Terms and Conditions for the Supply of Products and Materials
Definitions:
‘Business Day’ a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
‘Buyer’ shall mean the person, firm, company or other entity issuing the Purchase Order.
‘Seller’ shall mean the person, firm, company or other entity to whom the Purchase Order is issued.
‘Purchase Order’ shall mean the document issued by the buyer to the Seller defining the materials, goods and/or services to be provided together with any requirements, documents listed or referred to, and these conditions.
‘Contract’ shall mean the agreement between Buyer and Seller for the Goods as identified in the Purchase Order.
‘Specification’ refers to the specification for highway works, British and European standards having bearing on the manufacture and supply of the Goods identified in the Purchase Order and including any plans, drawings, data or other information relating to the Goods.
‘Goods’ shall mean all products or materials developed by the Seller or its agents, contractors and employees as part of or in relation to the supply, manufacture and delivery of goods identified in the Purchase Order, including without limitation any drawings, designs, pictures, computer programs, data, specifications and reports (including drafts).
‘Terms’ shall mean these terms and conditions as amended from time to time in accordance with clause 1.3.
‘Conditions’ means the terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and The Seller.
Basis of Purchase
1.1 These conditions shall form the basis of the Contract. Unless accepted by the Buyer in writing no terms or conditions endorsed upon delivery or contained in the Sellers quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
1.2 Where such terms or conditions are included in the Contract but conflict with the Buyer’s Conditions then the latter shall take precedence.
1.3 No variation to the Purchase Order or these Terms shall be binding unless mutually agreed in writing between the authorised representatives of the Buyer and the Seller.
1.4 Goods shall only be supplied by the Seller on receipt of an authorised Purchase Order and Purchase Order Reference Number issued by the Buyer.
Quality of Goods
2.1 All Goods supplied must conform to the Purchase Order and Specifications, drawings, samples or any other description of the Goods
2.2 Any Specifications supplied by the Buyer to the Seller or specifically produced by the Seller for the Buyer in connection with the Contract together with the copyright design rights or other intellectual property rights in such Specifications shall be the exclusive property of the Buyer and the Seller assigns with full title guarantee to the Buyer all such copyright design rights and other intellectual property rights for no further consideration.
2.3 It is a condition of the Contract that the Goods delivered by the Seller shall:
2.3.1 Correspond as to description, quality and conditions with the particulars stated or referred to in the Purchase Order;
2.3.2 Conform to any sample, pattern, and drawing or design approved in writing or supplied by the Buyer;
2.3.3 Be of sound materials and workmanship;
2.3.4 Meet any standard or inspection or performance stated or referred to on the Purchase Order or otherwise communicated by the Buyer to the Seller;
2.3.5 Be fit for any purpose expressly or impliedly made known to the Seller, or otherwise for their ordinary purpose;
2.3.6 Comply with the relevant requirements of common law and any statute, statutory rule or order or other regulation having the force of law which may be in operation on delivery. In particular, but without prejudice to the generality of the foregoing, the Seller undertakes to comply in every respect with the requirements of the Health and Safety at Work Act 1974;
2.3.7 Where the goods or materials are required for inclusion in works in which the Buyer is the contractor, the goods or materials shall be to the satisfaction of the Buyer and any architect/engineer or supervising officer named in the construction contract to which the Buyer is a party.
2.3.8 Where applicable be of equal or greater quality or standard than any relevant statutory proviso recommendation, British Standard or B.S. Code of Practice, E.C. Regulation or European Directive.
2.4 The Buyer’s rights under these Conditions are in addition to the statutory conditions implied in favour of the Purchase by the Sale of Goods Act 1979.
2.5 If the Goods are delivered to the Buyer in excess of the quantities ordered the Buyer shall not be bound to pay for the excess. Any excess shall be and shall remain at The Seller’s risk and shall be collected and returned at the Seller’s expense within a reasonable period of time. Any additional disposal/moving costs incurred by the Buyer due to the Seller not collecting the Goods shall be levied against the Seller.
Price
3.1 The price for the Goods shall be that stated in the Purchase Order and, unless otherwise stated, shall be:
3.1.1 exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
3.1.2 inclusive of all charges for packaging, packing, shipping, carriage insurance and delivery of the Goods to the address specified for delivery in the Purchase Order and any, customs and excise duties, imposts or levies other than valued added tax.
3.2 No increase in the price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of the Buyer.
3.3 Where the Purchase Order makes provision for variation of the price, it will not be effective unless the Seller gives notice in writing to the Buyer of any grounds which will result in an increase and these are acceptable to the Buyer.
3.4 The Buyer does not accept any general notification, or circular price increases that are issued by the Seller. All prices shall be those identified within the Contract subject only to clause 3.3.
Payment
4.1 The Seller shall invoice the Buyer within 8 weeks of delivery of the Goods as the case may be and each invoice shall quote the number of the relevant Purchase Order. Invoices received after 8 weeks from the date of delivery of the Goods may be disallowed.
4.2 The Buyer shall pay for the Goods within the terms agreed between the Buyer and Seller or at the latest 60 days after the end of the month in which the Goods are invoiced.
4.3 A valid invoice is one that:
4.3.1 is delivered in timing in accordance with the contract
4.3.2 is that is for the correct sum
4.3.3 is in respect of goods/services supplied or delivered to required quality (or are expected to be at the required quality)
4.3.4 quotes the relevant purchase order / contract reference (where used)
4.3.5 has been delivered to the nominated address
Delivery
5.1 The Goods shall be delivered to the address specified in the Purchase Order and on the date or within the period stated in the Purchase Order, in either case during the Buyer’s usual business hours or as specifically agreed in the Purchase Order.
5.2 Where the date or time of delivery of the Goods is to be specified, the Seller shall give the Buyer notice of the specified date or time of the delivery in accordance with the details in the Purchase Order.
5.3 No delivery or ancillary charge for the provision of offloading, palletisation, protection will be accepted by the Buyer unless previously agreed in the Purchase Order.
5.4 The time requirements for delivery or performance specified in the Purchase Order shall be strictly complied with and time shall be of the essence. If no programme or times for delivery or performance are specified in the Purchase Order then the programme or times for delivery shall be such as shall be reasonably agreed between the Buyer and the Seller. If such agreement is not reached within fourteen days, or such longer time as the Buyer may agree, then this Contract may thereafter be terminated by the Buyer without any claim by one of the parties against the other and insofar as the Contract shall have been commenced or been performed, it shall forthwith be deemed to be discharged by the Buyer paying to the Seller a fair price for the Goods delivered by the Buyer.
5.5 The Buyer may reject any Goods delivered which are not in accordance with the Purchase Order or Specification.
5.6 Delivery is not deemed to have taken place until off-loading of the Goods has been completed and confirmation of receipt of the Goods has been given to the Seller by an authorised signatory of the Buyer. All Goods must be delivered at the delivery point specified in the Purchase Order.
5.7 If Goods are incorrectly delivered, the Seller will be held responsible for any additional expense incurred in delivering them to their correct destination.
5.8 The Buyer shall not be liable for recovery of any costs for abortive delivery, standing time or any other costs incurred through not expediting the Purchase Order correctly.
5.9 The Buyer shall not be liable for recovery of any costs for abortive delivery, standing time or any other costs incurred if the delivery operative fails to observe the health and safety requirements at the location of the delivery.
Acceptance
6.1 In the case of Goods delivered by the Seller not conforming with the Purchase Order, Specification whether by reason of quality, quantity measurement or being unfit for the purpose for which they are required where such purpose has been made known in writing to the Seller, the Buyer shall have the right to reject such Goods within 7 working days after their delivery. Where the Goods cannot be accepted due to any reason which may prevent the goods from being protected for onsite storage, handling or protection then the Goods may be rejected at any time when they will be unpacked, used or integrated into the works.
6.2 The Buyer reserves the right to purchase the Goods elsewhere as near as practicable to the same Specifications and conditions as circumstances shall permit, but without prejudice to any other right which the Buyer may have against the Seller. The making of payment shall not prejudice the Buyer’s right of rejection. Before exercising the said right to purchase elsewhere the Buyer shall give the Seller reasonable opportunity to replace rejected Goods with Goods which conform to the Purchase Order.
Risk
7.1 Risk in and title to the Goods passes on delivery to the Buyer in accordance with the Purchase Order. The Seller grants unconditional permission to the Buyer to use the Goods and incorporate them into the works as they were intended prior to payment.
7.2 The Seller waives any rights to recover Goods incorporated into the works which would cause the Buyer to incur cost.
Warranty
8.1 The Seller represents, warrants and undertakes to the Buyer that the Goods:
8.1.1 have been obtained from sustainable sources and comply with any regulation or certification scheme.
8.1.2 are provided from businesses that support and respect the protection of internationally proclaimed human rights; and make sure that they are not complicit in human rights abuses.
8.1.3 uphold the freedom of association and the effective recognition of the right to collective bargaining.
8.1.4 are provided from businesses that support and respect the elimination of all forms of forced and compulsory, child labour; and discrimination in respect of employment and occupation and comply with the Modern Slavery Act.
Defects Liability
9.1 Without prejudice to any other right or remedy which the Buyer may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with any of the terms of the Contract 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:
9.1.1 To rescind the Contract;
9.1.2 To reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
9.1.3 To give the Seller the opportunity at the Seller’s expense either to remedy a defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract is fulfilled;
9.1.4 To refuse to accept any further deliveries of the Goods but without any liability to Buyer
9.1.5 To carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and
9.1.6 To claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.
9.2 If the Buyer specifies a required performance or must satisfy a performance specification for the Goods, the Seller shall be deemed to have warranted that the goods will attain the required performance and/or satisfy the performance specification notwithstanding any other provisions of the Specification. The Buyer is at all times relying on the skill and knowledge of the Seller. Should the Goods fail to maintain the required performance/performance specification such failure shall be considered a defect within the meaning of this clause.
Insurance and Liability
10.1 During the term of the Contract the Seller shall maintain in force, with a reputable insurance company, professional indemnity insurance (if relevant), 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 the insurance certificate giving details of cover on an annual basis.
10.2 The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with any:
10.2.1 breach of any warranty given by the Seller in relation to the Goods;
10.2.2 claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
10.2.3 claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods to the extent that the defects in the Goods are attributable to the acts or omissions of the Seller, its employees, agents or subcontractors;
10.2.4 act or omission of the Seller or its employees, agents or sub-contractors in supplying and delivering the Goods.
Progress and Inspection
11.1 The Buyer’s representatives shall have the right to progress and inspect all Goods at the Seller’s premises works and at the premises works of its sub-contractors at all reasonable times and to reject Goods that do not comply with the terms of the Contract. The Seller shall be responsible to ensure its sub-contractors are made aware of this provision. Any inspection, checking, approval or acceptance given on behalf of the Buyer shall not relieve the Seller or any of its sub-contractors from any obligations under the Contract.
Confidentiality
12.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party's business, its goods which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.2 This clause 12 shall survive termination of the Contract.
Responsibility for Information
13.1 The Seller shall be responsible for any errors or omissions in any deliverables, drawings, calculations, packing details or other supplied by it, whether such information has been approved by the Buyer or not, provided that such errors or omissions are not due to inaccurate information furnished in writing by the Buyer.
Free Issue Materials
14.1 Where the Buyer, for the purpose of the Contract, issues materials free of charge to the Seller, such materials shall be and remain the property of the Buyer. The Seller shall maintain all such materials in good order and condition subject, in the case of tooling, patterns and the like, to fair wear and tear. The Seller shall use such materials solely in connection with the Contract. Any surplus materials shall be disposed of at the Buyer’s discretion. Waste of such materials arising from any bad workmanship or negligence of the Seller shall be made good at the Seller’s expense.
Termination
15.1 The Buyer shall be entitled by written notice given to the Seller to require the suspension of deliveries or to terminate the Contract without prejudice to any other rights it may have against the Seller if the Seller is in breach of or departs from these Terms including (but not limited to) a failure to comply strictly with the delivery programme unless in the case of a minor breach or departure has made good such breach or departure in all respects to the satisfaction of the Buyer within fourteen days after notice in writing from the Buyer to the Seller so to do. (For the avoidance of doubt a failure to comply strictly with the delivery programme is not a breach capable of remedy).
15.2 The Buyer may cancel the Purchase Order in respect of all or part only of the Goods by giving notice to the Seller at any time prior to delivery, in which event the Buyer’s sole liability shall be to pay to the Seller the price for any site specific design services performed before the effective date of cancellation and fair and reasonable compensation for any working in progress of the Goods concerned at the effective date of cancellation, but such compensation shall not include any loss of anticipated profits or any consequential loss for the Goods in respect of which the Buyer has exercised its right of cancellation.
15.3 The Buyer may terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
15.3.1 the Seller 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 corporate body) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction) or enters into receivership (whether administrative or otherwise); or
15.3.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
15.3.3 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly; or
15.3.4 the Seller ceases, or threatens to cease, to carry on business.
Force Majeure
16.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from an event, circumstances or cause beyond its reasonable control (Force Majeure Event).
16.2 The Seller shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of its obligations.
16.3 If a Force Majeure Event prevents, hinders or delays the Seller's performance of its obligations for a continuous period of more than 20 Business Days, the Buyer may terminate the Contract immediately by giving written notice to the Seller.
Notices
17.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
17.2 A notice or other communication shall be deemed to have been received:
17.2.1 if delivered personally, when left at the address referred to in clause 17.1;
17.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting;
17.2.3 if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or,
17.2.4 if sent by fax or e-mail (with delivery receipt) one Business Day after transmission.
17.3.5 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Bribery Act 2010
18.1 The Seller warrants that:
18.1.1 it is fully aware of the provisions of the Bribery Act 2010 and that it has not and will not commit any act or omission which would place the Seller or the Buyer in breach of the Bribery Act 2010, whether in connection with the Contract or otherwise; and
18.1.2 there is no outstanding investigation of it under any bribery legislation and in the last six years it has not been convicted of any offence under any bribery legislation or reached any settlement in relation to any alleged breach of any bribery legislation and has not self-reported any breach or suspected breach of any bribery legislation;
18.1.3 it will comply with the most recent guidance issued by the Secretary of State pursuant to the Bribery Act 2010; and
18.1.4 it will procure that each of its suppliers, agents or others performing services on its behalf complies with this clause; and
18.1.5 it will report to Ringway Jacobs Ltd any suspicion of any breach or alleged breach of any bribery legislation, including any of its subcontractors or others performing services on its behalf, and co-operate with Ringway Jacobs and/or any regulator and/or prosecutor in any investigation relating to the same
18.2 The Seller shall be liable for and indemnifies the Buyer against, any expense, liability, loss, claim or proceedings whatsoever in respect of any breach by the Seller of the provisions of this clause.
18.3 In the event of any breach by the Seller of the provisions of this clause, the Buyer shall be entitled by notice to the Seller to terminate the employment of the Seller under the Contract. Such termination shall be treated as termination under clause 15.1 of the Contract
Competition:
19.1 Competition law develops and evolves over time but most important sources of law at present are the Competition Act 1988, which prohibits anti-competitive agreements and the abuse of a dominant position and the Enterprise Act 2002, which introduced criminal sanctions for cartels. The Seller shall at all times observe, perform and comply with all statutory and other obligations of all current Acts and shall indemnify and keep indemnified the Buyer from and against all of breach or noncompliance of any such obligations.
General:
20.1 A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
20.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under the Contract are not subject to the consent of any other person.
20.3 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
20.4 If any provision of these Terms is held by any court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Terms and the remainder of the provision in question shall not be affected.
20.5 The Seller shall not assign the Contract in whole or in part, unless agreed otherwise by the Buyer. The Seller’s shall be responsible for all work done and Goods supplied by all its supply chain.
20.6 No conditions submitted to or referred to by the Seller when tendering shall form part of the Contract unless otherwise agreed to in writing by the Buyer.
20.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
20.8 English law shall govern the Contract (including non-contractual disputes or claims) and the parties shall submit to the jurisdiction of the English courts.
