JAMES WILSON (Engravers) Ltd
TERMS & CONDITIONS OF PURCHASE
In these Conditions:
“the Contract” means the Purchase Order and the Supplier’s acceptance of the Purchase Order;
“the Goods” means any goods, materials, articles, services or work (including any part or parts of them) to be supplied to the Purchaser by the Supplier (or by any of the Supplier’s sub-contractors) pursuant to the Contract;
“Intellectual Property Rights” means all inventions, patents, registered designs, design rights, database rights, and copyrights, know-how and trademarks (whether registered or not) and the goodwill attaching to any of them and applications for any of them and any right or forms of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world;
“the Purchase Order” means the Purchaser’s written instruction to supply the Goods, incorporating these Conditions;
“the Purchaser” means James Wilson (Engravers) Ltd; and
“the Supplier” means the supplier named on the Purchase Order.
In these Conditions, references to any statute or statutory provision shall, unless the context otherwise requires, be construed as references to that statute or provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
In these Conditions, references to the masculine include the feminine and the neuter and vice versa, and references to the singular include the plural and vice versa.
The headings to these Conditions will not affect their interpretation.
Application of terms
Unless varied by the written agreement of a person authorised by the Purchaser, these Conditions are the only conditions upon which the Purchaser is prepared to deal with the Supplier and they shall govern the Contract to the entire exclusion of all other terms and conditions.
Each Purchase Order for Goods by the Purchaser from the Supplier shall be deemed to be an offer by the Purchaser to purchase Goods subject to these Conditions and no Purchase Order shall be accepted until the Supplier either expressly by giving notice of acceptance, or impliedly by fulfilling the Purchase Order, in whole or in part accepts the offer.
No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or acceptance of Purchase Order, specification or similar document will form part of the Contract and the Supplier waives any right which it might otherwise have to rely on such terms and conditions.
Quality of goods
The Goods shall conform in all respects with the Purchase Order (including any variations thereto) and any specifications and other requirements or descriptions supplied or advised by the Purchaser to the Supplier.
The Goods shall be safe, durable, free from defects, fit for the purpose for which they are supplied and for any particular purpose made known to the Supplier by the Purchaser, of the best available design, quality, materials and workmanship and, where the Goods include services or other work, such work will be performed with reasonable skill and care.
The Purchaser’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Purchaser by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 and by any other applicable legislation.
Unless otherwise stated in the Contract, the Goods shall conform to all British, European and international standard specifications wherever appropriate and with the requirements of any statutes, orders, regulations or byelaws from time to time in force.
If any of the Goods fail to conform with any of the provisions in this Condition, the Purchaser shall be entitled to use any one or more of the Remedies listed and the Purchaser shall be entitled to such remedies notwithstanding the fact that the Goods have been in use provided that this period of use has been for a reasonable amount of time.
The price of the Goods shall be as stated in the Purchase Order and shall, unless otherwise agreed in writing by the Purchaser, be exclusive of Value Added Tax but inclusive of all other charges.
No increase in the price of the Goods will be accepted by the Purchaser unless a person authorised by the Purchaser has agreed to such increase in writing.
The duration of the Contract shall be as specified in the Purchase Order, or otherwise agreed in writing between the parties, subject to earlier termination of the Contract.
The Goods shall be delivered by the Supplier carriage paid to the place stated in the Purchase Order or such other place of delivery as is specified by the Purchaser in writing prior to delivery of the Goods and in accordance with any additional instructions stated on the Purchase Order.
The Goods shall be delivered on the date stated on the Purchase Order or, if no such date is stated, within 28 days of the date of the Purchase Order.
Goods shall be delivered to the Purchaser during the following hours:
Monday – Thursday: 09.00 – 16.00 hours
Friday: 09.00 – 12.00 hours
If the Purchaser provides any access to premises, labour or equipment in connection with the delivery of, or the performance of any services forming the whole or part of, the Goods, such access shall be provided without acceptance by the Purchaser of any liability whatsoever and the Supplier shall indemnify the Purchaser in respect of any actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may suffer or incur as a result of, or in connection with any liability, loss, damage, injury, death, cost or expense occurring in the course of delivery, performance or installation to the extent that such damage or injury is attributable to any act or omission of the Supplier or any of the Supplier’s sub-contractors.
Where any access to the Purchaser’s premises is necessary in connection with delivery, performance or installation, the Supplier and its sub-contractors shall at all times comply with any security and health and safety regulations currently in force, which may include obtaining security clearance from the Purchaser.
Time for delivery shall be of the essence.
Failure to deliver the Goods by the due date shall, without prejudice to any other rights and remedies which the Purchaser may have, entitle the Purchaser to:
cancel the Contract in whole or in part;
refuse to accept or pay for any subsequent delivery of the Goods which the Supplier attempts to make;
recover from the Supplier any expenditure reasonably incurred by the Purchaser in obtaining the Goods in substitution from another Supplier; and/or
claim damages for any additional costs, loss or expenses incurred by the Purchaser which are in any way attributable to the Supplier’s failure to deliver the Goods on time.
Unless specifically agreed otherwise all materials to be supplied under the Order are to be new. All materials used to fulfil the Order must be traceable to their source of supply. Suppliers are required to retain records of traceability for a minimum of 7 Years
Property and risk
The Goods shall remain at the risk of the Supplier until delivery to the Purchaser, when, subject to the Goods not having been rejected, title to and risk in the Goods shall pass to the Purchaser.
Inspection and rejection
The Purchaser shall have the right to request the Supplier to complete a first article inspection and thereafter a batch inspection. This will be completed at no additional cost to the Purchaser.
The Purchaser shall have the right to inspect and test the Goods prior to or within a reasonable time after their delivery at such times as the Purchaser may reasonably require.
If the Goods do not conform or, in the Purchaser’s reasonable opinion, are unlikely to conform with the Purchase Order or with any specifications, requirements or descriptions supplied or advised by the Purchaser to the Supplier, the Purchaser may inform the Supplier and the Supplier, at the Supplier’s expense, shall immediately take such action as is necessary to ensure conformity to the reasonable satisfaction of the Purchaser.
Any omission by the Purchaser to undertake such inspection or testing or any failure by the Purchaser to make a complaint at the time of such inspection or testing and any approval given by the Purchaser during or after inspections or tests shall not constitute a waiver by the Purchaser of any of the Purchaser’s rights or remedies in respect of the Goods and, notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Supplier’s obligations under the Contract.
Unless otherwise agreed in writing by a person authorised by the Purchaser, the Supplier shall render a single invoice in respect of the total consignment or (as the case may be) performance of the Goods delivered and not rejected pursuant to Condition 8.
The Purchaser shall pay the price of the Goods within 60 days from the end of the month that a valid invoice is received provided delivery has occurred and the Goods have not been rejected, but time for payment shall not be of the essence of the Contract.
Without prejudice to any other rights or remedies, the Purchaser reserves the right to set off any amount owing at any time from the Supplier to the Purchaser against any amount due to the Supplier under the Contract or any other agreement or contract with the Purchaser.
The guarantee period applicable to the Goods shall be 24 months from putting into service or 30 months from delivery, whichever shall be the shorter (subject to any alternative guarantee arrangements expressly agreed in writing between the Purchaser and the Supplier).
If the Purchaser, within the guarantee period or within 30 days thereafter, gives written notice to the Supplier of any defect in any of the Goods arising during the guarantee period under proper and normal use, the Supplier, without prejudice to any other rights or remedies which the Purchaser may have, shall immediately take such action as is necessary to remedy the defects (whether by repair, replacement or re-performance as the Purchaser shall elect) at the Supplier’s expense.
Labelling and packing
Immediately on dispatch of any consignment of Goods, the Supplier shall send notification to the Purchaser at the address for delivery of the Goods as specified on the Purchase Order and such notification shall specify the date and place of dispatch, the means of transport, the number of packages and the net, gross and tare weight of the Goods.
The Supplier shall ensure that each delivery is accompanied by a delivery note which shows the Purchase Order number, date of order, number of packages, the net, gross and tare weights of the goods and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
The Goods shall be packed and marked in a proper manner and in accordance with the Purchaser’s instructions and in accordance with any statutory requirements and any requirements of the carriers.
The Supplier shall provide a dated Certificate of Conformance with each delivery. The Certificate of Conformance shall state the part and issue number of the goods, the standards/specifications that they has been supplied against, any deviations from the standards/specifications requested in the Purchase Order and a signature of a responsible person confirming that the goods supplied meet these standards.
The details of the contents shall be clearly marked on each container and all containers of hazardous materials shall bear prominent and adequate warnings in English and must be accompanied by emergency information in English, in the form of written instructions, labels or similar markings.
The Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may incur as a result of or in connection with any breach of this Condition.
All packaging materials will be considered non-returnable and will be destroyed unless the Supplier’s delivery note states that the Purchaser will be charged for any packaging material not returned. Any such packaging material will only be returned to the Supplier at the Supplier’s cost.
If Goods are delivered to the Purchaser in excess of the quantities ordered the Purchaser shall not be bound to pay for the excess and any excess will be, and will remain at, the Supplier’s risk and will be returnable at the Supplier’s expense.
The Goods shall not infringe any Intellectual Property Rights of any third party.
All Intellectual Property Rights in any specifications, instructions, plans, drawings, patterns, models, designs, software, firmware or other material furnished to or made available to the Supplier by the Purchaser shall, subject to the rights of third parties, remain vested solely in the Purchaser and the Supplier shall not (except to the extent necessary for the implementation of the Purchase Order) without the prior written consent of the Purchaser use or disclose any such specifications, plans, drawings, patterns, models or designs or any information which the Supplier may obtain and the Supplier shall not refer to the Purchaser, the Contract or the Purchase Order in any advertisement without the Purchaser’s prior written consent.
The Supplier hereby assigns to the Purchaser all Intellectual Property Rights generated in the course of providing services or work pursuant to the Contract.
Software & Firmware
Where software & firmware is required to be supplied the Supplier warrants that the Purchaser has been provided with any conditions of use or licence terms relating to such software & firmware prior to the date of the Order. In the event that such conditions of licence terms have not been provided the Supplier agrees to waiver their application and the Supplier agrees to fully indemnify the Purchaser against all losses, claims, liabilities, damages, costs and expenses arising from the purchaser’s use of the software in contravention of any such conditions or licence. The Supplier warrants that the Supplier is the owner of the copyright or other intellectual property in such software to be supplied or has a valid licence from the owner of the copyright or intellectual property to sell or sub-licence the software to the Purchaser.
Software or firmware that has been written by the Supplier for use in the Purchasers products shall remain the property of the Purchaser and shall be supplied with all supporting documentation to a level that will allow the Purchaser to re-source the material from another supplier. Should the supporting documentation not be received at time of delivery the Supplier shall maintain an archive, at their own risk and expense, of the documentation for a minimum of 10 years. This archive will be accessible to the Purchaser at any time during this period.
Indemnity and insurance
The Supplier shall keep the Purchaser indemnified in full against all liability, actions, suits, claims, demands, losses, charges, costs and expenses (including legal and other professional fees and expenses) incurred by the Purchaser as a result of or in connection with:
any loss, destruction of or damage to property caused by, relating to or arising from the Goods;
defective workmanship or quality of the Goods;
any infringement or alleged infringement of any Intellectual Property Rights caused by the use, manufacture or supply of the Goods; and
any claim made against the Purchaser in respect of any liability, loss, damage, injury, death, cost or expense sustained by the Purchaser’s employees, agents or customers or any third party to the extent that such liability, loss, damage, injury, death, cost or expense was caused by, relates to or arises from any defect in the Goods or the negligent or wrongful act or omission of the Supplier.
The Supplier shall at all times during the term of the Contract maintain a suitable quality management system such as one which complies with the principles of the ISO 9001. However, for the avoidance of doubt, this does not extend to a requirement on the Supplier to obtain certification under ISO 9001.
The Purchaser shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Supplier written notice whereupon all work on the Contract shall be discontinued and the Purchaser shall pay to the Supplier fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any indirect or consequential loss.
The Purchaser shall have the right at any time by giving the Supplier written notice to terminate the Contract immediately if:
the Supplier commits a breach of any of the Conditions of the Contract;
any distress, execution or other process is levied upon any of the assets of the Supplier;
the Supplier enters into any compromise or arrangement with its creditors, commits any act of bankruptcy or if an order is made or an effective resolution is passed for the Supplier’s winding up (except for the purposes of amalgamation or reconstruction as a solvent company), or if a petition is presented to Court, or if a receiver/manager, administrative receiver or administrator is appointed in respect of the whole or any part of the Supplier’s undertaking or assets;
the Supplier ceases or threatens to cease to carry on its business; or
the financial position of the Supplier deteriorates to such an extent that in the reasonable opinion of the Purchaser the capability of the Supplier adequately to fulfil its obligations under the Contract has been placed in jeopardy.
The termination of the Contract, however arising, will be without prejudice to the rights and obligations of the Parties which have accrued prior to termination. These Terms and Conditions shall survive termination of this Contract.
Without prejudice to any other rights or remedies which the Purchaser may have under the Conditions of this Contract or otherwise, if any Goods are not supplied in accordance with, or the Supplier fails to comply with, any of the Conditions of this Contract, the Purchaser shall be entitled to avail itself of one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Purchaser:
to rescind the Contract;
to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by the Supplier;
at the Purchaser’s 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;
to refuse to accept any further deliveries of the Goods but without any liability to the Supplier;
to carry out at the Supplier’s expense any work necessary to make the Goods comply with the Contract; and
to claim such damages as may have been sustained in consequence of the Supplier’s breaches of the Contract.
Failure or delay by the Purchaser in enforcing or partially enforcing any provision of the Conditions will not be construed as a waiver of any of the Purchaser’s rights under the Contract.
Any waiver by the Purchaser of any breach of, or any default under, any provision of the Contract by the Supplier will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
If any provision of these Conditions is held by any competent authority to be illegal, void, voidable, invalid, unenforceable or unreasonable in whole or in part it shall, to the extent of such illegality, invalidity, voidness, voidablity, unenforceability or unreasonableness be deemed severable and the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
Health and safety
The Supplier represents and warrants to the Purchaser that the Supplier has satisfied himself that all necessary tests and examinations have been made or will be made prior to delivery of the Goods to ensure that the Goods are designed and constructed so as to be safe and without risk to the health and safety of persons using the same, and the Supplier represents and warrants that the Supplier has made available to the Purchaser adequate information about the use for which the Goods have been designed and have been tested and about any conditions necessary to ensure that when put to use the Goods will be safe and without risk to health. The Supplier shall indemnify the Purchaser against all actions, suits, claims, demands, losses, charges, costs and expenses which the Purchaser may incur as a result of or in connection with any breach of this Condition.
The Supplier shall not unlawfully discriminate within the meaning and scope of the provisions of the Race Relations Act 1976 or any statutory modification or re-enactment of the Race Relations Act 1976 relating to discrimination in employment. The Supplier shall take all reasonable steps to secure the observance of these provisions by all servants, employees or agents of the Supplier and all sub-contractors employed in the execution of the Purchase Order.
Save for information which is in the public domain (otherwise than by a breach of this Condition), the Supplier shall keep secret and not disclose any technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by the Purchaser or its agents and any other confidential information concerning the Purchaser’s business or its products which the Supplier may obtain and the Supplier shall restrict disclosure of such confidential material to such of the Supplier’s employees, agents or sub-contractors as need to know the same for the purpose of discharging the Supplier’s obligations to the Purchaser and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Supplier.
This Condition shall apply during the continuance of the Contract and after its termination howsoever arising.
Assignment and sub-contracting
The Supplier shall not be entitled to assign the Contract or any part of it without the prior written consent of the Purchaser.
The Purchaser may assign the Contract or any part of it to any person, firm or company.
Sub-contracting by the Supplier shall not in any way relieve the Supplier of any of its responsibilities under the Contract.
Where any Goods are supplied by the Supplier’s sub-contractors, the Supplier shall procure that such sub-contractors shall comply with and be bound by these Conditions.
If any dispute arises out of or in connection with this Contract (“Dispute”) the parties undertake that, prior to the commencement of a reference to arbitration, they will seek to have the Dispute resolved amicably by use of an alternative dispute resolution procedure acceptable to both parties. Either party will be entitled to initiate the process by written notice to the other.
If the Dispute has not been resolved to the satisfaction of either party within 14 days of initiation of the procedure or if either party fails or refuses to participate in or withdraws from participating in the procedure then either party may refer the Dispute to arbitration.
Any Dispute referred to arbitration shall be determined before an arbitral tribunal in accordance with the rules of the London Court of International Arbitration which shall apply to any arbitration under this Contract wherever such arbitration shall be conducted.
London shall be the seat of the arbitration but hearings may be held at such other place as the parties and the arbitrators may agree or as the arbitrators shall deem appropriate after consultation with the parties. The arbitration shall be in the English language.
The award of the arbitral tribunal shall be final and binding.
Neither the Supplier nor the Purchaser shall, for publicity purposes without the prior written consent of the other party:
make use of the other party’s name;
make use of the name of any of the other party’s personnel, customers or agents;
make use of any information obtained under the Contract; or
refer to the other party or the Contract in any advertisement.
A notice given under or in connection with the Contract must be in writing and delivered by hand or sent by first class post or by facsimile or electronic communication to the address of the Purchaser or (as the case may be) to the address of the Supplier shown on the Purchase Order or to such other address as either the Supplier or the Purchaser (as the case may be) may substitute by notice to the other party.
Notice shall be deemed given:
if sent by first class post: two business days after posting exclusive of the day of posting;
if delivered by hand: on the day of delivery;
if sent by facsimile or electronic communication: at the time of transmission.
Third party rights
The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Contract.
Governing law and jurisdiction
These Conditions shall be governed by and construed in accordance with English law.
The Supplier hereby irrevocably submits to the exclusive jurisdiction of the English Courts.