Non-stock supplier terms
Terms and conditions of trade
1. Interpretation
No terms or conditions submitted at any time by the Supplier shall form any part of the Contract. In the event of a conflict between any of these Conditions and any specific term or condition (whether in the Contract or otherwise) referred to in the Purchase Order, the latter shall prevail.
1.1 Definitions:
"Business Day" a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
"Conditions" the terms and conditions set out in this document unless amended in accordance with clause 13.3.
"Contract" means the contract between the Purchaser and the Supplier consisting of the Purchase Order, these Conditions, and any other documents (or parts thereof) specified in the Purchase Order.
"Deliverables" all documents, products and materials developed by the Supplier 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 Date" the date specified in the Purchase Order, or, if none is specified, within 14 days of the date of the Purchase Order.
"Delivery Location" the address for delivery of Goods as set out in the Purchase Order.
"Goods" the goods (or any part of them) set out in the Purchase Order.
"Intellectual Property Rights" " patents, rights to inventions, copyright and related rights, moral 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.
"Purchase Order" the Purchaser's order for the goods and/or services, as set out in the Purchaser's purchase order form.
"Purchaser"Start-Rite Shoes Limited] (registered in England and Wales with company number 00140697 and whose address is Start-Rite Shoes Ltd Peachman Way, Broadland Business Park, Norwich, Norfolk, NR7 0WF).
"Services" the services, including any Deliverables, to be provided by the Supplier under the Contract, as set out in the Purchase Order or any document or Specification referred to therein.
"Specification" any specification for the Goods or the Services, including any related plans and drawings, that is agreed in writing by the Purchaser and the Supplier.
"Supplier" the person or firm from whom the Purchaser purchases the Goods or the Services as the case may be.
1.2 Interpretation:
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3 a reference to writing or written includes emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 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.
2.3 The Purchase Order constitutes an offer by the Purchaser to purchase goods and/or services in accordance with these Conditions.
2.4 The Purchase Order shall be deemed to be accepted on the earlier of:
2.4.1 the Supplier issuing a written acceptance of the Purchase Order; or
2.4.2 the Supplier doing any act consistent with fulfilling the Purchase Order, at which point the Contract shall come into existence.
2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3. Supply of Goods
3.1 The Supplier warrants and represents to the Purchaser that the Goods shall:
3.1.1 conform in all respects with their description and with any particulars or Specification specified in the Purchase Order including any variations;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Purchaser expressly or by implication, and in this respect the Purchaser relies on the Supplier's skill and judgement;
3.1.3 where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier 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 and complies with all applicable laws, statutes, regulations and codes from time to time in force.
3.3 The Purchaser may inspect and test the Goods at any time before delivery. The Supplier 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 Supplier's obligations under the Contract.
3.4 If following such inspection or testing the Purchaser considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, the Purchaser shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 The Purchaser may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. Supply of Services
4.1 The Supplier shall from the date set in the Purchase Order and for the duration of the Contract provide the Services to the Purchaser in accordance with the terms of the Contract.
4.2 The Supplier shall meet any performance dates for the Services specified in the Purchase Order or that the Purchaser notifies to the Supplier and time is of the essence in relation to any of those performance dates.
4.3 In providing the Services, the Supplier shall:
4.3.1 co-operate with the Purchaser in all matters relating to the Services, and comply with all instructions of the Purchaser;
4.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
4.3.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with the Contract;
4.3.4 ensure that the Services and Deliverables will conform with all descriptions and Specifications set out in the Specification, and that the Deliverables shall be fit for any purpose that the Purchaser expressly or impliedly makes known to the Supplier;
4.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
4.3.6 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 the Purchaser, will be free from defects in workmanship, installation and design;
4.3.7 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
4.3.8 comply with all applicable laws, regulations, regulatory policies, guidelines or industry codes which may apply from time to time to the provision of the Services.
4.3.9 observe all health and safety rules and regulations and any other security requirements that apply at any of the Purchaser's premises;
4.3.10 hold all materials, equipment and tools, drawings, specifications and data supplied by the Purchaser to the Supplier (Purchaser Materials) in safe custody at its own risk, maintain the Purchaser Materials in good condition until returned to the Purchaser, and not dispose or use the Purchaser Materials other than in accordance with the Purchaser's written instructions or authorisation;
4.3.11 not do or omit to do anything which may cause the Purchaser to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Supplier acknowledges that the Purchaser may rely or act on the Services; and
4.3.12 comply with any additional obligations as set out in the Specification.
5. Delivery of Goods
5.1 The Supplier shall ensure that:
5.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
5.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Purchase Order, the Purchase 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; and
5.1.3 if the Supplier requires the Purchaser to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
5.2 The Supplier shall deliver the Goods:
5.2.1 on the Delivery Date;
5.2.2 at the Delivery Location; and
5.2.3 during the Purchaser's normal business hours, or as instructed by the Purchaser.
5.3 The time of delivery shall be of the essence for the purposes of the Contract and failure to deliver by the Delivery Date shall enable the Purchaser (at its option) to release itself from any obligation to accept and pay for the Goods and/or to cancel all or part of the Goods under the Purchase Order, in either case without prejudice to its other rights and remedies.
5.4 The Supplier's failure to effect delivery on the Delivery Date specified shall entitle the Purchaser to purchase substitute Goods and to hold the Supplier accountable for any and all loss and/or additional costs incurred as a result of such failure.
5.5 Title and risk in the Goods shall pass to the Purchaser on completion of delivery.
5.6 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
5.7 The Supplier shall not deliver the Goods in instalments without the Purchaser's prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Purchaser to the remedies set out in clause 6.
6. Remedies
6.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Purchaser may exercise any one or more of the following remedies:
6.1.1 to terminate the Contract;
6.1.2 to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
6.1.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
6.1.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.1.5 to recover from the Supplier any costs incurred by the Purchaser in obtaining substitute goods from a third party; and
6.1.6 to claim damages for any other costs, loss or expenses incurred by the Purchaser which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
6.2 If the Goods are not delivered on the Delivery Date the Purchaser may, at its option, claim or deduct 5% of the price of the Goods for each week's delay in delivery by way of liquidated damages, up to a maximum of 40% of the total price of the Goods. If the Purchaser exercises its rights under this clause 6.2, it shall not be entitled to any of the remedies set out in clause 6.1 in respect of the Goods' late delivery (but such remedies shall be available in respect of the Goods' condition).
6.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.4 If the Supplier fails to perform the Services by the applicable dates, the Purchaser shall, without limiting or affecting other rights or remedies available to it, have one or more of the following rights:
6.4.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
6.4.2 to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
6.4.3 to recover from the Supplier any costs incurred by the Purchaser in obtaining substitute services from a third party;
6.4.4 to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided; and
6.4.5 to claim damages for any additional costs, loss or expenses incurred by the Purchaser which are in any way attributable to the Supplier's failure to meet such dates.
6.5 These Conditions shall extend to any substituted or remedial services provided by the Supplier.
6.6 The Purchaser's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
7. Price and payment
7.1 The price of the Goods and/or Services shall be the price set out in the Purchase Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date the Contract came into existence and shall be the full and exclusive remuneration of the Supplier in respect of the supply of the Goods or the performance of the Services (as applicable). Unless otherwise agreed in writing by the Purchaser, the price shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.2 The price of the Goods:
7.2.1 excludes amounts in respect of value added tax (VAT), which the Purchaser shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.2.2 includes the costs of packaging, insurance and carriage of the Goods.
7.3 No extra charges shall be effective unless agreed in writing with the Purchaser.
7.4 The Supplier may invoice the Purchaser for price of the Goods and/or Services plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery unless otherwise stated in the Purchase Order. The Supplier shall ensure that the invoice includes the date of the Purchase Order, the invoice number, the Purchaser's order number, the Supplier's VAT registration number and any supporting documents that the Purchaser may reasonably require. Failure to comply will result in the invoice being returned to you unpaid.
7.5 The Purchaser shall pay correctly rendered invoices within 60days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Purchaser to inspect such records at all reasonable times on request.
7.7 The Purchaser may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Purchaser against any liability of the Purchaser to the Supplier.
8. Purchaser materials and Intellectual Property
8.1 The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by the Purchaser to the Supplier (Purchaser Materials) and all rights in the Purchaser material are and shall remain the exclusive property of the Purchaser. The Supplier shall keep the Purchaser Materials in safe custody at its own risk, maintain them in good condition until returned to the Purchaser and not dispose or use the same other than in accordance with the Purchaser's written instructions or authorisation.
8.2 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any Purchaser Materials) shall be owned by the Supplier.
8.3 The Supplier grants to the Purchaser, or shall procure the direct grant to the Purchaser of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding Purchaser Materials) for the purpose of receiving and using the Services and the Deliverables.
8.4 The Purchaser grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy any materials provided by the Purchaser to the Supplier for the term of the Contract for the purpose of providing the Services to the Purchaser.
9. Indemnity
9.1 The Supplier shall keep the Purchaser indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to 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 Purchaser as a result of or in connection with:
9.1.1 any claim made against the Purchaser for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the supply or use of the Goods or the Services;
9.1.2 any claim made against the Purchaser by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods;
9.1.3 any claim made against the Purchaser by a third party arising out of or in connection with the supply of the Goods or the Services; and
9.2 This clause 9 shall survive termination of the Contract.
10. Insurance
During the term of the Contract and for a period of seven years thereafter, the Supplier 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 the Purchaser'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.
11. Termination
11.1 Without affecting any other right or remedy available to it, the Purchaser may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Purchaser shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
11.2 Without limiting its other rights or remedies, the Purchaser may terminate the Contract with immediate effect by giving written notice to the Supplier if:
11.2.1 the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
11.2.2 the Supplier (being a company) 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), 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;
11.2.3 the Supplier (being an individual) takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his 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;
11.2.4 the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
11.2.5 the Supplier's financial position deteriorates to such an extent that in the Purchaser's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11.3 On termination of the Contract, the Supplier shall immediately deliver to the Purchaser all Deliverables whether or not then complete, and return all Purchaser Materials. If the Supplier fails to do so, then the Purchaser may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeling and will not use them for any purpose not connected with the Contract.
11.4 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination.
11.5 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
12. Force majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate the Contract by giving 14 days written notice to the affected party.
13. General
13.1 Assignment and other dealings
13.1.1 The Purchaser may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
13.1.2 The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Purchaser.
13.2 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
13.3 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 Purchaser.
13.4 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of 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 single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
Notices.
13.6.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
13.6.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the proper address; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed[; or, if sent by email, one Business Day after transmission].
13.6.3 This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
13.7 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 being the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
13.8 Third party rights. No one other than a party to the Contract shall have any right to enforce any of its terms.
13.9 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.
13.10 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.