Terms & Conditions for Supply Only

1. Interpretation

1.1 In these conditions

‘Buyer’ means the person or company placing the Order (as stated in the Order).

‘Contract’ means the agreement between the Buyer and the Supplier comprising the Order, these Terms and Conditions and the Contract Documents.

‘Contract Documents’ means those documents specified or otherwise referred to in the Order.

‘Delivery Date’ has the meaning given in clause 4.1.

‘Delivery Location‘ has the meaning given in clause 4.5.1.

‘Insolvent’ has the meaning given in section 113 of the Housing Grants Construction and Regeneration Act 1996 (as amended).

‘Order’ means the order for the Supply as issued by the Buyer to the Supplier.

‘Supplier’ means the person or company to whom the Order is addressed (as stated in the Order).

‘Site’ means the site defined in the Order.

‘Supply’ means the materials and goods to be supplied by the Supplier, as more particularly described in the Order and the Contract Documents.

‘Terms and Conditions’ means the standard terms and conditions set out in this schedule and (unless the context otherwise requires) shall include any special terms and conditions agreed in Writing between the Buyer and the Supplier and/or set out in the Order.

‘Writing‘ includes letter, e-mail, cable and facsimile transmission and comparable means of communication.

1.2 Any reference in these Terms and Conditions to any provision of a statue, regulation, order or other form of legislation is construed as a reference to that provision as amended re-enacted or extended from time-to-time.

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

1.4 A week covers the period from Monday to Sunday inclusive and a reference to a day or days shall be computed as clear days to include Saturday, Sunday, or Bank Holidays, unless expressed as working days.

2. General

2.1 These Terms and Conditions apply to the Order to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.2 Notwithstanding anything to the contrary in the Supplier’s standard conditions or in any tender, quotation, advice note, invoice acknowledgement, letter or any other document issued or sent by the Supplier these Terms and Conditions shall apply except as otherwise specifically agreed by the Buyer in Writing.  No servant or agent of the Buyer has power to vary these Terms and Conditions orally and any variation to the Order shall only be binding if agreed to in Writing by the parties.  If the Supplier shall not have previously accepted these Terms and Conditions then provision by him of the Supply shall constitute such acceptance.

2.3 These Terms and Conditions shall be subject to such further special conditions as may be set out in the Order and in the event of any conflict or apparent conflict between any special conditions and these Terms and Conditions, the special conditions shall prevail.

2.4 The Order is personal to the Supplier and may not be assigned to or sub-let without the Buyer’s consent in Writing.  The Buyer may at any time assign, transfer, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Order.

2.5 A waiver of any right or remedy under the Order is only effective if given in Writing and no waiver by the Buyer of any breach of the Order by the Supplier shall be considered as a waiver of any subsequent breach or default.

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

2.7 The parties agree that English law shall apply to this Order and that any dispute shall be referred to the non-exclusive jurisdiction of the English Courts.

2.8 It is not intended that the Order shall confer on any third party any right to enforce any term of the Order pursuant to the Contracts (Rights to Third Parties) Act 1999.

3. Quality

3.1 The Supplier shall ensure that the Supply shall:

3.1.1 correspond with their description and any applicable specification or other requirement set out in the Contract Documents;

3.1.2 be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Buyer expressly or by implication, and in this respect the Buyer relies on the Supplier’s skill and judgment;

3.1.3 where applicable, be free from defects in design, material and workmanship;

3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Supply;

3.1.5 be to the satisfaction of the Buyer.

3.2 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

3.3 The Buyer shall have the right to inspect and test the Supply at any time before delivery.

3.4 If following such inspection or testing the Buyer considers that any part of the Supply does not conform or is unlikely to comply with the Supplier’s undertakings at clause 3.1, the Buyer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Supply and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the relevant Order, and the Buyer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.

3.6 The Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982 shall apply to the Order in so far as these Terms and Conditions are not inconsistent therewith.

3.7 The Supplier shall comply with all law and regulations concerning the manufacturing, procuring, purchasing, transport and delivery of the Supply, and with the relevant requirements of the Health & Safety at Work Act 1974 and all other applicable legislation.

3.8 All goods and materials forming a part of the Supply shall be delivered to Site in good working order. The Buyer may request removal from Site of any part of the Supply which is unsafe or unfit for use and will accept no charges in respect of such unfit or unsafe goods or materials.

4. Deliveries

4.1 Deliveries are to be made in accordance with the dates shown on the Order, unless otherwise agreed in Writing.  Time shall be of the essence and late delivery will be regarded as constituting a breach of the Order.  The Supplier will furnish on request such programmes of procurement, manufacture and delivery as the Buyer shall reasonably require and shall give notice to the Buyer as soon as practicable if such programmes are likely to be delayed.

4.2 Delivery and carriage of goods and materials in respect of the Supply must be free to the Buyer unless otherwise expressly agreed in Writing, and carriage paid whatever the mode of transit.  Where sent by rail or carrier, detailed advice notes must be sent to the Delivery Location on the day of despatch.

4.3 Any damage suffered or costs incurred by the Buyer as a result of delivery delays will be charged to the Supplier, who will indemnify the Buyer against all claims arising out of or in the course of the Contract attributable in any way to the execution of the Contract, or any defect or failure in the Supply.

4.4 The Supplier shall ensure that:

4.4.1 the Supply is properly packed and secured in such manner as to enable it to reach its destination in good condition;

4.4.2 each delivery of the Supply is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the goods and materials forming a part or all of the Supply, special storage instructions (if any) and, if the goods and materials forming a part of the Supply are being delivered by instalments, the outstanding balance of goods and materials in relation to the Supply remaining to be delivered; and

4.4.3 if the Supplier requires the Buyer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.

4.5 The Supplier shall deliver the Supply:

4.5.1 to the Site, or such other location as is set out in the Order, or as instructed by the Buyer prior to delivery (‘Delivery Location’); and

4.5.2 during the Buyer’s normal business hours, or as instructed by the Buyer.

4.6 Delivery of the Supply shall be completed on the completion of unloading the goods and materials forming a part of or all of the Supply at the Delivery Location and the Supply having been accepted by the Buyer in accordance with clause 7.

4.7 If the Supplier:

4.7.1 delivers less than 95% of the quantity of goods and materials forming the Supply ordered, the Buyer may reject them; or

4.7.2 delivers more than 105% of the quantity of goods and materials forming the Supply ordered, the Buyer may at its discretion reject the Supply or the excess goods and materials, and any rejected goods and materials shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of goods and materials forming the Supply ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the goods and materials.

4.8 The Supplier shall not deliver the Supply in instalments without the Buyer’s prior consent in Writing. Where it is agreed that the Supply is to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Buyer to the remedies set out in clause 8.2.

4.9 The Supplier shall be responsible for unloading and loading the Supply at the Delivery Location.

5. Title and Risk

5.1 Title in goods or materials (or any part thereof) forming part of the Order shall pass to the Buyer on the earlier of payment of the Order (or any part thereof) or delivery of the Order (or any part thereof).

5.2 The Supply and all of the goods and materials forming a part of the Supply will remain at the Supplier’s risk as regards deterioration, damage or loss until they are actually delivered to and accepted by the Buyer, irrespective of the method of transportation.

5.3 The Supplier shall on request provide evidence that he has paid all manufacturers or other suppliers or sub-contractors in respect of monies due to them, prior to the delivery of the Supply and/or any part of the Supply to the Buyer.

6. Quantity and Type

6.1  Without prejudice to its rights pursuant to clause 4.7, the Buyer will not be liable in any respect for any Supply either of the wrong specification or in excess of that stated on the Order, and will be entitled to accept any such Supply (without additional cost), or reject any delivery or part of any delivery consisting of insufficient, excessive or incorrect goods or materials.

6.2 The Buyer will endeavour to advise the Supplier of any shortage, loss or damage in the Supply as delivered and in the absence of a proper credit note reserve the right to deduct the value thereof from any monies due to the Supplier. 

7. Acceptance

7.1 A detailed delivery note must accompany each consignment of any Supply and only a delivery note bearing an original signature of the Buyer’s duly authorised representative will constitute acknowledgement of delivery thereof subject to the terms of the Order.  The signature will not otherwise form evidence of any matter other than simple delivery, nor will such signature be recognised as a variation or extra order without the Buyer’s official confirmation in Writing.

7.2 Notwithstanding the acceptance of any Supply, the Buyer shall be entitled to reject any Supply (or part thereof) which is found to be damaged or defective or otherwise not suitable for its purpose, and/or not otherwise in accordance with the requirements of the Contract, and the Supplier shall immediately remove such defective, damaged or unsuitable goods or materials and replace them with suitable goods or materials, without any further cost to the Buyer.

8. Termination, Remedies and Indemnities

8.1 Without prejudice to any other rights or remedies which the Buyer may possess, the Buyer reserves the right to terminate this Contract (including any Order) at any time prior to completion of delivery, following which the Buyer shall pay all of the Supplier’s outstanding unpaid (and undisputed) invoices, and a fair and reasonable sum for any part of the Supply delivered at the time of termination but for which the Supplier has not submitted an invoice.  For the avoidance of doubt, the Buyer shall be entitled to obtain the Supply from an alternative supplier and, except as set out in this clause 8.1, the Buyer shall not be liable for any of the Supplier’s costs, losses and/or expenses, including any loss of anticipated profits or any consequential loss.

8.2 If the Supply is not made on the date it is due as referred to in clause 4.1, or if the Supply does not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, the Buyer shall have the right to any one or more of the following remedies, whether or not it has accepted the Supply:

8.2.1 to terminate the Contract (including any Order);

8.2.2 to reject the Supply (in whole or in part) and return it to the Supplier at the Supplier’s own risk and expense;

8.2.3 to require the Supplier to repair or replace any of the rejected goods or materials, or to provide a full refund of the price of the rejected goods or materials (if paid);

8.2.4 to refuse to accept any subsequent delivery of the goods or materials which the Supplier attempts to make;

8.2.5 to recover from the Supplier any costs incurred by the Buyer in obtaining substitute goods or materials from a third party; and

8.2.6 to claim damages for any other costs, loss or expenses incurred by the Buyer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract (including any Order).

8.3 The Buyer may terminate this Contract (including any Order) with immediate effect by giving notice in Writing to the Supplier if the Supplier becomes subject to any of the following events:

8.3.1 the Supplier commits a material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 5 working days after being notified in writing to do so;

8.3.2 the Supplier repeatedly breaches any of the terms of this Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract; and/or

8.3.3 the Supplier is Insolvent.

8.4  Following a termination pursuant to clause 8.2.1 and clause 8.3, the Buyer shall pay all of the Supplier’s outstanding unpaid (and undisputed) invoices, provided that:

8.4.1 the Buyer shall not be obliged to make any payment to the Supplier until the Buyer has obtained the Supply from an alternative supplier and has agreed the total cost of obtaining such Supply with an alternative supplier; and

8.4.2 the Buyer shall be entitled to set-off and/or recover from the Supplier all costs, losses, damages and expenses incurred or which have or may in the opinion of the Buyer be incurred by the Buyer by reason of the termination including (without limitation) the costs incurred in obtaining the Supply from an alternative supplier.

8.5 These Terms and Conditions shall apply to any repaired or replacement goods or materials supplied by the Supplier.

8.6 The Supplier shall keep the Buyer indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, penalties, and legal and other professional fees and expenses awarded against or incurred or paid by the Buyer as a result of or in connection with:

8.6.1 any claim made against the Buyer for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the supply or use of the Supply;

8.6.2 any claim made against the Buyer by a third party arising out of, or in connection with, the Supply, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Order by the Supplier, its employees, agents or sub-contractors; and

8.6.3 any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in goods or materials, to the extent that the defect in the goods or materials is attributable to the acts or omissions of the Supplier, its employees, agents or sub-contractors.

This clause 8.6 shall survive termination of the Order.

8.7 The Buyer’s rights and remedies under these Terms and Conditions, and any termination of the Supplier, are in addition to its rights and remedies implied by statute and common law.

9. Price and Payment

9.1 The Supply will be paid for at the prices stated on the Order, unless otherwise agreed by the Buyer in Writing before delivery is made, or, if the price is not so quoted, a fair and reasonable price.

9.2 The price for the Supply is exclusive of amounts in respect of value added tax (VAT), but includes the costs of packaging, insurance and carriage of the Supply to the Delivery Location. No extra charges (whether in relation to fluctuations or otherwise) shall be effective unless agreed in Writing and signed by the Buyer in advance.

9.3 The Supplier shall invoice the Buyer upon such dates as are set out in the Order or otherwise agreed by the Buyer, or in the absence of either, by the end of the month following completion of delivery.

9.4 The Buyer shall pay correctly rendered invoices within 60 days of the end of the month in which the invoice is received. Payment shall be made to the bank account nominated in Writing by the Supplier. 

10. Set-offs and Contra Charges

The Buyer reserves the right to set-off or deduct from any monies due or becoming due to the Supplier the amount of any actual or contingent costs, claims, damages or expenses which the Buyer may have or is likely to incur in respect of any breaches of this Contract (including any Order) or the supply of any goods or materials in connection with this or any other contract, or the amount of any outstanding or disputed accounts rendered by the Buyer to the Supplier for goods or materials supplied or services rendered by the Supplier to the Buyer.

11. VAT

Where the Supply is subject to VAT, the amount legally demandable is to be rendered as a separate item of account on a form of VAT invoice acceptable to HM Customs & Excise, and if required the Supplier shall produce bona fide evidence of the amount paid or to be paid in respect thereof.

12. The Buyer’s property

The Supplier acknowledges that all materials, equipment and tools, drawings, specifications, and data supplied by the Buyer to the Supplier (‘the Buyer Materials’) and all rights in the Buyer Materials are and shall remain the exclusive property of the Buyer. The Supplier shall keep the Buyer Materials in safe custody at its own risk, maintain them in good condition until returned to the Buyer, and not dispose or use the same other than in accordance with the Buyer’s instructions or authorisation given in Writing.

13. Insurance

During the term of the Order, the Supplier shall maintain in force, with a reputable insurance company, employer’s liability insurance, professional indemnity insurance (if so stated to apply in the Order), product liability insurance (if so stated to apply in the Order) and public liability insurance to cover such heads of liability as may arise under or in connection with this Contract, and shall, on the Buyer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

14. Publicity

The Supplier may only publicise (in any form including via social media) the Contract, with the express written consent of the Buyer.  Further, the Supplier shall enter into any further agreements as are required by the Buyer in relation to the Order, including without limitation any non-disclosure agreements.