BLACKROW ENGINEERING CO LIMITED'S TERMS AND CONDITIONS OF PURCHASE
1.1. The definitions and rules of interpretation in this condition apply in these conditions.
Company: Blackrow Engineering Co Limited, Blackrow Business Centre, Estate Road, 7 South Humberside Industrial Estate, Grimsby, South Humberside, DW31 2TP;
Contract: The Order and the Seller's acceptance of the Order;
Goods: Any goods agreed in the Contract to be bought by the Company from the Seller (including any part of parts of them) or hired by the Company from the Seller;
Order: the Company's written instruction to supply the Goods or perform the Services, incorporating these Conditions;
Seller: the person, firm or company who accepts the Company's Order whether for the purchase or hire of Goods;
Services: any services agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them).
1.2. A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes subordinate legislation for the time being in force made under it.
1.3. A reference to one gender includes a reference to the other gender.
1.4. Condition headings do not affect the interpretation of these Conditions.
2. APPLICATION OF TERMS
2.1. Subject to any variation under condition 2.4, these Conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2. Each Order for Goods and/or Services by the Company from the Seller shall be deemed to be an offer by the Company to purchase Goods and/or Services subject to these Conditions and no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
2.3. No terms or conditions endorsed upon, delivered with or contained in the Seller's quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller Waives any right which it otherwise might have to rely on such terms and conditions.
2.4. These Conditions apply to all the Company's purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing or signed by a Director of the Company or his successor(s) in title.
3. QUALITY AND DEFECTS
3.1. The Goods shall be of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Order and specification and/or patterns supplied or advised by the Company to the Seller.
3.2. The Company's rights under these Conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979.
3.3. At any time prior to deliver of the Goods to the Company the Company shall have the right to inspect and test the Goods at all times.
3.4. If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
3.5. Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller's obligations under the Contract.
4. PROVISION OF SERVICES
4.1. If the Contract is for or includes Services to be performed by the Seller then, the Seller undertakes, represents and warrants to the Company that:
(a) the Seller shall carry out the Services strictly in accordance with the Order or any other specifications;
(b) the Services will be performed by appropriately qualified and trained personnel with due care and diligence to such high standard of quality as it is reasonable for the Company to expect in all the circumstances;
(c) the time for performance of the Services is of the essence of the Contract.
4.2. if any of the Services fail to comply with the provisions set out in condition 4 the Company shall be entitled to avail itself of any one or more of the remedies set out in condition 13.
4.3. Any variation to the Services shall not be effective unless in writing signed by an authorised representative of the Company.
4.4. The Seller shall procure and maintain the insurances referred to in the Order in respect of public liability and employer's liability and professional indemnity and shall provide evidence of the existence and maintenance of such insurances. Such insurances shall be maintained for a minimum period of 12 years.
4.5. The Company shall appraise itself fully of any restrictions in relation to the site of the Services.
The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
(a) defective workmanship, quality or materials;
(b) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods and/or the provision of Services; and
(c) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller.
6.1. The Goods shall be delivered, carriage paid, to the Company's place of business or to such other place of delivery as is agreed by the Company in writing prior to the deliver of the Goods. The Seller shall off-load the Goods at its own risk as directed by the Company.
6.2. Unless otherwise agreed, the date for delivery of the Goods or performance of Services shall be specified in the Order, or if no such date is specified then delivery or performance shall take place within 28 days of the Order.
6.3. The Seller shall invoice the Company upon, but separately from, despatch of the Goods to the Company.
6.4 The Seller shall ensure that each delivery is adequately packaged and accompanied by a delivery note which shows, inter alia, the Order number. date of Order, the number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
6.5. Time for delivery shall be of the essence.
6.6. Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company in normal business hours.
6.7. If the Goods and/or Services are not delivered or performed by the due date then, without prejudice to any other rights which it may have, the Company reserves the right to:
(a) cancel the Contract in whole or in part;
(b) refuse to accept any subsequent delivery of the Goods or performance of the Services which the Seller attempts to make;
(c) recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods and/or Services in substitution from another supplier; and
(d) claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller's failure to deliver the Goods and/or perform the Services by the due date.
6.8 If the Seller requires the Company to return any packaging material to the Seller that act must be clearly stated on any delivery note delivered to the Company and any such packaging material shall only be returned to the Seller at the cost of the Seller.
6.9 Any Order shall be supported by a written Order from the Company and the relevant Company Order Number shall be stated in any VRN, application for payment or invoice.
The due date for payment of any invoice shall be the date of submission of the application for payment. The final date for payment is 60 days after the due date for payment. The Company shall pay the sum stated as due in any invoice on or before the final date for payment unless the Company has not later than 7 days before the final date for payment given written notice of its intention to pay less stating the sum considered to be due in the basis upon which that sum is calculated (pay less notice). The sum stated as due in any pay less notice shall be paid on or before the final date for payment.
If the Company fails to pay a sum payable in accordance with this clause 7 by the final date for payment and the failure continues for 7 days after notice has been given to the Company of intention to suspend performance under the Contract the Contractor shall be entitled to suspend performance on further notice.
In the event of a dispute in relation to any invoice the Company shall pay the undisputed portion of any such invoice.
In the event that the Seller's Services are caught under the Construction Industry Scheme the Seller shall be responsible for payment of the VAT Reverse Charge.
If the delivery of the goods is delayed beyond the date required for delivery the Company may require the Seller to pay or allow to the Company liquidated damages at the rate stated in the Purchase Order.
9. LATE PAYMENT
9.3. If any sum under the Contract is not paid when due then, without prejudice to the parties' other rights under the Contract, that sum shall bear interest from the due date until payment is made in full, both before and after any judgment at 3% per annum over National Westminster (NatWest) Bank Plc base rate from time to time. The Seller is not entitled to suspend deliveries of the Goods as a result of any sums being outstanding.
The Seller shall, unless otherwise agreed in writing, keep strict confidence in all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents any any other confidential information concerning the Company's business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller'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 Seller.
11. THE COMPANY'S PROPERTY
11.1. Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all plans, designs, drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and 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.
11.2. By accepting the Order the Seller warrants that the Goods supplied or Services performed under the Order and all devices or processes embodied therein do not infringe any existing patent, trademark or copyright and agreed to indemnify the Company against all costs, charges, expenses and damages arising from any claim arising out of any alleged infringement.
11.3. The intellectual property rights in all documents produced by the Seller under this Contract shall vest and remain vested in the Seller. The Company shall have an irrevocable non-exclusive, non-terminable royalty free licence to use the documents for the purposes for which they were prepared and the Seller shall not be liable for the use of any of the documents for any purpose other than that for which they were prepared.
12.1. The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Seller 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.
12.2. The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
(a) the Seller commits a material breach of any of the terms and conditions of the Contract; or
(b) any distress, execution or other process is levied upon any of the assets of the Seller; or
(c) the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Seller or notice of intention to appoint an administrator is given by the Seller or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
(d) the Seller ceases or threatens to cease to carry on its business; or
(e) the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.
12.3. The termination of the Contract, however arising, shall be without prejudice to the rights and duties of the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
12.4. Where the Contract relates to the hire of Goods the Company shall not be liable for and the Seller shall indemnify the Company against any costs related to the hire or storage of the Goods which arise for any period after the Company provides the Seller with an "off hire" notification. Any such Goods shall be at the sole risk of the Seller against any loss or damage howsoever caused which loss or damage is caused or which arises after the Company has given the Seller an "off hire" notification.
12.5. The Seller shall notify the Company in writing as soon as it becomes aware that any additional work on or may be required because of:
(a) changes in the design scope or complexity of the Works;
(b) changes in the timing of programming of the Works;
(c) failure by the Company to comply with its obligations under this Contract;
(d) any change in law.
12.6. The Company shall pay the Seller for any additional work if due to circumstances outside the Seller's control provided always that the provision of notice under this clause 12 is a condition precedent to the recovery of any relief.
Without prejudice to any other right or remedy which the Company may have, if any Goods and/or Services are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the 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 and/or Services have been accepted by the Company:
(a) to rescind the Order;
(b) recover any loss or damage direct;
(c) request replacement or repair;
(d) engage others to rectify any defect at the cost of the Seller;
(e) provide notices of default and a specified period to rectify any defects or deficiencies;
(f) to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
(g) at the Company's option, to give the Seller the opportunity a the Seller'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;
(h) to refuse to accept any further deliveries of the Goods or further provision of the Services but without any liability to the Seller;
(i) to carry out at the Seller's expense any work necessary to make the Goods comply with the Contract;
(j) to claim such damages as may have been sustained in consequence of the Seller's breach or breaches of the Contract;
(k) require the Seller at its sole cost to re-execute the Services in accordance with the Contract, Order and any specifications within 7 days of receiving such request from the Company.
14. HEALTH AND SAFETY
The Seller warrants that the Goods and Services are approved in strict compliance with the relevant statutes, orders and regulations relating to health and safety in force at the delivery date and/or performance and in addition that any guidance, codes or recommendations relating to health and safety issued by any relevant governmental or trade organisation has been followed.
15. SUB-CONTRACTOR QUALITY
15.1. The Company may require any Seller who is a sub-contractor ("Sub-Contractor") to supply details of their quality systems and additional records of inspection or test operations which have been performed.
15.2. BS ISO 9000 registered Sub-Contractors shall supply material to the scope of their registration.
15.3. Any other Sub-Contractor is required to nominate a management representative who is responsible for the quality of Goods and/or Services supplied to the Company. The Seller must notify the Company of name and appointment title of the representative and his deputy.
15.4. The representative or his deputy must sign or countersign the documentation covering any consignment to certify that the applicable quality requirements have been adhered to.
15.5. Each consignment, batch or split batch shall be covered and clearly identified by its accompanying documentation.
15.6. Sub-Contractors shall ensure that consignment is sufficiently well packaged and marked to ensure clear identification of items and to prevent damage during transport and handling.
15.7. If a Sub-Contractor has any problems in meeting these Conditions, or needs some clarification of quality control requirements, or wants to raise a concession on any item to be supplied, then application should be made to the Quality Manager of the Company.
15.8. The Sub-Contractor accepting an Order covered by these Conditions grants the right of reasonable access to its premises to any representative of the Company in order to carry out quality system or Goods verifications as may be necessary.
16.1. The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
16.2. The Company may assign the Contract or any part of it to any person, firm or company.
17. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the amount of the Goods and/or Services ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company, including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, pandemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
18.1. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
18.2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
18.3. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver or any of its rights under the Contract.
18.4. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
18.5. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
18.6. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English Law and the parties submit to the non exclusive jurisdiction of the English courts.
19. DISPUTES AND GOVERNING LAW
This Contract shall be governed and construed in accordance with English Law.
If a dispute or difference arises under this Contract the parties shall endeavour to resolve the same by direct negotiations. If such negotiations fail to resolve the dispute within 14 days of commencement either party may refer any dispute or difference arising out of or under this Contract to mediation which mediation shall be conducted by a single mediator appointed on the application of either party by CEDR and shall be conducted in accordance with the CEDR mediation procedure and agreement current at the date of the dispute or difference arising.
Notwithstanding the above provisions either party may at any time refer any dispute or difference arising out of or in connection with this Contract of adjudication which adjudication shall be conducted in accordance with the Scheme or Construction Contracts (England and Wales) Regulations 1996.