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Application

The Buyer hereby orders and the Seller, by accepting the purchase order, agrees that it will supply the Goods and Services specified on the Order upon and subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions, unless agreed in writing by both parties otherwise. Any reference on the Order to the Seller’s quotation, proposal, specification, price list or like document shall be solely for the purpose of describing the Goods and Services to be supplied and no Seller’s terms and conditions endorsed upon, delivered with or referred to in such documents apply to the Contract.

Further to the foregoing, these Conditions apply to the Contract to the exclusion of any other terms that the Seller seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. The Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Seller that is inconsistent with these Conditions.

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.

 

Interpretation

In these Conditions:-

Business Day” means any day other than a Saturday, Sunday or bank holiday in England;

Confidential Information” means all information of a confidential or proprietary nature which is obtained directly or indirectly by Seller from the Buyer or otherwise is made available to the Seller by the Buyer at any time before, on or after the Order date without regard to the form or manner in which such information is disclosed or obtained;

Intellectual Property” means any and all copyright, design rights, registered designs, patents, patent applications, trademarks, database rights, confidential information/know how, trade secrets, software, source code and any other intellectual property, whether registered or unregistered or registrable or unregistrable) and including applications or rights to apply for them and together with all extensions and renewals of, and (in each case) all rights and forms of protection having equivalent or similar effect anywhere in the world.

the Buyer” means Power Roll Ltd, a company registered in England under number 08305253 whose registered office is at 2 Turbine Way, Sunderland, SR5 3NZ;

these Conditions” means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;

the Contract” means the contract for the sale and purchase of the Goods and Services constituted by the Seller’s acceptance of the Order in accordance with these Conditions;

the Delivery” means the address stated on the Order for delivery of the Goods and any Services;

the Goods” means the goods (including any instalment of the goods or any part of them) described in the Order;

the Order” means the Buyer’s purchase order to which these Conditions are annexed;

the Price” means the agreed price of the Goods and Services to be delivered under the Order;

the Seller” means the person so described in the Order;

Services” means the services to be performed by the Seller described in the Order;

Specification” includes any plans, drawings, data or other information relating to the Goods and/or Services; and

Writing” includes electronic mail and comparable means of communication.

Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statue or provision as amended, re-enacted or extended at the relevant time.

The headings in these Conditions are for convenience only and shall not affect their interpretation.

The term including shall mean including without limitation.

 

Basis of Purchase

The Order constitutes an offer by the Buyer to purchase the Goods subject to these Conditions.

The Order shall be deemed to be accepted on the earlier of:

              the Seller issuing a written acceptance of the Order; and

              the Seller doing any act consistent with fulfilling the Order,

at which point and on which date (Effective Date) the Contract shall come into existence.

Any typographical clerical or other accidental error or omission in the Order placed by the Buyer or in any drawings specifications, instructions, tools or other material supplied by the Buyer, shall be subject to correction without any liability on the part of the Buyer.

No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.

 

Specification

The quantity, quality and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.

Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer.  The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract. The Seller now assigns to the Buyer any and all intellectual property rights it may have in Specification(s) specifically produced for the Buyer in connection with the Contract including future intellectual property rights (by way of a present assignment of future rights). The Seller will ensure that all moral rights in such Specifications have been waived.

Goods

The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their agreed destination in an undamaged condition in the ordinary course.

The Seller shall not unreasonably refuse to take any steps necessary to comply with any request by the Buyer to inspect or test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and to provide the Buyer with any facilities reasonably required by the Buyer for inspection or testing.

If as a result of inspection or testing the Buyer is not satisfied that the goods will comply in all respects with the Contract, and the Buyer so informs the Seller within ten Business Days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance at its own cost.

The Seller 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 Seller’s obligations under the Contract.

The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.

The Seller shall ensure that 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 in respect of the Goods.

Services

The Seller shall from the date set out in the Order and for the duration of the Contract supply the Services to the Buyer in accordance with the terms of the Contract.

The Seller shall perform the Services in accordance with the Specifications and the terms of the Contract.

In performance of the Services, the Seller shall obtain and at all times maintain all licences and consents which may be required for the provision of the Services.

In performance of the Services, the Seller shall observe all health and safety rules and regulations and any other security requirements that apply at any of the Buyer’s premises.

The Seller shall hold all materials, equipment and tools, drawings, specifications and data supplied by the Buyer to the Seller (Buyer Materials) in safe custody at its own risk, maintain the Buyer Materials in good condition until returned to the Buyer, and not dispose of or use the Buyer Materials other than in accordance with the Buyer’s written instructions or authorisation;

In performance of the Contract, the Seller shall not do or omit to do anything which may cause the Buyer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Seller acknowledges that the Buyer may rely or act on the Services;

 

 

Price

The Price of the Goods and Services shall be as stated in the Order and, unless otherwise so stated, shall be:-

            exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and

            inclusive of all charges for packaging, packing, shipping, carriage, insurance, costs of performance and delivery of the Goods and Services to the Delivery Address and any duties, imposts or levies other than value added tax. Incoterms 2020 DAP (Buyer nominated site of Delivery) shall apply unless stated otherwise in the Purchase Order.

No increase in the Price may be made (whether on account of increased material, labour or transport or labour costs or availability, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.

The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.

 

Payment

The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods and Services, as the case may be, and each invoice shall quote the number of the Order.

Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods and Services within 30 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods and Services in question by the Buyer, but time for payment shall not be of the essence of the contract.

The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.

 

Delivery

The Goods and Services shall be delivered to the Delivery Address on the agreed date or within the period stated in the Order, in either case during the Buyer’s usual business hours or as otherwise instructed by the Buyer.

Where it is agreed in writing that the date of delivery of the Goods is to be specified by the Seller after the placing of the Order, the Seller shall give the Buyer 5 Business Days’ notice in writing of the specified date.

The time of delivery of the Goods is of the essence of the Contract.

A packing note clearly quoting the number of the Order must accompany each delivery or consignment of the Goods.

The Goods shall only be delivered by instalments if the Buyer agrees the same in advance. If the Goods are to be delivered by instalments, the Contract will be treated as a single contract and not severable.

The Buyer shall be entitled to reject any Goods and Services delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods or Services until the Buyer has had ten (10) Business Days to inspect them following delivery.

The Seller shall supply the Buyer in good time with any instructions or other information to enable the Buyer to accept delivery of the Goods and performance of the Services.

The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.

If the Goods or Services are not delivered on the agreed due date then, without prejudice to any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has agreed to pay any part of the price in advance of delivery) to claim from the Seller by way of liquidated damages for delay 5 per cent of the Price for every week’s delay, up to a maximum of 100 per cent of the Price for the delayed Goods and Services.

The Buyer shall not be deemed to have accepted the Goods and Services until it has had ten (10) Business Days to inspect them following delivery or collection as the case may be. The Buyer shall also have the right to reject the Goods and Services as though they had not been accepted for 30 days after any latent defect in the Goods has become apparent.

 

Quality

Goods

Where the Seller is not the manufacturer of the Goods, the Seller shall to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.

The Seller warrants that (subject to the other provisions of these conditions) upon delivery, the Goods shall:

            be of satisfactory quality within the meaning of the Sale of Goods Act 1979;

            be fit for purpose; and

            be fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is expected for the Buyer to rely on the skill and judgment of the Seller.

If any of the Goods do not conform with any of the warranties in condition 8.2, the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at full price or the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the part of such Goods which is defective to the Seller.

Services

The Seller shall meet any performance dates for the Services specified in the Order or that the Buyer notifies to the Seller and time is of the essence in relation to any of those performance dates.

In providing the Services, the Seller shall:

              co-operate with the Buyer in all matters relating to the Services, and comply with all instructions of the Buyer;

              perform the Services with the best care, skill and diligence in accordance with best practice in the Seller’s industry, profession or trade;

              use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Seller’s obligations are fulfilled in accordance with the Contract;

              ensure that the Services will conform with all descriptions, standards and specifications set out in the Service Specification, and that the associated deliverables shall be fit for any purpose that the Buyer expressly or impliedly makes known to the Seller;

              provide all equipment, tools and vehicles and such other items as are required to provide the Services;

              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 Buyer, will be free from defects in workmanship, installation and design;

 

Risk and Property

Risk of damage to or loss of the Goods and any deliverables arising from the Services shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.

The property in the Goods and any deliverables arising from the Services shall pass to the Buyer upon delivery, unless payment for the Goods and Services has been agreed to be made prior to delivery, when title but not risk shall pass to the Buyer once payment has been made.

 

Warranty

The Seller warrants to the Buyer that the Goods and Services:-

            will, both at the time of delivery and for a satisfactory period of time thereafter, Goods shall be of the best available design, quality, material and workmanship and Services shall be performed with the best care skill and diligence.

            shall conform in all respects with the Order and Specification supplied or advised by the Buyer to the Seller;

            will be free from defects in design, material and workmanship;

            will correspond with any relevant Specification or sample; and

            will comply with all statutory requirements and regulations relating to the sale of the Goods and supply of Services; and

            shall comply with all applicable laws and regulations and shall not infringe any third party’s rights.

Seller will put in place and maintain in force during the term of this Contract at its own cost with a reputable commercial insurer, insurance arrangements in accordance with good industry practice to cover its potential liabilities under the Contract and upon demand will provide documentary evidence to the Buyer of such insurance arrangements and that any premiums on them are fully paid.

 

Indemnity

The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:-

            breach of any warranty given by the Seller in relation to the Goods and/or Services;

            any claim that the Goods and/or Services infringe, or that their importation, use or resale, infringes, the patent, copyright trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;

            any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering or installing the Goods and/or Services.

            all claims by the customers of the Buyer (and their sub-buyers) arising out of any breach whatever by the Seller of this Contract for sale and supply.

 

Remedies

Without prejudice to any other right or remedy which the Buyer may have, if any Goods or Services are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods or Services have been accepted by the Buyer:

            to rescind the Order;

            to reject the Goods and Services (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned and for any rejected Services shall be paid forthwith by the Seller;

            at the Buyer’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods and Services or to supply replacement Goods or reperform the Services (as applicable) and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;

            to refuse to accept any further deliveries of the Goods or further performance of the Services but without any liability to the Seller;

            to carry out at the Seller’s expense any work necessary to make the Goods and Services comply with the Contract;

            to recover from the Seller any costs incurred by the Buyer in obtaining substitute goods or services from a third party;

            to require a refund from the Seller of sums paid in advance for Services that the Seller has not performed or Goods that it has not delivered and

            to claim such damages and additional costs, loss and expenses as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.

These Conditions shall extend to any substituted or remedial services or repaired or replacement goods supplied by the Seller.

The Buer’s rights and remedies under the Contract are in addition to and not exclusive of any rights and remedies implied by statute and common law.

 

Termination

The Contract shall commence from the Effective Date and shall remain in force until the Order has been delivered to the Buyer’s satisfaction, unless and until terminated earlier under the terms of the Contract or by mutual consent.

The Buyer shall be entitled to cancel the Contract in respect of all or part only of the Goods and/or Services by giving notice in writing to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the Goods and/or Services in respect of which the Buyer has exercised its right of cancellation, less the Buyer’s reasonable estimate of the Seller’s net saving of cost arising from cancellation.

The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:-

            the Seller is in breach of the terms of the Contract and (if such breach is remediable) fails to remedy that breach within seven (7) days of notice requiring it to do so;

            the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction; or

            an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or

            the Seller ceases or threatens to cease, to carry on business; or

            the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly; or

            the Buyer undergoes a change of control.

 

Consequences of Termination

On termination of the Contract, the Seller shall immediately deliver to the Buyer all deliverables whether or not then complete, and return all Buyer materials. If the Seller fails to do so, then the Buyer may enter the Seller’s premises and take possession of them. Until they have been returned or delivered, the Seller shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.

Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

 

Intellectual Property

All Intellectual Property belonging to either party that exists prior to commencing performance of the Contract will remain the property of that party and no right or grant for the use of such Intellectual Property is implied or given through the Contract to either party, other than for the purposes of provision to and enjoyment of the Goods and Services by the Buyer.

Intellectual Property created by Seller during performance of the Contract will become the property of the Buyer, such Intellectual Property is now assigned to the Buyer by Seller (by way of a present assignment of future rights). To the extent that it is not so assignable the Seller shall promptly assign such Intellectual Property to the Buyer and in the interim hold it on trust for the Buyer. Seller shall ensure that all moral rights in any work protected by such Intellectual Property have been waived.

As reasonably requested by the Buyer and only with respect to Intellectual Property created by Seller for Buyer as provided in paragraph 15.2 above, Seller shall take all steps reasonably necessary to assist Buyer in obtaining and enforcing in its own name any such Intellectual Property right. Seller’s obligation to assist Buyer shall continue beyond the termination of Seller’s relationship with the Buyer.

The Seller grants to the Buyer, or shall procure the direct grant to the Buyer of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the deliverables for the purpose of receiving, using and enjoying the Services and any deliverables arising from performance of the Services.

 

Samples supplied by Buyer

If and to the extent the Buyer supplies Samples to the Seller (e.g., for testing or R&D services), so far as is permitted by law, the Seller assumes all liability for damages which may arise from its receipt, use, storage or disposal of the Samples and it will hold the Buyer and its employees harmless from any loss, claim, damage or liability, of any kind which may arise from or in connection with the Contract or the use, handling or storage of Samples.  In no event will the Buyer be liable for any use by the Seller or any loss, claim, damage or liability, of any kind which may arise from or in connection with the Contract or the use, handling or storage of those Samples which the Seller acknowledges it takes from the Buyer at the Seller’s own risk. For the avoidance of doubt, all Intellectual Property in Buyer supplied Samples shall belong to the Buyer at all times.

 

Force Majeure

In the event that either party is prevented from fulfilling its obligations under this Contract by reason of any supervening event beyond its control (force majeure event) including but not limited to war, pandemic, national emergency, flood, or earthquake,  the party shall not be deemed to be in breach of its obligations under this Contract. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.

If and when the period of such incapacity due to continuing force majeure event exceeds 6 months from the Order date, then this Contract shall automatically terminate unless the parties first agree otherwise in writing.

 

Communications

All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by electronic mail:

            (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller; or

            (in the case of the communications to the Buyer) to the address on the Order or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.

            Communications shall be deemed to have been received:

            if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or

            if delivered by hand, on the day of delivery; or

            if sent by electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.

Communications addressed to the Buyer shall be marked for the attention of the Finance Department

Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or subject to clause 15.1.1 and 15.1.2 such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.

 

Confidentiality

Seller will take all reasonable steps to ensure that any Confidential Information remains confidential and is not disclosed to another person or organisation.

This obligation of confidentiality will remain in force beyond the cessation or other termination of the Contract.

This clause shall not apply to any information which is already in the public domain at the time when it is provided to the Seller, and shall cease to apply to the extent where Seller is required by law to make a disclosure, or if at any time the information becomes public knowledge through no fault of Seller.

Seller undertakes that any information which is received from Buyer in the provision of the Goods and/or Services will only be used for the purposes of the Contract.

The Seller may not use the Buyer’s name and logo in its marketing material without prior written consent being obtained from the Buyer, the Seller shall not divulge the nature of the Services, Goods or any of the Buyer’s confidential material.

On termination of the Contract, Seller shall return to Buyer, or (at Buyer’s option) destroy, all Confidential Information that Seller has received, make no further use of any of the Confidential Information and immediately deliver to Buyer any tangible items which have been provided by Buyer to Seller and at the Buyer’s option deliver all work in progress.

 

Assignment and other dealings.

The Buyer 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 Contract.

The Seller 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 Contract [without the prior written consent of the Buyer].

Subcontracting. The Seller may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Buyer. If the Buyer consents to any subcontracting by the Seller, the Seller shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

 

Waiver

No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

Severance

If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.

 

No partnership or agency.

The parties to the Contract are independent businesses and nothing in the Contract or by virtue of performing it shall be taken as creating a relationship of agent to principal, employer to employee, partnership or joint venture between the Parties.

Neither party shall be entitled to enter into agreements or other arrangements on behalf of the other.

Each party confirms it is acting on its own behalf and not for the benefit of any other person.

 

Third Party Rights

A person who is not a party to the Contract shall have no rights under this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

 

Governing Law and Jurisdiction

The Contract shall be governed by the laws of England and Wales and the parties agree to submit to the exclusive jurisdiction of the English and Welsh courts.

Both parties agree that the terms of the Contract are fair and reasonable in all the circumstances.