Conditions of Purchase
MACBEY INDUSTRIAL LIMITED
1 INTERPRETATION
1.1 In these Conditions:
Company means Macbey Industrial Partners Limited, a company incorporated in England and Wales (registered number: 8538184) whose registered office is at Tandem Industrial Estate, Waterloo, Huddersfield, West Yorkshire, HD5 0BL;
Company Information means all specifications, drawings, sketches, models, samples, tools, designs, technical or commercial know-how, details of inventions, processes or initiatives and other proprietary information concerning the Company’s business, products or customers, written, oral or otherwise disclosed to the Supplier by the Company or its agents or otherwise obtained by the Supplier;
Contract means a contract for the purchase of Goods or Services by the Company from the Supplier that incorporates the Order and these Conditions;
Failed Supply has the meaning given in Condition 4.3;
Force Majeure Event has the meaning given in Condition 18.2;
Goods means the articles, raw materials or any of them to be supplied by the Supplier to the Company pursuant to a Contract;
Order means a purchase order in respect of Goods issued by the Company to the Supplier on the Company’s official purchase order form, together with all other documents referred to therein;
Services means the services which the Company is to supply in accordance with these Conditions;
Supplier means the person, firm or company to whom the Order is addressed; and
Supplier Information means materials, equipment, tools, dies, moulds, fixtures, jigs, patterns, drawings, specifications, sketches, models, samples, designs and data whether written, oral, three dimensional or otherwise prepared by the Supplier in connection with a Contract.
1.2 All clause, paragraph and section headings and marginal notes and references to them in these Conditions are for identification and indexing purposes only. They shall be deemed not to be part of these Conditions and they shall not affect the construction or interpretation of these Conditions.
1.3 Where the context otherwise requires, words importing the singular meaning shall include the plural meaning and vice versa, words denoting persons shall include natural persons, companies, corporations, firms, partnerships, limited liability partnerships, joint ventures, trusts, voluntary associations and other incorporated and/or unincorporated bodies or other entities (in each case, whether or not having separate legal personality).
2 APPLICATION
2.1 These Conditions alone and the Order shall govern and be incorporated in every Contract between the Company and the Supplier for the purchase of Goods/Services and shall be in substitution for any oral arrangements made between the Company and the Supplier and shall prevail over and apply in place of any terms or conditions contained in or referred to in the Supplier’s quotation or acceptance of order or correspondence or elsewhere or implied by trade custom or practice or course of dealing. The Supplier waives any right which it otherwise might have to rely on any terms or conditions contained or referred to in any documentation of any nature whatsoever submitted by the Supplier to the Company at any time.
2.2 No addition to or variation of or exclusion or attempted exclusion of the Order and/or these Conditions or any of them shall be binding upon the Company unless specifically agreed to in writing and signed by a director or authorised representative of the Company.
3 ACCEPTANCE OF ORDER
All the terms of a Contract are contained in or referred to in the Order and in these Conditions. Each Order shall be deemed to be an offer by the Company to buy Goods/Services subject to these Conditions and no Order shall be accepted until the Supplier executes and returns the acknowledgement copy of the Order to the Company or executes or commences work or commences delivery pursuant to the Order and acceptance in either manner shall constitute acceptance of the Order by the Supplier on the terms contained in the Order and in these Conditions. The acceptance of the Order is limited to and conditional upon acceptance by the Supplier of these Conditions.
4 QUALITY AND DEFECTS
4.1 It is a condition of a Contract that the Goods/Services supplied to the Company under a Contract shall be of the best available design, of the best quality, of first class materials and workmanship throughout, without fault and conform in all respects with the governing specifications and samples referred to in the Order including without limitation those specifying quantity, quality standards and description.
4.2 At any time prior to delivery of the Goods, provision of the Services, to the Company the Company shall have the right at all times to inspect and test the Goods and review the Services.
4.3 In any case where the Goods/Services or any part of them (whether or not inspected or tested by the Company) do not conform or are unlikely to conform with Condition 4.1 (Failed Supply) the Company shall inform the Supplier and the Company shall have the right to:
4.3.1 Repair the Goods, or re-perform the Services at the expense of the Supplier; or
4.3.2 Reject the Goods/Services.
4.4 In the event of a rejection of Failed Supply pursuant to Condition 4.3.2, the Company shall:
4.4.1 Give notice of rejection to the Supplier specifying the reasons for the rejection; and
4.4.2 Return the rejected Goods to the Supplier or make the rejected Goods available for collection, at the Supplier’s risk and expense or notify the Supplier of the rejection of the Services.
4.5 Should the Company opt for replacement of Goods or re-performance of Services, upon notice of rejection of the Goods/Services, pursuant to Condition 4.4.2 the Supplier shall, within a reasonable time and in any event by any date reasonably stipulated by the Company, replace such rejected Goods with Goods or re-perform the Services, which in each instance, are in all respects in accordance with the Order and Condition 4.1.
4.6 If the Supplier fails to replace the faulty Goods or re-perform the substandard Services in accordance with Condition 4.5 the Company shall have the right to purchase replacement goods/services from another source and any money paid by the Company to the Supplier in respect of the Failed Supply together with any additional expenditure over and above the contract price incurred by the Company in obtaining replacement goods/services or costs claims or liability suffered or incurred by the Company including but not limited to, as a result of the Company being in breach of the Company’s agreement with its customer(s), shall be paid by the Supplier to the Company.
4.7 Notwithstanding any inspection or testing permitted by Condition 4.2, or the signing of a delivery note confirming receipt, the Supplier shall remain fully responsible for the Goods/Services and any such inspection or testing, or the signature of receipt, shall not diminish or otherwise affect the Supplier’s obligations under a Contract.
4.8 Without prejudice to Condition 4.3, if any of the Goods/Services fail to comply with the provisions set out in Condition 4.1, the Company shall in addition to any other rights or remedies which it may have under these Conditions or otherwise be entitled to avail itself of any one or more of the remedies listed in Condition 17.
5 DELIVERY
5.1 The Goods shall be properly packed, marked and delivered to the Company at the Supplier’s expense in accordance with the Order.
Delivery point
5.2 The Goods shall be delivered to the delivery point specified in the Order. If the Goods are incorrectly delivered, the Supplier will be liable for any additional expense involved in handling and delivering them to their correct destination. The Supplier shall offload the Goods at its own risk as directed by the Company.
Delivery documentation
5.3 Unless otherwise started in the Order, the Supplier shall be liable for all shipping, insurance (minimum full replacement value), customs clearance, taxes and duties arising from cross border supplies.
5.4 The Supplier shall invoice the Company upon, but separately from, despatch of the Goods to the Company. A separate invoice must be rendered for each individual delivery of Goods. Each invoice must bear the details set out in Condition 5.5.
5.5 The Supplier shall ensure that each delivery is accompanied by a delivery note. Each delivery note and invoice shall show, inter alia, any applicable component number, the Order number, the date of the Order, the delivery date, the location to which the Goods are to be delivered, the number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
Date and time of delivery/performance of Services
5.6 The date for delivery/performance shall be specified in the Order, or if no such date is specified, then delivery shall take place within 28 days of the Order.
5.7 Delivery of Goods shall take place between the normal business hours of Monday to Thursday 08.00 to 15.30 and Friday 08.00 to10.30 (excluding public and bank holidays).
5.8 Time is of the essence in the performance by the Supplier of a Contract. The Supplier will report immediately to the Company the occurrence of any event either within or beyond its control which is likely to affect delivery of the Goods.
5.9 If delivery dates for the Goods or the dates for supply of Services cannot be met, the Supplier shall promptly notify the Company of the earliest possible date for delivery of the Goods/ supply of the Services. Notwithstanding such notice, and unless a substitute delivery date for the Goods/Services has been expressly agreed to by the Company in writing, the Supplier’s failure to effect delivery/supply of the Goods/Services on the due date shall entitle the Company to:
5.9.1 cancel the Order in whole or in part without liability to the Supplier;
5.9.2 refuse to accept any subsequent delivery of the Goods/supply of the Services, which the Supplier attempts to make;
5.9.3 recover from the Supplier any expenditure incurred by the Company in obtaining substitute goods/services from another supplier; and
5.9.4 claim damages for any additional costs, losses or expenses incurred by the Company which are in any way attributable to the Supplier’s failure to deliver the Goods on the due date, including the liability of the Company to its customer(s).
5.10 The remedies available to the Company set out in Condition 5.8 are without prejudice to any other rights or remedies which the Company may have under these Conditions or otherwise including, without limitation, those rights and remedies set out in Condition 16.
Incomplete or over delivery
5.11 If delivery pursuant to a Contract is incomplete, the Company reserves the right (without prejudice to any of its other rights) to reject the Goods so delivered and to cancel or vary the balance of the Contract.
5.12 If the Goods are delivered to the Company in excess of the quantities ordered, the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Supplier’s risk and shall where it exceeds 10% of the order be returnable at the Supplier’s expense.
Packaging
5.13 If the Supplier requires the Company to return any packaging material to the Supplier, that fact must be clearly stated on any delivery note delivered to the Company. Any such returnable packaging material must be collected from the Company by the Supplier, unless otherwise agreed by the Company in writing. The Company will (if its storage facilities permit) store at the risk and cost of the Supplier the Supplier’s returnable packaging whilst in the Company’s possession for a reasonable period of time not exceeding one month from receipt, after which time the Company may dispose of the materials at the Supplier’s expense. Any costs of collection, storage, insurance and carriage, disposal or destruction incurred by the Company as a result of this Condition 5.12 will be borne by the Supplier.
5.14 The Company shall not accept a charge for packaging or containers unless specified in the Order.
Acceptance of delivery/performance
5.15 The Company shall have the right to reject the Goods as though they have not been inspected on delivery, after any defect or shortfall in the Goods has become apparent, or in regard to Services, following performance of the Services, where the Services are found subsequently to be sub-standard or fail to meet the requirements of the Order.
5.16 The Company shall be under no responsibility to accept delivery of Goods for which written instructions have not been provided by the Company. Deliveries of Goods other than in accordance with the relevant Order may (at the Company’s discretion) be returned to the Supplier at the Supplier’s expense and risk and the Supplier shall pay all the Company’s costs of packaging, storing, handling and sorting such deliveries. The Company may (at its reasonable discretion) from time to time change any details specified in the relevant Order by written instructions.
Delivery by instalments
5.17 Where the Company agrees in writing to accept delivery by instalments, each instalment shall be construed as a single contract between the Company and the Supplier. Nevertheless, failure by the Supplier to deliver any one instalment shall entitle the Company at its option to treat the entire Contract as repudiated.
6 INDEMNITY
6.1 The Supplier agrees to fully indemnify and at all times to hold the Company, its agents, employees, officers, subsidiaries, associated companies and assigns fully indemnified from and against any and all direct, indirect, special or consequential liabilities, losses, charges, damages, costs and expenses including, without limitation, loss of profit, loss of business, loss of revenue, depletion of goodwill, loss of anticipated savings, loss of management time or legal and other professional costs awarded against or incurred or paid by the Company as a result of or in connection with:
6.1.1 the Goods being of defective workmanship, quality and/or materials (including when applied to printed products, ‘defective’ would be understood to include but not be limited to any goods supplied as notionally of one type, description, specification or sample being inconsistent with the same, (including whether within a batch or between batches) in terms of colour, hue, reflectivity, gloss level, texture, opacity, film thickness, chemical resistance or other specification description or sample);
6.1.2 the Services being sub-standard or performed otherwise than in accordance with the Order; or
6.1.3 any alleged or actual infringement of any patent, registered design, design right, copyright, registered or unregistered trade mark or other rights of property vested in any other person resulting from the purchase, use or resale by the Company, its servants, agents or customers of the Goods or any part thereof; or
6.1.3 any act or omission in the performance of or in connection with any or all of the obligations undertaken by the Supplier pursuant to a Contract, whether by reason of the negligence of the Supplier, its agents, employees or sub-contractors or their agents or employees or otherwise.
6.2 The Supplier shall have no obligation to indemnify under this Condition 6 if or to the extent that any relevant liability, loss, charge, damage, cost or expense incurred was only incurred because the Supplier delivered the Goods/supplied the Services strictly in accordance with the designs, plans or specifications supplied by the Company.
7 INSURANCE
The Supplier will at all times insure and keep himself insured with a reputable insurance company against all insurable liability under a Contract including, without limitation, against all of the Supplier’s liabilities under Condition 6. The Supplier will provide all facilities, assistance and advice required by the Company or the Company’s insurers for the purpose of contesting or dealing with any action, claim or matter arising out of the Supplier’s performance of a Contract.
8 TITLE AND RISK
The property and risk in the Goods shall pass to the Company when delivery of the Goods in accordance with the Order is complete (including offloading and stacking) without prejudice to any right of rejection which may accrue to the Company under a Contract or otherwise.
9 PRICE
9.1 The price of the Goods/Services shall be as stated in the Order or if no such price is stated in the Order then the price of the Goods shall be the lowest price currently quoted or charged at the date of the Order by the Supplier for those Goods but in no event higher than the price most recently charged to the Company by the Supplier for those Goods.
9.2 Unless otherwise agreed in writing by the Company, the price of the Goods shall be in GB Pounds Sterling and exclusive of value added tax but inclusive of all other charges.
9.3 No variation in the price nor extra charges shall be accepted by the Company.
10 PAYMENT
10.1 The Supplier shall invoice the Company as set out in Condition 5.4.
10.2 Unless otherwise stated in the Order, the Company shall pay the price of the Goods/Services within 30 days month end following delivery of the Goods to the Company but time shall not be of the essence in the performance by the Company of its payment obligation under this Condition 10.2.
10.3 If any sum under a Contract is not paid when due then, without prejudice to the parties’ other rights under the relevant Contract, that sum shall bear interest from the due date for payment until payment is made in full both before and after any judgment at two per cent. (2%) per annum over the base rate of Bank of England from time to time. The parties agree that this constitutes a substantial remedy in terms of the Late Payment of Commercial Debts (Interest) Act 1998. The Supplier is not entitled to suspend deliveries of the Goods, supply of Services as a result of any sums due to it being outstanding.
10.4 Without prejudice to any other right or remedy it may have under these Conditions or otherwise, the Company reserves the right to set-off any amount owing at any time from the Supplier to the Company against any amount payable by the Company to the Supplier under a Contract.
11 CONFIDENTIALITY
The Supplier shall:
11.1 keep the Company Information in strict confidence;
11.2 retain the Company Information safely;
11.3 restrict disclosure of the Company Information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Supplier’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Supplier; and
11.4 not use or disclose the Company Information except strictly as required in the course of performance of a Contract, save as otherwise required by law.
12 OWNERSHIP OF PROPERTY
12.1 The Company Information and all intellectual property rights of whatever nature subsisting in the Company Information shall remain the property of the Company.
12.2 The Supplier Information and all intellectual property rights of whatever nature subsisting in the Supplier Information shall at all times be and remain the exclusive property of the Company. The Supplier Information shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Company. The Supplier Information shall not be disposed of other than in accordance with the Company’s written instructions nor shall such items be used otherwise than as authorised by the Company in writing. The Company may reproduce and use the Supplier Information freely for any purpose whatsoever.
13 COMPANY PROPERTY
13.1 The following provisions of this Condition 13 shall apply as appropriate to the Company Information and any material or property sent by the Company to the Supplier for any purpose in connection with a Contract and whenever a Contract requires the Supplier to repair or apply a process to goods or materials owned by the Company (which the Company makes available for that purpose) (Company Property):
13.1.1 the Company Information and the Company Property shall be returnable on demand (together with all copies of it);
13.1.2 the Supplier shall indemnify the Company against loss of or damage to the Company Information or Company Property while it is in the possession, custody or control of the Supplier or of any permitted sub-contractor. During such time the Supplier shall adequately insure against such loss or damage and shall produce on demand by the Company the insurance policy or policies and the premium receipts;
13.1.3 the Supplier shall keep the Company Information and Company Property separate from all property of third parties and shall clearly mark it “PROPERTY OF GALEN PARTNERS LIMITED”. The Company Information and Company Property shall not be removed from the Supplier’s premises without the Company’s written authority (except for the purpose of fulfilling a Contract); and
13.1.4 the Supplier shall keep separate account of all Company Information and Company Property and will furnish statements on request giving details, description and location thereof both before and after repair or processing (if appropriate and as the case may be) as well as any other information regarding the Company Information and Company Property asked for by the Company. The Company and its authorised representatives shall be entitled at all reasonable times to check and inspect the Company Information and Company Property and the Supplier’s records of it and may enter the Supplier’s land and buildings for those purposes.
13.2 The Supplier shall promptly pay to the Company on demand the full value of any of the Company Information and Company Property which is not returned.
14 CHANGES TO GOODS
The Supplier shall not make any changes whatsoever to the colour, specification, design or composition of the Goods without the prior written agreement of the Company.
15 WARRANTY
15.1 The Supplier warrants, and it is a condition of a Contract, that the design, construction and quality of the Goods will comply in all respects with any statutory rule or regulation which may be in force at the time of delivery and that the Goods will be fit and suitable for the purpose intended by the Company, of satisfactory quality and of good materials and workmanship and free from defects.
15.2 The warranties and remedies provided for in this Condition 15 and Condition 4.1 above shall be in addition to those in favour of the Company implied by or available at law or in equity and shall continue in force notwithstanding the acceptance by the Company of all or part of the Goods in respect of which such warranties and remedies are applicable.
16 TERMINATION
16.1 The Company shall have the right at any time and for any reason to terminate a Contract in whole or in part by giving the Supplier written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Supplier fair and reasonable compensation for work in progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
16.2 The Company shall have the right at any time, by giving notice in writing to the Supplier, to terminate a Contract immediately if:
16.2.1 the Supplier refuses or fails to make deliveries of the Goods within the time specified in the Order or refuses or fails to perform the Services or any other provisions of the Contract and fails to remedy such breach within ten days after receipt of written notice from the Company requiring remedy thereof;
16.2.2 any distress, execution or other process is levied upon any of the assets of the Supplier;
16.2.3 the Supplier passes a resolution for its winding up or a court of competent jurisdiction makes an order for the Supplier's winding up or dissolution;
16.2.4 an administration order is made in relation to the Supplier or a receiver is appointed over an asset of the Supplier or an encumbrancer takes possession of or sells an asset of the Supplier;
16.2.5 the Supplier makes an arrangement or composition with its creditors generally or makes an application to a court of competent jurisdiction for protection from its creditors generally;
16.2.6 the Supplier ceases or threatens to cease to carry on its business;
16.2.7 the financial position of the Supplier deteriorates to such an extent that in the opinion of the Company the capability of the Supplier adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
16.2.8 the Supplier is the subject of or directly connected with such bad publicity that to continue trading with the Supplier could damage the name or reputation of the Company.
16.3 The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. Those Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
17 REMEDIES
Without prejudice to any other right or remedy which the Company may have under these Conditions or otherwise, if any Goods/Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of a Contract, the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods/Services have been accepted by the Company:
17.1 to rescind the Contract;
17.2 to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by the Supplier;
17.3 at the Company’s option to give the Supplier the opportunity at the Supplier’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
17.4 to refuse to accept any further deliveries of the Goods but without any liability to the Supplier;
17.5 to carry out at the Supplier’s expense any work necessary to make the Goods comply with the Contract; and
17.6 to claim such costs claims and damages as may have been sustained.
18 FORCE MAJEURE
18.1 A party shall not be liable to the other party where and to the extent it is prevented from or delayed in the carrying on of its business due to a Force Majeure Event.
18.2 In this Condition, Force Majeure Event means any circumstances beyond the reasonable control of the Company including, without limitation:
18.2.1 any acts of God (including lightening, storm, tempest, earthquake and naturally occurring flood);
18.2.2 any act of war, civil disturbance, riot or unrest or terrorism;
18.2.3 strikes, lockouts, labour disputes or industrial disturbances affecting more than the party in default;
18.2.4 malicious damage, fire or explosion; or
18.2.5 compliance with law or governmental order, rule, regulation or direction.
19 LICENCES
If the performance of a Contract requires the Company to have any permit or licence from any Government or other authority at home or overseas, the Contract shall be conditional upon such permit or licence being available at the required time.
20 AVAILABILITY OF REMEDIES
Each right or remedy of the Company under a Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
21 ASSIGNMENT
21.1 The Supplier may not assign or transfer or purport to assign or transfer any of its rights or obligations under a Contract without first having obtained the Company’s written consent.
21.2 The Company may assign or transfer any of its rights or obligations under a Contract or any part of it to any person, firm or company.
22 SEVERABILITY
22.1 If any Condition of a Contract, (or part of a Condition) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other Conditions shall remain in force.
22.2 If any invalid, unenforceable or illegal Condition of a Contract would be valid, enforceable or legal if some part of it were deleted, the Condition shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
23 WAIVER
The failure or delay by the Company to exercise any right, power or remedy provided by a Contract or by law does not constitute a waiver of such right, power or remedy
24 NOTICES
24.1 A notice under or in connection with a Contract shall be in writing and shall be delivered personally or sent by first class post, or by facsimile transmission to the other party at its last known address or facsimile number.
24.2 In the absence of evidence of earlier receipt, service of a notice is deemed to have been effected as follows:
24.2.1 if delivered personally, when left at the address referred to in Condition 24.1;
24.2.2 if sent by post, two days (excluding Saturdays, Sundays and Bank and public holidays) after posting it (excluding the day of posting); or
24.2.3 if sent by facsimile on a working day before 5.00 p.m., at the time of its transmission and otherwise on the next working day.
24.3 Notice by e-mail shall not be valid notice under a Contract.
25 THIRD PARTY RIGHTS
Nothing in a Contract is intended to confer on any person any right to enforce any Condition of a Contract which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
26 GOVERNING LAW AND JURISDICTION
26.1 A Contract is governed by, and shall be construed in accordance with, English law.
26.2 The courts of England have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with a Contract and, for these purposes, each party irrevocably submits to the jurisdiction of the Courts of England.
