1. DEFINITIONS AND INTERPRETATION
1.1. In this agreement, the following definitions apply:
Buyer: means Colloids Limited.
Conditions: the terms and conditions set out in this document.
Confidential Information: Information which any party to this Contract for whatever reason might reasonably be expected to object to becoming generally known, including information relating to the business, finances, affairs, product development, trade secrets, know-how, campaign plans, launch dates, personnel, customers and suppliers of each party.
Contract: the contract between the Vendor and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Goods: means the articles or services described in the Order.
Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, tools, plans and equipment as detailed in Clause 14 or otherwise, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Latent Defect: has the meaning set out in Clause 4.5.
Order: means an agreement to purchase goods or services according to the Buyer’s agreed purchase order and these Conditions.
Price: means the price shown on the Order.
Specification: means the technical specification (if any) of the Goods referred to in the Order.
Vendor: means the person, firm or company to whom the Order is addressed.
1.2. The headings in these Conditions are provided for convenience only and shall have no effect on the interpretation thereof.
1.3. In these Conditions, the following rules of interpretation apply:
a. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
b. A reference to a party includes its personal representatives, successors or permitted assigns.
c. A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
d. Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
e. A reference to writing or written includes faxes and e-mails.
2.1. The Buyer shall not be bound to the Vendor unless the Vendor unconditionally accepts the Order on these Conditions and in writing within seven days of the date of such Order. At all times these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2. Acknowledgement of this order must be made by signing the duplicate order, enclosed with it, and the duplicate must be received within fourteen days of the date of this order. Should the Vendor despatch goods to the Buyer or perform work for the Buyer in accordance with this order without such acknowledgement, this shall of itself be deemed an acknowledgement falling within this paragraph.
2.3. All variations to the Order or to these Conditions must be agreed in writing by both the Buyer and the Vendor.
2.4. In the event that the Buyer, after the acceptance of the Order, requires to alter the specification, design or quantity of the Goods within the general scope of the Order, the Vendor shall agree to a written request for such an alteration and shall thereafter diligently process the Order as altered. If such an alteration materially increases or decreases the cost of, or the time required for performance, an equitable agreement shall be made for adjustment of the price and/or delivery schedule.
2.5. Upon acceptance of the Order on these Conditions, the Vendor shall use best endeavours to ensure that the Order is fulfilled and delivered in accordance with these Conditions. In the event of the Vendor experiencing a Force Majeure event at set out in Clause 7 or a shortage in the supply of raw materials (Adverse Event), the Vendor shall use best endeavours to ensure that the Buyer’s outstanding Order(s) is given the highest priority for supply over and above the Vendor’s additional customers (once the Adverse Event has been resolved). The Vendor irrevocably agrees that the Buyer has the right at any time to enter the Vendor’s manufacturing and/or distribution premises and audit its activities to ensure that the Buyer’s Order(s) are given highest priority.
3. QUALITY AND DESCRIPTION
Subject to Clauses 10 and 11, the Goods shall:
a. Conform as to quantity, quality and description with the particulars stated in the Order and the reference drawings and documents. The Vendor shall be deemed to have studied and understood all such specifications and drawings and will be responsible for any discrepancies within or between the documents.
b. Be of sound materials and workmanship, and where called for be manufactured from the materials and to the specific standards as required.
c. Correspond in all respects to samples, patterns or specifications provided or given by either party.
d. Be capable of any standard of performance specified in the Order.
e. Be fit for the purpose for which they are required which either expressly or by implication is indicated in the Order.
f. The Buyer relies on the skill and judgement of the Vendor in relation to the Goods.
g. The Goods be supplied with adequate information and instructions as to the use for which they are designed.
h. Nothing in these conditions shall prejudice any condition or warranty expressed or implied, or any legal remedy to which the Buyer may be entitled, in relation to the goods and/or the work the subject of this order, by virtue of any statute or custom or any general law or local law or regulation.
4. INSPECTION AND TESTING
4.1. The Vendor shall obtain such certificates which in the opinion of the Buyer are necessary to demonstrate that the materials and labour used in producing the Goods are of the requisite standard and make them available for inspection by the Buyer.
4.2. The Buyer reserves the right, on giving 24 hours’ notice to the Vendor to inspect the materials being used, observe the work in progress, and test the Goods whether in the course of manufacture or in their finished state, at any reasonable time prior to despatch from the Vendor’s premises.
4.3. Where the Order specifically calls for tests on the materials used or on the Goods, the Vendor shall give the Buyer 72 hours’ notice of such tests, and permit the Buyer to observe them. At the Buyer’s request, the Vendor shall supply certificates of such tests.
4.4. If as a result of such inspection of materials, Goods, procedures and documents, the Buyer is of the reasonable opinion that the Goods do not comply, or are likely on completion to not comply with the Order, the Buyer shall inform the Vendor accordingly in writing and the Vendor shall take such steps as necessary to ensure compliance.
4.5. It is understood that Goods may have defects (meaning that such Goods fail to conform to the applicable Specifications or otherwise fail to conform to the warranties given by the Vendor) which would not be discoverable upon reasonable physical inspection or testing at the time of delivery or acceptance (“Latent Defect”). As soon as a party becomes aware of a Latent Defect in any Goods supplied by the Vendor, it shall notify the other party and, at the Buyer’s election, such Goods shall be deemed nonconforming to the Specifications and may be rejected by the Buyer as of the date of notification of the Latent Defect.
4.6. The failure by the Buyer to reject unsuitable Goods under this clause shall in no way prejudice the Buyer’s right to reject the Goods under Clause 10 or to any claims prosecuted under Clause 11.
4.7. Notwithstanding any such inspection or any of the tests provided for above, Clause 3 shall remain in full force and effect whether or not such inspection or tests revealed or should have revealed any defects in the Goods.
5.1. The Goods shall be despatched packed in such a way to ensure their delivery in good condition at the place specified by the Buyer in the Order, under normal conditions of transport.
5.2. All packages must be clearly marked or labelled with the Order number overleaf. All packing will be regarded by the Buyer as free and non-returnable unless the contrary is clearly stated on the relevant invoice and advice note. Charges for cases, pallets and other packing materials will be accepted by us subject to their being returnable, clearly marked with returnable value and full credit being given upon receipt. Returnable packages, whether charged or not, will be returned at the Vendor’s risk and expense.
5.3. All packaging shall comply with all appropriate regulations governing the packaging and labelling of goods (if any) in force on the date of delivery of the Goods and the Vendor shall indemnify the Buyer against all costs, claims, demands or liabilities of whatever nature which result from such non- compliance.
5.4. The signature of the Buyer, given on any delivery note, or other documentation, presented for signature in connection with delivery of the goods, is evidence only of the number of packages received. In particular, it is not evidence that the correct quantity or number of goods has been delivered or that the goods delivered are in good condition or of the correct quality.
6. CARRIAGE AND DELIVERY
6.1. The Goods shall be delivered to the Buyer’s warehouse or other place in accordance with the instructions on the Order in which regard, time is of the essence. Unless specifically agreed otherwise, the price includes all duty and/or tariff charges, packaging and carriage charges and the Vendor has the responsibility for unloading at his risk. Where the Goods are of such a nature that lifting or other special equipment, and/or labour are required for unloading, a mutually agreed arrangement for the method, timing and responsibility of such unloading must be made. Failure of the Vendor to observe the terms of this Clause 6 shall entitle the Buyer to reject all or any part of the Goods the subject of the Order and to refuse delivery of such Goods; such attempted delivery will not be construed as delivery under the terms of the Order.
6.2. If the Goods or any portion thereof are not delivered within the times specified in the Order, and if no other agreement exists to the contrary, the Buyer shall be entitled to terminate the Contract in respect of the Goods undelivered as aforesaid, and to return any other Goods already delivered under the Order which cannot be effectively and commercially used by the reason of the non-delivery of the Goods.
6.3. The Buyer shall be entitled to recover from the Vendor on an indemnity basis any and all expense reasonably incurred by the Buyer in returning the Goods and in obtaining other goods in replacement for failure to deliver on time.
6.4. The parties acknowledge that time of delivery is critical and fundamental to the Order. In the event of any delay in delivering the Goods in accordance with the delivery time specified within the Order, in addition and without prejudice to any other remedies set out under these Conditions available to the Buyer (up to and including termination of this agreement), the Vendor shall pay the Buyer, as liquidated damages, £900 for each day’s delay or default.
7. FORCE MAJEURE
In the event of Buyer’s business being stopped, interrupted, restricted or hindered either temporarily or permanently by war, civil commotion, riot, lock-out, strike, fire, explosion or from any cause beyond Buyer’s control, the Buyer shall be at liberty, without incurring any liability to the Vendor, either to defer the delivery or dates of any Goods due for delivery until the stoppage, interruption, restriction or hindrance has ceased. If delivery is suspended for any of these reasons, the Buyer shall be under no liability for payment until delivery is actually made.
If for any reason not covered by Clause 7 the Buyer is unable or unwilling to accept delivery of the Goods at the time when the Goods are due and ready for delivery, the Vendor shall, if his storage facilities permit, store the Goods, safeguard them, and take all reasonable steps to prevent the deterioration until the actual delivery. The Buyer shall be liable to the Vendor for the reasonable cost, including insurance, of his so doing.
9. PASSING OF PROPERTY AND RISK
9.1. Subject to the provisions Clause 9.2, the property in the Goods shall pass to the Buyer on delivery without prejudice to any right of rejection which may accrue to the Buyer under these Conditions.
9.2. If the Vendor postpones delivery at the request of the Buyer pursuant to Clause 9, the property in the Goods shall pass to the Buyer seven (7) days after the date of receipt of notification from the Vendor that the Goods are due and ready for delivery, or on any such other date as may be agreed. The Goods shall nevertheless remain at the Vendor’s risk until they have been delivered and unloaded at the place of delivery stipulated by the Buyer in the Order.
9.3. The parties hereto agree that there is no fiduciary relationship of any nature whatsoever between them.
10.1. The Buyer may by notice in writing to the Vendor reject the Goods or any part of them:
a. if the Vendor shall default in or commit any breach of its obligations to the Buyer under these Conditions;
b. if the Goods supplied are found after inspection not to conform strictly with the terms of the Order and any written variation thereof made pursuant to these Conditions; or
c. a Latent Defect is discovered.
10.2. In the case of such rejection the Vendor shall be given the opportunity to replace the rejected Goods with Goods which do comply with the Order, provided that these Goods can be supplied by the original date agreed for delivery or to a subsequent date agreed between the Buyer and the Vendor in writing.
10.3. If the Vendor is unable to supply Goods to comply with the Order within this specified period, the Buyer shall have the right to terminate the Contract. In the case of such termination the Vendor shall return any money paid to the Vendor in respect of such Goods immediately. The Vendor shall additionally be liable for any additional expenditure over and above the Order Price reasonably incurred by the Buyer in obtaining other Goods in replacement.
10.4. All Goods which have been rejected shall be held at the Vendor’s expense until delivered and unloaded at the Vendor’s premises; these Goods will be stored and returned at the Vendor’s expense unless the Buyer elects to accept such Goods and take such steps as may be necessary to make them conform with the Order (and any written variation thereof made pursuant to these Conditions) in which event the expenses of so doing shall be set off against the moneys due to the Vendor under the Order.
10.5. Vendor shall bear all risks as to rejected Goods after notice of rejection.
10.6. Payment shall not prejudice right of rejection.
If within the period of one (1) year, or within the period after delivery named in the Order (thereinafter called the guarantee period), or at any time in the case of a Latent Defect, the Buyer gives notice in writing to the Vendor of any defect in the Goods, including any deficiency in the performance which was either specified in the Order either expressly or by implication, which shall arise under normal use from faulty design, materials, or workmanship, then the Vendor shall with all possible speed replace or repair the Goods so as to remedy the defects without cost to the Buyer.
12. DAMAGE OR LOSS IN TRANSIT
12.1. Unless expressly agreed otherwise by the Buyer in the Order, under Clause 6, all Goods are at Vendor’s risk until delivered and unloaded at the Buyer’s warehouse.
12.2. Notwithstanding any previous acceptance of the Goods supplied hereunder, if at the date of use they are found to have been delivered short, or, through no fault of Buyer, to be defective and the Vendor is notified accordingly within fourteen (14) days of Buyer becoming aware of such short delivery or defect, the Vendor shall forthwith pay to Buyer adequate compensation or at Buyer’s option replace free of charge any Goods found to be defective.
12.3. Delay, or damage in transit or unloading shall not excuse the Vendor from his obligations under Clause 6.
13. INVOICE AND PAYMENT
13.1. The Vendor shall invoice the Buyer on delivery of the Goods. The invoice for the Goods must quote the Order number overleaf, the place of delivery and all discount terms and, where such Goods are to be delivered by instalments each instalment must be separately invoiced.
13.2. Payment for all valid and undisputed invoices shall be due at the end of the month 3 months at the end of the month of delivery of the invoice, unless otherwise expressly agreed with the Vendor or prohibited by law (Payment Date). The Buyer shall pay the Invoice within seven (7) days of the Payment Date.
13.3. If the delivery is postponed at the request of the Buyer as provided in Clause 8, the Buyer shall pay all valid invoices at the end of the third month after the property in the Goods has passed to the Buyer under Clause 9.
14. CARE AND RETURN OF PATTERNS, DIES, DRAWINGS ETC
14.1. If any jigs, tools, dies, patterns, moulds, gauges, components, materials or any other items of whatsoever nature are supplied to the Vendor by the Buyer for use in connection with this order, the same shall be at the risk of the Vendor from the time they leave the premises of the Buyer until they are returned thereto, but shall remain the property of the Buyer. The Buyer shall have the right of reasonable access to the premises of the Vendor to inspect such items while they are there. The Vendor shall not use any of the foregoing except in connection with the orders of the Buyer, and shall maintain the same in good condition and return them to the Buyer at any time on demand or otherwise automatically on completion of this order. Gauges are issued as reference standards only. All jigs, tools, dies, patterns, moulds and gauges manufactured or supplied by the Vendor for the Buyer in connection with this order shall become the property of the Buyer and shall be retained by the Vendor until disposal instructions are given by the Buyer which instructions shall be complied with forthwith.
14.2. The Vendor shall indemnify the Buyer against any loss or damage to the items mentioned in Clause 14.1, arising while such items are in its possession or before redelivery to the Buyer. The Vendor will insure the aforesaid items against all risks and (if necessary) note the interest of the Buyer on his policy
15. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
15.1. Each party reserves all rights in its Confidential Information and Intellectual Property Rights. No rights or obligations in respect of a party’s Confidential Information or Intellectual Property Rights other than those expressly stated in these Conditions are granted to the other party or to be implied from these terms. In particular, no licence is hereby granted directly or indirectly under any patent, invention, discovery, copyright or other Intellectual Property Right held, made, obtained or licensable by either party now or in the future.
15.2. The Vendor and its employees, agents and contractors shall not in any manner advertise, publish, or disclose the Buyer’s Confidential Information, nor that Buyer has placed the Order(s). The Vendor is not free to divulge any Confidential Information whatsoever (including the existence and/or the content of the Order(s)) to any third party whilst these conditions are in effect or after its termination, save as required by applicable laws, without the prior and express written consent of the Buyer.
15.3. The Vendor shall fully indemnify the Buyer against any claim made for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply or use of the Goods.
16. STATUTORY REQUIREMENTS
The Vendor warrants that the design, construction and quality of the Goods to be supplied under the Order comply in all respects with all relevant requirements of any statute, statutory rule or order, or any other instrument having the force of law which may be in force at the time when the same are supplied.
17. INFRINGEMENT OF PATENTS ETC.
17.1. The Vendor warrants that the sale or use of the Goods, the subject of this Order, will not infringe any British or foreign patent, trade mark, trade name or registered design and, in the case of imported Goods, that all Customs and Excise regulations and requirements of the Merchandise Marks Acts have been complied with and shall indemnify and keep the Buyer indemnified against any actions, costs, claims, demands and expenses whatsoever arising as a result of any actual or alleged infringement or non-compliance as aforesaid.
17.2. In the event of any claim being made against the Buyer under this Clause the Buyer shall notify the Vendor promptly thereof and if so requested by the Buyer the Vendor shall, at his own expense, defend or assist in the defence of any suit or action which shall be brought against Buyer in respect of any such actual or alleged infringement or non-compliance.
17.3. The Buyer on his part, warrants that any design or instruction furnished or given by him, will not be such as to cause the Vendor to infringe any letters patents, registered design or trade name in the performance of the Contract.
18. ASSIGNMENT AND SUBCONTRACTING
The Vendor shall not without the prior written consent of the Buyer:
a. assign or transfer the Order or any part of it to any other person, firm or company except as part of a company amalgamation or reconstruction: or
b. Sub-contract all or any part of the Order (otherwise than in
accordance with the Order) except in so far as is necessary to obtain materials for execution of the Order in accordance with the Order.
19.1. The Vendor shall indemnify the Buyer against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Buyer) which the Buyer may incur either at common law or by statute in respect of personal injury to or the death of any person or in respect of any loss or destruction of or damage to property (other than as a result of any default or neglect of the Buyer or of any person for whom we are responsible) which shall have occurred in connection with any work executed by the Vendor against this Order or shall be alleged to be attributable to some defect in the goods.
19.2. Should the Vendor use any personnel to execute work on the premises of the Buyer they shall be required to abide by the safety rule and other relevant regulations laid down by the Buyer from time to time. This order is given on the condition that (without prejudice to the generality of Condition a) the Vendor will indemnify the Buyer against all loss, actions, costs, claims, demands, expenses and liabilities whatsoever (if any) which the Buyer may incur either at common law or by statute (other than as a result of any default or neglect of the Buyer or of any person for whom we are responsible) in respect of personal injury to, or the death of, any such employees, agents, sub-contractors or other representative while on the premises of the Buyer whether or not such persons are (at the time when such personal injury or deaths are caused) acting in the course of their employment.
19.3. The Vendor will indemnify the Buyer against any and all loss, costs, expenses and liabilities caused to the Buyer whatsoever, including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses, or as a result of the action, claim or demand of any third party, by reason of any breach by the Vendor of these Conditions (including without limitation the discovery of a Latent Defect) or of any terms or obligations on its part implied by the Sale of Goods Act 1979, by the Supply of Goods and Services Act 1982 or by any other statute or statutory provision relevant to the Order or to goods or work covered thereby.
20. HAZARDOUS GOODS
The Vendor will mark all hazardous goods with international danger symbols where they exist, and display the name of the material in English. Transport and other documents must include declaration of the hazard and name of the material in English. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings. The Vendor shall observe the requirements of UK legislation and any relevant international agreement relating to the packing, labelling and carriage of hazardous goods. All information held by or reasonably available to the Vendor regarding any potential hazards known or believed to exist in the transport, handling or use of the goods supplied shall be promptly communicated to the Buyer prior to delivery.
21. TAXES AND DUTY
Where Goods are subject to purchase tax, VAT, duty, or similar tax, the amount legally demandable is to be rendered as a separate term of account and the Vendor will produce bona fide evidence of the amount paid or to be paid in respect thereof.
22. AN ADVICE NOTE
An Advice Note quoting the Order number overleaf, must accompany the Goods the subject of this Order on delivery.
23.1. The Buyer shall only be liable for the Price and any other charges stated in the Order
23.2. The statutory and any express or implied right of the Vendor to a lien over the Goods and to any rights of stoppage in transit are hereby expressly excluded.
24. VENDOR’S INSOLVENCY
If any execution or distress shall be levied upon the Vendor or if the Vendor shall enter into any negotiations for an arrangement or composition with its creditors or commit any act of bankruptcy or if any petition in bankruptcy shall be presented against it or any resolution is proposed or petition presented to wind up the Vendor or if a receiver of the Vendor’s assets or undertaking or any part thereof shall be appointed the Buyer shall be entitled to determine forthwith any Contract then subsisting without prejudice to any other claim or right the Buyer might make or exercise.
All notices served under the Contract shall be in the English Language and sent by pre-paid first class post;
a. For the attention of the Buyer; and
b. In the case of the Vendor to the address to which the Order is sent.
All notices shall be deemed to have been served 48 hours after posting.
26. DISPUTE RESOLUTION
If a dispute arises out of or in connection with this Contract or the performance, validity or enforceability of it (Dispute), then, except as expressly provided in these Conditions, the parties shall follow the procedure set out in this clause:
a. Either party shall give to the other written notice setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, a duly authorised representative of the Buyer and a duly authorised representative of the Vendor shall attempt in good faith to resolve the Dispute.
b. If the duly authorised representative of the Buyer and the duly authorised representative of the Vendor are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the Director of the Buyer and the Director of the Vendor who shall attempt in good faith to resolve it; and
c. If the Director of the Buyer and the Director of the Vendor are for any reason unable to resolve the Dispute within 30 days of it being referred to them, the parties agree to enter into mediation in good faith to settle the Dispute in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties within 14 days of service of the Dispute Notice, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (Mediation Notice) to the other party to the Dispute, referring the dispute to mediation. A copy of the Mediation Notice should be sent to CEDR. Unless otherwise agreed between the parties, the mediation will start not later than 30 days after the date of the Mediation Notice.
d. The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under Clause 27 which shall apply at all times.
27. GOVERNING LAW AND JURISDICTION
27.1. This Contract, and any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes, mediation or claims), shall be governed by, and construed in accordance with English law.
27.2. The parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. All proceedings are to be conducted in the English Language.
28. GOVERNING LANGUAGE
28.1. These Conditions are drafted in the English language, and all business arising out of or in connection with the Contract or its subject matter or formation (including contractual and non-contractual disputes, mediation and claims) and notices given under the Contract shall be exclusively in the English Language unless expressly prohibited by law.
28.2. Where exclusive use of the English Language is expressly prohibited by law, the parties agree that any document in a language other than English shall be accompanied by a certified English translation. In the event of a conflict, the English language version of these Conditions and any other document or notice shall prevail.