GENERAL TERMS AND CONDITIONS FOR PURCHASE OF PRODUCTS & SERVICES
All terms and conditions are current as of December 2021 and are subject to change without notice
In these Terms and Conditions each of the following expressions, unless the context otherwise requires, has the meaning set out against it.
Buyer: The company identified on and issuing the Purchase Order.
Contract: The Contract for the supply of the Goods and/or Services formed by the Supplier's acceptance of the Order containing these Terms and Conditions, and any other documents specified in the Order. Should there be any inconsistency between the documents comprising the Contract the inconsistency shall be resolved by giving such documents the following order of preference (a) the text of the purchase order; (b) any documents (or parts thereof) specified in the text of the purchase order; (c) any special conditions specified in the Purchase Order; and (d) these Terms and Conditions.
Delivery Date: Not later than, nor earlier than, the date specified for delivery or rendering of services in the Order.
Delivery Point: All deliveries, if not otherwise specified, will be the Buyer facility specified in the Contract.
Early Delivery: One day or more before the Delivery Date.
Goods: Any goods agreed in the Contract to be purchased by the Buyer from the Supplier including any part or parts of them.
Late Delivery: One day or more after the Delivery Date.
Order: The order placed by the Buyer as set out on the Purchase Order of which these Terms and Conditions form a part, and any amendments to it.
Personal Data: any information identifying a living, identified or identifiable individual.
Price: The price contained in the Order, exclusive of value added tax, but inclusive of all other costs.
Services: Any services agreed in the Contract to be purchased by the Buyer from the Supplier including any part or parts of them.
Supplier: The person, firm or company identified on the Purchase Order.
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:
2.2.1 the Supplier issuing written acceptance of the Order; or
2.2.2 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 Terms and 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 law, trade custom, practice or course of dealing.
2.4 All of these Terms and Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
The Price quoted in the Order will be fixed for the duration of the Order, except when the Supplier and Buyer agree otherwise in writing and such agreement is the subject of an amendment to the Order. No variation in the price nor extra charges (including charges for packing) will be accepted by the Buyer unless agreed in writing.
The Price specified in the Order will be carriage and insurance paid to the Delivery Point specified in the Order.
Buyer shall not be responsible for the payment of any charges for Goods supplied in excess of Goods required by the Contract and such excess Goods shall remain at the Suppliers risk and shall be returnable at the Suppliers expense.
Value Added Tax, where applicable, must be shown separately on all invoices as a strictly net extra charge. All invoices and statements must show separately the VAT rate and the amount of VAT charged and the Supplier's VAT registration number.
No payment of or on account of the Price shall constitute any admission by Buyer as to proper performance by Supplier of its obligations.
The Buyer shall pay the Price within 60 days following the end of the month of delivery.
Without prejudice to any other right or remedy the Buyer reserves the right to set off any amount owing at any time from the Supplier to the Buyer against any amount payable by the Buyer under the Contract.
Time of delivery is of the essence of the Contract and delivery or rendering of services shall be strictly in accordance with the Order.
Unless written notice is given by the Buyer to the contrary, the Supplier must deliver the quantity specified on the Order in one delivery. Failure by the Supplier to deliver in one delivery will give the Buyer the option to cancel the balance of the Order with no further liability whatsoever.
The Delivery Point and/or Delivery Date may change upon written notification by the Buyer.
Unless otherwise agreed upon in advance and in writing, delivery of all Orders shall be carried out DDP (delivered duty paid) according to Incoterms 2020. Title will pass to Buyer upon delivery and unloading at the Delivery Point.
Buyer will not accept deliveries before 8.30am and after 5.00pm Monday to Friday without prior arrangement. All weekend deliveries MUST be by prior arrangement. Any delivery arriving outside the stated times without prior agreement will not gain entry to the Delivery Point.
Early Delivery or Late Delivery shall entitle the Buyer, without prejudice to any other rights which it may have, to:
terminate the Contract in whole or in part;
refuse to accept any subsequent performance or delivery of the Goods which the Supplier attempts to make;
recover from the Supplier any expenditure reasonably incurred by the Buyer in obtaining the Goods in substitution from another supplier; and/or
claim damages for any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Supplier's failure to deliver the Goods on the Delivery Date.
The Goods shall:
remain at the risk of the Supplier until delivery to the Buyer is complete (including off-loading and stacking) when ownership of and title to the Goods shall pass to the Buyer; and
be suitably packed and protected from damage during transit to the Delivery Point and in particular the Supplier shall take all necessary steps to prevent corrosive damage to the Goods during transit, especially for shipment overseas.
The Supplier will send to the Buyer, at the address for billing specified in the Order, the following documents:
Invoices fully priced and quoting the order number and stating the place of delivery; and
statements quoting invoice number and our order number.
Advice notes quoting order number are to be sent at the same time the Goods are despatched, addressed to the Buyer at the Delivery Point of the Goods.
6. QUALITY OF GOODS AND SERVICES
All Goods and Services supplied shall be of satisfactory quality and shall use the best materials and workmanship of their respective kinds and the Supplier recognises that the Buyer has placed the Order relying upon the skill and expertise of Supplier and any statements and representations made by it.
Supplier warrants that the Goods and Services shall conform to all relevant standards, specifications and conditions, and shall conform to all relevant environmental standards, guidelines issued by any relevant governmental authority, agency or body or any relevant local authority and shall take all practical steps in the design of the work to be performed to minimise any risk to the environment. Supplier will obtain and at all times maintain all licences and consents which may be required for the provision of the Services.
If samples or patterns are provided by the Supplier and approved by the Buyer, then the Goods will not be inferior in any respect to the said samples or patterns.
The Buyer will have the right to inspect the Goods during manufacture, processing, or testing and the Supplier will furnish all reasonable assistance necessary therefor. Such inspection by the Buyer shall not relieve the Supplier of any responsibilities under the Contract.
Both during such inspection and for 30 days after their delivery to the Delivery Point, the Buyer will have the right to reject all Goods which do not conform to the requirements of the Contract. Notwithstanding the foregoing, Buyer shall have the right to reject Goods based on a latent defect within 30 days after the discovery of such defect.
In the interests of both parties, the Buyer shall inspect the Goods as quickly as reasonably possible upon arrival at the Delivery Point and shall promptly advise the Supplier of any matter or any thing by reason whereof the Buyer alleges that the Goods are not in accordance with the Contract whether as to quantity or quality otherwise. Buyer shall have the right to advise Supplier of any latent defects within 30 days after the discovery of such defect. Advice of any such defect may initially be given by telephone and subsequently in writing. Buyer will advise the Supplier as promptly as is reasonably possible of any such condition.
Upon receipt of such notice, Supplier shall be responsible for making good with all possible speed the defective or damaged Goods or faulty workmanship, including full replacement where necessary together with all costs of delivery to Buyer and installation and all other costs incurred by the Buyer arising due to faulty design materials or workmanship or any act or omission of Supplier in the performance, manufacture or delivery of the Goods.
Any new parts that may be necessary will be delivered by the Supplier; carriage paid to such address as the Buyer shall specify to the Supplier.
In the event Supplier is unable to make good the defective or damaged Goods in a timely fashion as determined by Buyer in its sole discretion, such Goods will be either disposed of without further notice or despatched to the Supplier's address at the Supplier's risk and expense.
8. WARRANTY CONDITIONS; INDEMNITY; LIMITATION OF LIABILITY
The Supplier warrants that the Goods shall:
be of the best design, quality, material and workmanship, be without fault and conform in all respects with the Order and specifications, drawings, samples, descriptions and/or patterns supplied or advised by the Buyer to the Supplier; and
comply with all statutory requirements and regulations and voluntary codes of conduct in respect of the Goods.
The Buyer's rights under these Conditions are in addition to the statutory conditions implied in favour of the Buyer by the Sale of Goods Act 1979.
The duration of the warranty shall be the greater of:
a period of 24 months from the date of commissioning of the Buyer's product incorporating the Goods; or
30 months from the date of delivery of the Goods to the Buyer.
Except in the case of latent defects as referred to in 7.2, the Buyer shall notify the Supplier within 10 days of the discovery of defect(s) requesting remedial action.
The Supplier shall indemnify and keep the Buyer, its directors, officers, parents, affiliates, subsidiaries, employees, agents, successors and assigns indemnified in full from and against all direct, indirect or consequential liability (which terms shall include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) arising out of or resulting in any way from:
defective design, workmanship, quality or materials in relation to the Goods and/or breach of the warranty contained in these Terms and Conditions;
any act or omission of the Supplier or its employees, agents or sub-contractors in supplying, delivering and installing the Goods or providing the Services;
any discrepancies, errors or omissions in drawings, documentation or other information supplied in writing by Supplier, whether they have been approved by the Buyer or not, provided that such discrepancies, errors or omissions are not due to inaccurate drawings or information and decisions supplied in writing to the Supplier by the Buyer;
any claim made against the Buyer in respect of any liability, loss, damage, injury, cost or expense sustained by the Buyer's employees or agents or by any customer or third party to the extent that such liability loss damage cost or expense was caused by relates to or arises from the Goods or Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Supplier; and
any claim of infringement of intellectual property rights arising out of the purchase, sale or use of the Goods and/or Services whether such Goods or Services were provided alone or in combination with other products, software or processes. Supplier expressly waives any claim against Buyer that such infringement arose out of compliance with Buyer's specification.
In no event shall Buyer be liable for anticipated or lost profits or for indirect, incidental or consequential damages, regardless of whether or not Buyer was advised of the possibility of such damage.
The Buyer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract.
The Supplier shall not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Buyer.
The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Buyer. If the Buyer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
10. TOOLS; BUYER MATERIALS
Material, plant, tools, jigs or other equipment supplied and or paid for by the Buyer for use in connection with Orders placed by the Buyer will remain the property of the Buyer. All such tools, goods, materials and other property shall be surrendered to the Buyer on demand in good and serviceable condition together with any materials added thereto by the Supplier and the Supplier shall have no lien on such items or materials either for any sum payable under this Order or for any other monies or obligations. Payment for work done or materials added to such goods and materials shall not be due unless and until such goods and materials shall have been delivered to the Buyer and the work has been done to the Buyer's satisfaction. If the Supplier shall not deliver such goods and materials to the Buyer on the due date or in accordance with this section, the Buyer shall be entitled by its servants or contractors to enter the Supplier's premises and retake such goods and materials utilising where necessary the Supplier's equipment. The cost of so doing shall be recoverable by the Buyer from the Supplier on demand.
Responsibility for the safe custody and maintenance in good condition, fair wear and tear excepted, of such items and materials referred to above will rest with the Supplier, and Supplier shall keep them insured at the Supplier's expense in their full value against loss or damage, for so long as such items are in the possession of the Supplier and provide proof of such insurance to Buyer upon Buyer's request.
The Buyer will not accept any liability for any items received by the Supplier from the Buyer in a damaged state under or in connection with the Contract unless such damage is notified in writing to the Buyer within 7 days of the receipt by the Supplier of such items.
For any jigs, tooling, etc., ordered or associated with any Order, the responsibility for the design of such tooling lies solely with the Supplier, regardless of whether or not the Buyer has supplied any drawings, sample parts or information of any kind. It is the Supplier's express responsibility to ensure that any such tooling, jigs, etc., produces Goods that conform to the description set forth in the Order.
All material manufactured by the Supplier in accordance with the Buyer's detailed drawings or with the use of Buyer's tools, dies, patterns, jigs, fixtures or special tooling shall not be sold by or otherwise shared in any way by the Supplier with anyone other than the Buyer.
11. INTELLECTUAL PROPERTY RIGHTS
All materials, and any inventions (whether or not patentable), works of authorship, trade secrets, ideas, concepts, trade names and trade or service marks created or prepared for Buyer (collectively "Inventions"), shall belong exclusively to Buyer. Standard goods manufactured by Supplier and sold to Buyer without having been designed, customized, or modified for Buyer do not constitute Inventions. Furthermore, any works conceived or reduced to practice by Supplier which were developed entirely on Supplier's own time without using equipment, suppliers, facilities, or Buyer's information do not constitute Inventions.
Supplier hereby assigns the worldwide right, title and interest in and to the Inventions to Buyer. Buyer shall have the right, at Buyer's option and expense, to seek protection by obtaining patents, copyright registrations, and filings related to proprietary or intellectual property rights. Supplier agrees to execute, and to cause its employees to execute, such documents, applications, and conveyances and to supply information as Buyer shall request, in order to permit Buyer (at Buyer's expense) to protect, perfect, register, record and maintain its rights in the Inventions and effective ownership of them throughout the world. These obligations survive the expiration or termination of this agreement.
The Buyer and the Supplier each undertake that they shall not at any time disclose to any person any confidential information concerning the business, affairs, customers or suppliers of the other party, except as permitted by Condition 12.2.
12.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Condition 12; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
The Supplier will not, without the prior written consent of the Buyer, advertise, publicly announce or provide to any other person information relating to the existence or details of the Order or use the Buyer's name in any format for any promotion, publicity, marketing or advertising purpose.
During the term of the Contract, 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 and the receipt for the current year's premium in respect of each insurance.
The Buyer 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 Buyer shall pay to the Supplier fair and reasonable compensation for the direct costs incurred by the Supplier in relation to the work in progress at the time of termination.
The Buyer shall have the right at any time by giving notice in writing to the Supplier to terminate the Contract immediately if:
the Supplier or any of its subcontractors commits a breach of any of the terms and conditions of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of being notified in writing by the Buyer of the breach;
any distress, execution or other process is levied upon any of the assets of the Supplier;
the Supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise take 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 and/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;
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 opinion of the Buyer the capability of the Supplier to adequately fulfil its obligations under the Contract has been placed in jeopardy.
The termination of the Contract, howsoever arising, will be without prejudice to the rights and duties of the Buyer accrued prior to termination. These Terms and Conditions which
expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
Without prejudice to any other right or remedy which the Buyer may have, if any Goods are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Contract (other than in respect of any materials ordered, provided or specified, or designed by the Buyer or any action, omission or neglect of the Buyer) the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Buyer:
to rescind the Order;
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 Buyer'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 provided that such repair or replacement is completed and sent to the Buyer within 7 days of notification of such defect by the Buyer;
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/or
to claim such damages as may have been sustained in consequence of the Supplier's breach or breaches of the Contract.
All notices or other communications to or between the parties must be in writing and may be sent by email or first-class prepaid post.
17. FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party.
18 COMPLIANCE WITH LAWS.
In performing its obligations under the Contract, the Supplier shall:
comply with all applicable laws, statutes, regulations from time to time in force; and
comply with the mandatory policies of the Buyer, as notified to the Supplier from time to time.
19 SECURITY AND PRIVACY
If Supplier is granted access to any: (a) Buyer facility or location (each a Site); or (b) Buyer’s systems, networks, databases, computers, telecommunications or other information systems owned, controlled or operated by or on their respective behalf (collectively Systems), then such access is subject to Supplier’s compliance with all then-current Buyer policies, as notified to the Supplier from time to time. Any access to any Sites or Systems is strictly for the purpose of Supplier’s delivery of the Goods and Services.
Supplier warrants and represents that Supplier: (a) shall establish and maintain an environment that meets the highest standards of industry practice to safeguard Confidential Information of the Buyer and Personal Data of the Buyer with the appropriate administrative, physical, organizational and technical safeguards that protect against the unauthorized or unlawful collection, destruction, loss, access, use, storage, alteration or disclosure of Confidential Information of the Buyer and Personal Data of the Buyer; (b) cause employees and contract staff engaged or recruited to deliver the Goods and Services and sub-contractors utilised in the supply, delivery or installation of the Goods or Services to abide strictly by Supplier’s security and privacy obligations under this Condition 19; (c) shall include an appropriate network security program (that includes, without limitation, encryption in storage and transit); (d) shall not, directly or indirectly, sell, rent, disclose, distribute, commercially exploit, or transfer any Confidential Information of the Buyer or Personal Data of the Buyer to any third party for any purpose whatsoever; (e) shall not collect, access, utilize, process, store, copy, modify, create derivative works of, or disclose any Confidential Information of the Buyer or Personal Data of the Buyer except as specified in these Terms and Conditions or other documented instructions provided by Buyer; (f) only use, and retain the Confidential Information of the Buyer and Personal Data of the Buyer for and at the direction of Buyer and for the purposes of providing the Goods and Services (the Purpose), and for no other individual or entity and for no other purpose, and (g) unless required by law, shall securely delete all Confidential Information of the Buyer and Personal Data of the Buyer as soon as the Goods and Services have been delivered and are no longer needed for the Purpose.
Upon the Buyer’s written request, the Supplier shall promptly and accurately complete a written information security questionnaire provided by Buyer or a third party on the Buyer’s behalf regarding the Supplier’s business practices and information technology environment in relation to all Personal Data being handled and/or the Services.
Supplier shall notify Buyer at [email protected] immediately (and in any event, (i) no later than forty-eight (48) hours) or (ii) in accordance with the applicable data protection legislation, (whichever is shorter) following the discovery of any incident that involves or reasonably may involve the accidental or unlawful collection, destruction, unauthorized access to, use, alteration, disclosure, processing, or loss of any Confidential Information of the Buyer or Personal Data of the Buyer or any other suspected breach or compromise of the security, confidentiality or integrity of any Confidential Information of the Buyer or Personal Data of the Buyer (Security Incident). Supplier shall provide to Buyer any and all information relating to such Security Incident and assistance Buyer requires to enable it to discharge its obligations under applicable data protection legislation including all information required to be notified to the supervisory authority pursuant to applicable data protection legislation and resources and assistance as are required by Buyer in connection with such notification and for Buyer’s notification to the relevant data subjects of such Security Incident, as applicable. Unless required by applicable data protection legislation, Supplier shall not notify or make any statement (or provide any documents) to any third party (including but not limited to the media, suppliers, consumers, relevant regulators and supervisory authorities and individuals affected by a Security Incident) about such Security Incident and/or matters concerning any Confidential Information of the Buyer or Personal Data of the Buyer, without the prior written approval of Buyer. Where Supplier is legally required to make a statement (or provide any documents) without the approval of Buyer, Supplier shall promptly provide to Buyer a copy of any such statements or documents unless prohibited by applicable law. Buyer may take enforcement action against Supplier, including but not limited to, limiting, suspending, or terminating Supplier’s access to all or any portion of Personal Data of the Buyer or taking other action that may be reasonably necessary to protect the privacy or security of Personal Data of the Buyer, if: (i) Buyer determines in its reasonable discretion that Supplier has failed to comply with its obligations under these Terms and Conditions; and/or (ii) Supplier fails to reasonably cooperate with Buyer’s reasonable request from time to time for information regarding Supplier’s privacy and security practices.
Supplier will be required to carry out an agreed level of screening of all employees and contract staff engaged or recruited to deliver the Goods and Services. This may include but is not limited to (1) Personal references; (2) Work references; (3) Confirmation of academic and professional qualifications; (4) CV work history verification; (5) Criminal records check; (6) Drug and substances testing.
If any provision of the Contract or part of any provision 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 provisions or part of any provision shall continue in full force and effect.
Failure or delay by the Buyer in enforcing or partially enforcing any provision or the Contract will not be construed as a waiver of any of its rights under the Contract.
Any waiver by the Buyer or 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.
The parties to this Contract do not intend that any terms of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
The Contract shall be interpreted and governed by the laws of Northern Ireland and the parties hereby submit to the exclusive jurisdiction of the courts of Northern Ireland.
Nothing in these Terms and Conditions shall prejudice any conditions or warranty (express or implied) or any other right or remedy to which the Buyer is entitled in relation to the Goods whether under the Contract or not.
END OF TERMS AND CONDITIONS