'Company’:means the Company (company number 04479217) whose registered office is situated at The Proving Factory, Gielgud Way, Coventry, CV2 2SZ, together with any subsidiary or group company (if applicable);
‘Conditions’:means the terms and conditions set out below;
‘Contract’: means the Supplier’s quotation, the Company’s purchase order (or other form of acceptance) and these Conditions together with any other document amending the Contract as per clause 2.2 below;
‘Goods’:means any goods or materials agreed in the Contract to be bought by the Company from the Seller;
‘Services’: means the services to be provided to the Company by the Supplier;
‘Supplier’: means the individual, firm or company who is the seller of the Goods and/or the supplier of Services to the Company under the Contract;
2. Formation of the Contract and Application of Terms
2.1 The Supplier's quotation for Goods and/or Services constitutes an offer by the Supplier to supply the Goods and/or Services specified in it on these Conditions. No offer placed by the Supplier shall be accepted by the Customer other than by the Customer issuing a written and executed purchase order or acceptance of the quotation for Goods and/or Services, at which point a contract for the supply and purchase of those Goods and/or Services on these Conditions will be established. The Supplier's standard terms and conditions (if any) attached to, enclosed with or referred to in any quotation, specification or other document shall not govern the Contract.
2.2 The Conditions shall apply to the Contract and shall be in substitution for any oral arrangements made between the Company and the Supplier and shall also prevail over any inconsistent terms and conditions referred to in the Supplier’s quotation, acceptance of order, advice note, invoice or in correspondence, through a course of conduct or elsewhere and any conditions or stipulations to the contrary are hereby excluded and extinguished. Any variation of the Conditions shall have no effect unless expressly agreed in writing and signed by a director of the Company.
2.3 The Company shall be entitled after acceptance of the Contract to request reasonable alterations to the Contract (for instance, in relation to the Services or to the quantity, quality or design of the Goods) by notice in writing to the Supplier. The parties shall work together in good faith to accommodate the changes requested by the Company. The Supplier reserves the right, acting at all times in good faith, to review the price and date for delivery to reflect any increase or decrease (as the case may be) in the Supplier’s direct costs of materials and/or labour.
3. Price and Payment
3.1 The price for the Goods and/or Services shall be as stated on the Company’s Purchase Order and, subject to contrary provision in the Conditions, shall be fixed. No increase in price shall be effective unless notice thereof has been given to the Company together with a full and frank explanation for the increase and such increase approved in writing by a director of the Company. Prices stated on the face of the Company’s Purchase Order exclude taxes unless specifically included.
3.2 All invoices must quote the Company’s Purchase Order number. Invoices must be issued only after the supply of the Goods or Services to the reasonable satisfaction of the Company. Payment of invoices by the Company shall be on the terms agreed between the parties (and in the absence of which shall be 60 days from the end of the month of the date of the invoice). “Reasonable satisfaction of the Company” shall include the supply of all documents required under the Contract in the designated formats and quantities, such as the operating and maintenance manuals, spare parts quotation(s), final drawings, technical information and certificates, proof of delivery notes etc.
3.3 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under this Contract or any other contract the Company may have with the Supplier.
3.4 Payment of invoices shall not imply acceptance of the Goods and/or the Services and shall in no way prejudice the rights of the Company howsoever arising.
4. Quality and Inspection of Goods
4.1 The Goods shall be safe for use and shall conform as to the quality, quantity, drawings, specifications, samples and description with the particulars stated in (or referred to by) the Company’s purchase order and shall be new and of sound materials and workmanship, of merchantable quality and free from defects of any kind. If a standard of performance is specified the Goods shall be capable of such performance. If the purpose for which the Goods are required is indicated in this order either expressly or by implication then the Goods shall be fit for that purpose and for the avoidance of doubt, if the Supplier’s drawings are approved by the Company, this does not in any way relieve the Supplier of any of its obligations in relation to the Conditions.. In general, the Goods shall be in conformity with good engineering practice.
4.2 The Company’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Company under the Sale of Goods Act 1979.
5.1 No charges will be allowed for boxing, packing, crating, consolidation, loading onto transport, transportation, insurance or third party inspection unless set out in the Contract or otherwise specifically agreed in writing. Where any boxing, packing or crating is included within the scope of the Contract (or subsequently) then this must meet the Company’s specifications and shall (in any case) be of suitable specification and quality for the designated or implied method of transport, length of journey and country of destination.
5.2 All Goods must be marked in accordance with the Company’s instructions and must be accompanied by Advice Note(s) quoting the Company’s purchase order number.
5.3 Time for delivery of the Goods is of the essence. Unless covered by a specific late delivery liquidated damages clause written within the Contract, the Supplier’s failure to deliver Goods within the time or times specified shall at the option of the Company, without waiver of any other legal right it may have, relieve it of any obligation to accept and pay for the Goods as well as any undelivered instalment.
5.4 Notwithstanding the provisions of the Conditions herein, the Company may in its absolute discretion extend the time for delivery by giving written notice to the Supplier. There will be no additional costs to the Company arising as a result of any such extension in delivery time unless otherwise agreed in writing between the Supplier and the Company at the time of notification of the extension in delivery time.
5.5 Where the Company accepts delivery in instalments each instalment shall be deemed to be an individual contract. Notwithstanding the foregoing, the Company shall however, on failure by the Supplier to deliver any one instalment, be entitled to treat the whole Contract as repudiated.
5.6 The time required for inspection and/or testing, as covered under clause 4.5 hereof, must be included within any specified delivery period.
6. Property and Risk
6.1 Save as provided for hereunder property in the Goods shall pass to the Company upon delivery to or collection by the Company (or its client, sub-contractor or agent) in accordance with the Contract and Incoterms. The Supplier warrants that the Company has good title to the Goods on delivery.
6.2 In the case of delivery despatched from a source within the U.K. the Goods shall remain at the Supplier’s risk until delivery is made in accordance with the Contract. In any other case where the Goods are sold DDU, DDP, CIF or FOB or on the basis of any other international trade term, the meaning of such term contained in Incoterms (1990) shall apply as if expressly incorporated into the Contract insofar as any part of the same may be inconsistent with any of the provisions hereof.
6.3 At all times prior to such passage of risk from the Supplier, the Supplier shall be fully responsible for all costs arising from loss of and/or damage to the Goods at its or its sub-contractors premises, including materials or sub-components delivered to the premises of the Supplier or the Supplier’s sub-contractors free-issue by the Company (or its client, sub-contractor or agent), whether insured or not.
6.4 Following payment by the Company for the Goods or of any instalment or part of the price of the Goods (where they are fabricated or constructed for the Company) the Goods (and/or each portion thereof and all materials and equipment intended for the Goods) shall as soon as they arrive in the Supplier’s premises or are appropriated to the Goods become the property of the Company subject to the Supplier’s lien therein for money due to the Supplier in respect of such Goods. In the event that the Contract shall be terminated as a result of the Supplier going into liquidation, the Company shall therefore be entitled to recover all such Goods without recourse to the Insolvency Practitioner, since the Supplier shall be holding such Goods only as bailee for the Company.
7.1 The Supplier warrants that:
7.1.2 it shall exercise reasonable care and skill and in accordance with generally recognised commercial practices in the industry for such services in executing the same;
7.1.3 the Services shall be performed by it on the date(s) specified by the Company in the purchase order and if no date is specified, within a reasonable time;
7.1.4 the provision of the Services shall be exactly in accordance with the purchase order requesting the same;
7.1.5 that it shall allocate sufficient resources to enable it to provide the Services;
7.1.6 it shall co-operate with the Company in all matters relating to the Services;
7.1.7 it shall observe all health and safety rules and regulations and any other reasonable security requirements that may be reasonably requested by the Company;
7.1.8 it shall obtain and at all times maintain all necessary licences and consents and comply with all relevant legislation in relation to the provision of the Services
7.2 Time for provision of the Services shall be of the essence of the contract unless otherwise covered by a specific late completion liquidated damages clause set out within the Contract.
7.3 The Company’s rights under the Contract are in addition to the statutory terms implied in favour of the Company by the Supply of Goods and Services Act 1982 and any amending legislation.
8.1 The Company reserves the right to terminate the Contract in whole or in part at any time by written notice to the Supplier. Upon receipt of such notice, the Supplier shall immediately stop work on the Contract (or part thereof) as terminated and shall take corresponding action with respect to its suppliers and sub-contractors.
8.2 Within thirty (30) days of the notice, the Supplier shall prepare and submit its termination claim (which shall be on a quantum meruit basis for Goods or Services actually supplied and accepted by the Company and set out a breakdown of the amounts claimed up to the date of the notice of termination). Upon receipt thereof the Company shall promptly negotiate a fair and equitable settlement with the Supplier, provided however, that the Company may require reasonable proof of the validity of any part of the Supplier’s claim.
8.3 Without prejudice to any other rights or remedies to which it might be entitled the Company may terminate the Contract forthwith in the event that:
8.3.1 the Supplier commits a material breach of any of the terms and conditions of the Contract which is not remedied as soon as practically possible or persistent breaches (and for the avoidance of doubt, 3 breaches of the Contract shall be deemed to be persistent breaches);
any distress, execution or other process is levied upon any of the assets of the Supplier;
8.3.2 the Supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Supplier or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Supplier or for the granting of an administration order in respect of the Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the Supplier;
8.3.3 the Supplier ceases or threatens to cease to carry on its business;
8.3.4 the financial position of the Supplier deteriorates to such an extent that in the opinion of the Company the capability of the Supplier adequately to fulfil its obligations under the Contract has been placed in jeopardy;
8.3.5 the performance of the Contract is hindered or prevented by circumstances beyond the Supplier’s control;
8.3.6 there is a change in control of the Supplier (such that more than 50% of its share capital is transferred to a third party in respect of a company or the transfer to a new proprietor for an unincorporated Supplier).
8.4 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
9. Remedies (Goods and Services)
9.1 In the event of any breach of the Contract by a Supplier of Goods, the Company shall be entitled to avail itself of one or more of the following remedies, whether or not any part of the Goods have been accepted by the Company:
9.1.1 to treat the Contract as repudiated;
9.1.2 to reject the Goods or such part as shall be in breach of the Contract;
9.1.3 at its option to give the Supplier the opportunity at the Supplier’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
9.1.4 to claim damages for any loss sustained by reason of such rejection;
9.2 If the Company opts to return the Goods to the Supplier, it shall do so at the Supplier’s risk and expense. If the Supplier refuses to take delivery thereof, the Company shall be entitled to recover from the Supplier the cost of transport, handling, storage and associated costs and may upon the giving of reasonable notice to the Supplier in writing dispose of or arrange for the disposal of the Goods and apply the proceeds (if any) to reimbursement of such costs and such other sums as may be owing by the Supplier.
9.3 Should the Supplier fail to perform the Services in accordance with the Contract the Company may:
9.3.1 terminate the Contract in whole or in part without liability to the Supplier;
9.3.2 refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
9.3.3 obtain substitute services elsewhere;
9.3.4 hold the Supplier liable for any loss and additional costs incurred in reliance on the Supplier providing the Services;
9.3.5 have refunded any sums already paid to the Supplier.
9.3.6 require the Supplier to effect restitution (to return the position as if the provision of the Services had never been commenced) including (without limitation) removal of all or any equipment installed pursuant to the provision of the Services.
The Supplier shall protect and indemnify the Company from and against all claims, liabilities and losses arising from infringement or alleged infringement of any right of a third party by the sale (including resale), delivery, acceptance, possession or use (except use in combination with another material or in the practice of any process) of the Goods or the provision of the Services. The Supplier shall further indemnify the Company in respect of all legal costs and expenses arising any legal proceedings instituted against the Company, based on said infringement or alleged infringement and in relation to any awards arising therefrom or at the request of the Company defend such proceedings at its own expense.
11. Confidential Information
11.1 All drawings, computer files or discs, blueprints, tracings, pattern samples, specifications, designs, inventions, processes or initiatives and any other information of a confidential nature that may be supplied by the Company to the Supplier shall be treated by the Supplier as confidential and the Supplier shall not disclose the same to any third party without the Company’s prior written consent and shall in any event restrict disclosure of such confidential information to such of its employees, agents or sub-contractors as need to know the same for the purpose of the Contract and shall ensure that such persons are made aware of the obligation of confidentiality.
11.2 Any materials supplied hereunder are and shall remain the property of the Company. Upon completion or termination of the Contract for whatever reason the Supplier will forthwith return to the Company all such materials supplied hereunder together with any copies thereof and other materials produced incorporating the materials or confidential information derived therefrom. The Supplier shall not be entitled to retain any copies (including those stored or produced by electronic means) or use any of the confidential information derived therefrom. The Supplier shall not be entitled to exercise any lien thereon.
12. Intellectual Property Rights
12.1 All intellectual property rights (including patents, registered and unregistered trade marks and designs) arising in the course of or as a consequence of the Supplier undertaking the Contract shall belong to the Company. The Supplier shall forthwith notify the Company of any designs discoveries or other matters potentially the subject of such intellectual property rights and shall not disclose the same or any proposals communicated to it by the Company to a third party.
12.2 The Supplier hereby assigns to the Company, with full title guarantee and free from all third party rights all intellectual property rights arising under the Contract. Further, to the extent that full legal title to any intellectual property rights arising hereunder shall fail to automatically belong to the Company the Supplier shall hold such rights on trust and shall forthwith at the request of the Company execute or procure the execution of any document required to vest in it full legal title to such intellectual property rights to the Company.
13. Work on Clients Premisies
13.1 If the Contract involves the presence of the Supplier or its sub-contractor on the premises of the Company (or some other premises on the Company’s instruction), the Supplier shall comply with all safety and security regulations and shall take all necessary precautions to prevent injury or damage to persons or property while so engaged. The Supplier shall also comply with all local and national labour laws and regulations in force while on the Company’s’ premises and all designated site regulations and procedures. The Supplier shall indemnify and save the Company harmless against any liability, losses, damage, expense and claims made against or incurred by the Company as a result of any injury or damage caused by any breach by the Supplier of any of its obligations hereunder or by the Supplier’s negligence.
13.2 If requested by the Company the Supplier will be obliged to submit certificates of insurance as proof of cover for any relevant liability.
14.1 The Supplier shall not without the prior written consent of the Company assign, transfer or subcontract the Contract or any part of the Contract (other than for the supply of raw materials, sub-components and consumables).
14.2 The failure on any part of the Company to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
14.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
15. Applicable Laws
15.1 The Supplier shall comply with all local and national laws and regulations and requirements, in particular (without limitation) all regulations and requirements relating to health and safety and hazardous substances. The Supplier shall indemnify and hold the Company harmless from and against any liability, expense or loss resulting from Supplier’s failure to do so.
15.2 [Unless otherwise agreed in writing, this Contract shall be governed by the Laws of England and any dispute arising out of or in connection with this Contract shall be referred to a single Arbitrator either appointed by agreement or in default of agreement appointed by the President for the time being of the Law Society or his successor in title in accordance with the provisions of the Arbitration Act 1996 or any statutory modification or re-enactment thereof.]