Ultraseal International Terms and Conditions of Purchase
‘Buyer’ means Ultraseal International, a trading division of Surface Technology plc a company registered in England and Wales with company number 04021109, whose registered address is at Unit C, 42 Sayers Drive, Lyons Park, Coventry CV5 9PF.
‘Contract’ the contract between the Buyer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
‘Deliverables’ means all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
‘Goods’ means the articles or materials or any part of them described in the Order and shall be deemed to include any ancillary services ordered.
‘Order’ means the Buyer’s order for the supply of Goods and/or Services as set out in the Buyer’s Order.
‘Services’ means the services, including any Deliverables, to be provided by the Supplier under the Contract as described in the Order.
‘Supplier’ means the person, firm or company to whom the Order is addressed.
2. Basis of contract
2.1 The Order constitutes an offer by the Buyer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
2.2 The Order shall be deemed to be accepted on the earlier of (i) the Supplier issuing written acceptance of the Order; or (ii) any act by the Supplier consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. Supply of Goods
3.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979), operate as intended and be fit for any purpose held out by the Supplier or made known to the Supplier by the Buyer, expressly or by implication, and in this respect the Buyer relies on the Supplier’s skill and judgement;
(c) be new and free from defects in design, materials and workmanship; and
(d) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier will issue a certificate of conformity of the Goods as required by Buyer.
4. Supply of Services
4.1 The Supplier shall from the date set out in the Order and for the duration of the Contract supply the Services to the Buyer in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Order or that the Buyer notifies to the Supplier and time is of the essence in relation to any of those performance dates.
4.3 In providing the Services, the Supplier shall:
(a) co-operate with the Buyer in all matters relating to the Services, and comply with all instructions of the Buyer;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
(c) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
(d) ensure that the Services and Deliverables will conform with all descriptions and specifications, and that the Deliverables shall be fit for any purpose that the Buyer expressly or impliedly makes known to the Supplier;
(e) provide all equipment, tools, materials and such other items as are required to provide the Services;
(f) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Buyer, will be free from defects in workmanship, installation and design;
(g) hold all materials, equipment and tools, drawings, specifications and data supplied by the Buyer to the Supplier (“Buyer Materials”) in safe custody at its own risk, maintain the Buyer Materials in good condition until returned to the Buyer, and not dispose or use the Buyer Materials other than in accordance with the Buyer’s written instructions or authorisation;
(h) not do or omit to do anything which may cause the Buyer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Buyer may rely or act on the Services;
(i) comply with any additional obligations as set out in any Service specification.
5.1 The Supplier shall comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes and shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods and/or Services.
5.2 The Supplier will maintain and observe quality control and quality assurance standards in respect of the Goods and/or Services in accordance with the requirements of the Buyer, relevant British Standards and the requirements of any relevant statutory and regulatory bodies.
5.3 The Supplier will observe all health and safety rules and regulations and any other security requirements that apply at any of the Buyer’s premises.
6. Delivery of Goods and/or Services
6.1 Unless otherwise specified in the Order, Supplier shall deliver the Goods F.O.B. destination, to the place designated for shipment by Buyer in the Order (“Delivery Location”). The order number must appear on all documents pertaining to the Order, invoices, packing lists, correspondence and all shipping documents. Supplier shall not substitute material or ship more than the quantity ordered. Supplier shall be solely responsible for and must pay, all costs of delivering the Goods to the Delivery Location, including, without limitation, all shipping and freight costs and all duties, fees, tariffs or similar taxes on imports/exports of the Goods.
6.2 Supplier will deliver the Goods and/or perform the Services at the Delivery Location and on the date(s) specified in the Order (“Delivery Date”) during Buyer’s normal business hours or as otherwise specified by Buyer. If no Delivery Date is specified, Supplier shall deliver in full within a reasonable time of receipt of the Order. Timely delivery is of the essence. The Supplier shall immediately give notice to the Buyer as soon as it becomes aware that the Delivery Date(s) are unlikely to be met. If Supplier fails to deliver the Goods and/or perform the Services in full on the Delivery Date, Buyer may terminate the Order immediately and Supplier must indemnify Buyer against any losses, damages, and reasonable costs and expenses attributable to Supplier’s failure to deliver.
6.3 Unless otherwise specified in the Order, risk of loss of the Goods and/or Deliverables remains with the Supplier and title will not pass to Buyer until the Goods and/or Deliverables are delivered to and accepted by the Buyer at the Delivery Location.
7.1 Buyer or its nominated representatives will have the right to inspect and test all Goods and/or Services at source and at any time prior to delivery. The Supplier will permit the Buyer and its nominated representatives to enter upon the Supplier’s premises, and will procure permission for such persons to enter upon any relevant third party premises, to carry out such inspection and testing and will provide the Buyer and its nominated representatives with all facilities reasonably required. The Supplier shall remain fully responsible for the Goods and/or Services despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
7.2 If following such inspection or testing the Buyer considers that the Goods and/or Services do not comply or are unlikely to comply with the terms of this Contract, the Buyer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. The Buyer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
7.3 Buyer reserves the right to inspect the Goods or Services within a reasonable time following delivery and/or performance. Buyer, at its sole option, may reject all or any portion of the Goods and/or Services if it determines the Goods and/or Services are defective or non-conforming. If Buyer rejects any portion of the Goods or Services, Buyer has the right, upon written notice to Supplier, to: (a) rescind the Order in its entirety; (b) accept the Goods or Services at a reduced price; or (c) reject the Goods or Services and require replacement of the rejected Goods or Services. If Buyer requires replacement of the Goods or Services, Supplier shall, at its expense, promptly replace the nonconforming Goods or re-perform the Services and pay for all related expenses, including, but not limited to, transportation charges for the return of defective Goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods and/or Services Buyer reserves the right to replace them with goods and/or Services from a third party and charge Supplier the cost thereof, and terminate the Order for cause pursuant to Condition 16. Buyer’s failure to inspect or reject Goods or Services shall not relieve Supplier of any of its obligations hereunder, or constitute a waiver of any of Buyer’s rights hereunder.
8. Buyer remedies
8.1 If the Supplier has delivered Goods or Services that do not comply with the undertakings set out in Condition 3 and Condition 4, then, without limiting or affecting other rights or remedies available to it, the Buyer shall have one or more of the following rights, whether or not it has accepted the Goods and/or Services:
(a) to terminate the Contract with immediate effect by giving written notice to the Supplier;
(b) to reject the Goods and/or Services (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair, replace or re-perform the rejected Goods and/or Services, or to provide a full refund of the price of the rejected Goods and/or Services;
(d) to recover from the Supplier any expenditure incurred by the Buyer in obtaining substitute goods and/or services from a third party; and
(e) to claim damages for any additional costs, loss or expenses incurred by the Buyer arising from the Supplier’s failure to supply Goods and/or Services in accordance with the Contract.
8.2 The Supplier will, at its own cost and expense, repair or replace any real or personal property belonging to the Buyer that Supplier, its employees or agents may damage, destroy or remove while performing or that results from the performance of this Contract
8.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
9. Buyer’s obligations
The Buyer shall provide the Supplier with reasonable access at reasonable times to the Buyer’s premises for the purpose of providing the Services and provide such necessary information for the provision of the Services as the Supplier may reasonably request.
10. Charges and payment
10.1 The price of the Goods or Services is the price stated on the face of the Order (the “Price”). No extra charges shall be effective unless agreed in writing and signed by the Buyer. Supplier will invoice Buyer for the Order on delivery of the Goods or completion of the Services. Unless otherwise stated in the Order, Buyer will pay all properly invoiced amounts due to Supplier within sixty (60) days after receipt of such invoice, except for any amounts disputed by Buyer. The parties will seek to resolve all such disputes timely and in good faith. Supplier will continue performing its obligations under the Order notwithstanding any such dispute. Without prejudice to any other right or remedy, Buyer reserves the right to set off any liability of the Supplier whether liability is present or future, liquidated or unliquidated, and whether or not liability arises under the Contract. Payment of an invoice is not evidence or admission that the Goods or Services meet the requirements of the Order.
10.2 If the Buyer fails to make a payment due to the Supplier under the Contract by the due date, then the Buyer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this condition 10.2 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
The Supplier shall not alter any of the Goods and/or Services except as directed in writing by the Buyer but the Buyer shall have the right from time to time during the execution of the Contract by notice in writing to direct the Supplier to add to or omit, or otherwise vary, the Goods and/or Services and the Supplier shall carry out such variations and be bound by the same conditions, so far as applicable, as though the said variations were stated in the Order. Where the Supplier receives any such direction from the Buyer which would occasion an amendment to the Price, the Supplier shall, within 7 days, advise the Buyer in writing to that effect giving the amount of any such amendment ascertained and determined at the same level of pricing as that contained in the Supplier’s quotation. If, in the opinion of the Supplier, any such direction is likely to prevent the Supplier from fulfilling any of the obligations under the Contract, he shall so notify the Buyer and the Buyer shall decide, with all possible speed, whether or not the same shall be carried out and shall confirm his instructions in writing and modify the said obligations to such an extent as may be justified. Until the Buyer so confirms its instructions, they shall be deemed not to have been given.
12. Intellectual property rights
12.1 All intellectual property rights in or arising out of or in connection with the Services (other than intellectual property rights in any Buyer Materials) shall be owned by the Supplier.
12.2 The Supplier grants to the Buyer, or shall procure the direct grant to the Buyer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to use, copy and modify the Deliverables (excluding Buyer Materials) for the purpose of receiving and using the Services and the Deliverables.
12.3 The Buyer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy any materials provided by the Buyer to the Supplier for the term of the Contract only for the purpose of providing the Services to the Buyer.
12.4 All Buyer Materials are the exclusive property of the Buyer.
13.1 The Supplier shall indemnify the Buyer against all liabilities, costs, expenses, damages and losses and all reasonable professional costs and expenses suffered or incurred by the Buyer arising out of or in connection with:
(a) any claim made against the Buyer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding the Buyer Materials);
(b) any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables.
13.2 This Condition 13 shall survive termination of the Contract.
During the term of the Contract and for a period of 5 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Buyer’s request, produce both the insurance certificate giving details of cover.
15.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business affairs, clients or suppliers of the other party or dealings under this contract, except as permitted by Condition 15.2.
15.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party’s confidential information must comply with this Condition 15; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3 Neither party shall use the other party’s confidential information for any purpose other than to perform its obligations under the Contract.
16.1 The Buyer may at any time terminate the Contract for convenience upon giving the Supplier written notice provided that in such case the Buyer agrees that it will reimburse the Supplier for any costs which the Supplier can prove it has reasonably and properly incurred as a direct consequence of such an early termination which shall represent full and final settlement of such early termination.
16.2 Without affecting any other right or remedy available to it, the Buyer may terminate the Contract with immediate effect by giving written notice to the Supplier if (i) there is a change of control of the Supplier; or (ii) the Supplier’s financial position deteriorates to such an extent that in the Buyer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or (iii) the Supplier commits a breach of Condition 5.
16.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of seven days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
16.4 On termination of the Contract, the Supplier shall immediately deliver to the Buyer all Deliverables whether or not then complete, and return all Buyer Materials. If the Supplier fails to do so, then the Buyer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
16.5 Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
16.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
17. Force majeure
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike or embargoes. Supplier’s economic hardship or changes in market condition are not considered Force Majeure Events. If a Force Majeure Event prevents Supplier from performance for a continuous period of more than thirty (30) days, Buyer may terminate the Order immediately by giving written notice to Supplier.
18.1 The Supplier will not engage in any practice that amounts to:
(a) slavery or servitude (each as construed in accordance with Article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950, as amended);
(b) forced or compulsory labour (as defined by the International Labour Organisation’s Forced Labour Convention 1930 (No. 29) and Protocol;
(c) human trafficking; or
(d) arranging or facilitating the travel of another person with a view to that person being exploited.
18.2 The Supplier will, and will procure that its officers, employees, agents, sub-contractors and any other persons who perform services for or on behalf of it in connection with the Contract will;
(a) comply with all applicable laws relating to slavery, servitude, forced or compulsory labour or human trafficking (in this condition 18 “Anti-Slavery Laws”);
(b) not do or omit to do any act or thing which constitutes or may constitute an offence under any Anti-Slavery Law;
(c) not knowingly employ or engage in any practices which constitute or may constitute an offence under any Anti-Slavery Law and not knowingly appoint or contract with any person who has been convicted of or prosecuted in any jurisdiction in relation to an offence or alleged offence under the Anti-Slavery Law;
(d) not commit any act or omission which causes or could cause the Buyer to breach, or commit an offence under, any Anti-Slavery Law; and
(e) promptly notify the Buyer of any breach of this Condition 18.
18.3 The Buyer may terminate the Contract immediately by giving written notice to that effect to the Supplier if the Supplier is in breach of Condition 18.1 or Condition 18.2. The Parties agree that a breach by the Supplier of any of its obligations under Condition 18.1 or Condition 18.2 is a material breach of the Contract, irrespective of the level of financial loss, deprivation of benefit or exposure to liability that such breach would potentially give rise to.
19.1 The Supplier will, and will procure that its officers, employees, agents and any other persons who perform services for it or on its behalf in connection with the Contract will:
a) not commit any act or omission which causes or could cause the Buyer or Supplier (or that person) to breach, or commit an offence under, any laws relating to anti-bribery and/or anti-corruption;
b) comply with the Buyer’s anti-corruption policy as updated from time to time.
c) keep accurate and up to date records showing all payments made and received and all other advantages given and received in connection with the Contract and the steps taken to comply with this Condition 19.1, and permit the Buyer to inspect those records as reasonably required;
d) promptly notify the Buyer of any request or demand for any financial or other advantage received by the Supplier (or that person); and any financial or other advantage the Supplier (or that person) give or intend to give, whether directly or indirectly in connection with the Contract; and
e) promptly notify the Supplier of any breach of this Condition 19.1.
19.2 The Buyer may terminate the Contract immediately by giving written notice to that effect to the Supplier if the Supplier is in breach of Condition 19.1.
19.3 The Supplier will indemnify, keep indemnified and hold the Buyer harmless in full and on demand from and against all liabilities (including any tax liability), direct, indirect and consequential losses, damages, claims, proceedings and legal costs (on an indemnity basis), judgments and costs (including costs of enforcement) and expenses which the Buyer incurs or suffers directly or indirectly in any way whatsoever as a result of any breach of any of the Supplier’s obligations under Condition 19.1 or as a result of any proceedings under section 7 Bribery Act 2010 being brought against the Buyer as a result of the Supplier’s conduct or the conduct of any of the Supplier’s officers, employees, agents or any other persons who perform services for or on the Supplier’s behalf in connection with the Contract. This will include the costs of procuring the Goods and/or Services from a person other than the Supplier, but this indemnity will not apply to any liabilities, losses, damages, claims, proceedings and legal costs, judgments or costs and expenses to the extent incurred or suffered as a result of the Buyer’s criminal liability.
20.1 A delay in exercising or failure to exercise a right or remedy under or in connection with the Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
20.2 If any term of the Contract is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and this will not affect the remainder of the Contract which will continue in full force and effect.
20.3 No variation to the Contract will be effective unless it is in writing and signed by a duly authorised representative on behalf of each of the parties.
20.4 Nothing in the Contract and no action taken by the parties in connection with it or them will create a partnership or joint venture between the parties or give either party authority to act as the agent of or in the name of or on behalf of the other party or to bind the other party or to hold itself out as being entitled to do so.
20.5 Each party agrees that it is an independent contractor and is entering into the Contract as principal and not as agent for or for the benefit of any other person.
20.6 The parties do not intend that any term of the Contract will be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person.
20.7 The Buyer’s rights and remedies set out in these Conditions are in addition to and not exclusive of any rights and remedies provided by statute and common law.
20.8 The Supplier will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Contract. The Supplier will not be entitled to sub-contract any of its obligations under the Contract without the Buyer’s written consent.
20.9 The Contract (and any non-contractual obligations arising out of or in connection with it) shall be governed by the law of England and Wales. Each party agrees that the courts of England and Wales have exclusive jurisdiction to determine any dispute arising out of or in connection with the Contract (including in relation to non-contractual obligations).