ENERTECH LIMITED (“the Company) – CONDITIONS OF PURCHASE
1 DEFINITIONS
In these conditions, except where the context otherwise requires, the following words have the meaning set opposite each respectfully:
- “Seller” shall mean the person, firm or company with whom or which the Company contracts subject to these conditions.
- “Contract” means the contract made or to be made between the Company and the Seller subject to these Conditions.
- “Goods” shall mean the articles products and/or things including samples where relevant the subject matter of the Contract.
2 PLACING AND ACCEPTANCE OF ORDERS
Orders and amendments to orders will be binding on the Company only if issued on the Company’s official order form duly signed on behalf of the Company.
3 The acceptance (whether in writing or by the commencement of any work relating to the Company’s order or by the delivery of Goods by or on behalf of the Seller of the Company’s order shall be deemed to include acceptance of these Conditions, which shall form the Conditions of the Contract and shall apply to the exclusion of any terms or conditions put forward by or on behalf of the Seller. Accordingly, no variation of or addition to these Conditions (including without limitation any terms or conditions put forward by or on behalf of the Seller), whether written or oral, shall have effect unless and until agreed in writing by the Company and signed by an authorised manager of the Company.
4 INFORMATION AND SAMPLES
4.1 Any quotation submitted by the Supplier shall be accompanied by sufficient data, information and (where relevant) samples to enable the Company whether to proceed with an order forthwith.
4.2 In the event that after the date of any quotation submitted by the Seller it shall be found that any data, information and/or samples supplied by the Seller and upon which the Company’s order may be based differ in any material respect from conditions as they may in fact be, the Company shall be entitled to amend or withdraw any order made by it.
4.3 Any samples supplied by the Seller shall be delivered at the Sellers sole risk and expense to the Company at such address as the Company may specify.
5 DELIVERY
The goods must be delivered or available for collection within the time specified or of no time is specified within a reasonable period from the date the Company’s order. Time shall be of the essence of the Contract and in the event of non-delivery and/or performance within the time specified or such reasonable time as aforesaid the Company reserves the right (without liability on its part) to cancel the whole or part of the order and to debit to the Seller any extra expense incurred by the Company in obtaining equivalent supplies, such right to be without prejudice to any other rights or remedies available to the Company.
6 The Seller will ensure that the Goods are properly and securely packed. All packages will be free and non-returnable unless otherwise stated in the Company’s order.
7 7.1 Where the Contract is expressed to be concluded on a “Delivered basis”, the Seller shall deliver the Goods to the address specified in the Company’s order free of carriage, insurance and other delivery charges which shall be borne by the Seller unless otherwise agreed in writing, where the address specified is within the United Kingdom, delivery must be made between the hours of 8am and 4.30pm Monday to Thursday inclusive, Friday 8.00 am to 3.30 pm except by special arrangement.
7.2 Where the contract is expressed to be concluded on an “Ex Mill basis”, the Seller shall forthwith notify the Company when the Goods are ready and of the address at which they may be collected, and shall make the Goods available for collection
8 Advice notes, bills of lading, Test certificates, Certificates of Analysis, colour coding’s (where appropriate) and all other appropriate documentation must accompany all Goods, and full details of the Company’s order number and all relevant information must be clearly shown. The weight of the consignment must be shown where applicable.
9 The Seller will be liable for loss of or damage to Goods (whether delivered or collected) in transit (save only insofar as such loss or damage may arise as a result of the negligence of the Company or its employees) and, without prejudice to any other rights or remedies available to the Company, will forthwith as the Company may instruct replace or repair or reimburse the price of the Goods so lost or damaged.
10 PASSING OF PROPERTY
Property in title to all the Goods shall pass to the Company on delivery or collection (as the case may be), without prejudice to any right of rejection which may be or become available to the Company.
11 INSPECTION
The Company reserves the right for the Company and/or its customer to inspect the Goods and the progress of work during manufacture and prior to despatch to require such tests as may be called for in the Company’s order or any attached specification to be carried out to the Company’s satisfaction. For these purposes, the Seller shall allow the Company’s and/or its customers representative reasonable facilities and access to the Sellers or any permitted sub-contractors works and shall notify the Company when the Goods are ready for inspection or testing. Such inspection shall not relieve the Seller of responsibility or liability, nor be interpreted so as in any way to imply acceptance of the Goods. The Goods are received from the Sellers carriers or collected (as the case may be) unexamined and are subject to inspection by the Company after delivery notwithstanding any prior inspection, testing or prepayment (if any).
12 DESCRIPTION
Any specification, drawing and/or other particulars relating to the Goods and/or submitted in connection with, or included in any quotation given by the Seller and any specification, description, design, drawing, illustration, and/or other particulars contained in any catalogue of the Seller shall unless otherwise stated in writing form part of the Contract.
13 DRAWINGS,PLANS,SECIFICATIONS, PATTERNS ETC
13.1 The Order, the subject matter thereof and all matters relating thereto shall be treated as confidential by the Seller who shall not divulge any such information to any person, firm or company provided that this condition shall not extend to information rightfully in the possession of the Seller prior to the commencement of negotiations leading to the Order, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this condition) or which is trivial or obvious. If the Seller shall appoint any sub-contractor agreed to in accordance with condition 28 the Seller may disclose, but only so far as necessary, such information to such sub-contractor (subject to such sub-contractor giving the Company an undertaking in similar terms to the provisions of this condition).
13.2 If the Company shall supply the Seller with any drawings, plans, specifications, patterns, designs, dies or other documents or things relating to the order the Seller and its employees shall regard such documents or things and any information derived therefrom as confidential and shall not without consent in writing of the Company duplicate, publish or communicate or reveal them to or discuss them with any person, firm or corporation or use them for any purpose other than the execution of the Company’s order and shall use best endeavours to keep the same at all times secure. All such documents and things shall at all times be and remain the property of the Company or its customers (as the case may be) and must be returned forthwith on demand in good condition.
13.3 The provision by the Company of any such drawings, plans, specifications, patterns, designs, dies or other documents or things relating to the order shall not absolve the Seller from the responsibility or liability of providing the Goods in accordance with the order and fit and sufficient for the Company’s requirements merchantable of good material and workmanship and free from defects. The Seller will forthwith notify the Company if there is in the Sellers view any discrepancy between the requirements of the order and the provision of the Goods fit and sufficient merchantable of good material and workmanship and free from defects as aforesaid but shall not deviate from or alter the requirements of the order without express written authority of an authorised manager of the Company and in the event of any such deviation or alteration as if such deviation or alteration and the new requirements arising therefrom formed part of the order.
14 PRICES
Unless otherwise agreed the price specified in the Company’s order shall be the actual price payable under the Contract. Any alterations in price, quantity, quality, delivery or other specifications must be agreed in writing by the Company and signed by an authorised manager of the Company.
15 15.1 An invoice must be submitted by the Seller at the time of despatch of Goods and a statement thereof must be rendered by the third day of the calendar month following that which delivery takes place. If the Seller fails to render such statement, the Company shall be entitled to postpone payment until it next ensuing settlement day.
15.2 Any account submitted by the Seller whether monthly or otherwise shall be valid only insofar as the items therein contained have actually been received by the Company and the Company shall not be under any liability with respect to items invoiced but still in transit and not received by the Company
16 DEFECTIVE GOODS AND SERVICES
16.1 It shall be a condition of the Contract that the Goods will conform as to quality, quantity and specification with all relevant drawings, designs and approved samples and other particulars stated in the Company’s order or otherwise made known to the Seller and/or to the Sellers agents, and will be fit and sufficient for the Company’s requirements, merchantable, of good material and workmanship and free from defects.
16.2 In the case whether on inspection before delivery or on or after delivery, that any of the Goods are defective in materials and/or workmanship or otherwise fail to meet the requirements (as to quality, quantity and specification, conformity with drawings, design and approved samples) of the relevant order or are otherwise not fit and sufficient for the Company’s requirements or not of merchantable quality the Company shall have the right (without prejudice to any other right or remedies it may have) (whether before or after part or full machining, cutting or any other dealing the Goods) at any time within fifteen months from the date of delivery or collection (as the case may be) or twelve months from the date of supply to the end user whichever is the later to reject the Goods and return them to the Seller at the Sellers expense and risk for replacement, repair or a full credit (as the Company may request). Any extra expense incurred as a result of or otherwise in connection with any such defect or failure in the Goods shall be paid by the Seller to the Company without prejudice to any other rights or remedies available to the Company. Goods delivered in excess of the Company’s order may be returned to the Seller at the Sellers risk and expense.
16.3 The conditions, warranties and remedies provided for in this condition 14 shall be in addition to those implied by or available at law, and shall exist notwithstanding the Company’s acceptance of all or a part of the Goods.
17 INDEMNITY
Without prejudice to the Company’s other rights and remedies, the Seller will indemnify the Company against all losses, liabilities, actions, demands, costs, damages, and expenses of any kind whatsoever and howsoever arising or arisen and whether direct, consequential or special, including without limitation any injury, loss or damage resulting from or arising out of or incidental to:
17.1 Any negligence of the Seller or of any of its employees or agents:
17.2 The Sellers performance of or failure to perform or breach of any of its obligations, whether express or implied under the Contract or under any other contract, including (but without limitation) its obligations under clause 14.1:
17.3 Any defect in the Goods and/or any error or defect in any Test Certificate and/or Certificate of Analysis:
17.4 The Sellers failure to deliver the Goods or to make them available for collection in accordance with the Contract:
17.5 Any exercise by the Company of its rights (under the Contract or otherwise) howsoever arising or arisen to terminate the Contract or to reject the Goods or any of them
18 REMIDIES OF THE COMPANY
The Company shall be entitled (without prejudice to any other rights and remedies available to it under these terms and conditions or otherwise) forthwith to terminate the Contract, to return or reject at the Sellers risk and expense any Goods already delivered or collected (whether before or after part or full machining, cutting or any other dealing with the Goods) and to recover any monies paid by the Company in respect of Goods and any additional expenditure incurred by the Company in any of the following events:
18.1 If any Goods are not delivered or performed within the time required by these conditions:
18.2 If the Seller commits any act of insolvency and/or the Company has any bona fide doubts as to the solvency of the Seller:
18.3 If the Seller being an individual, sole trader, firm or partnership the Seller or any partner in or member of the Seller where the Seller is a firm or partnership shall commit an act of bankruptcy or enter into any composition or arrangements with creditors or shall be involved in any comparable insolvency proceedings or arrangements in any jurisdiction:
18.4 If the Seller being an incorporated body shall have a receiver or manager or administrative receiver or administrator appointed of its undertakings or assets or any part or parts thereof or shall go into liquidation or shall enter into any composition or arrangements with its creditors or shall be involved in any comparable insolvency proceedings or arrangements in any jurisdiction:
18.5 If a distress or execution is levied or issued against any of the property of the Seller and is not paid out within seven days:
18.6 If the Seller commits any breach of the Contract or any contract between the Company and the Seller
18.7 Without prejudice to the generality of the foregoing, if any Goods are in any way defective or otherwise fail to meet the requirements (as to quality, fitness, description or otherwise) of the relevant order or fail to correspond in all respects with any samples, patterns or specifications or are not otherwise satisfactory to the Company, its customers of his agent, or any Government Department concerned:
18.8 In the event of any factor within condition 20 (including without limitation if any customer of the Company for the Goods or any of them is unable to perform its obligations under its contract with the Company by reason of any factor beyond its direct control, including without limitation all or any of the instances specified in condition 20) hindering the performance by the Company of any of its obligations under the Contract.
Where the Company is entitled to terminate the Contract as aforesaid or by reason of any other rights or remedies available to it and Goods are agreed to be provided by instalments the Company shall be entitled at its option either to treat the instalment as separate and distinct contracts and to reject or return any one instalment without prejudice to the Sellers obligations in respect of other instalments or to reject or return all instalments and to terminate the Contract for all of them.
19 THIRD PARTY RIGHTS
19.1 Save to the extent (if any) that Goods are designed or manufacturing methods are specified by the Company, the Seller will indemnify the Company against all losses, liabilities, actions, claims, damages, expenses, costs and demands whatsoever and howsoever arising in relation to any claim or action for infringement of any patent, copyright or other rights of third parties (whether relating to passing off confidential information or any other matter whatsoever) resulting from the provisions and/or manufacture and/or sales and/or use of any Goods.
19.2 In no case shall the Company be under any liability to the Seller in respect of any actual or alleged infringement of patent, copyright or any other rights of third parties (whether relating to passing off confidential information or any other matter whatsoever) resulting from the provision and/or manufacture and/or sales and/or use of any goods save to the extent (if any) that such infringement occurs by reason of the Company’s designs or manufacturing methods specified by the Company. In the event that designs forwarded or methods of manufacture specified by the Company are not prepared or determined by the Company but is customers the Company shall have no liability in respect of any actual or alleged infringement as aforesaid other than to use all reasonable endeavours to secure for the Seller the benefit of any warranties or assurances given to the Company by its customer relating to such matters.
19.3 In the event of any actual or alleged infringements of patent, copyright or any rights of third parties (whether relating to passing off confidential information or any other matter whatsoever) resulting from the provision and/or manufacture and/or sale and/or use of Goods the Company shall be under no liability whatsoever arising or arisen (whether under 19.2 or otherwise howsoever) to the Seller unless the Seller complies with the following conditions:
19.3.1 The Seller must promptly notify the Company in writing of any allegation or infringement:
19.3.2 The Seller must make no admission without the Company’s consent:
19.3.3 The Seller must, if the Company requests, allow the Company and/or its customer to conduct and/or settle all negotiations and litigation and must give the Company and/or its customer all reasonable assistance.
20 FORCE MAJEURE
The Company shall have no liability whatsoever for any failure to perform or for any delay in the performance of any of its obligations under the Contract arising wholly or in part by reason of any factor beyond its direct control, including without limitation shortage of raw materials, components or services, act of God, war, national emergency, laws or regulations of any country, industrial dispute, civil commotion, fire, tempest or flood.
21 DISPUTES & SET OFF
Any liability of the Company under the Contract shall be subject to and conditional upon the due performance and observance by the Seller of all its obligations under these Conditions, and, subject to these Conditions, the Seller shall not be entitled to withhold or delay the goods or exercise any right of set-off whatsoever and howsoever arising or arisen which might otherwise be available to it.
22 TESTING AND TEST CERTIFICATES
Where it necessary for Goods to be tested, payment of the price may be withheld until the Goods have been tested and successfully passed the tests.
23 Where tests take place and/or Test Certificates are supplied, such Tests or Certificates shall not absolve the Seller from any of its responsibilities under the Contract and shall not prejudice any other rights or remedies available to the Company.
24 COMPLIANCE WITH REGULATIONS
It shall be the responsibility of the Seller to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, are duly complied with. It shall be a condition precedent to the performance by the Company of its obligation under the Contract that all necessary licences, permits and consents shall have been obtained by the Seller.
25 INSURANCE
Where the Seller is required to perform services of installation and /or servicing, the Seller agrees to effect (and if so required to demonstrate to the reasonable satisfaction of the Company) that he has effected public liability insurance in an amount not less than £1,000,000 per event in respect of loss, damage or injury to property or persons. The Seller will be responsible for all loss or damage whatsoever, arising or arisen to any of the Company’s Goods in his possession and shall indemnify the Company against any such loss or damage.
26 WAIVER
No failure or delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by the Company of any breach by the Seller of any of its obligations under the Contract shall not affect the rights of the Company in the event of any further or additional breach or breaches.
27 SUB-CONTRACTS
Any terms in any tender or otherwise notwithstanding insofar as the Contract is a sub-contract placed under a main contract or sub-contract to which the Company is a party, all conditions rights and remedies which are or might be operative against the Company under the terms and conditions of the main contract or sub-contract (or which by amendment to the main contract or sub-contract may hereafter be operative against the Company) including especially any “break clauses”, “costing clauses” and the ascertainment of and substitution of a fair and reasonable price for any stated price shall mutatis mutandis apply to the Contract so that the Company shall have corresponding conditions, rights and remedies against the Seller. The main contract or sub-contract is available for inspection at the offices of the Company, an appointment made for the purposes.
28 ASSIGNMENT
The Contract is personal to the Seller, who shall not assign or sub-contract (with the exception of the purchase of raw materials from third parties) or in any way part with the benefit thereof or of any part thereof without the Company’s prior written consent. Where such consent is granted to sub-contracting the Seller shall forward to the Company copies of all orders placed with sub-contractor for Goods or Services purchased specifically for use in connection with the order. All such orders placed with a sub-contractor must specify that the Goods or Services ordered are subject to the Company’s inspection and the Company’s order number must invariably be quoted.
29 SEVERABILITY
Each and every obligation contained in these Conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other obligation.
30 CLAUSE HEADINGS
The clause headings in these conditions are for convenience only and shall not in any way affect the interpretation of the Contract.
31 NOTICES
Any notice required to be given in writing under the Contract shall be given where possible by telex and otherwise by first class post addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to have been received, in the case of a telex, upon transmission and, in the case of a letter, forty-eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
32 LANGUAGE
The language of the Contract shall be English as understood in England, and all communications, whether written or oral relating thereto shall be conducted in English.
33 GOVERNING LAW AND JURISDICTION
The contract shall be governed by and construed in all respects in accordance with English Law. And the Company and the Seller shall submit to the exclusive jurisdiction of the English Courts.
E. & O.E Revision 2