Purchase Order General Terms and Conditions
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Buyer: the entity named as the purchaser on the Order.
Buyer Materials: has the meaning set out in clause 4(c)(ix).
Commencement Date: has the meaning given in clause 2(b).
Conditions: these terms and conditions as amended from time to time in accordance with clause 14(h).
Contract: the contract between Buyer and the Seller for the supply of Goods and/or Services in accordance with these Conditions.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.
Deliverables: all documents, products and materials developed by the Seller or its agents, contractors and employees as part of or in relation to the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Delivery Location: has the meaning given in clause 8(b).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by Buyer and the Seller.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Mandatory Policies: Buyer’s business policies and codes available on request.
Order: Buyer’s order for the supply of Goods and/or Services, as set out in Buyer’s purchase order form, or in Buyer’s written acceptance of the Seller’s quotation, or overleaf, as the case may be.
Services: the services, including any Deliverables, to be provided by the Seller under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services agreed in writing by Buyer and the Seller.
Seller: the person or firm from whom Buyer purchases the Goods and/or Services.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
- Interpretation: A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality). A reference to a party includes its personal representatives, successors and permitted assigns. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision. Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms. A reference to writing or written excludes fax and email.
- The Order constitutes an offer by Buyer to purchase Goods and/or Services from the Seller in accordance with these Conditions.
- The Order shall be deemed to be accepted on the earlier of: (i) the Seller issuing written acceptance of the Order; or (ii) any act by the Seller consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence (Commencement Date).
- These Conditions apply to the Contract to the exclusion of any other terms that the Seller seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Seller that is inconsistent with these Conditions
- All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
- The Seller shall ensure that the Goods shall: (i) correspond with their description and any applicable Goods Specification; (ii) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Seller or made known to the Seller by Buyer, expressly or by implication, and in this respect Buyer relies on the Seller’s skill and judgement; (iii) where they are manufactured products, be free from defects in design, materials and workmanship and remain so for 12 months after delivery; and (iv) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
- The Seller shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
- Buyer may inspect and test the Goods at any time before delivery. The Seller shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Seller’s obligations under the Contract. If following such inspection or testing Buyer considers that the Goods do not comply or are unlikely to comply with the Seller’s undertakings at clause 3(a), Buyer shall inform the Seller and the Seller shall immediately take such remedial action as is necessary to ensure compliance. Buyer may conduct further inspections and tests after the Seller has carried out its remedial actions.
- All warranties, both expressed and implied shall constitute conditions and shall survive inspection, acceptance and payment by Buyer. Buyer shall not be deemed to have accepted any Goods until accepted, in particular, signature of the Seller’s delivery note or similar by Buyer shall not constitute acceptance of the Goods.
- Property. Title and risk in the Goods shall pass to Buyer on completion of delivery but such passing shall not affect Buyer’s right to reject any such goods in accordance with the provisions of these conditions or otherwise
- The Seller shall from the date set out in the Order and for the duration of the Contract supply the Services to Buyer in accordance with the terms of the Contract.
- The Seller shall meet any performance dates for the Services specified in the Order or that Buyer notifies to the Seller and time is of the essence in relation to any of those performance dates.
- In providing the Services, the Seller shall: (i) co-operate with Buyer in all matters relating to the Services, and comply with all instructions of Buyer; (ii) perform the Services with the best care, skill and diligence in accordance with best practice in the Seller’s industry, profession or trade; (iii) use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Seller’s obligations are fulfilled in accordance with the Contract; (iv) ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose that Buyer expressly or impliedly makes known to the Seller; (v) provide all equipment, tools and vehicles and such other items as are required to provide the Services; (vi) use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to Buyer, will be free from defects in workmanship, installation and design; (vii) obtain and at all times maintain all licences and consents which may be required for the provision of the Services; (viii) observe all health and safety rules and regulations and any other security requirements that apply at any of Buyer’s premises and/or any other site the subject of the Order; (ix) hold all materials, equipment and tools, drawings, specifications and data supplied by Buyer to the Seller (Buyer Materials) in safe custody at its own risk, maintain Buyer Materials in good condition until returned to Buyer, and not dispose of or use Buyer Materials other than in accordance with Buyer’s written instructions or authorization; (x) not do or omit to do anything which may cause Buyer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Seller acknowledges that Buyer may rely or act on the Services; and (xi) comply with any additional obligations as set out in the Service Specification.
- Except as stated in the Order, all Intellectual Property Rights in or arising out of or in connection with the Services (including the Deliverables) shall be owned by the Buyer. The Seller acknowledges that all rights in Buyer Materials are and shall remain the exclusive property of Buyer
- If the Seller fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, or both, Buyer shall, without limiting or affecting other rights or remedies available to it, have any one or more of the following rights and remedies: (i) to terminate the Contract with immediate effect by giving written notice to the Seller; (ii) to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Seller attempts to make; (iii) to recover from the Seller any costs incurred by Buyer in obtaining substitute goods and/or services from a third party; (iv) to require a refund from the Seller of sums paid in advance for Services that the Seller has not provided and/or Goods that it has not delivered; and (v) to claim damages for any additional costs, loss or expenses incurred by Buyer which are in any way attributable to the Seller’s failure to meet such dates.
- If the Seller has delivered Goods that do not comply with the undertakings set out in clause 3(a), then, without limiting or affecting other rights or remedies available to it, Buyer shall have one or more of the following rights and remedies, whether or not it has accepted the Goods: (i) to terminate the Contract with immediate effect by giving written notice to the Seller; (ii) to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Seller at the Seller’s own risk and expense; (iii) to require the Seller to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid); (iv) to refuse to accept any subsequent delivery of the Goods which the Seller attempts to make; (v) to recover from the Seller any expenditure incurred by Buyer in obtaining substitute goods from a third party; and (vi) to claim damages for any additional costs, loss or expenses incurred by Buyer arising from the Seller’s failure to supply Goods in accordance with clause 3(a).
- If the Seller has supplied Services that do not comply with the requirements of clause 4(c)(iv) then, without limiting or affecting other rights or remedies available to it, Buyer shall have one or more of the following rights and remedies: (i) to terminate the Contract with immediate effect by giving written notice to the Seller; (ii) to return the Deliverables to the Seller at the Seller’s own risk and expense; (iii) to require the Seller to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid); (iv) to refuse to accept any subsequent performance of the Services which the Seller attempts to make; (v) to recover from the Seller any expenditure incurred by Buyer in obtaining substitute services or deliverables from a third party; and (vi) to claim damages for any additional costs, loss or expenses incurred by Buyer arising from the Seller’s failure to comply with clause 4(c)(iv).
- These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Seller. Buyer’s rights and remedies under the Contract are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
- The price for the Goods: (i) shall be the price set out in the Order, or if no price is quoted, the price set out in the Seller’s published price list in force at the Commencement Date; and (ii) shall unless stated in the Order be inclusive of the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by Buyer.
- The charges for the Services shall be set out in the Order and shall be the full and exclusive remuneration of the Seller in respect of the performance of the Services. Unless otherwise agreed in writing by Buyer, the charges shall include every cost and expense of the Seller directly or indirectly incurred in connection with the performance of the Services.
- In respect of the Goods, the Seller shall invoice Buyer on or at any time after completion of delivery. In respect of Services, the Seller shall invoice Buyer on completion of the Services. Each invoice shall include such supporting information required by Buyer to verify the accuracy of the invoice, including the relevant purchase order number. The Seller’s Invoice(s) must quote the number of the Order and must be sent to Buyer’s Head Office:- 52-54 Wharf Approach, Anchor Brook Industrial Park, Aldridge, Walsall, WS9 8BX or by e-mail to [email protected], within the first ten working days of the calendar month following the invoice date,
- The Seller warrants that the prices to be paid in pursuance of this Order are not in excess of the prices authorised by any price regulation in effect and applicable hereto, if any. If it is subsequently determined that such price is in excess of the price so authorised, the Seller shall on demand refund such excess to Buyer
- In consideration of the supply of Goods and/or Services by the Seller, Buyer shall pay the invoiced amounts within 60 days od the end of the month of the date of a correctly rendered invoice to a bank account nominated in writing by the Seller.
- All amounts payable by Buyer under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Seller to Buyer, Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
- The Seller shall ensure that: (i) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; (ii) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; (iii) it states clearly on the delivery note any requirement for Buyer to return any packaging material for the Goods to the Seller. Any such packaging material shall only be returned to the Seller at the cost of the Seller.
- The Seller shall deliver the Goods: (i) on the date specified in the Order; (ii) to Buyer’s premises specified in the Order or such other location(s) as is set out in the Order or as instructed by Buyer before delivery (Delivery Location); and (iii) during Buyer’s normal hours of business on a Business Day, or as instructed by Buyer.
- Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
- The Seller shall not deliver the Goods in instalments without Buyer’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Seller to deliver any one instalment on time or at all or any defect in an instalment shall entitle Buyer to the remedies set out in clause 5.
- The Seller shall indemnify Buyer 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Buyer arising out of or in connection with: (i) any claim made against Buyer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (excluding Buyer Materials); (ii) any claim made against Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in the Goods, as delivered, or the Deliverables; and/or (iii) any claim made against Buyer by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services. This clause shall survive termination of the Contract.
- During the term of the Contract and for a period of 3 years thereafter, the Seller shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on Buyer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
- Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 10(b). Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
- Each party may disclose the other party’s confidential information: (i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 10; and (ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- The following definitions apply in this clause 11: (i) Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation; (ii) Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426); and (iii) Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
- Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
- The parties acknowledge that for the purposes of the Data Protection Legislation, Buyer is the Controller and the Seller is the Processor. The Order (where applicable) sets out the scope, nature and purpose of processing by the Seller, the duration of the processing and the types of Personal Data and categories of Data Subject.
- Without prejudice to the generality of clause 11(b), Buyer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Seller and/or lawful collection of the Personal Data by the Seller on behalf of Buyer for the duration and purposes of the Contract.
- Without prejudice to the generality of clause 11(b), the Seller shall, in relation to any Personal Data processed in connection with the performance by the Seller of its obligations under the Contract: (i) process that Personal Data only on the documented written instructions of Buyer unless the Seller is required by Domestic Law to otherwise process that Personal Data. Where the Seller is relying on Domestic Law as the basis for processing Personal Data, the Seller shall promptly notify Buyer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits the Seller from so notifying Buyer; (ii) ensure that it has in place appropriate technical and organisational measures, reviewed and approved by Buyer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); (iii) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; (iv) not transfer any Personal Data outside of the UK unless the prior written consent of Buyer has been obtained; (v) assist Buyer, at Buyer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; (vi) notify Buyer without undue delay on becoming aware of a Personal Data Breach; (vii) at the written direction of Buyer, delete or return Personal Data and copies thereof to Buyer on termination of the Contract unless required by Domestic Law to store the Personal Data; and (viii) maintain complete and accurate records and information to demonstrate its compliance with this clause 11 and allow for audits by Buyer or Buyer’s designated auditor and immediately inform Buyer if, in the opinion of the Seller, an instruction infringes the Data Protection Legislation.
- Buyer does not consent to the Seller appointing any third-party processor of Personal Data under the Contract.
- TERMINATION AND CONSEQUENCES OF TERMINATION
- Without affecting any other right or remedy available to it, Buyer may terminate the Contract: (i) with immediate effect by giving written notice to the Seller if there is a change of Control of the Seller or the Seller commits a breach of clause 14(i); or (ii) for convenience by giving the Seller one months’ written notice.
- Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; (ii) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or (iii) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
- On termination of the Contract, the Seller shall immediately deliver to Buyer all Deliverables whether or not then complete and return all Buyer Materials. If the Seller fails to do so, then Buyer may enter the Seller’s premises and take possession of them. Until they have been returned or delivered, the Seller shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
- Termination or expiry of the Contract shall not affect the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry] of the Contract shall remain in full force and effect.
Where Buyer considers that the Seller is in breach of this Order, or the Seller has become insolvent, then notwithstanding the terms hereof, Buyer may set off against any sums due or to become due to the Seller any loss and/or damage thereby incurred (and in the case of loss and/or damage likely to be incurred, Buyer may make a bone fide estimate of the same which shall become binding on the parties provided it is made in good faith) including but not limited to any costs incurred or to be incurred in the completion of the Seller’s obligations, whether in connection with the Order and/or in connection with any work under any other order or agreement between the Seller and/or any associated and/or subsidiary company of Buyer and the Seller and/or any associated and/or subsidiary company of the Seller.
- Assignment. Buyer may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights and obligations under the Contract. The Seller shall not assign, transfer, mortgage, charge, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Buyer.
- Subcontracting. The Seller may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of Buyer. If Buyer consents to any subcontracting by the Seller, the Seller shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
- Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 14(c) the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
- Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
- No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
- Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
- Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
- Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the parties or their authorised representatives.
- Compliance. In performing its obligations under the Contract, the Seller shall: (i) comply with all applicable laws, statutes, regulations and codes from time to time in force; and (ii) comply with the Mandatory Policies,
- Alteration or cancellation. Buyer shall have the right at any time to make changes in specifications relating to the Order. If such changes cause an increase or decrease in the amount due under this Order or in the time required for its performance, an equitable adjustment shall be made by mutual agreement between the parties hereto.
- Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
- Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.