Terms and Conditions of Purchase
‘Buyer’ means Ultraseal International Group Limited, a company registered in England and Wales with company number 11437185, 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 judgement. 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, judgements 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).
Standard Conditions of Sale
1. Definition and Interpretation
1.1 In these Conditions (unless the context otherwise requires), the following words and phrases shall have the following meanings:
“Company” means Ultraseal International Group Limited, a company registered in England and Wales under number 11437185 whose registered office is at Unit C, 42 Sayer Drive, Lyons Park, Coventry, CV5 9PF.
“Company’s Group” means any holding company (as defined in section 736 of the Companies Act 1985) of the Company or any subsidiary (as defined in such section 736) of the Company or its holding company.
“Conditions” means these terms and conditions of business.
“Contract” means a contract for the sale of Goods made by or on behalf of the Company with a Purchaser.
“Delivery Note” means the note provided by the Company accompanying Goods delivered by the Company.
“Ex-works” means “ex-works” as defined by Incoterms 2010, published by the International Chamber of Commerce.
“Export Order” means an Order where the Goods are to be supplied by the Company to Purchasers outside the United Kingdom.
“Goods” means the goods which the Company supplies pursuant to a Contract.
“Order” means an order in writing for the Goods received by the Company from the Purchaser.
“Purchaser” means a person to whom the Company supplies or is to supply Goods pursuant to a Contract.
“Working Day” means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a statutory holiday.
1.2 In these Conditions (unless the context otherwise requires):
1.2.1 construction of these Conditions shall ignore the headings (all of which are for reference only); and
1.2.2 any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending
2.1 All Orders placed with the Company by the Purchaser are subject to the Conditions printed below. No modification or variation to these Conditions and no other terms and conditions shall be valid or effective and in particular (but without prejudice to the generality of the foregoing) no modification or variation to these Conditions shall apply merely by the acknowledgement or acceptance by the Company of any Order containing terms and conditions at variance with or in addition to these Conditions unless such modification or variation and other terms and conditions are expressly accepted in writing by a director of the Company.
2.2 The Purchaser’s acceptance of delivery of the Goods shall (without prejudice to condition 3 or any other manner in which acceptance of these Conditions may be evidenced) constitute unqualified acceptance of these Conditions.
2.3 No Contract shall be made unless and until the Company issues to the Purchaser a written acceptance of an Order.
3. Quotations and Acceptance
3.1 A quotation, price list or any other publication provided by the Company does not constitute an offer and the Company reserves the right to withdraw or revise a quotation at any time prior to accepting an Order.
3.2 No Order submitted by the Purchaser shall be deemed to be accepted by the Company unless and until it is either confirmed in writing by the Company’s authorised representative or where such acceptance is on the Company’s order acceptance form.
3.3 Orders are accepted subject to the Company being able to obtain at all times the necessary raw materials and any special tools required to execute the Order.
3.4 Any subsequent Orders placed with the Company shall be deemed to be placed subject to these Conditions unless expressly agreed otherwise in writing by a director of the Company.
3.5 In accepting any Order submitted by the Purchaser, the Company does so both for itself and for and on behalf of every employee, servant or agent of the Company and the Purchaser hereby confirms that any exemption of liability granted to the Company by these Conditions shall also extend to every employee, servant or agent of the Company.
3.6 The Company’s employees, servants or agents are not authorised to make any representations concerning the Goods unless confirmed by an authorised representative of the Company in writing. The Purchaser acknowledges that it does not rely on and waives any claim or a breach of any claim or a breach of any such representations which are not so confirmed.
3.7 Descriptions and performance capabilities stated in any of the Company’s catalogues, brochures or statements (written or oral) made by any representative of the Company are provided to give the Purchaser a general picture or description of the Goods concerned and do not form the basis of any contractual liability.
3.8 Any advice or recommendation given by the Company or its employees, servants and agents to the Purchaser or its employees, servants and agents as to the application or use of the Goods which is not confirmed in writing by an authorised representative of the Company is followed or acted upon entirely at the Purchaser’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
3.9 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of order form, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
4.1 The price for each of the Goods to be paid by the Purchaser to the Company is based on the Company’s list prices current at the time of despatch.
4.2 Unless otherwise agreed in writing between the Company and the Purchaser all prices are given by the Company on an Ex-works basis and where the Company agrees to deliver the Goods otherwise than at the Company’s premises the Purchaser shall be liable to pay the Company’s costs and expenses for transport, packaging and insurance.
4.3 The price for each of the Goods is exclusive of any applicable value added tax or other sales tax or duty applicable from time to time to sales or supplies of such Goods which the Purchaser shall be additionally liable to pay to the Company.
4.4 Any extra costs incurred by the Company by reason of the Purchaser’s failure to supply adequate information regarding the Goods required or by reason of any other default on the part of the Purchaser shall be added to the Contract price.
5.1 The Purchaser shall make all payments due to the Company under the Contract within 30 days of the date of the relevant invoice.
5.2 In the case of Export Orders:
5.2.1 terms of payment shall be as arranged between the Company and the Purchaser and in default of an agreement to the contrary the price quoted is for delivery Ex-works; and
5.2.2 the Company reserves the right to require the Purchaser to secure the price of any Goods sold under an international supply contract as defined by section 26 of the Unfair Contract Terms Act 1977 by establishing in the Company’s favour an irrevocable letter of credit on terms satisfactory to the
Company immediately upon receipt of the Company’s acceptance of an Order and confirmed by a UK bank acceptable to the Company.
5.3 The time of payment of the price shall be of the essence of a Contract and the Company reserves the right to suspend the provision of Goods to the Purchaser where any amounts are overdue under any Contract until all such amounts have been paid. Receipts for payment will be issued only upon request.
5.4 If the Purchaser fails to make payment of the price on the due date to the Company or to any other member of the Company’s Group the Company shall be entitled to:
5.4.1 suspend further deliveries of Goods to the Purchaser under the Contract or any other contract; and/or
5.4.2 cancel the balance (if any) of the Contract under which the Purchaser has failed to pay and to recover from the Purchaser any loss, costs or expenses incurred by the Company as a result of such cancellation; and/or
5.4.3 cancel any other contract or the balance of any other contract which the Purchaser may have with the Company and to recover from the Purchaser any loss, costs or expenses incurred by the Company as a result of such cancellation; and/or
5.4.4 charge the Purchaser interest at the rate of 2% per annum over the Bank of England’s base lending rate for the time being on the amount due to the Company from the due date to the date of actual payment thereof (both before and after any judgement) such interest to be paid on demand therefore by the Purchaser.
5.5 |If, in the Company’s view, the Purchaser’s credit-worthiness deteriorates before delivery of the Goods, the Company may require payment in full or in part of the price prior to delivery, or the provision of security for payment by the Purchaser in such form as is acceptable to the Company.
5.6 The Company reserves the right to alter or withdraw at any time any credit allowed to the Purchaser.
5.7 The Company may offset any amount owing to it from the Purchaser against any amount owed to the Purchaser by the Company.
5.8 The Purchaser is not entitled to withhold payment of any amount due to the Company by way of any set-off or counterclaim.
5.9 The Company shall have a general and particular lien on all the Purchaser’s property which is in the possession, custody or control of the Company (although the Purchaser may have paid for it in full) in satisfaction of all sums due at any time from the Purchaser to the Company or any other member of the Company’s Group under any Contract and may deal with such property as it sees fit without incurring any liability to the Purchaser thereby.
6. Delivery and Performance
6.1 Delay in delivery will not give the Purchaser the right to cancel the order nor will the Company be responsible for any loss, damage or expense resulting from such delay, unless caused by the Company’s proven negligence.
6.2 Subject to condition 6.3, delivery dates given are Ex-works and unless otherwise agreed shall be calculated from the date of acceptance of the Order. The Company reserves the right to deliver Goods by instalments.
6.3 In the case of Export Orders:
6.3.1dates for delivery shall be as arranged between the Company and the Purchaser and in default of an agreement to the contrary delivery is Ex-works;
6.3.2 if the Goods are sold CIF or FOB or on the basis of other international trade terms, the meaning given to such terms in the International Chamber of Commerce INCOTERMS (as revised from time to time) shall apply, except where inconsistent with any of the provisions contained in these Conditions;
6.3.3 where applicable, the Purchaser at its own expense shall be responsible for and provide any import licence required for the import of the Goods into the country to which the Goods are to be despatched from the United Kingdom; and
6.3.4 the Purchaser shall be responsible for ensuring that the Goods do not infringe any law or regulation or Government order in the country to which they are dispatched and further the Purchaser shall be responsible for meeting all import or other taxes, levies, duties or surcharges of whatsoever nature imposed or operative in the country to which the Goods are dispatched.
6.4 If the Purchaser is unwilling or unable to accept delivery at the location stated on the order form or fails to give adequate instructions as to delivery the Company shall have the right to charge the Purchaser for all storage, handling, insurance and transportation costs incurred in respect of the Goods which shall be at the Purchaser’s risk. In no event shall this condition operate to relieve the Purchaser making payments as though such default or delay had not occurred.
6.5 The Company shall endeavour to supply the exact quantities of Goods ordered but unless otherwise agreed such quantities shall be subject to a tolerance either way of 10% with the Purchaser paying for the actual quantities delivered.
6.6 Any dates mentioned in any quotation, order acceptance form or elsewhere for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence and shall not be made so by the service of any notice. Such Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Purchaser.
6.7 If the Purchaser refuses or fails to take delivery of the Goods delivered in accordance with a Contract or fails to give the Company adequate delivery instructions for delivery of the Goods then without prejudice to any other right or remedy available to the Company, the Company may:
6.7.1 store such Goods until actual delivery and recover from the Purchaser any additional costs (including, without limitation, insurance costs from the due date of delivery); or
6.7.2 terminate the Contract with immediate effect; or
6.7.3 sell such Goods as the Company may determine and recover from the Purchaser any loss or additional costs incurred as a result of such refusal or failure.
6.8 The Purchaser is solely responsible for unloading the Goods at the point of delivery unless delivery is taking place at the Company’s premises. Unless otherwise agreed in writing by the Company, the Purchaser shall unload the Goods immediately on their arrival at the Purchaser’s premises. The Purchaser shall indemnify the Company against each loss, liability and cost arising as a result of the Company or its subcontractors assisting the Purchaser in the unloading, loading or other removal of the Goods from the point of delivery.
6.9 The Purchaser shall advise the Company of shortages of delivery or damage to Goods within three Working Days of delivery, specifying the shortage or damage alleged and provided always that the Delivery Note is marked “unexamined”, otherwise Goods shall be deemed accepted. In no case will the Purchaser be entitled to reject Goods on the grounds of shortage.
6.10 The Company shall not be liable for non-delivery of Goods unless the Purchaser notifies the Company within five days of the advised date of arrival.
6.11 Where Goods have been consigned by a third party carrier, the Purchaser shall comply in all respects with that carrier’s conditions for notifying claims.
6.12 The Company shall be afforded reasonable opportunity to inspect on site any Goods which are the subject of a complaint and may repair or replace the same at the Company’s discretion. Alternatively the Goods which are the subject of a complaint shall be returned carriage paid to the Company, accompanied by full details of the complaint providing that no Goods shall be returned without the Company’s prior written consent. Any complaint will not constitute a ground for cancellation of the Contract.
6.13 Section 32(2) of the Sale of Goods Act 1979 does not apply and the Company is not required to give the Purchaser the notice specified in section 32(3) of that Act.
7. Risk and Title
7.1 Risk in the Goods shall pass to the Purchaser:
7.1.1 where Goods are to be delivered to the Purchaser at the Company’s premises, at the time of delivery of such Goods; or
7.1.2 where the Goods are to be delivered to the Purchaser’s premises or other place of storage, at the time when such Goods are loaded onto the carrier’s transport vehicle at the Company’s premises or other place of storage;
7.1.3 where delivery is made or effected in part then the provisions of this Condition 7 shall apply separately to each such part.
7.2 Title to the Goods (whether separate and identifiable or incorporated in or mixed with other goods) shall remain with the Company until such time as the Company or any other member of the Company’s Group receives (in cash or cleared funds) payment in full of the price of such Goods (together with any accrued interest at the rate specified in condition 5.4.4) payment in full of all other sums due to the Company or any other such member of the Company’s Group in respect of any other goods or agreement.
7.3 Subject to condition 7.4, until such time as title to the Goods passes to the Purchaser under this condition 7, the Purchaser shall keep the Goods separately and readily identifiable from any other goods of the Purchaser and of third parties and properly stored, insured and identified as the Company’s sole and absolute property.
7.4 Nothing in this condition 7 shall prevent the Purchaser from using the Goods in the ordinary course of its business.
7.5 Until such time as title to the Goods passes to the Purchaser and provided that such Goods are still in existence and have not been sold by the Purchaser, the Purchaser’s right to possession of such Goods shall cease forthwith on the occurrence of any of the events specified in condition 11 or at such earlier time as the Company may at any time stipulate.
7.6 At any time before title to the Goods passes to the Purchaser (whether or not any payment to the Company is then overdue or the Purchaser is otherwise in breach of any obligation to the Company), the Company may (without prejudice to any other of its rights):
7.6.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Purchaser hereby authorises; or
7.6.2 require delivery up to it of all or any part of the Goods.
7.7 If the Purchaser resells any Goods in which title has not passed to the Purchaser such resale shall (as between the Company and the Purchaser only) be made by the Purchaser as agent for the Company.
7.8 Any property of the Purchaser is and remains at all times whilst in the Company’s possession or under its control and all property supplied to the Company by or on behalf of the Purchaser is held at the risk of the Purchaser who shall be responsible for effecting and maintaining its own insurance cover in relation to the Goods, it being hereby acknowledged by the Purchaser that the prices for the Goods do not include insurance.
7.9 From the time of delivery until title in the Goods passes to the Purchaser in accordance with condition 7.2, the Purchaser shall insure the Goods for their full value with a reputable insurer and, if the Company so requests, ensure that the Company’s name is noted on the insurance policy. Until title in the Goods passes to the Purchaser, the Purchaser shall hold the proceeds of any claim on such insurance policy on trust for the Company and shall immediately account to the Company with the proceeds.
8. Trade Marks and Patents
8.1 No statements or undertakings, express or implied, shall be deemed to confer any rights upon the Purchaser concerning the use of the Company’s trademarks, trade names and patents except as agreed in writing by the Company.
8.2 Where Goods are made or adapted by the Company in accordance with the Purchaser’s specifications, the Purchaser shall indemnify the Company against all costs, claims and expenses incurred by the Company in respect of any infringement or alleged infringement by those Goods of any patents, registered designs, trademarks or other rights belonging to third parties.
9. Warranty and Liability
9.1 The Company warrants that it will (at the Company’s choice) either replace or refund the purchase price of any Goods found to be defective.
9.2 The warranty in condition 9.1 is given on the following conditions:
9.2.1 the Company is not liable for a defect in the Goods caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or an act, neglect or default of the Purchaser or a third party (including but not limited to any default of or failure by the Purchaser to comply with specific product storage
requirements or use made known to it by the Company);
9.2.2 the Company is not liable for a defect in the Goods unless it is notified to the Company within one month of the date of delivery.
9.3 Except as set out in this condition 9, all conditions, warranties and representations, expressed or implied by statute, common law or otherwise, in relation to the supply, use of or failure to supply the Goods are excluded to the fullest extent permitted by law.
9.4 Subject to the provisions in condition 9.6 below, the Company is not liable to Purchaser in contract, tort (including negligence or breach of statutory duty) or otherwise for any of the following losses or damages, whether direct or indirect, arising out of, or in connection with, the supply, non supply or delay in supplying the Goods or otherwise in connection with this Agreement:
9.4.1 loss or damage incurred by the Purchaser as a result of third party claims;
9.4.2 loss of actual or anticipated profits;
9.4.3 loss of business opportunity;
9.4.4 loss of anticipated savings;
9.4.5 loss of goodwill;
9.4.6 injury to reputation; or
9.4.7 any indirect, special or consequential loss or damage howsoever caused even if the Company was advised of the possibility of them in advance.
9.5 The entire liability of the Company under or in connection with the supply of the Goods, whether for negligence, breach of contract, misrepresentation or otherwise, is limited, in respect of each event or series of connected events, to the value of the Goods under the relevant Contract.
9.6 Nothing in these Conditions shall operate to exclude or restrict the Company’s liability for:
9.6.1 death or personal injury resulting from negligence;
9.6.2 breach of the obligations arising from section 12 of the Sale of Goods Act 1979; or
9.6.3 fraud or deceit.
9.7 Any performance particulars given by the Company are based on its experience and are such as it would expect to be obtained. No liability can be accepted if that result is not obtained.
9.8 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 (as amended)) the statutory rights of the consumer are not affected by these Conditions.
10. Claims for Damage, Shortage or Loss
10.1 The Company will at its option repair or replace all or part of the Goods lost or damaged in transit (where the Goods are carried by the Company’s own transport or by a carrier on behalf of the Company) provided that:
10.1.1 details of any loss or damage have been marked on the copy consignment note or Delivery Note signed by the Purchaser and advised separately in writing to the Company and to the carrier concerned within three Working Days of delivery and within five Working Days of delivery full particulars are given in writing to the Company and the carrier concerned; and
10.1.2 in respect of total loss of such Goods details are advised separately in writing to Company and to the carrier concerned within five Working Days of arrival (otherwise than on a consignment note or Delivery Note).
10.2 Condition 10.1 will not apply where the Goods are collected by or on behalf of the Purchaser from the Company’s premises or other place of storage of such Goods.
10.3 The Company shall not be liable for any short delivery unless details of the delivery are marked on the copy of the consignment note or Delivery Note signed by the Purchaser and all the requirements set out in condition 6.9 are fulfilled (and in the case of loss in transit all the requirements set out in condition 10.1 are fulfilled).
11. Termination of Contracts
11.1 On or at any time after the occurrence of any of the following events in this condition 11 the Company shall have the right forthwith to:
11.1.1 terminate any Contract by giving notice to that effect to the Purchaser without prejudice to any claim or right the Company might otherwise make or exercise;
11.1.2 stop any Goods in transit;
11.1.3 suspend further deliveries to the Purchaser;
11.1.4 exercise its rights under condition 7.
11.2 The events referred to in condition 11.1 are:
11.2.1 the Purchaser being in breach of any obligation under a Contract with the Company or to any other member of the Company’s Group or these Conditions;
11.2.2 any distress or execution shall be levied upon the Purchaser’s property or assets; or
11.2.3 a proposal being made for a composition in satisfaction of the Purchaser’s debts or a scheme or arrangement of its affairs including a voluntary arrangement within the meaning of Part I of the Insolvency Act 1986; or
11.2.4 any petition or receiving order in bankruptcy shall be presented or made against the Purchaser; or
11.2.5 (if the Purchaser shall be a limited company) a meeting being convened, any resolution passed or petition presented or order made or notice given for the Purchaser’s winding up or dissolution (other than for the sole purpose of amalgamation and reconstruction); or
11.2.6 (if the Purchaser shall be a limited company) an incumbrancer taking possession, or manager or administrative receiver being appointed of the whole or any part of the Purchaser’s assets or property;
11.2.7 an application being made, or resolved to be made by any meeting of the Purchaser’s directors or members, for an administration order in relation to it or any party gives or files notice of intention to appoint an administrator of it or such an administrator being appointed; or
11.2.8 the Purchaser ceasing or suspending payment of any of its debts or being unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986.
11.3 On termination of a Contract pursuant to condition 11.1.1 or 12.2, any indebtedness of the Purchaser to the Company shall become immediately due and payable and the Company is relieved of any further obligation to supply Goods to the Purchaser pursuant to that Contract.
12. Force Majeure
12.1 In this condition 12, “Force Majeure Event” means any circumstance beyond the control of the Company including, but not limited to acts of God, fire, explosion, adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slowdowns or other
industrial disputes, accidents, riots or civil disturbances, acts of government, lack of power and delays by suppliers or materials shortages but, for the avoidance of doubt, nothing shall excuse the Purchaser from any payment obligations under these Conditions.
12.2 If the Company is prevented, hindered or delayed from or in supplying the Goods under these Conditions by a Force Majeure Event the Company may, at its sole option, and without being liable for any loss or damage suffered by the Purchaser as a result:
12.2.1 suspend deliveries or performance while the Force Majeure Event continues;
12.2.2 apportion available stocks of Goods between its customers if the Company has insufficient stocks to meet orders;
12.2.3 terminate any Contract forthwith by giving notice to that effect to the Purchaser.
12.2.4 In the event of an outbreak of hostilities (whether war is declared or not in which the United Kingdom is involved or in the event of national emergency or if the Company should become either directly or indirectly so engaged on Government orders or orders under priority directions as to prevent or delay
work on other orders the Company shall be entitled at any time on notice to the Purchaser to make partial deliveries only or to determine the Contract with the Purchaser without prejudice in any case to rights accrued in respect of deliveries already made.
The Purchaser shall indemnify and keep the Company indemnified against all loss, liability, claims, damages, penalties, costs and expenses which the Company incurs in carrying out any work required to be done on or to the Goods which give rise to the infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights.
14.1 The Company reserves the right to assign or deal with the benefit of any Contract, or subcontract any work relating to any Contract.
14.2 The Purchaser may not assign or deal in any way with all or any part of the benefit of, or its rights or benefits under, a Contract to any third party without the written consent of the Company.
15.1 In the event that any of these Conditions shall be determined by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the validity and enforceability of the remaining Conditions which shall remain in full force and effect.
15.2 If any of these Conditions is so found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provision were deleted, the provision in question shall apply with such modification as may be necessary to make it valid and enforceable.
16.1 Subject to condition 16.2, any notice required or permitted to be given by either party to the other under these Conditions must be in writing and may be delivered personally or by prepaid first class post (or registered carrier if the address for service is outside the United Kingdom). In the case of pre-paid first class post notices will be deemed to have been given two Working Days after the date of posting and in the case of registered carrier, five Working Days after the date of posting. Notices shall be delivered or sent to the 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 condition 16 to the party giving the notice.
16.2 In the case of Export Orders only, in addition to the methods of delivery provided in condition 16.1 above, any notice required or permitted to be given by either party to the other under these Conditions may also be delivered by e-mail and in such case notice shall be deemed to have been given at the time that the e-mail enters the email system of the intended recipient provided that no error message indicating failure to deliver has been received by the sender.
17. Third Parties
A person who is not party to a Contract shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of such Contract. This condition does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
The rights and remedies provided by any Contract may be waived only in writing and specifically, and any failure to exercise or any delay in exercising a right or remedy by the Company shall not constitute a waiver of that right or remedy or of any other rights or remedies. A waiver of any breach of any of the terms of a Contract or of a default under a Contract shall not constitute a waiver of any other breach or default and shall not affect the other terms of such Contract.
No variation or alteration of any of the provisions of a Contract or these Conditions shall be effective unless it is in writing and signed by or on behalf of each party.
20. Governing Law and Jurisdiction
A Contract and any matter arising from or in connection with it shall in all respects be governed by and construed in accordance with English Law. Each party irrevocably agrees to submit to the exclusive jurisdiction of the English courts in respect of any claim or matter arising from or in connection with a Contract or the legal relationships established by or in connection with such Contract.