Advance Tapes International Ltd CONDITIONS OF PURCHASE
- DEFINITIONS AND INTERPRETATIONS
the “Buyer » means Advance Tapes International Limited these “Conditions » means the standard conditions and other terms of purchase set out in this document which includes any special conditions and/or other terms specified in the Order or agreed in writing between the Buyer and the Supplier; the “Supplier » means the individual firm, company or other party with whom the Buyer contracts; “Parties” means the interaction between both Buyer & Supplier « Goods » means any goods bought by the Buyer from the Supplier as specified in the Order « Services » means any services bought by the Buyer from the Supplier as specified in the Order the goods (including any instalment of the Goods or any part of them) or services to be supplied by the Supplier pursuant to the Order or any of them; “the Specification” means the control documentation / information that details the performance of either the Goods and/or Services specified within the Order; « Buyer’s Goods » means any articles or things belonging to the Buyer or which the Buyer has agreed to buy or on which the Services are to be carried out; « the Order » means the purchase order placed by the Buyer which is the Buyers written instruction, on the Buyers official order form. “the Contract” means the contract between the Buyer and the Supplier consisting of the Order, these Conditions and any other documents or parts thereof specified in the Order. No other documents, variations or amendments to the Contract shall form part of the Contract unless expressly agreed in writing by both Parties
- The headings in these Conditions are provided for convenience only and are not for the purpose of interpretation.
- Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time,
- If any provision of these Conditions is or becomes illegal void or unenforceable for any reason, the validity of the remaining provisions shall not be affected.
- These Conditions automatically supersede all prior versions, implied or otherwise.
- CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
- Save for any terms implied by statute or common law the contract made between the Buyer and the Supplier shall be subject only to these Conditions and save as may be agreed by the Managing Director or Purchasing Manager of the Buyer in writing no representative or agent of the Buyer has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them alone.
- The Buyer shall be bound by the Order only if it is placed on its official order form and approved by an authorized member of the Buyers purchasing department and acknowledged by the Supplier. In the event that the Supplier fails to acknowledge the Order in writing, or otherwise, delivery of the Goods and/or provision of the Services shall be deemed to constitute acceptance of the Contract.
- The Buyer reserves the right to undertake modifications, which are not limited to, the specification, design and/or composition of those Goods and/or Services specified within the Order.
- Where a modification or change to a specification takes place the Buyer reserves the right to renegotiate any commercial terms associated to the Order.
- The Buyer’s representatives reserve the right to unrestricted access, with reasonable notice, to that of the Supplier premises to inspect Goods or review the performance of Services, as may be required from time to time, to ensure that performance to the Specification is/has been carried out in line with the Contract. No such inspection shall constitute an acceptance by the Buyer or relieve the Supplier of any of his contractual or statutory obligations.
- The Supplier shall make available all documentation and resource requested in pursuant of any such Order from that of the Buyer.
- Where variation in either material and/or process has taken place in the execution and/or provision of Goods and/or Services against the Specification, from that which has been previously approved by the Buyer, then the Supplier shall submit, in advance of supply, those details surrounding the change. Written approval for these changes must be sought, by the Supplier, from the Buyer in advance of these changes being accepted.
- The Buyer reserves the right to request Free of Charge Samples for the purpose of review and evaluation.
- SPECIFICATION OF GOODS AND/OR SERVICES
(a) The Supplier shall ensure that all Goods and/or Services provided to the Buyer shall conform in all respects with the Contract and with any representations previously made by, or on behalf of, the Supplier. (b) The Goods shall:- (i) be of first class materials, workmanship and free from defect (within the meaning of the Sales of Goods Act 1979, & as amended);
- supplied in a safe a condition with any hazardous element clearly highlighted and, where practical, mitigated in its entirety;
- be representative, in all aspects, to samples and specifications previously provided to the Buyer. In the event of conflict between the specifications of the Buyer and the Supplier those of the Buyer shall prevail;
- be capable of any standard of performance requested by the Buyer;
- be fit for any particular purpose for which the Goods are being bought which expressly or by implication is made known to the Supplier;
- comply in design, construction and quality with all relevant codes of practice & standards, as a minimum, for the United Kingdom & the European Union;
(c) The Services shall:
- conform in all respects with the Specification and the Order and with any representations previously made by or on behalf of the Supplier and shall have been carried out all reasonable skill and care;
(d) The Supplier shall ensure that all Goods and/or Services supplied shall comply with all applicable legal requirements including those relating, but not limited, to:
- Health & Safety
- The Control of Hazardous Substances
- Any / All Environmental & Legislative Requirements;
- Any / All Policies & Procedures with respect to the Buyers operating practices
(e) All work carried out by the Supplier in the course of, or in connection with, the provision of the Services and all materials used or provided by the Supplier shall be first class and suitable in all respects. Services carried out to or on the Buyer’s Goods shall render the Buyer’s Goods fit for any particular purpose for which the Services have been carried out which expressly or by implication is made known to the Supplier and shall render the Buyer’s Goods as safe as persons generally are entitled to expect.
- PACKAGING AND TRANSPORTATION
(a) The Supplier shall be responsible for any loss or damage, or any other liability incurred or sustained by the Buyer and/or its customers resulting from any damage which is attributable in whole or in part to defective and/or insufficient packing and/or in transit. (b) The Supplier shall ensure that all Goods supplied are adequately packed and transported in a manner that retains the integrity of the product as detailed within the Order. (c) The Supplier shall ensure that suitable transport is used for the safe transit and delivery/off-loading of those Buyer’s Goods and/or Services (d) The Supplier shall take all reasonable care so as to ensure that the packaging used has minimal impact upon the Environment and, where possible, is as recyclable as possible.
- INSPECTION AND TESTING
- The Buyer and anyone authorised by the Buyer shall have the right to inspect the Goods or any component parts thereof at any time during manufacture and prior to delivery to the Buyer. Whether or not the right of inspection is exercised, the Buyer shall have the right to reject the Goods after delivery if in the opinion of the Buyer they do not comply in every material way with any of the requirements of the Contract.
- Before dispatch or prior to delivery of the Goods or the Buyer’s Goods as the case may be the Supplier shall carefully inspect and (where appropriate) test them for compliance with the provisions of clause 3.
- 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.
- In the event that any Goods are found on inspection by the Buyer or by its customer not to comply in all respects with the contract they may be rejected by the Buyer (whether or not payment for them has been made to the Supplier). Upon such rejection the Buyer may either return such Goods to the Supplier at the Supplier’s risk and expense for a full credit or replacement at the Buyer’s option; itself correct or repair them upon which the Buyer will be entitled to reimbursement from the Supplier in respect of the costs incurred or purchase other goods from an alternative Supplier in replacement of those Goods which have been rejected and recover from the Supplier any additional expenditure incurred.
- The exercise of the right of rejection mentioned above shall not prejudice or limit any claim for damages that the Buyer may have in respect of any breach by the Supplier of his obligations under the contract or any failure of the Goods or Services to comply with the provisions of clause 3 hereof.
- REPAIR OR REPLACEMENT OF GOODS AND/OR SERVICES
(a) Without prejudice to any other rights it may have the Buyer may at any time, at its option, require the Supplier (at the Supplier’s expense and as soon as reasonably practicable) to carry out again any Services which do not comply with the provisions of clause 3 hereof and make good, repair or replace all Goods which are or become defective where such defects are due to:
- faulty design;
- Supplier’s erroneous instructions as to use or erroneous data;
- inadequate or faulty materials or workmanship;
- any other breach of the Supplier’s obligations under the contract, express or implied.
(b) The provisions of sub-clause (a) shall apply to repaired and replacement Goods and to Services carried out again as they do to Goods and Services as originally supplied.
- DELIVERY & MARKING
- Unless otherwise agreed by the Buyer the Supplier shall deliver the Goods or the Buyer’s Goods as the case may be to the address or addresses and/or delivery points specified in the Order or subsequently specified by the Buyer in writing. Delivery shall be made at such times or within such hours as may be specified by the Buyer and otherwise within normal working hours and shall be effected when the Goods have been unloaded.
- The Goods or the Buyer’s Goods as the case may be shall be delivered and the Services shall be provided by such date or dates as may be stipulated in the Order or otherwise agreed. Delivery of the Goods and the provision of Services by such date is of the essence and in default the Buyer shall be entitled to terminate the contract in respect of the Goods undelivered as aforesaid and/or the Services not performed. On such determination the Buyer shall, without prejudice to any other claim for damages, be entitled to recover from the Supplier any additional expenditure which may be incurred by the Buyer in obtaining other goods or services in replacement of those Goods or Services in respect of which the contract has been determined.
- A packing list should be included with each consignment which must also be marked with the purchase order number and the quantity delivered and such other information as may be specified by the Buyer. Where there is no packing list an inventory (whether written or not) prepared by the Buyer or its duly authorised representative will be accepted as final and conclusive.
- The Buyer shall have the right to refuse to accept Goods delivered in advance of the date specified in the Order or otherwise agreed.
- The Buyer may return at the Supplier’s expense any Goods delivered in excess of the quantity ordered or the date agreed if shipped in advance of the requested delivery date.
- Subject to the foregoing provisions of this clause the Supplier shall rectify or replace any Goods damaged or lost in transit.
- Where applicable the contract shall be deemed to incorporate the latest edition of Incoterms current at the date of the contract save that in the event of any inconsistency between Incoterms and any express terms of the order the latter shall prevail.
- If for any reason the Buyer cannot accept delivery of the Goods on the agreed delivery date the Supplier shall store the Goods at its own expense for a reasonable time and shall safeguard them until delivery.
- The Supplier warrants that the delivery note, labelling and packaging of the Goods shall comply with the requirements of any statute or other instrument having the force of law and that all necessary information about the use for which the Goods are supplied has been provided to the Buyer PROVIDED that nothing in this clause shall be construed as relieving the Supplier from any obligation or liability the Supplier may have under any statute or other instrument having the force of law.
- The Supplier shall supply with the Goods such written instructions, information and warnings relating to the Goods as may be necessary for the safe use of the Goods or for the Buyer to comply with its obligations under any statutory or other obligation of the Buyer.
- ASSIGNMENT, SUB-CONTRACTING & THIRD PARTY CONTRACTS
- The Supplier shall not be entitled to assign, sub-contract or sub-let the Contract or any part of it without the prior written consent of the Buyer.
- The Buyer may assign the Contract or any part of it to any person, firm or Supplier.
- If to the Supplier’s knowledge the Goods and/or Services are required by the Buyer for the fulfilment (in whole or in part) of any obligations of the Buyer under another contract or the Supplier has been nominated as a nominated supplier or sub-contractor to the Buyer under any other contract then the conditions and obligations imposed upon the Buyer by such other contract shall so far as the same relate to the Goods or Services be correspondingly undertaken by the Supplier in favour of the Buyer.
- The price of the Goods, Plant and/or Services shall be stated in the Order and unless otherwise agreed in writing by the Buyer shall be exclusive of value added tax but inclusive of any costs of packaging, carriage, insurance, handling charges and any other charges. No variation in the price or extra charges shall be accepted by the Buyer.
(a) The Supplier shall send with each delivery an advice note showing the purchase order number and shall send separately an invoice showing the purchase order number. (b) Unless otherwise agreed in writing invoices shall be payable not later than 60 days after the end of the month in which the relevant invoice date falls provided always that the Goods and/or Services under the Order and any other contract between the Supplier and the Buyer have been delivered and completed to the satisfaction of the Buyer. (c) The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Supplier. (d) No payment made by the Buyer shall imply acceptance of any of the Goods or Services supplied or performed by the Supplier and no payment shall in any way restrict any claims or rights the Buyer may otherwise have against the Supplier.
- TITLE & RISK
(a) Unless otherwise agreed in writing, title and risk in the Goods shall transfer to the Buyer when the Goods have been delivered. For the purpose of this Clause, delivery means in the case of a vehicle delivery to the Goods Received Department of the nominated destination.
- WARRANTY, INDEMNITY & CLAIMS
- The Supplier warrants that the Goods are free from defects for a period of 18 months from the date of delivery or 12 months from the date the Buyers finished Goods are sold, whichever is the later. Any defects shall be made good by repair or replacement at the Supplier’s expense. The Supplier shall also be liable for any damages and/or costs incurred by the Buyer directly arising from the defect in the Goods. Repairs and replacements shall themselves be subject to an 18 month warranty.
- The Supplier shall fully indemnify the Buyer against each and any action and against each and any claim, demand, loss, costs (including legal costs), charges and expenses arising from or incurred by reason of any infringement or alleged infringement or any unauthorised use or alleged unauthorised use of any patent, registered design, copyright, design right, trademark, service mark, trade name or other intellectual property right of any third party protected in the United Kingdom or in any other country by the possession, use, sale or offer for sale of the Goods or by the use or disposal of the Buyer’s Goods PROVIDED that this indemnity shall not apply to any liability which is due to the Supplier having followed a design furnished by the Buyer or the use of the Goods in a manner or for a purpose not reasonably to be inferred by the Supplier and not disclosed to the Supplier prior to the making of the contract.
- The Supplier shall fully indemnify the Buyer against all loss of or damage to the Buyer’s Goods and any other goods belonging to the Buyer which may occur between the time such goods or Buyer’s Goods are first in the possession custody or control of the Supplier until such time as they are delivered up to the Buyer howsoever such loss or damage may be caused and whether or not attributable to the negligence on the part of the Supplier or negligence or willful default by the Suppliers servants or agents.
(d) The Supplier shall indemnify the Buyer and keep the Buyer fully and effectively indemnified against any loss of or damage to any property or injury or death to any person or any other loss caused by any breach of contract, negligent act or omission or willful misconduct of the Supplier, its employees, agents or sub-contractors or by any defect in the raw materials used in the manufacture of or in the design, processing, manufacture, storage or transport of the Goods.
(a) The Supplier shall at all times maintain adequate insurance cover with a reputable insurer acceptable to the Buyer against all its liability under the Contract, with a minimum cover, per claim, of £5,000,000.00 (Five Million Pounds) unless otherwise agreed by the Buyer, and shall produce evidence of such policy to the Buyer on demand. (b) Such insurance cover shall, as a minimum, include: (i) third party public and product liability insurance; (ii) employer’s liability insurance; and (iii) in respect of professional services, professional indemnity insurance.
- LIABILITIES FOR DELAY
(a) If the Supplier fails to deliver the Goods within the time for delivery stated in the Purchase Order or any agreed extension thereof, the Buyer shall pay for each week or part of a week of delay, liquidated damages at the rate stated in the Purchase Order or any agreed modification thereof after which the delivery of the Goods shall be of the essence of the Contract. The payment or deduction of liquidated damages shall not relieve the Supplier of any of its obligations under the contract.
(a) The Buyer shall be entitled to terminate the contract without liability to the Supplier by giving notice to the Supplier at any time if: (i) the Supplier makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (other than for the purpose of amalgamation or reconstruction); or (ii) an administrative receiver or administrator is appointed, of any of the property or assets of the Supplier; or (iii) the Supplier ceases, or threatens to cease, to carry on business; or (iv) the Buyer reasonably believes that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier accordingly. (b) The exercise of the right granted to the Buyer under sub-clause (a) hereof shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Buyer. (c) The Buyer may at any time give written notice to the Supplier to terminate the Order forthwith and in such event the Buyer shall pay and Supplier shall accept in settlement of all claims under the Order such a sum as shall reasonable compensate the Supplier for all work done in performance of the Order prior to termination except to the extent that the Buyer has suffered loss as a result of a breach of these Conditions by the Supplier.
(a) If the Supplier becomes insolvent (within the meaning of the Insolvency Act 1986) or makes an arrangement with its creditors or has a receiver or administrator appointed, commences to be wound up or is subject to amalgamation or reconstruction, the Buyer may, without prejudice to any of its rights, terminate the Contract forthwith by notice to the Supplier or any other person in whom the Contract may have become vested.
- FORCE MAJEURE
(a) If the Buyer is affected by events beyond its reasonable control, including, without limitation, the imposition of parliamentary or governmental restrictions, trade disputes, damage to its goods or property or the suspension or cancellation of orders by its customers it shall be entitled without incurring any liability to the Supplier to require the Supplier to defer any delivery or the provision of any Services for such a period as may be reasonably necessary or to cancel any Order. In the event of such cancellation the Supplier shall be entitled after 90 days to payment of any such sum (not exceeding the contract price) as may reasonably have been incurred by the Supplier in the carrying out of any work carried out prior to the date of cancellation in the provision of Services or the production of goods for delivery to the Buyer under the Order PROVIDED that the Supplier within 30 days after the date of cancellation shall have submitted to the Buyer in writing its claim for payment together with all such information as may be reasonably necessary to enable the Buyer to verify the claim.
- CONFIDENTIALITY & COPYRIGHT
(a) The Buyer’s name shall not be used by the Supplier for advertisement or publicity without the Buyer’s prior written consent and the Supplier shall not either during the contract or at any time thereafter disclose any confidential information of the Buyer to any individual firm or company or use any such confidential information save for the purposes of the Order. (b) The copyright in all designs, blueprints, sketches, illustrations, drawings, specifications, diagrams or other documents, supplied by or at the request of the Buyer to the Supplier in anticipation of or in connection with the Contract, or made or prepared by the Supplier at the express or implied request of the Buyer in anticipation of or in connection with the Contract, shall belong absolutely to the Buyer. The Supplier shall if the Buyer so requests, execute any documents which may be required in order to vest such copyright absolutely in the Buyer.
- DOCUMENTS, DESIGNS AND TOOLING
- All plans, drawings and designs supplied by or at the request of the Buyer to the Supplier for the purposes of the Order shall remain the property of the Buyer and shall be treated by the Supplier as confidential and will be used by the Supplier only for the purposes of the Order and will be delivered up to the Buyer upon completion of the contract or upon demand, whichever is the earlier.
- Unless otherwise agreed in writing all tools, dies, patterns and other equipment supplied to the Supplier by the Buyer or manufactured and obtained by the Supplier wholly or partly at the expense of the Buyer and any replacement thereof shall be and remain the property of the Buyer, shall be clearly marked by the Supplier as « property of Advance Tapes International Limited’. and shall be used only for the purposes of the Order.
- The Supplier agrees that where any plans, drawings, designs, tools, dies software goods or other materials are originated by the Supplier or its agents, subcontractors or employees for the purposes of the Order then the Supplier will upon demand and for the consideration of £1.00 execute an assignment with full title guarantee of the copyright and all other intellectual property rights in the same or procure that such an assignment with full title guarantee is obtained from the relevant author/originator thereof in favour of the Buyer with a full waiver of all moral rights therein in favour of the Buyer.
- HEALTH & SAFETY
- When fulfilling the Contract, the Supplier shall provide all relevant information about correct use of the Goods and confirm that all necessary research and testing of the Goods have been carried out to eliminate as far as reasonably practicable any risks to the health or safety of users. Both the Supplier and its employees and sub-contractors will comply with all relevant safety legislation, including without limitation, the Health and Safety At Work Act 1974 and shall ensure that its employees, distributors and sub-contractors are made aware of and comply with the Buyer’s safety standards as provided and with any other specific site rules and safety and environmental regulations at the Buyer’s delivery site.
(a) All disputes arising out of or in connection with this contract shall be referred to arbitration by one arbitrator in accordance with the Rules of Arbitration of the International Chamber of Commerce. The arbitration shall be held in the Capital City of the Country in which the Buyer is located and the language of the arbitration shall be English.
(a) No waiver by the Buyer of any breach of the contract by the Supplier shall be construed as a waiver of any subsequent breach of the same or any other provision.
(a) Any notice required and/or permitted to be given by the Supplier under this contract shall be sent in writing by recorded or registered post and addressed to the Purchasing Department at its registered office (Advance Tapes International Ltd, Westmoreland Avenue, Thurmastone, Leicester, LE4 8PH) or to such other address as may be notified to the Supplier from time to time. If any provision of this contract is found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted or modified, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
- PROPER LAW AND JURISDICTION
(a) These conditions shall be governed by and construed in all respects in accordance with English law and shall be deemed to have been made in England, and each party hereby submits to the jurisdiction of the English courts.