Purchase Order Terms and Conditions
Table of Contents
Interpretation
1.1: Definitions
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 7.30am to 4.00pm Monday to Thursday and from 7.30am to 12.00pm on Friday on any Business Day.
Commencement Date: has the meaning given in clause 2.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.9.
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 Order, or, if none is specified, within 30 days of the date of the Order.
Delivery Location: Numatic International Limited, Millfield Road, Chard, Somerset TA20 2GB, unless otherwise specified in the Order.
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) as set out in the Order or otherwise agreed in writing between the Purchaser and the Supplier.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, 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: the Purchaser’s business policies and codes of business available at Corporate Social Responsibility – Numatic International
Order: the Purchaser’s order for the supply of Goods and/or Services as set out in the Purchaser’s purchase order form (and any amendment thereof).
Purchaser: Numatic International Limited registered in England and Wales with company number 00773331.
Purchaser Materials: has the meaning set out in clause 5.3.9.
Services: the services, including any Deliverables, to be provided by the Supplier under the agreement as set out in the Order, and as described in further detail in the Service Specification.
Service Specification: the description or specification for Services, as set out in the Order or otherwise agreed in writing between the Purchaser and the Supplier.
Supplier: the person or firm from whom the Purchaser purchases the Goods and/or Services, as detailed in the Order.
1.2: Interpretation
1.2.1
A reference to the agreement means the agreement between the Purchaser and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
1.2.2
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.3
A reference to a party includes its successors and permitted assigns.
1.2.4
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.
1.2.5
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.
1.2.6
A reference to writing or written excludes fax but not email.
2: Basis of contract
2.1
The Order constitutes an offer by the Purchaser to purchase Goods and/or Services from the Supplier in accordance with these Conditions. If there is any conflict or ambiguity between a term of the Order and a term of these Conditions, a term contained in the Order shall have priority over one contained in the Conditions.
2.2
Subject to clause 2.3, the Order shall be deemed to be accepted on the earlier of:
2.2.1
the Supplier issuing written acknowledgement of the Order; or
2.2.2
any act by the Supplier consistent with fulfilling the Order,
at which point and on which date the agreement shall come into existence (Commencement Date).
2.3
The Order shall be valid (and capable of acceptance in accordance with clause 2.2) for 15 Business Days from the day of issue only. The Purchaser may cancel the Order at any time until it is deemed accepted in accordance with clause 2.2.
2.4
These Conditions apply to the agreement to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.5
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.
3: Supply of Goods
3.1
The Supplier warrants that the Goods shall:
3.1.1
correspond with their description and any applicable Goods Specification;
3.1.2
be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) 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, materials and workmanship and remain so for 12 months after delivery unless otherwise set out in Order; 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 agreement in respect of the Goods.
4: Delivery of Goods
4.1
The Supplier shall ensure that:
4.1.1
the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; and
4.1.2
each delivery of the Goods is accompanied by a delivery note which shows the Supplier’s name, the date of the Order, the Order number, 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.
4.2
Unless otherwise specified in the Order, the Supplier shall deliver the Goods:
4.2.1
on the Delivery Date;
4.2.2
at the Delivery Location;
4.2.3
during Business Hours or as instructed by the Purchaser; and
4.2.4
in accordance with DAP (the Delivery Location) Incoterms® 2020.
4.3
Delivery of the Goods shall be completed when the Supplier places the Goods at the Purchaser’s disposal at the Delivery Location.
4.4
The Supplier shall not deliver the Goods in instalments without the Purchaser’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 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 6.1.
4.5
Risk in the Goods shall pass to the Purchaser on completion of delivery. Title in the Goods shall pass to the Purchaser on the earlier of: (a) payment in full for the Goods; and (b) completion of delivery.
5: Supply of Services
5.1
The Supplier shall from the date set out in the Order and for the duration of the agreement supply the Services to the Purchaser in accordance with the terms of the agreement.
5.2
The Supplier shall meet any performance dates for the Services specified in the Order or that the Purchaser notifies to the Supplier and time is of the essence in relation to any of those performance dates.
5.3
In providing the Services, the Supplier shall:
5.3.1
co-operate with the Purchaser in all matters relating to the Services, and comply with all instructions of the Purchaser;
5.3.2
perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
5.3.3
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 agreement;
5.3.4
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 the Purchaser expressly or impliedly makes known to the Supplier;
5.3.5
provide all equipment, tools and vehicles and such other items as are required to provide the Services;
5.3.6
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;
5.3.7
obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
5.3.8
observe all health and safety rules and regulations and any other security requirements that apply at any of the Purchaser’s premises;
5.3.9
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 of or use the Purchaser Materials other than in accordance with the Purchaser’s written instructions or authorisation;
5.3.10
not do or omit to do anything which may cause the Purchaser to lose any licence, authority, consent or permission upon 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
5.3.11
comply with any additional obligations as set out in the Service Specification.
6: Purchaser remedies
6.1
If the Supplier fails to deliver the Goods by the applicable date or to perform the Services by the applicable date, the Purchaser shall, without limiting or affecting other rights or remedies available to it, have any one or more of the following rights and remedies:
6.1.1
to terminate the agreement with immediate effect by giving written notice to the Supplier;
6.1.2
to refuse to accept any subsequent performance of the Services or delivery of the Goods which the Supplier attempts to make;
6.1.3
to recover from the Supplier any costs incurred by the Purchaser in obtaining substitute goods or services from a third party;
6.1.4
to require a refund from the Supplier of sums paid in advance for Services that the Supplier has not provided or Goods that it has not delivered; and
6.1.5
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.
6.2
If the Supplier has delivered Goods that do not comply with the warranties set out in clause 3.1, then, without limiting or affecting other rights or remedies available to it, the Purchaser shall have one or more of the following rights and remedies, whether or not it has accepted the Goods:
6.2.1
to terminate the agreement with immediate effect by giving written notice to the Supplier;
6.2.2
to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
6.2.3
to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
6.2.4
to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.2.5
to recover from the Supplier any expenditure incurred by the Purchaser in obtaining substitute goods from a third party; and
6.2.6
to claim damages for any additional costs, loss or expenses incurred by the Purchaser arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3
If the Supplier has supplied Services that do not comply with the requirements of clauses 5.3.2, 5.3.4 and 5.3.6 then, without limiting or affecting other rights or remedies available to it, the Purchaser shall have one or more of the following rights and remedies:
6.3.1
to terminate the agreement with immediate effect by giving written notice to the Supplier;
6.3.2
to return the Deliverables to the Supplier at the Supplier’s own risk and expense;
6.3.3
to require the Supplier to provide repeat performance of the Services, or to provide a full refund of the price paid for the Services (if paid);
6.3.4
to refuse to accept any subsequent performance of the Services which the Supplier attempts to make;
6.3.5
to recover from the Supplier any expenditure incurred by the Purchaser in obtaining substitute services or deliverables from a third party; and
6.3.6
to claim damages for any additional costs, loss or expenses incurred by the Purchaser arising from the Supplier’s failure to comply with clause 5.3.4.
6.4
These Conditions shall extend to any substituted or remedial services or repaired or replacement goods supplied by the Supplier.
6.5
The Purchaser’s rights and remedies under the agreement are in addition to, and not exclusive of, any rights and remedies implied by statute and common law.
7: Purchaser’s obligations
The Purchaser shall:
7.1
provide the Supplier with reasonable access at reasonable times to the Purchaser’s premises for the purpose of providing the Services; and
7.2
provide such necessary information for the provision of the Services as the Supplier may reasonably request.
8: Charges and payment
8.1
The price for the Goods:
8.1.1
shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date; and
8.1.2
shall, unless otherwise agreed between the Purchaser and the Supplier in writing, 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 the Purchaser.
8.2
The charges for the Services shall be set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by the Purchaser, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
8.3
In respect of the Goods, unless otherwise stated in the Order, the Supplier shall invoice the Purchaser on or at any time after completion of delivery. In respect of Services, unless otherwise stated in the Order, the Supplier shall invoice the Purchaser on completion of the Services. Each invoice shall include such supporting information required by the Purchaser to verify the accuracy of the invoice, including the relevant purchase order number.
8.4
In consideration of the supply of Goods and/or Services by the Supplier, the Purchaser shall pay the invoiced amounts within 60 days (unless otherwise stated in the Order), of the date of a correctly rendered invoice to a bank account nominated in writing by the Supplier.
8.5
All amounts payable by the Purchaser under the agreement 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 agreement by the Supplier to the Purchaser, the Purchaser 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 or Services or both, as applicable, at the same time as payment is due for the supply of the Goods or Services.
8.6
If the Purchaser fails to make any payment due to the other party under the agreement by the due date for payment, then no interest shall be payable by the Purchaser on the overdue sum.
8.7
The Purchaser may at any time, without notice to the Supplier, set off any liability of the Supplier to the Purchaser against any liability of the Purchaser to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the agreement. If the liabilities to be set off are expressed in different currencies, the Purchaser may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by the Purchaser of its rights under this clause shall not limit or affect any other rights or remedies available to it under the agreement or otherwise.
9: Intellectual Property Rights
9.1
Save as otherwise expressly provided in this agreement, neither party shall receive any right, title or interest in or to the Intellectual Property Rights of the other party. The Supplier expressly acknowledges that all rights in the Purchaser Materials are and shall remain the exclusive property of the Purchaser.
9.2
Subject to clause 9.4, all Intellectual Property Rights in the Deliverables shall be vested in the Purchaser and the Supplier hereby irrevocably assigns to the Purchaser and its successors and assigns (including by way of present assignment of present and future rights) with full title guarantee, absolutely and free from all encumbrances, all the Supplier’s right, title and interest in and to any and all present and future Intellectual Property Rights throughout the world for the full unexpired period of such rights and all renewals, reversions and extensions of such period as may be provided under any applicable law throughout the world in or relating to all Deliverables together with all accrued rights of action in respect of any infringement of such rights for the full term of such rights.
9.3
The Supplier agrees to waive any claim to moral rights conferred on the Supplier by the Copyright, Designs and Patents Act 1988 or any rights of a similar nature under laws now or in the future in force in any jurisdiction which the Supplier may have in and to any and all Deliverables.
9.4
To the extent that any of the Deliverables contain any materials owned or controlled by a third party, the Supplier shall:
9.4.1
disclose the existence of such materials to the Purchaser before accepting the Order pursuant to clause 2.2; and
9.4.2
in consultation with the Purchaser obtain such perpetual royalty-free licences (with the right to sub-license on terms no broader than those granted hereunder), assignments or other consents as are required to permit the use, copying and distribution of such third party materials by the Purchaser for any purpose relating to the Goods and/or Services or exercise of its business or function.
9.5
The Supplier shall on request by the Purchaser and at its expense, promptly deliver to the Purchaser all copies of the Deliverables in its control or possession.
9.6
The Purchaser grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Purchaser to the Supplier for the term of the agreement for the purpose of providing the Services to the Purchaser.
10: Indemnity
10.1
The Supplier shall indemnify the Purchaser 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 the Purchaser arising out of or in connection with:
10.1.1
any breach of these Conditions by the Supplier;
10.1.2
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 manufacture, supply or use of the Goods, or receipt, use or supply of the Services and/or the Deliverables (excluding the Purchaser Materials);
10.1.3
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 the Goods, as delivered, or the Deliverables, to the extent that the defects in the Goods or Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
10.1.4
any claim made against the Purchaser by a third party arising out of or in connection with the supply of the Goods, as delivered, or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the agreement by the Supplier, its employees, agents or subcontractors.
10.2
This clause 10 shall survive termination of the agreement.
11: Insurance
During the term of the agreement, 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 agreement, and shall produce to the Purchaser on demand both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
12: Compliance with relevant laws and policies
In performing its obligations under the agreement, the Supplier shall:
12.1
comply with all applicable laws, statutes, regulations from time to time in force; and
12.2
comply with the Mandatory Policies.
13: Termination
13.1
The Purchaser may terminate the agreement in whole or in part at any time before delivery of the Goods and/or performance of the Services in full (as applicable) with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the agreement. The Purchaser shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods and/or in respect of any Services performed at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2
Without affecting any other right or remedy available to it, the Purchaser may terminate the agreement with immediate effect by giving written notice to the Supplier if:
13.2.1
the Supplier commits a material breach of any term of the agreement and (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so;
13.2.2
the Supplier 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;
13.2.3
the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
14: Consequences of termination
14.1
On termination of the agreement, 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 keeping and will not use them for any purpose not connected with the agreement.
14.2
Termination or expiry of the agreement 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 agreement which existed at or before the date of termination or expiry.
14.3
Any provision of the agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the agreement shall remain in full force and effect.
15: Confidentiality
15.1
Each party undertakes that it shall not at any time during the agreement and for a period of three years after termination or expiry of the agreement, 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 15.2.
15.2
Each party may disclose the other party’s confidential information:
15.2.1
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 agreement. 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 15; and
15.2.2
as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
15.3
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 agreement.
16: Force majeure
Neither party shall be in breach of the agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 4 weeks, the party not affected may terminate the agreement by giving 7 days’ written notice to the affected party.
17: General
17.1
Assignment and other dealings.
17.1.1
The Purchaser 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 agreement.
17.1.2
The Supplier 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 agreement without the prior written consent of the Purchaser.
17.2
Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the agreement without the prior written consent of the Purchaser. If the Purchaser consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
17.3
Notices.
17.3.1
Any notice given to a party under or in connection with the agreement shall be in writing and shall be:
17.3.1.1
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
17.3.1.2
sent by email to the addresses set out in the Order (or an address substituted in writing by the party).
17.3.2
Any notice shall be deemed to have been received:
17.3.2.1
if delivered by hand, at the time the notice is left at the proper address;
17.3.2.2
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; or
17.3.2.3
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
17.3.3
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.4
Severance. If any provision or part-provision of the agreement 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 agreement. If any provision of the agreement is deemed deleted under this clause 17.4 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.
17.5
Waiver.
17.5.1
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.
17.5.2
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.
17.6
No partnership or agency. Nothing in the agreement 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.
17.7
Entire agreement.
17.7.1
The agreement constitutes the entire agreement between the parties.
17.7.2
Each party acknowledges that in entering into the agreement does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the agreement.
17.8
Third party rights.
17.8.1
The agreement does not give rise to any rights under the agreements (Rights of Third Parties) Act 1999 to enforce any term of the agreement.
17.8.2
The rights of the parties to rescind or vary the agreement are not subject to the consent of any other person.
17.9
Variation. Except as set out in these Conditions, no variation of the agreement, 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.
17.10
Governing law. The agreement, 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.
17.11
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 agreement or its subject matter or formation.