1. DEFINITIONS
1.1 In
these Conditions:
(a) "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;
(b) "Delivery
Date" means the date on which the Goods are to be delivered to the
Purchaser, as specified in the Purchase Order;
(c) "Goods"
means any such goods supplied to the Purchaser by the Supplier pursuant to or
in connection with the Purchase Order;
(d) "Price" means the price of
the Goods as specified in the Purchase Order;
(e) "Purchaser" means the Buyer;
(f) "Purchase
Order” means the document setting out the Purchaser's requirements for the Contract;
(g) "Supplier"
means the person, firm or company who is the supplier of the Goods named in the
Purchase Order;
(h) “Client” means Purchaser;
(i)
“Contractor” means Supplier;
(j) "Services"
means any such service supplied to the Purchaser by the Supplier pursuant to or
in connection with the Purchase Order.
1.2 The
headings in these conditions are for convenience only and shall not affect its
construction or interpretation.
2. VARIATION
2.1 These
Conditions may only be varied with the written agreement of the Purchaser.
2.2 The Purchaser reserves the right by
reasonable notice to the Supplier to vary the Goods detailed in the Purchase
Order and any alteration to the Price or delivery date arising by reason of
such modification shall be agreed between the parties and evidenced in writing.
2.3 The Contract shall become binding, and
these Conditions shall be deemed to have been accepted by the Supplier on the
acceptance of the Purchase Order by the Supplier (either verbally or in
writing) or on delivery of the Goods, whichever is the earlier.
3. GOODS and SERVICES
3.1 The
Supplier warrants and represents to the Purchaser that the Goods and/or
Services shall:
3.1.1 Conform in all respects with any
particularities or specification specified in the Purchase Order including any variations;
3.1.2 Conform in all respects with the
requirements of any statutes, orders, regulations, or by-laws from time to time
in force;
3.1.3 Be of satisfactory quality and free from
defects in materials and workmanship; and
3.1.4 Be fit and sufficient for the purpose for
which such goods and/or services are ordinarily used and for any particular
purpose made known to the Supplier by the Purchaser and the Purchaser relies on
the skill and judgement of the Supplier in the supply of the Goods and/or
Services and the execution of the Purchase Order.
4. COUNTERFEIT
PARTS – ELECTRONIC COMPONENTS/SERVICES
4.1 Suppliers may only purchase electrical
component and parts procured directly from the Original Component manufacturer
(OCMs), the Original Equipment Manufacturer (OEMs), or through the OCM/OEM’s
authorised distribution chain unless first approved in writing by Prima
Electronic Services Ltd. through the submission and approval of a deviation /
waiver. Any use of Non-Franchised Distributors (Brokers) or other sources is
not authorised, unless first approved in writing by the submission and approval
of a Prima Electronic Services Ltd. deviation / waiver.
4.2 Unauthorised
material substitutions are not permitted. Unauthorised material substitution
includes any deviation from the design drawing, applicable specifications,
product specification, form, size, shape, chemistry, melt method, origin,
temper / condition, product testing or surface finish. Material substitutions
shall be approved by Prima Electronic Services Ltd. prior to being shipped.
5. PRICE
5.1 The Supplier shall not increase the
Price unless it is validly accepted by the Purchaser and agreed in writing
before the execution of the Purchase Order.
5.2 Unless expressly agreed otherwise
between the parties in writing, the Price shall be inclusive of all delivery
and insurance costs, VAT and any other applicable sales taxes, duties, or
levies.
5.3 Unless otherwise agreed in writing by
the Purchaser, the Supplier shall render a separate invoice in respect of each
consignment of the Goods delivered under the Purchase Order. The Purchaser undertakes to pay correctly
submitted invoices within 30 days of receipt from the day of physical or
electronic arrival at the nominated address of the Purchaser. Invoices shall
not be rendered by the Supplier until completion of delivery of all the Goods
which are the subject of the Purchase Order or of the consignment (as
appropriate).
5.4 A
valid invoice is one that is:
(a) Delivered in time in accordance with
the contract;
(b) That is for the correct sum;
(c) In
respect of goods / services supplied or delivered to the required quality (or
are expected to be at the required quality);
(d) Which quote the relevant purchase
order / contract reference where used;
(e) Which has been delivered to the
nominated address.
5.5 The Purchaser specifically reserves the
right to withhold or deduct by way of set-off or otherwise from any monies due
or to become due to the Supplier any monies due to the Purchaser from the
Supplier.
5.6 The Purchaser shall not be liable for
any orders or amendments to orders other than those issued or confirmed on the
official Purchase Order and shall not be responsible for the payment of the
Price for Goods supplied in excess of those required
by the Purchase Order.
5.7 No payment of or on account of the
Price shall constitute any admission by the Purchaser as to proper performance
by the Supplier of its obligations under the Contract.
6. DELIVERY
6.1 The Goods shall be delivered to the
place named on, and in accordance with, the Purchase Order. Delivery shall be
completed when the Goods have been unloaded at the point of delivery specified
in the Purchase Order and delivery has been accepted by the Purchaser or its
authorised representative. Any access to premises and any labour and equipment
that may be provided by the Purchaser in connection with delivery shall be
provided without acceptance by the Purchaser of any liability whatsoever or
howsoever arising and the Supplier shall indemnify and keep indemnified the
Purchaser and the Crown in respect of any actions, suits, claims, demands,
losses, charges, costs and expenses (including legal expenses and
disbursements) which the Purchaser or the Crown may suffer or incur as a result
of or in connection with any damage or injury (including death) occurring in
the course of delivery or installation to the extent that any such damage or
injury is attributable to any act, omission or negligence of the Supplier or
any of its sub-contractors.
6.2 Where any access to the premises is
necessary in connection with delivery or installation, the Supplier and its
sub-contractors shall at all times comply with the
reasonable requirements of the Purchaser's Head of Security or other authorised
representative.
6.3 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.
6.4 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.
6.5 Failure by the Purchaser to exercise
its options under Conditions 6.3 and/or 6.4 in respect of any part of a
Purchase Order shall not be deemed to constitute a waiver with respect to any
subsequent part of that Purchase Order.
6.6 If Goods are delivered before the
Delivery Date, the Purchaser shall be entitled to its sole discretion to refuse
to take delivery or to charge for insurance and storage of the Goods until the
Delivery Date.
6.7 Unless otherwise stated in the Purchase
Order, the Supplier is responsible for obtaining the cost of all the export and
import licences for the Goods, and in the case of the Goods supplied from
outside the UK, the Supplier shall ensure that accurate information is provided
to the Purchaser as to the country of origin and the Supplier shall be liable
for additional duties or taxes should the country of origin prove to be
different to the one stated.
7. OWNERSHIP AND RISK
Ownership
and risk in the Goods shall - without prejudice to any of the rights or
remedies of the Purchaser (including the Purchaser's rights and remedies under
Condition 8 below) - pass to the Purchaser on delivery.
8. DAMAGE IN TRANSIT
8.1 On despatch of any consignment of the
Goods, the Supplier shall send to the Purchaser at the address for delivery of
the Goods an advice note specifying the means of
transport, the place and date of despatch, the number of packages and their
weight and volume.
8.2 The Supplier shall, free of charge and
as quickly as possible, either issue a credit, repair
or replace (as the Purchaser shall elect in its sole discretion) such of the Goods
as may either be damaged in transit or having been placed in transit fail to be
delivered to the Purchaser provided that:
8.2.1 In the case of damage to such Goods in
transit the Purchaser shall within thirty (30) days of delivery give notice to
the Supplier that the Goods have been damaged; and
8.2.2 In the case of non-delivery the Purchaser
shall (provided that the Purchaser has been advised of the despatch of the
Goods) within ten (10) days of the notified date of delivery give notice to the
Supplier that the Goods have not been delivered.
9. INSPECTION, REJECTION AND GUARANTEE
9.1 Nothing contained in these Conditions
shall in any way detract from the Supplier's obligations under common law or
statute or any express warranty or condition contained in the Purchase Order.
9.2 The Supplier shall permit the Purchaser
or its authorised representatives to make any inspections or tests it may
reasonably require in relation to the Goods and the Supplier shall afford all
reasonable facilities and assistance free of charge at the Purchaser's
premises. The Supplier shall make good any defects or deficiencies in the event
of any failure (in the sole opinion of the Purchaser) to comply with the terms
of the Purchase Order or the Contract. No failure to make a complaint at the
time of such inspection or tests and no approval given during or after such
tests or inspections shall constitute a waiver by the Purchaser of any rights
or remedies in respect of the Goods.
9.3 The Purchaser may by written notice to
the Supplier reject any of the Goods which fail to meet the requirements in the
Contract. Such notice shall be given
within a reasonable time after delivery to the Purchaser of the relevant goods.
If the Purchaser rejects any of the Goods pursuant to this Condition 9.3, the
Supplier shall at the Purchaser's sole option (without prejudice to its other
rights and remedies) either:
9.3.1 Refund to the Purchaser the Price in
respect of the defective Goods, or
9.3.2 Repair the defective Goods as quickly as
possible or (as the Purchaser shall elect in its sole discretion) replace the
defective Goods with Goods which comply in all respects with the requirements
under the Contract.
9.4 The Supplier shall guarantee the Goods
for a period of twelve (12) months from installation or eighteen (18) months
from delivery, whichever shall be the shorter (subject to any alternative
guarantee arrangements agreed in writing between the Purchaser and the
Supplier). If the Purchaser shall,
within such guarantee period or within thirty (30) days thereafter, give notice
in writing to the Supplier of any defect in any of the Goods that have arisen
during the guarantee period under proper and normal use, the Supplier shall
(without prejudice to any of the Purchaser's other rights and remedies) as
quickly as possible remedy such defects (whether by repair or replacement as the
Purchaser shall elect in its sole discretion) without cost to the Purchaser.
9.5 Any Goods rejected or returned by the
Purchaser pursuant to this Condition 8 shall be returned to the Supplier at the
Supplier's risk and expense.
10. LABELLING AND PACKAGING
10.1 The Goods shall be packed and marked in a
proper manner and in accordance with the Purchaser's instructions and any
statutory requirements and any requirements of the carriers. In particular the
Goods shall be marked with the Order Number, the net, gross and the weights,
details of the contents shall be clearly marked on each container and all
containers of hazardous goods (and all relating documents) shall bear prominent
and adequate warnings. The Supplier shall
indemnify and keep indemnified the Purchaser and/or the Crown (as appropriate)
against all actions, suits, claims, demands, losses, charges, costs, and
expenses (including legal expenses and disbursements) which the Purchaser or
the Crown (as appropriate) may suffer or incur as a result of
or in connection with any breach of this Condition 10.1.
10.2 All packaging materials will be
considered non-returnable and will be destroyed unless the Supplier's advice note states that such materials will be charged for unless
returned. The Purchaser accepts no
liability in respect of the non-arrival at the Supplier's premises of empty
packages returned by the Purchaser.
11. INTELLECTUAL PROPERTY
11.1 Except to the extent that the Goods are
supplied in accordance with designs provided by the Purchaser, it shall be a
condition of the Purchase Order that none of the Goods will infringe any
patent, trade mark, design right (whether registered or not), copyright or any
other right in the nature of intellectual property of any third party and the
Supplier shall indemnify and keep indemnified the Purchaser against all
actions, suits, claims, demands, losses, charges, costs and expenses (including
legal expenses and disbursements) which the Purchaser or the Crown (as
appropriate) may suffer or incur as a result of or in connection with any
breach of this Condition
11.2 All materials, equipment, software,
inventions, specifications, instructions, plans or any form of intellectual
property right in any of the foregoing ("Intellectual Property"):
11.2.1 Furnished to or made available to the
Supplier by the Purchaser pursuant to the Purchase Order are hereby assigned to
and shall remain vested solely in the Purchaser; and
11.2.2 The Supplier shall not (except to the extent
necessary for the implementation of the Purchase Order) without prior written
consent of the Purchaser, use or disclose any such Intellectual Property or any
information (whether or not relevant to the Contract) which the Supplier may
obtain pursuant to the Contract and in particular (but without prejudice to the
generality of the foregoing) the Supplier shall not refer to the Purchaser or
the Contract in any advertisement without the Purchaser's prior written
agreement.
12. HEALTH AND SAFETY
12.1 The Supplier represents and warrants to
the Purchaser that the Supplier has satisfied itself that:
12.1.1 All necessary tests and examinations have been
made or will be made prior to delivery of the Goods to ensure that the Goods
are designed, manufactured, supplied and installed so
as to be safe and without risk to the health or safety of persons using the
same; and
12.1.2 That it has made available to the Purchaser
adequate information about the use for which the Goods have been designed and
have been tested and about any conditions necessary to ensure that when put to use the Goods will be safe and without risk to
health.
12.2 In any event, the Supplier will comply
with the duties imposed on it by the Health & Safety at Work etc. Act 1974
or any amendment thereto and of all other statutory provisions, rules, and
regulations so far as they are applicable.
The Supplier shall indemnify and keep indemnified the Purchaser against any and all actions, suits, claims, demands, losses,
charges, costs and expenses (including legal expenses and disbursements) which
the Purchaser may suffer or incur as a result of or in connection with any
breach of this Condition 12.
13. INDEMNITY AND INSURANCE
13.1 Without prejudice to any rights or
remedies of the Purchaser (including the Purchaser's rights and remedies under
Condition 9 above) the Supplier shall indemnify and keep indemnified the
Purchaser against any and all actions, suits, claims, demands, losses, charges,
costs and expenses (including legal expenses and disbursements) which the
Purchaser may suffer or incur as a result of or in connection with any damage
to property or in respect of any injury (including death) to any person which
may result directly or indirectly from any defect in the Goods or the negligence,
acts or omissions of the Supplier or any of its employees, agents or
sub-contractors.
13.2 The Supplier shall take out and maintain
with a reputable insurance company a policy or policies of insurance that are
normal for contracts of this nature and covering all the matters which are the
subject of indemnities under these Conditions.
13.3 The Supplier shall at the request of the
Purchaser produce the relevant policy or policies together with receipts or
other evidence of payment of the latest premium.
13.4 The Supplier shall be liable under the
provisions of the Contract (including Condition 13.1) whether
or not it complies with the insurance provisions in this Condition 13.
13.5 Nothing in these Conditions or the
Contract shall exclude or limit the liability of either party for death or
personal injury caused by its negligence or for fraudulent misrepresentation.
14. CONFIDENTIALITY
14.1 The Supplier shall procure that its staff
shall keep secret and do not disclose any information of a confidential nature
or designated as subject to the Official Secrets Acts 1911 to 1989, obtained by
reason of the Contract except information which is in the public domain
otherwise than as required to be by reason of a breach of this Condition 14 or
disclosed by law.
14.2 The provisions of this Condition 14 shall
apply during the continuance of the Contract and after its termination
howsoever arising without limitation in time.
14.3 The Client may, at its sole discretion,
redact information from the Contract prior to publishing for one or more of the
following reasons:
(a) National security;
(b) Personal data;
(c) Information protected by intellectual
property law;
(d) Information which is not in the
public interest to disclose;
(e) Third party confidential information;
(f) IT security; or
(g) Prevention of fraud.
14.4 The Client may consult with the
Contractor to inform its decision regarding any redactions, but the Client
shall have the final decision in its absolute discretion.
14.5 The Contractor shall assist and cooperate
with the Client to enable the Client to publish this Contract.
15. TERMINATION
15.1 In the event of a material breach of the
Contract by either party, the non-breaching party may terminate the Contract
with immediate effect by notice in writing.
15.2 The Purchaser may terminate the Contract
with immediate effect by notice in writing to the Supplier if at any time: -
15.2.1 The Supplier passes a resolution that it be
wound-up or that an application be made for an administration order or the Supplier applies to enter into a voluntary
arrangement with its creditors;
15.2.2 A receiver, liquidator, administrator, supervisor,
or administrative receiver be appointed in respect of the Supplier's property, assets,
or any part thereof;
15.2.3 The court orders that the Supplier be
wound-up or a receiver of all or any part of the Supplier's assets be appointed;
16.2.4 The Supplier is unable to pay its debts in
accordance with Section 123 of the Insolvency Act 1986;
15.2.5 The Supplier (being an individual or
partnership) is declared or adjudicated bankrupt or enters
into any arrangement or composition with its creditors.
15.3 Nothing in this Condition 15 shall affect
the coming into, or continuance in force of any provision of the Contract which
is expressly or by implication intended to come into force or continue in force
upon termination of the Contract.
16. ASSIGNMENT AND SUB-CONTRACTING
16.1 The Supplier shall not without the prior
written consent of the Purchaser assign or transfer the benefit or burden of
the Contract.
16.2 No sub-contracting by the Supplier shall
in any way relieve the Supplier of any of its responsibilities under the Contract.
16.3 Where the Purchaser enters a sub-contract
with a supplier or contractor for the purpose of performing the Contract, it
shall cause a clause to be included in such sub-contract which requires payment
to be made to the supplier or contractor within a specified period not
exceeding thirty (30) days from receipt of a valid invoice as defined by the
sub-contract requirement.
17. NOTICES
Any
notices to be given under the Contract shall be delivered personally or sent by
post or by email to the Buyer (in the case of the Purchaser) or to the address
set out in the Purchase Order (in the case of the Supplier). Any such notice
shall be deemed to be served, if delivered personally, at the time of delivery,
if sent by post, 48 hours after posting or, if sent by email, 12 hours after delivery.
18. SEVERABILITY
If
any provision under this Contract is or becomes unenforceable, such provision
shall not take effect and shall be deemed to be severed from the remainder of
the Contract to the extent that the remainder of the Contract and the
unaffected part of the provision shall continue to be fully enforceable.
19. WAIVER
No
delay or omission by the Purchaser in exercising any of its rights under the
Contract shall constitute a waiver of that right and any partial exercise of
any such right shall not prevent any future exercise of the right.
20. SUPPLIER CONTRIBUTION TO PRODUCT OR SERVICE CONFORMITY
The supplier shall grant right of access to the client, their customer, and regulatory authorities to the applicable areas of facilities and to applicable documented information, at any level of the supply chain; and ensure that the supplier(s) are aware of their contribution to product or service conformity; their contribution to product safety; and the importance of ethical behaviour.
21. LAW
AND JURISDICTION
The
Contract and any dispute arising under or in any way connected with the subject
matter of the Contract (whether of a contractual or tortious nature or
otherwise) shall be governed by and interpreted in accordance with English Law
and the parties submit to the jurisdiction of the English courts only except
that the Purchaser may seek injunctive relief outside such jurisdiction.