation to the time of Delivery of the Goods and performance of the Services.
(e) Goods Delivered in error or in excess of the quantity stated on the Order may (at the Buyer’s option) be returned at the Seller’s expense.
(f) Where the cost of freight has not been included in the unit price for the Goods, the Seller shall procure that the Goods are despatched in such a form that the total freight charge, whether based on cubic measurements or by weight, will be the lowest possible for the shipment of the Goods, or otherwise in such a form as is stipulated by the Buyer.
(g) Trade Terms such as F.O.B., C FR. shall be interpreted in accordance with Incoterms (latest version).
4. Quality and Defective Goods
(a) All provisions of the Order and in the Contract as to the specification and quality of the Goods and/or Services are conditions of the Contract the breach of which shall give the Buyer the right to reject the Goods and treat the Contact as repudiated. This right of
rejection continues irrespective of whether Delivery has taken place, Goods have been used or paid for.
(b) The Seller warrants that:
(i) Goods conform as to quantity, quality and description with the particulars stated by the Buyer in the Order or Specification;
(ii) Goods are of sound materials and workmanship and in relation to Services, performed in accordance with best industry practice by experienced personnel possessing sufficient levels of skill and qualifications;
(iii) Goods conform in all respects with the samples, patterns or Specification provided or given by either party and approved by the Buyer;
(iv) Goods and Services comply with any standard of performance specified by the Buyer;
(v) Goods are fit for the purpose for which they are required whether indicated expressly or by implication by the Buyer;
(vi) Goods comply in all respects with all relevant statures, regulations, statutory orders or other instruments (“Legislation”) in force at the time of the supply of the Goods to the Buyer in the country notified to the Seller as the country or countries of use and the country of manufacture and in particular, but without limitation, that the design and the material of the Goods comply with the requirements of all Legislation concerning safety. The Buyer reserves the right to make any changes in the Specification of the Goods that are required to conform to any applicable Legislation.
(c) The Seller agrees to comply fully with all Legislation relating to the Goods including but without limitation thereto all safety regulations and stipulations of relevant governmental, regulatory and other agencies.
(d) Before despatching the Goods to the Buyer the Seller shall carefully inspect and test them for compliance with the Specification and with all relevant Legislation (as defined in Condition 4(b)(vi)). The Seller shall, if required by the Buyer, give the Buyer reasonable
notice of such tests and the Buyer shall be entitled to attend. The Seller shall also, at the request of the Buyer, supply to the Buyer a copy of the Seller’s test certificates and inspection reports certified by the Seller to be a true copy.
(e) Without relieving the Seller in any way from its obligations under Conditions 4(b) and (c), the Buyer (or a third party appointed by the Buyer to act on its behalf) may inspect and test the Goods during their manufacture, processing and storage. If the Buyer exercises this right, the Seller shall provide or procure the provision of all such facilities as may reasonably be required by the Buyer to carry out such test and inspection.
(f) If as a result of any inspection or test under Condition 4(e) the Buyer is of the opinion that the Goods do not comply with the Order, or are unlikely on completion of manufacture or processing so to comply, it shall inform the Seller accordingly and the Seller shall ensure such compliance.
(g) The Seller shall indemnify the Buyer and keep the Buyer indemnified in full against all claims, liabilities, damages and expenses relating to its breach of, or default or negligence in the performance of Conditions 4 (b), (c) or (d).
5. Corporate and Social Responsibilities
The Buyer recognises international standards set for equality, diversity and working conditions of individuals engaged in the manufacture and supply of Goods and performance of Services. The Buyer’s Code of Practice details such standards, and is hereby incorporated into these Conditions. The Seller warrants that it shall comply (and shall ensure that all of its sub contractors also comply) with the standards set out in the Buyer’s Code of Practice in force from time to time. The Buyer shall be entitled to audit
compliance by the Seller and any of its subcontractors with the warranty given in this clause and the Buyers Code of Practice and the Seller shall provide all facilities required by the Buyer to conduct such audit. Breach of this clause by the Seller or non-compliance by any subcontractor shall be a breach of the Contract entitling the Buyer to terminate without liability.
6. Price and Invoicing
(a) Unless stated to the contrary in the Contract:
(i) prices are those given by the Seller on the date of the Order and may not be increased;
(ii) separate invoices must be rendered for each Contract; and
(iii) invoices, except where discounts for early payment are granted, will be paid 60 days after the invoice date.
(b) Invoices must be sent to [ ] within [ ]working days of Delivery and should correspond to the Order. If the Buyer disputes any invoice,
it shall be entitled to suspend payment until such dispute is resolved.
(c) The Goods must be Delivered in the quantity set out in the Order. Over deliveries may be accepted on Delivery at the Buyer’s option,
if not accepted then the Seller must collect at its own cost. The Buyer cannot guarantee availability of such goods. If accepted by the
Buyer, then the excess should appear separately on the invoice.
(d) Value Added Tax, where applicable, shall be shown separately on all invoices. Unless otherwise stated in the Order, the invoice price shall be deemed to include all taxes (other than VAT), levies and duties of every kind and, where applicable, all packing, carriage, freight and insurance.
7. Termination
(a) If:
(i) the Seller fails to perform the Contract;
(ii) the Seller breaches any of its obligations hereunder; or
(iii) the Seller ceases or threatens to cease during the period of the Contract to
carry on business, becomes insolvent, has a receiver, administrative receiver or manager appointed over the whole or any part of its assets, enters into any composition with creditors generally, or has an order made or resolution passed for it to be wound up (otherwise than in furtherance of any scheme for solvent amalgamation or reconstruction) or otherwise undergoes any similar process in any jurisdiction;
(iv) in the opinion of the Buyer it appears that the Seller will be unable to deliver the Goods or any part thereof on the due date;
then the Buyer shall be entitled to terminate the Contract immediately on notice to the Seller and to cancel commitments incurred pursuant to the Contract. Such termination shall not affect the rights or remedies of the Buyer in respect of any antecedent breach of the Contract or any provisions in the Contract that are expressed to remain in full force and effect notwithstanding such termination.
(b) The Buyer may terminate the Contract upon or at any time following a change of control of the Seller upon giving to the Seller at least one month’s written notice. For the purpose of this clause "change of control" means a change of ownership of more than 50% of the shares or operating assets of the Seller.
(c) If the Contract is terminated the Buyer shall
(i) not be obliged to reimburse the Seller for any costs incurred by the Seller after the date of termination or pay the Seller any further sums due under the Contract and shall be entitled to retain any Goods received under any Order at or prior to that date;
(ii) be entitled to recover from the Seller any costs (including sums paid to the Seller) incurred by the Buyer relating to the Goods or the Contract wasted as a result of the termination of the Contract; and
(iii) be entitled to recover (and to enter on to the Seller’s premises for such purpose) all Goods in which title has passed to the Buyer or materials which are the property of the Buyer including, without limitation, tooling, technical materials or data and design.
8. Intellectual Property
(a) All design, trademark and copyright material supplied by the Buyer as part of a Contract remains the property of the Buyer or its client.
The Seller agrees that it will use such material only as authorised under the Contract, and that such authority is limited to their use on and in relation to Goods supplied to or for the account of the Buyer. Any goodwill accruing from such use accrues to the Buyer or third
party owner of such material.
(b) All Intellectual Property Rights arising from the provision of Services or arising from the creation, development or modification of
Goods specifically for the Buyer under this Contract shall be vested in the Buyer as they arise. In relation to any pre-existing Intellectual Property Rights in Goods that are owned by the Seller or its subcontractor, the Seller grants to the Buyer a non exclusive, perpetual licence to use and sub licence to its customers the right to reproduce Goods or have them manufactured on its behalf.
(c) The Seller warrants that none of the Goods nor any devices or processing bodies therein infringes any existing Intellectual Property Rights or industrial property right of any nature and the Seller agrees to indemnify the Buyer against all claims, costs, charges,
expenses and damages relating to any claim that the promotion, use or sales of any of the Goods constitutes or involves any such infringement.
(d) The Seller shall indemnify the Buyer and keep the Buyer indemnified in full against all claims, liabilities, damages and expenses relating to its breach of, or default or negligence in the performance of Conditions 8 (a), (b) or (c).
9. Insurance
(a) The Seller shall and shall require its subcontractors to maintain such insurance as is necessary to cover its liabilities under the Contract, including, without limitation, product liability, employers’ liability and damage to property or the equivalent cover available in
the country of manufacture of Goods.
(b) The Seller shall provide certificates or cover notes immediately on request by the Buyer evidencing insurances held.
10. Confidentiality
(a) The Seller shall during and after performance or termination of the Contract keep confidential and not use for any purpose other than performance of the Contract all information acquired from the Buyer or which becomes known to the Seller in connection with the Contract other than information already in the public domain or information which comes into the public domain other than as a result of a breach of the Contract or which the Seller is required to disclose pursuant to any statute, regulation or order of any court or regulatory authority.
(b) For the purposes of this clause “information” means information relating to the business of the Buyer or its customer, including, without limitation, technical know how processes, artwork, technical drawings, copyright materials, trade secrets of the Buyer or its customer, technical data, analyses, specifications, marketing information details of products or services (existing or planned), of the Buyer, accounts, finance or contractual arrangements of the Buyer or of any details about any of its customers past or present or its or their other dealings, transactions or affairs which come to its knowledge during the Contract.
(c) If the Seller becomes aware of any breach of confidence by any of its employees, agents contractors, and sub-contractors it shall promptly notify the Buyer and give the Buyer all reasonable assistance in connection with any proceedings that the Buyer may institute against any such persons.
11. Rights of Audit
The Buyer or its representatives shall have the right, at any reasonable time, to audit and take copies of or extracts from all the Seller's books, accounts, records and original documents, including computer data, which are, in the Buyer's opinion, relevant to this Contract including, without limitation, compliance by the Buyer or its subcontractors with the Buyer’s Code of Practice. The Seller shall preserve such documents for three years after the performance or termination of this Contract.
12. Assignment and Sub contracting
(a) The Seller acknowledges that the Buyer is able to assign, deal with, or transfer all or any of its rights or obligations under any Order or Contract with the Seller to any third party or parties.
(b) The Seller shall not assign or sub contract the Contract or any part of it (except delivery of goods) without the prior written agreement of the Buyer. The Seller shall ensure that any sub contractor appointed in respect of any part of the Contract is required to comply with these Conditions. All sub-contract documents and sub-contractor selection shall be subject to written approval by the Buyer prior to award of each sub-contract. No such approval shall create any contractual relationship between the Buyer and any sub-contractor.
(c ) The Seller shall be fully responsible for those elements performed by its sub-contractors and for the acts and omissions of all its sub�contractors to the same extent as it is for the acts and omissions of persons directly employed by it.
(d) The Seller shall maintain all sub-contract records and documentation, including, without limitation, correspondence between the Seller and its sub-contractors and shall preserve such documents for three years after termination or performance of this Contract. The Seller shall make such records and documentation available to the Buyer as part of the Buyer’s right of audit under the Contract.
13. Force Majeure
(a) No delay or failure in performance by either party hereto shall constitute default hereunder or give rise to any claim for damages or loss including anticipated profits if such delay or failure is caused by Force Majeure. Unless otherwise instructed by the Buyer, the Seller shall recommence performance as soon as possible after the Force Majeure has ceased.
(b) Force Majeure shall mean an occurrence beyond the control and without the fault or negligence of the party affected and which the said party is unable to prevent or provide against by the exercise of reasonable diligence including, but not limited to: acts of God or the public enemy, expropriation or confiscation of facilities; war, hostilities, rebellion, terrorist activity, local or national emergency, sabotage or riots; floods, unusually severe weather conditions which could not reasonably have been anticipated; fires, explosions or other catastrophes; national or district strikes or any other concerted acts of workmen or other similar occurrences other than strikes or concerted acts of the Seller's workforce.
(c) If any delay or failure in performance, as set out above, persists for 7 days or more, the Buyer shall have the right to terminate the Contract by giving 7 days notice in writing to the Seller and, for the avoidance of doubt, the provisions of clause 7(c) shall apply.
14. General
(a) The Contract shall be governed by and construed in accordance with law and all disputes arising in connection with the Contract shall be submitted to the jurisdiction of the Courts.
(b) Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision by the party giving the notice. Notices may be given (i) personally; (ii) by pre-paid first class post; (iii) by electronic mail; or (iv) by facsimile transmission.
(c) The terms of any Contract can only be varied by agreement in writing signed by the Seller's authorised representative. the Seller may alter any of these Conditions upon written notice of such change to the Seller and the Seller is bound by such changes in respect of any Contract after such notice is given.
(d) No waiver by the Buyer of any breach of an Order by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
(e) If any part of this Contract is found by a court of competent jurisdiction or other competent authority to be invalid, unlawful or unenforceable, then such part shall be severed from the remainder of this Contract which will continue to be valid and enforceable to the fullest extent permitted by law.
(f) A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any terms of the Contract.
