Please find below our standard Sales & Purchasing Terms & Conditions.
Terms and Conditions – Sales
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1.1 Definitions. In these Conditions, the following definitions apply:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6;
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions;
“Customer” means the person or firm who purchases the Goods from the Supplier;
“Force Majeure Event” has the meaning given in clause 10;
“Goods” means the goods (or any part of them) set out in the Order;
“Order” means the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, as the case may be;
“Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
“Supplier” means Bf1Systems Limited (registered in England and Wales with company number 2902036).
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 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.
1.2.4 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.
1.2.5 A reference to writing or written includes faxes and e-mails.
2 Basis of contract
2.1 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 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations on the Supplier’s website are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
3.1 The Goods are described in the Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including 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 Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable); and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
4.2 The Supplier may, in the absence of agreement otherwise between the parties, make arrangements on behalf of the Customer for the Goods to be delivered by courier (or such other transportation provider as may be advised by the Supplier prior to delivery) to the location set out in the Order or such other location as the parties may agree at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Notwithstanding clause 4.2, delivery of the Goods shall, in the absence of agreement otherwise, be Ex Works Diss (Incoterms 2010).
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within five Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 7 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Supplier warrants that on delivery, and, unless otherwise notified by the Supplier to the customer, for a period of 12 months from the date of delivery (“warranty period”), the Goods shall conform in all material respects with the Specification;
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier during the warranty period
(i) in the case of a defect that is apparent on normal inspection, within 7 Business Days from the date of delivery; or
(ii) in the case of a latent defect, within 7 Business Days of the latent defect having become apparent;
that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace the defective Goods.
5.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms and conditions implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6 Title and risk
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
6.2.1 the Goods; and
6.2.2 any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
6.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
6.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7 Price and payment
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods is, unless otherwise agreed, exclusive of the costs and charges of packaging, insurnace and transport of the Goods, which shall be invoiced to the Customer.
7.4 The price of the Goods is exclusive of amounts in respect of value added tax (“VAT”). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
7.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
7.6 The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier, or as otherwise advised by the Supplier on the invoice. Time of payment is of the essence.
7.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8 Customer’s insolvency or incapacity
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
8.2.1 the Customer is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
8.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than where the Customer is a company where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.3 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
8.2.4 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
8.2.5 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
8.2.6 a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
8.2.7 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
8.2.8 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1to clause 8.2.7 (inclusive);
8.2.9 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; and
8.2.10 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9 Limitation of liability
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
9.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.1.2 fraud or fraudulent misrepresentation;
9.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979;
9.1.4 defective products under the Consumer Protection Act 1987; or
9.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clauses 5.4 and 9.1:
9.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of business, loss of goodwill or economic loss, or any indirect or consequential loss arising under or in connection with the Contract; and
9.2.2 the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
10 Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
11.1 Assignment and subcontracting.
11.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
11.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
11.2.1 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, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
11.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one Business Day after transmission.
11.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
11.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
11.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
11.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
11.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance
Terms and Conditions – Purchasing
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Purchase Orders include and are subject to the following covenants, terms and conditions.
- Offer, Acceptance, Modification
Written acceptance of this Purchase Order or commencement of performance of any work or services pursuant hereto shall constitute acceptance hereof. Such acceptance is limited to the terms and conditions stated herein. All terms and conditions proposed by Seller which are different from or in addition to this Purchase Order are expressly rejected by Buyer. Any acceptance by Buyer herein contained is expressly made conditional on Seller’s assent to the terms and conditions contained herein which are additional to or different from those contained in any offer of Seller. No purported oral or verbal agreement or other understanding which attempts in any way to modify the conditions of the agreement resulting from this Purchase Order will be binding upon Buyer. Any modification to this Purchase Order shall be made only in writing signed by both parties hereto.
This Purchase Order must not be filled at prices higher than those specified on the front of this Purchase Order, unless otherwise agreed to in writing by the Buyer. The price specified on the front of this Purchase Order includes all subcontracting costs associated with this Purchase Order. Buyer shall have no responsibility for any increased costs incurred by Seller in connection with any subcontractors unless such additional costs shall have been negotiated and agreed to in writing by Buyer.
Seller warrants that the prices specified herein are no less favorable than prices given by Seller to any other customer for like merchandise (after consideration of all discounts, rebates and allowances). If Seller quotes a lower price to anyone or accepts payment of a lower price from anyone during the life of this contract, such lower price is to prevail in respect to any quantity undelivered hereunder. If Buyer is quoted a lower price by someone other than Seller and Seller does not wish to meet the lower price, Buyer may purchase any undelivered quantity hereunder at the lower price, thereby canceling this Purchase Order with no further liability to Seller for such undelivered quantity.
Unless otherwise agreed in writing by the Buyer, the prices specified on the front of this Purchase Order shall be inclusive of any value added tax and include all federal, state and local taxes which Seller is required by law to collect from Buyer and from which Seller cannot obtain an exemption. Such taxes shall be separately stated on Seller’s invoices and shall be paid by Buyer unless an exemption is available.
Unless otherwise agreed to in writing by the Buyer, the price specified on this Purchase Order includes all charges for packing, cartage, storage, drayage, and transportation to the F.O.B. point. Seller shall pay all delivery charges in excess of that Buyer has agreed to pay.
Seller warrants that the prices will comply with applicable government law and regulations.
- Shipping and Packing
All shipments shall be delivered, carriage paid, to the Buyer’s place of business or to such other place of delivery as is agreed by the Buyer in writing prior to delivery of the goods.
If the Seller requires the Buyer to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Buyer and any such packaging material will only be returned to the Seller at the cost of the Seller.
All shipments must be accompanied by a packing slip which describes the articles, states the Purchase Order number, and shows the shipment’s destination. Seller agrees to promptly forward the original bill of lading or other shipping receipt for each shipment in accordance with Buyer’s instructions. No charges will be allowed for packing, crating and transportation unless stated in this Purchase Order.
Equipment shipped hereunder must be shipped without oil or any other fluids and must comply with all Buyer’s specifications concerning compliance with local, state, and federal environmental regulations, including but not limited to those dealing with air pollution control, waste water control, chemical usage, and employee exposure. Seller shall bear all liability for spillage if the shipment does not so comply.
- Delivery – Risk of Loss
Deliveries shall be made both in quantities and at times specified on the face of this Purchase Order or in Buyer’s schedules and time is of the essence. Buyer shall not be required to make payment for goods delivered to Buyer which are in excess of quantities specified in Buyer’s delivery schedule on this Purchase Order or in written releases issued by Buyer. Buyer may reject any deliveries made more than two weeks after or before the specified delivery date.
In the event Seller fails to meet the agreed upon delivery requirements for reasons other than those specified in paragraph 12 below, and Buyer requires a more expeditious method of transportation for the goods than the transportation method originally specified, Seller shall ship the goods as expeditiously as possible at Seller’s expense and invoice Buyer for the amount which Buyer would have paid for normal shipment.
Unless provided otherwise herein, all goods shall be sold F.O.B destination. Seller shall be responsible for and bear the risk of any loss or damage to the goods until received by the Buyer.
Seller agrees to promptly render after delivery of goods or performance of services, correct and complete invoices to Buyer and to accept payment by check or, at Buyer’s discretion, other cash equivalent (including purchase cards or electronic transfer of funds). Payment shall be due on the 2nd day of the 2nd month following the date Buyer receives the goods or services, except as may otherwise be agreed by the parties in writing. Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, of the absence of any liens, encumbrances, and claims on the goods or services provided under this Purchase Order.
Buyer may set off any amount owed by Seller or any of its affiliated companies to Buyer, against any amount owed by Buyer to Seller, under this Purchase Order.
6. Warranties of Seller
Seller expressly warrants that all goods or services covered by this Purchase Order (i) conform to the Purchase Order, specifications, drawings, samples, or descriptions furnished to or by the Buyer, (ii) are merchantable, of good material and workmanship and free from defect and (iii) are fit and sufficient for the particular purpose intended by Buyer. If Seller has participated in the design of the item or approved the design, Seller also warrants that the items are free from defects in design. All goods and services are subject to Buyer’s inspection. Payment for, inspection of, or receipt of goods or services shall not constitute acceptance of the goods or a waiver of any breach of warranty.
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.
- Rejection of Goods
Nonconforming or defective goods may be returned to the Seller for, at the Buyer’s option, full credit or replacement with new goods at the Seller’s risk and expense, including all expenses for labor and materials in dealing with or removing the defective parts, all charges for handling, sorting, packaging and transportation both ways. No replacement of nonconforming goods may be made except as authorized by a replacement order signed by Buyer.
Buyer at any time in writing may make changes in the drawings, designs and specifications of the goods or otherwise change the scope of the work covered by this Purchase Order, including work with respect to such matters as drawings, designs, specifications inspection, testing or quality control, the method of packing and shipping, the place of delivery and shipping instructions and quantity or delivery schedules. Seller agrees to promptly make such changes. If such changes affect the cost or time required for performance and if Seller makes claim for adjustment in writing within fourteen (14) days of receipt of notification of change, an equitable adjustment shall be made by the parties, and this Purchase Order shall be modified accordingly. Otherwise, such claim for equitable adjustment is waived and the Purchase Order shall be deemed to be modified. Seller shall diligently continue performance of the Purchase Order, as changed, pending agreement on the amount of an equitable adjustment. Nothing contained herein shall relieve or excuse Seller from proceeding without delay in performing this Purchase Order as changed. Seller shall not make any change in design, processing, packing, shipping, or place of delivery without Buyer’s written approval.
- Termination for Bankruptcy
Buyer may immediately terminate this Purchase Order without liability if:
any procedure is commenced with a view to the winding-up or re-organisation of the Seller and that procedure unless commenced by the Seller is not terminated or discharged within 15 days;
any procedure is commenced with a view to the appointment of an administrator, receiver, administrative receiver or trustee in bankruptcy in relation to the Seller or all substantially all of its assets and that procedure (unless commenced by the Seller) is not terminated or discharged within 15 days;
the holder of any security over all or substantially all of the assets of the Seller takes any step to enforce that security and that enforcement is not discontinued within 15 days;
all or substantially all of the assets of the Seller are subject to attachment, sequestration, execution or any similar process and that proceeding is not terminated or discharged within 15 days;
the Seller is unable to pay its debts as they fall due or enters into a composition or arrangement with its creditors or any class of them; or
anything analogous to any of the events described in the paragraphs above occurs in any jurisdiction.
- Termination for Convenience
In addition to any other rights of Buyer to cancel or terminate this Purchase Order, Buyer may terminate all or any part of this Purchase Order at any time and for any reason by giving written notice to Seller. Seller will thereupon immediately stop work on this Purchase Order or the terminated portion thereof, and notify any subcontractors to do likewise. Buyer shall pay to Seller the Purchase Order price for all goods or services which have been completed in accordance with this Purchase Order and not previously paid for. Where articles or materials are to be specifically manufactured for Buyer hereunder and where Seller is not in default, an equitable adjustment shall be made to cover Seller’s actual cost, excluding profit, for work-in-process and raw materials as of the date of termination to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting practices to the terminated portion of this Purchase Order. Buyer will not be liable for any charges or expenses incurred by Seller in advance of the normal lead time necessary to meet scheduled delivery dates nor for any expenses, charges or liability incurred subsequent to the giving of notice of cancellation. Buyer will make no payments for finished goods, work-in-process, or raw materials in amounts in excess of those authorized by Buyer or for any undelivered goods which are in Seller’s standard stock or which are readily marketable. Seller shall submit any claim to Buyer within thirty (30) days after the date of termination or such claim shall be waived.
- Termination for Default
In addition to any other remedies or rights afforded by law, Buyer reserves the right to cancel all or any part of this Purchase Order, for default of Seller, if Seller: (i) repudiates or breaches any of the terms of this Purchase Order, including Seller’s warranties; (ii) fails to perform services or deliver goods as specified by Buyer; or (iii) fails to make progress so as to endanger timely and proper completion of services or delivery of goods, and does not correct such failure or breach within ten (10) days after receipt of written notice from Buyer specifying such failure or breach. If Buyer terminates its purchase obligations pursuant to this paragraph, Buyer shall have no obligations to Seller in respect of the terminated portion of this Purchase Order and Buyer’s liability shall be limited to the delivered portion of this Purchase Order at the rate specified on the face hereof. Buyer shall be entitled to recover all damages or losses attributable to such repudiation, breach, or failure by Seller.
- Excusable Delays
Neither party shall be liable for a failure to perform that arises from causes or events beyond its reasonable control and without its fault or negligence, including but not limited to acts of God or the public enemy, actions by any domestic or foreign governmental authority (whether valid or invalid), fires, riots, wars, sabotage, acts of terrorism, labor problems (including lockout strikes and slowdowns), or inability to obtain materials. The affected party shall give written notice of such delay, including the anticipated duration thereof, to the other party within ten (10) days of the beginning of the delay. If Seller is the affected party, Seller shall take all reasonable action, including, but not limited to, utilizing temporary production facilities or a temporary workplace, or moving existing tooling to third party production facilities in order to ensure that the supply of product meets the requirements of this order. During the period of such delay or failure to perform by Seller, Buyer may purchase goods from other sources and reduce its schedule to Seller by such quantities without any liability. If requested by Buyer, Seller shall, within ten (10) days of such request, provide adequate assurances that the delay shall not exceed thirty (30) days. If the delay lasts more than thirty (30) days or Seller does not provide adequate assurances that the delay will cease within thirty (30) days, Buyer may immediately cancel this Purchase Order without liability.
- Labor Disputes
Seller will notify Buyer four months in advance of the scheduled expiration of any current labor contract. If requested by the current Buyer, Seller will establish, at Seller’s expense, a 30-day inventory of finished goods, at a site mutually agreed upon with Buyer, prior to the expiration of any such labor contract. Seller will notify Buyer immediately of any actual or potential labor dispute delaying or threatening to delay the timely performance of any open purchase order.
- Patterns, Tools, and Equipment
Buyer shall have title to and the right of immediate possession of any pattern, tools, jigs, dies, equipment or materials furnished or paid for by Buyer, and Seller shall not use such tooling while in its possession for any work other than that of Buyer. In the event Seller purchases such tooling with Buyer’s funds or is reimbursed by Buyer, Seller shall execute a Bill of Sale and any and all other documents necessary to transfer title free and clear of any liens to Buyer. While in Seller’s possession, such property shall be maintained in good and usable condition at no further cost to Buyer. Seller shall maintain and administer a program for the maintenance, repair and preservation of such property, and appropriate identification of its ownership in accordance with sound industrial practice. When requested, Seller shall furnish inventory schedules on the property, or return the property to Buyer in the condition in which it was received, except for reasonable wear and tear and consumption in the normal performance of work for Buyer. Any material furnished by Seller and paid for by or charged to Buyer shall be held on consignment by Seller and Seller shall assume the risk for any damage or loss thereto. Seller shall indemnify and hold Buyer, its agents and employees, harmless against all claims, demands, liabilities, costs and expenses, based upon or arising out of the use, storage or handling of the equipment and/or tooling until returned to Buyer’s possession.
- Non-Disclosure of Information, Designs and Data
Seller shall keep confidential the features of any equipment, tooling, patterns, designs, drawings, processes, engineering and business data and other technical and proprietary information (without limitation), furnished by Buyer and use such items only in production of supplies under Purchase Orders from Buyer, unless Buyer’s written consent is first obtained. Upon termination or completion of this Purchase Order, Seller shall return all such items to Buyer or make other disposition, as directed by Buyer.
- Intellectual Property
Seller warrants that any materials, supplies or other goods furnished to Buyer will not infringe any UK, EU or foreign patent, trademark, copyright or registered and unregistered design right, [or mask work right] by reason of their manufacture, use or sale, and will not misuse or misappropriate any trade secret.
Seller agrees to (i) indemnify, defend, and hold harmless Buyer, its agents, employees, successors and customers against all such claims, demands, losses, suits, damages, liabilities and expenses (including reasonable attorney fees) arising out of any suit, claim or action for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, copyright, or registered and unregistered design right, [or mask work right] by reason of the manufacture, use, or sale of the goods or services Purchase Ordered, including infringement arising out of compliance with specifications furnished by Buyer, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions; (ii) waive any claim against Buyer including any copyright or mask work right infringement or the like, including claims arising out of compliance with specifications furnished by Buyer; and (iii) grant to Buyer a worldwide, non-exclusive, royalty-free, irrevocable license to repair and have repaired, to reconstruct and have reconstructed the goods Purchase Ordered hereunder. Seller assigns to Buyer all right, title and interest in and to all trademarks, copyrights and mask work rights in any material created for Buyer under this Purchase Order.
- Indemnification and Insurance
Seller shall indemnify, defend, and hold harmless Buyer, its agents, employees, customers, and users of its and their products against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorney’s fees, resulting from the death or injury to any person or damage to any property arising out of or in any way connected with the performance of this contract by Seller or the goods provided hereunder, or with respect to matters and allegations that the goods are defective, unfit or unsafe, or that the goods do not meet applicable laws or regulations, even if the loss results from the, concurrent or partial negligence of Buyer. At Buyer’s request, Seller shall defend such claims or suits at Seller’s expense by reputable counsel satisfactory to Buyer.
The Supplier shall effect with a reputable insurance company a policy or policies of insurance covering all the matters which are the subject of indemnities under these Conditions, and shall at the request of the Purchaser produce the relevant policy or policies together with receipts or other evidence of the latest premium due thereunder.
- Technical Information
Seller agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the goods or services covered by this order.
In providing goods or services hereunder, Seller will comply with any and all applicable UK law or foreign laws and regulations including but not limited to laws and regulations relating to:
(i) Occupational Health and Safety;
(ii) Environmental Protection; and
Seller represents that it is in compliance with all UK and foreign laws, rules and regulations relating to contracting with small and disadvantaged business concerns and to equal employment opportunity and affirmative action in the employment of minorities, women, individuals with disabilities, and certain veterans. All such laws, rules, and regulations are incorporated herein by reference and Seller agrees not to discriminate against any employee or applicant for employment because of age, race, color, religion, sex, national origin, veterans’ status, or physical/mental disability that is not related to the performance of the specific position.
Seller will indemnify, defend, and hold harmless Buyer, its agents, employees, customers, and users of its and their products against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorney’s fees, resulting from or arising out of any failure of Seller or Seller’s employees, agents, and subcontractors to comply with any applicable laws and regulations.
Seller agrees to provide all information necessary for Buyer to comply with all applicable laws, regulations and related legal reporting obligations in the country(ies) of destination. Seller agrees to provide all documentation and/or electronic transaction records to allow Buyer to meet customs related obligations, any local content/origin requirements, and to obtain all tariff and trade program duty avoidance(s) and/or refund benefits, where applicable. Seller further agrees to assume, and to indemnify Buyer against, any and all financial responsibility arising from Seller’s failure to comply with these requirements and/or to supply Buyer with the information required to meet legal reporting obligations, including, without limitation, any fines, penalties, forfeitures, or counsel fees incurred or imposed as a result of actions taken by the importing country’s government.
Seller shall comply with all applicable requirements of the European Union’s (“EU”) REACH legislation, including, without limitation, pre-registering and/or registering any substances supplied to Buyer and for which REACH registration is required, and designating an “Only Representative” to act as an importer under REACH for any substances supplied, directly or indirectly, by you for import by a Buyer entity into the EU. Seller shall provide Buyer with all documents and information Buyer may reasonably require to verify Seller’s compliance with REACH. Seller shall indemnify and hold Buyer harmless from and against any liability, claims, demands or expenses arising from or relating to Seller’s noncompliance.
Without limiting any other provision of these Terms, Seller shall only furnish Products to or for the account of Buyer that are compliant with Directive 2011/65/EU of the European Parliament and of the Council of the European Union (the Restriction of Hazardous Substances or “RoHS2” Directive) and any applicable amendments, the Management Methods for Controlling Pollution Caused by Electronic Information Products Regulation of the Peoples’ Republic of China (so-called “China RoHS”), and other similar laws of other jurisdictions into which the Products are sold or shipped, unless expressly indicated by the Buyer. Seller agrees to provide appropriate documentation proving such compliance and/or any and all reasons for exemption from such compliance within 48 hours of Buyer’s request.
Seller shall use commercially reasonable efforts to ensure that all goods supplied to Buyer and the processes used to make them shall minimize life-cycle environmental impact, including minimizing waste generation, the use of energy and nonrenewable resources, and the emission of greenhouse gases; and shall maximize the use of recycled, recyclable, biodegradable and nontoxic materials.
- Right to Audit
Buyer shall have the right, at any reasonable time, to send its authorized representatives to examine all of the Seller’s documents and materials relating to Seller’s obligations hereunder or relating to Seller’s charges to Buyers. If requested by the Buyer, Seller will provide the Buyer, past, present and pro forma financial reports including, but not limited to, income statements, balance sheets, cash flow statements and supporting data for the Seller and any affiliate or subsidiary of Seller involved in producing, supplying, or financing the goods or any component part of the goods. The Buyer may use financial reports provided under this Section 20 only to assess the Seller’s ongoing ability to perform its obligations under the Purchase Order and for no other purpose, unless the Seller agrees otherwise in writing. Seller shall maintain all pertinent books and records relating to this purchase order for a period of two years after completion of delivery of products pursuant to this purchase order.
- Quality Control
Seller shall maintain adequate and consistent quality control inspection and testing to assure that goods will consistently conform to specified requirements, and shall, at Buyer’s request, furnish substantiated results of quality control inspections and testing. Seller shall notify Buyer in writing before changing in any way Seller’s specified requirements or processes used in production of supplies ordered by Buyer under this Purchase Order. Buyer’s specified requirements used in production must not be changed without Buyer’s prior written consent.
- Responsibility for Product Hazards
In the event that information is received which reasonably supports the conclusion that the goods are likely to be deemed a “defective product” under Section 2 of the Consumer Protection Act 1987 or fail to comply with any other applicable UK safety standards relating to product safety, Seller will, in addition to all other obligations hereunder, have the duty to rework or replace at Seller’s expense all such goods at any time sold to Buyer (whether in possession of Buyer, its customers or others) and to pay all other costs of Buyer attributable to such product hazard.
- Services At Buyer’s Other Location
If labor or services in connection with this Purchase Order are performed at any locations occupied or under control of Buyer or other party, Seller agrees to indemnify and hold harmless Buyer, its agents, employees, customers, and users of its and their products against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities, including reasonable attorney’s fees, arising out of or related to the labor and services to be provided, whether or not related to the conduct of Buyer, its employees or agents.
- Replacement Parts
Seller shall, in the case of goods requiring servicing, stock replacement parts sufficient to meet Buyer’s needs for a period of not less than seven (7) years after the last shipment of any goods. Replacement parts will be made available to Buyer at competitive prices not exceeding those charged to other comparable customers of Seller.
This Purchase Order, together with any attachments, exhibits, or supplements specifically referenced herein, and any written, existing “Supplier Agreement” or the like between Buyer and Seller, constitutes the entire agreement between Seller and Buyer with respect to the matter contained herein and supersedes all prior oral or written representations and agreements draft, undertaking, warranty, promise, assurance or arrangement of any nature whatsoever. Except in the case of fraud, no party shall have any right of action against any other party to this agreement arising out of or in connection with any pre-contractual statement except to the extent that it is repeated in this Purchase Order.
Seller may not assign or delegate its obligations under this Purchase Order without Buyer’s prior written consent.
This Purchase Order includes all related customs duty and import drawback rights, if any, including rights developed by substitution and rights which may be acquired from Seller’s supplier(s) which Seller can transfer to Buyer. Seller agrees to inform Buyer of the existence of any such rights and upon request to supply such documents as may be required to obtain such drawback.
The failure of either party at any time to require performance by the other party of any provision of this Purchase Order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this Purchase Order constitute a waiver of any succeeding breach of the same or any other provision.
Seller and Buyer are independent contracting parties no action taken by the parties under this Purchase Order shall constitute a partnership, association, joint venture or other co-operative entity between the parties. Nothing in this Purchase Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
This Purchase Order is to be construed according to English law and the parties submit to the exclusive jurisdiction of the English courts.
If any term of this Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive Purchase Order, or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, Purchase Order or rule, and the remaining provisions of this Purchase Order shall remain in full force and effect.
The rights and remedies reserved to Buyer in this Purchase Order shall be cumulative and additional to all other remedies available to Buyer in law or equity.
Seller’s covenants, representations and warranties hereunder shall survive any delivery, inspection, payment or acceptance and any completion, termination or cancellation of this Purchase Order.
If this Purchase Order covers goods or services for Buyer’s use in the performance of any contract, sub-contract, or purchase order in which the United States Government, or any agency or department hereof, is the principal contractor, then the additional terms and conditions set forth in Supplement A to this Purchase Order shall apply.
The parties to this Purchase Order do not intend that any term of this Purchase Order will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.