Gladebrook
North Limited, Standard conditions of purchase, business-to-business, purchase
of goods
In these
Conditions, unless the context requires otherwise:
'Buyer'
means Gladebrook
North Limited of 6th Floor, Cardinal House, 20, St Mary’s Parsonage,
Manchester M3 2LG (Company No: 05855330)
'Conditions'
means the terms and
conditions of purchase set out in this document and any special terms and
conditions contained within the Buyer’s purchase order or otherwise agreed in
writing and signed by both parties in accordance with clause 2;
'Delivery Date'
means the date when
the Goods are to be delivered, as agreed between the Buyer and Seller and
recorded on the Buyer’s purchase order;
'Goods'
means all goods
described in any Purchase Order to the Seller and includes all packaging,
instructions, warnings, warranties and other materials and services normally
included with such goods. Packing shall comply with all requirements of the
carrier and the Buyer, and its cost is included in the Price of the goods;
'Price'
means the price for
the Goods including all packing including the cost of carriage to the Buyer’s
nominated warehouse, insurance and VAT at the applicable rate; and
'Seller'
means the person who
sells or agrees to sell the Goods to the Buyer;
2
Conditions applicable
2.1
These
Conditions are the only conditions upon which the
Buyer is prepared to deal with the Seller and they shall apply to all contracts
for the purchase of Goods by the Buyer from the Seller to the
exclusion of all other terms and conditions, including any terms or conditions
which the Seller may purport to apply under any quotation, specification,
confirmation of order or similar document.
2.3
Except
as set out in clause 2.2 above, any variation to these Conditions (including any special terms and
conditions agreed between the parties) shall be inapplicable unless agreed in
writing and signed by the Buyer and Seller.
3
Price and payment
3.1
The
Price shall be the Seller’s
quoted price as recorded within the Buyer’s purchase order. The prices on the
Buyer’s purchase orders are not subject to any increase or additional charges
because of increased cost, any change in law or any other reason.
3.2
The
Price is inclusive of VAT, at the rate ruling
on the date of the Seller’s invoice, and any change in the rate after the date
of contract and before the issue of the Seller’s invoice shall operate to
change the Price by such change in the rate.
3.3
Unless
otherwise agreed in writing (and without prejudice to the Buyer’s right to
reject any Goods under clause 8 or otherwise) the Buyer shall not be obliged to
pay any invoice until thirty 30 days after the Goods are actually received at
the “Ship To” address on the applicable purchase order and an employee of the
Buyer has signed the bill of lading or other shipping document acknowledging
that receipt.
3.4
In
the event of any discrepancy or error in any invoice, or of any default of the
Seller in observing these Conditions, the Buyer may withhold payment until 7
days after any such discrepancy or error has been resolved or corrected, or the
due date in 3.3 above, whichever is the latter.
3.5
Notwithstanding
anything set out above, time for payment shall not be (nor shall it be made) of
the essence.
3.6
For
the purpose of this condition, “VAT” shall mean Value Added Tax and any other
tax replacing it or performing a similar fiscal function either within or
outside the UK.
3.6.1
The
Buyer will pay VAT to the Seller only upon production by the Seller of a valid
VAT invoice and only where the Seller is registered for VAT in the UK and the
sale of the Goods does not involve their removal from or to the UK.
3.6.2
Production
of a VAT invoice charging UK VAT shall constitute a warranty by the Seller that
it is registered for VAT in the UK.
3.6.3
If,
for whatever reason, the Buyer pays to the Seller VAT in circumstances where
the VAT was not properly chargeable, the Seller shall forthwith upon being
notified of the same (and irrespective of who notified it) pay to the Seller an
amount equal to such VAT and the Seller shall indemnify the Buyer against all
losses, penalties, interest and expenses (including legal fees) incurred as a
result.
3.7
Without
prejudice to any other right or remedy, the Buyer reserves the right to set off
any amount owing (of whatever nature) at any time from the Seller against any
amount payable by the Buyer to the Seller, from time to time.
4.1
The
quantity and description of the Goods shall be as set out in the Buyer’s
purchase order.
4.2
The
Seller may ship only against the Buyer’s written purchase orders.
4.3
The
Seller shall mark all invoices, bills of lading and packing lists to show
legibly the complete purchase order and item numbers to which they relate.
4.4
On
the date any Goods are shipped, the Seller shall send to the “Bill To” address
on the face of the purchase order, an original bill of lading, a packing list
showing the number and contents of each package and an invoice. The actual
scale weights or approved shipping weights shall be shown on all bills of lading
and other shipping documents.
5.1
The
Seller warrants to the Buyer that:
5.1.1
all
Goods supplied will at the time of delivery correspond to the description given
by the Seller.
5.1.2
all
Goods are to be manufactured, processed,
packaged, labelled, marked, tagged, tested, certified, inspected, shipped and
sold in compliance with all applicable EC, national and local laws and
regulations, including all laws and regulations relating to health, safety,
marking, labelling and country of origin designation. The Seller agrees to
execute and furnish to the Buyer, on request, all reasonable certifications,
guarantees and other documents regarding compliance with such laws and
regulations.
5.1.3
all
Goods will be safe and in conformity with the general safety requirements
providing by Section 10 of the Consumer Protection Act 1987 (as amended), the
General Product Safety Regulations 2005 and with all UK and EC Safety
regulations from time to time applicable to the Goods, and will be without risk
to health and in accordance with the Health and Safety at Work Etc. Act 1974
(as amended), and regulations made thereunder and shall be supplied with all
information relevant thereto.
5.1.4
all
Goods in respect of which there exists any British or European standard shall
be in conformity with such standard and the Seller undertakes to monitor the
safety of the Goods through whatever means are appropriate, including but not
limited to monitoring and testing the Goods. The Seller shall inform the Buyer
promptly in writing of all information coming to its knowledge concerning the
safety of any Goods. Further, the Seller will allow the Buyer access to its
manufacturing and/or storage premises at all reasonable times to permit the
Buyer to monitor compliance with this clause.
5.1.5
the
Seller is not a party to any agreement or understanding, and that there is no
other impediment or restriction, that prohibits or prevents the Seller from
selling and delivering the Goods to the Buyer or prohibits or prevents the
Buyer from selling the Goods to any customer in any territory or geographical
location.
6.1
Delivery
of the Goods shall be made to the “Ship To” address
as detailed on the Buyer’s purchase order on or before the Delivery
Date. The Seller
shall notify the Buyer immediately if any shipment will not occur in time to
arrive by the Delivery Date.
6.2
The
Buyer may at any time cancel any shipment not actually received by the Buyer by
the Delivery Date, without cost or further obligation. The Seller shall ship
back orders and late shipments only to the extent authorised in writing by the
Buyer, and only on a freight prepaid basis at the Seller’s expense.
7.1
The
risk in the Goods shall pass to the Buyer on delivery of the Goods.
7.2
The
title to and property in the Goods shall pass to the Buyer on delivery, or on
payment if sooner.
7.3
For
the purposes of clause 7.1 and 7.2 above, delivery of the Goods will be deemed
to have occurred:
7.3.1
if
the Buyer is arranging carriage, when the Goods are loaded aboard the truck or
other mode of transport; or
7.3.2
otherwise,
when the Goods have been received by the Buyer at the “Ship To” address
indicated on the purchase order and an employee of the Buyer has signed the
bill of lading or other shipping document acknowledging that receipt.
8
Rejection
of the Goods
8.1
The
Buyer at its option may, at any time (whether
or not the Buyer has accepted delivery of the same) reject and either return to
the Seller or hold at the Seller’s risk and expense, any Goods, shipment or
portion thereof that is non-conforming, or that is in excess of the quantities
covered by the Buyer’s purchase order, or that allegedly contains any defect or
inadequate warnings or instructions, or allegedly violates any law, regulation,
or court or administrative order, or allegedly infringes any patent, trade name,
trade mark, copyright, design right, unregistered design right or other right.
8.2
The
Buyer may at any time reject any Goods returned to it by its customers for any
reason stated in clause 8.1.
8.3
The
Buyer’s rights under clauses 8.1 and 8.2 shall not be affected by the payment
of any invoice by the Buyer nor by the passing of property.
8.4
The
Seller assumes, and shall bear all expenses and risks of unpacking, examining,
repacking, storing, holding and/or reshipping or returning of any rejected
Goods.
8.5
At
the Buyer’s absolute option, the Seller shall grant a full refund to the Buyer
or, if the Buyer so elects, a credit or replacement with respect to any
shipment, Goods or portion thereof that the Buyer rejects.
8.6
In
the event that any of the Goods are the subject of a product recall, the Seller
shall be responsible for the recall and for all expenses and losses incurred by
the Buyer in recalling the Goods and in shipping them to the Seller, including
refunds to customers and the Buyer’s net landed cost of unsold Goods.
9
Indemnity
9.1
The
Seller shall indemnity the Buyer in relation to any and all claims, actions,
liabilities, losses, fines, penalties, costs and expenses (including legal
fees) arising out of:
9.1.1
any
breach of these Conditions;
9.1.2
any
actual or alleged infringement of any patent, trade mark, copyright, design
right, unregistered design right or other right relating to the Goods or any
part thereof;
9.1.3
any
actual or alleged death of or injury to any person, damage to any property, or
any other actual or alleged damage or loss, by whomsoever suffered, claimed to
result in whole or in part from any actual or alleged defect in the Goods (or
any part thereof) whether latent or patent, including any alleged failure to
provide adequate warnings or instructions; or
9.1.4
Any
actual or alleged violation of any law, statute or ordinance or any
governmental administrative order, rule or regulation relating to the Goods, or
to their manufacture, shipment, use or sale.
9.2
These
agreements, indemnities and obligations of the Seller shall not be affected or
limited in any way by the Buyer’s extension of express or implied warranties to
its customers, or by any other act or omission of the Buyer.
9.3
At
the Buyer’s request, the Seller shall obtain and maintain, at its expense, a
policy or policies of product liability insurance with respect to the Goods,
with an endorsement naming the Buyer as an additional insured, in such amounts,
with such companies and containing such other provisions as the Buyer may
reasonably require. All such policies shall provide that the coverage
thereunder shall not be terminated without at least 30 days’ prior written
notice to the Buyer. The Seller shall provide the Buyer current certificates of
such insurance upon request.
10.1
This
Condition sets out the entire financial liability of the Buyer (including any
liability for the acts or omissions of its employees, agents and
sub-contractors) to the Seller in respect of:
10.1.1
any
breach of these Conditions; or
10.1.2
any
representation, statement or tortious act or omission including negligence
arising under or in connection with any agreement between the Buyer and the
Seller to which these Conditions apply.
10.2
Nothing
in these conditions excluded or limits the liability of the Buyer:
10.2.1
for
death or personal injury caused by the Buyer’s negligence; or
10.2.2
for
fraud or fraudulent misrepresentation; or
10.2.3
for
any matter which it would be illegal for the Buyer to exclude or attempt to
exclude its liability.
10.3
Subject
to clause 10.2:
10.3.1
The
Buyer’s total liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation, restitution or otherwise, arising in
connection with the performance or contemplated performance of any contract to
which these Conditions apply shall be limited to Price payable under that
contract.
10.3.2
The
Buyer shall not be liable to the Seller for loss of profit, loss of business,
or depletion of goodwill in each case whether direct, indirect or
consequential, or any claims for consequential compensation whatsoever
(howsoever caused) which arise out of or in connection with any contract to
which these Conditions apply.
11
Waiver
11.1
No
inaction, omission, failure or delay by the Buyer in exercising or securing the
enforcement or validity of any right, power, privilege or demand arising under
or in connection with these conditions, and no single or partial exercise of
any such right, power, privilege or demand shall impair the existence,
operation, content, effect and enforcement of the said right, power, privilege
or demand, or operate as a waiver of it.
11.2
The
rights and remedies provided in these Conditions are cumulative and not
exclusive of any rights and remedies provided by law.
12
No
agency or partnership
12.1
These
Conditions shall not constitute or imply any partnership, joint venture,
agency, fiduciary relationship or other relationship between the parties, other
than, and except as provided for expressly in writing between the parties.
12.2
Except
as expressly set out within these Conditions, neither party shall have, nor shall
either party represent that it has, any authority to make any commitments on
the other party’s behalf.
13
Co-operation
13.1
The
Buyer and the Seller shall, at the reasonable request of the other party and at
that other party’s expense, perform or abstain from any act the performance of
or abstention from which can reasonably be regarded as necessary to effect or
facilitate the observance, implementation, clarification or enforcement of
these Conditions
14
Severance
14.1
If
any provision of these Conditions is prohibited by law, or is determined by any
court of law or other binding adjudicatory authority or conceded by the Seller
to be unlawful, void or unenforceable, the provision:
14.1.1
shall,
to the extent required and as far as possible, be severed from these Conditions
and rendered ineffective without modifying the remaining provisions of these
Conditions; and
14.1.2
shall
not in any way affect any other particular provisions of these Conditions or
the validity or enforcement of the Conditions generally.
14.2
The
exercise of any remedy herein shall be without prejudice to any other right or
remedy available to either party.
15
Assignment
The Buyer may assign, delegate,
sub-contract, mortgage, charge or otherwise transfer any or all of its rights
and obligations under these Conditions without the prior written agreement of
the Seller.
16
Interpretation
In these Conditions
unless the context otherwise requires:
16.1
words
importing any gender include every gender;
16.2
words
importing the singular number include the plural number and vice versa;
16.3
words
importing persons include firms, companies and corporations and vice versa;
16.4
references
to numbered clauses and schedules are references to the relevant clause in or
schedule to these Conditions;
16.5
any
obligation on any party not to do or omit to do anything is to include an
obligation not to allow that thing to be done or omitted to be done;
16.6
the
headings to the clauses, of these Conditions are not to affect the
interpretation;
16.7
any
reference to an enactment includes reference to that enactment as amended or
replaced from time to time and to any subordinate legislation or byelaw made
under that enactment;
16.8
where
the word ‘including’ is used in these Conditions, it shall be understood as
meaning ‘including without limitation’;
16.9
the
words ‘working day’ shall mean any day other than:
16.9.1
Saturday
and Sunday; and
16.9.2
any
day on which there occurs any public, national, or statutory holiday that is
recognised as such within the country the legal system of which governs these
Conditions.
17
Notices
17.1
Any
notice to be given under these Conditions to the Buyer shall be in writing and
shall be sent by first-class mail or air mail to the address set out in clause
1, or to such other address as the Buyer may from time to time notify to the Seller
in writing.
17.2
Notices
sent in accordance with clause 17.1 shall be deemed to have been received, in
the case of inland first-class mail, (3)
working days after the day of posting, in the case of air mail, (7) working days after the date of
posting.
18
Law
and jurisdiction
All agreement for the
sale of Goods from the Seller to the Buyer shall be deemed to have been made in
England. The validity, construction and performance of these Conditions and any
agreement to which they relate and of all other rights and liabilities arising
in connection with them shall be governed by English law and shall be subject
to the non-exclusive jurisdiction of the English courts, to which the parties
submit. Each party waives any objection to proceedings in such Courts on the
grounds of venue or on the grounds that the proceedings have been brought in an
inconvenient forum.
19
Third
parties
19.1
For
the purposes of the Contracts (Rights of Third Parties) Act 1999, these
Conditions are not intended to, and do not, confer on any person who is not a
party to any agreement in which they are incorporated:
19.1.1
any
right to enforce any of its provisions; or
19.1.2
any
right to avail itself of any defence expressed in these Conditions.