The following definitions and rules of interpretation apply in these Conditions.
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 law, trade custom, practice or course of dealing.
2.2. The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions. The Customer is responsible for ensuring that the details in the Order and any applicable Goods Specification are complete and accurate.
2.3. The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence.
2.4. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods contained in the Supplier’s product data or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.6. Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 30 days from its date of issue.
2.7. No Order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing of the Supplier on the terms that the Customer shall indemnify the Supplier in full against all loss (including loss of profits), costs (including the cost of labour and materials used), damages, charges and expenses incurred by the Supplier as a result of the Customer’s cancellation.
3.1. The Goods are described in the Supplier’s Product Description as modified by the Goods Specification.
3.2. The Goods will only be supplied in the minimum units (or multiples) stated in the Supplier’s Product Description or in the multiples specified in the Order. Orders for quantities other than as stated in the Supplier’s Product Description or the Order will be adjusted accordingly.
3.3. To the extent that the Goods are to be manufactured in accordance with a Goods 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 costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Supplier arising out of or 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 Goods Specification. This clause 3.3 shall survive termination of the Contract.
3.4. The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
3.5. Where the Goods are not standard items and have to be manufactured specially for the Customer, the Customer agrees to accept and to pay for the actual quantity of all such Goods produced according to the following:
Non-standard special items ordered quantities
Maximum Actual Order Variance
1 – 10
11 – 25
26 – 50
51 – 100
+5% of total quantity ordered
3.6. The Customer shall be invoiced at the contract rate for the quantities actually delivered, in accordance with clause 3.5 above. Any such variance shall be accepted by the Customer in satisfaction of the Contract.
3.7. Tooling remains the property of the Supplier. Any tooling costs paid are a contribution and do not represent the full cost.
4.1. The Supplier shall ensure that:
4.2. The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3. Delivery of the Goods shall be completed on the completion of the following at the Delivery Location:
4.4. Any dates quoted for delivery of the Goods 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 for the Goods or any relevant instruction related to the supply of the Goods.
4.6. If the Customer fails to take or accept delivery (as applicable) of the Goods within three 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 by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
4.7. If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted delivery (as applicable) of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, 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, the Goods shall:
5.2. Subject to clause 5.3, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full if:
5.3. The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
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 of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier
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 earlier of:
6.3. Until title to the Goods has passed to the Customer, the Customer shall:
6.4. Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.5. At any time before title to the Goods passes to the Customer, the Supplier may:
7.1. The Customer shall:
7.2. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
7.3. The Customer shall not, in selling their product or service, make any reference to the Supplier or to any of the Supplier’s trademarks or brand names without the Supplier’s prior written consent.
8.1. The price for Goods:
The Supplier reserves the right to:
8.2. increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
8.3. The Supplier shall invoice the Customer for the goods on or at any time after completion of delivery.
8.4. The Customer shall pay each invoice submitted by the Supplier:
8.5. Notwithstanding clause 8.4, the Supplier may, at any time and at its sole discretion, require the Customer to make payment in full in advance of delivery of the Goods or to advance adequate security for the payment of all amounts due or becoming due under the Contract.
8.6. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, 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 at the same time as payment is due for the supply of the Goods.
8.7. If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 12 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 8.7 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
8.8. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
9.1. All Intellectual Property Rights in or arising out of or in connection with the Goods (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier.
9.2. The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Goods to the Customer.
10.1. Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 10.2.
10.2. Each party may disclose the other party’s confidential information:
10.3. No party shall use any 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.
11.1. The Supplier has obtained insurance cover in respect of its own legal liability for individual claims (which the limits and exclusions in this clause reflect) and the Customer is responsible for making its own arrangements for the insurance of any excess loss. Alternatively, the Supplier can provide, at the Customer’s cost, insurance to cover those risks excluded by this clause 11 that are not covered by the Supplier’s existing insurance cover. Costs to provide such additional insurance cover should be requested from the Supplier by the Customer, if required.
11.2. The restrictions on liability in this clause 11 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
11.3. Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
11.4. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
11.5. Subject to clause 11.4, the Supplier’s total liability to the Customer shall not exceed the purchase price for the Goods under the Contract.
11.6. Subject to clause 11.4, the following types of loss are wholly excluded:
11.7. The Supplier has given commitments as to compliance of the Goods with relevant specifications in clause 5. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
11.8. This clause 11 shall survive termination of the Contract.
12.1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than 3 months’ written notice.
12.2. Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:
12.3. Without affecting any other right or remedy available to it, the Supplier may suspend the supply of all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 12.2(b) to clause 12.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.
13.1. On termination of the Contract for any reason:
13.2. Termination of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.3. Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.
Neither party shall be in breach of the Contract nor liable for delay in performing or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for two months, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
15.1. Unless otherwise agreed in writing with the Supplier, all packages and other containers in which the Goods may be delivered to the Customer are non-returnable.
15.2. Packages and containers that are specified as returnable shall remain the property of the Supplier and the Customer shall not use these for any other purpose other than for storage of the Goods supplied.
15.3. If the packages and containers are to be returned to the Supplier following delivery of the Goods, they should be returned by the Customer in good condition, within a time specified by the Supplier and to an address indicated by the Supplier.
15.4. While the Supplier will use their reasonable endeavours to comply with any lawful and reasonable instruction the Customer may give as to the markings to be placed on any packages or containers, the Supplier accepts no responsibility for any failure and the Customer shall indemnify the Supplier against all consequences of complying with the Customer’s instructions in respect of packing and marking the Goods.
16.1. The Goods are sold by the Supplier to the Customer on the basis that the Customer acknowledges the care and handling recommendations provided by the Supplier in the Goods Specification.
16.2. If the Customer is not in possession of information relating to the safe use and handling of the Goods, then the Customer should contact the Supplier for this information.
17.1 Assignment and other dealings
17.3. 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 or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.4. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17.5. 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.
17.6. Entire agreement.
17.7. Third party rights.
17.8. Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 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.
17.10 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.