1.1 In these Conditions "Company" means Spiroflow Limited and includes its successors and assigns; "Purchase Order" means the Company's order for the purchase of goods or services; "Supplier" means the party to whom the Purchase Order is addressed; "Contract" means the contract between the Company and the Supplier for the sale and purchase of the goods and/or the supply and acquisition of the services described in the Purchase Order.
2.1 The Purchase Order constitutes an offer by the Company to purchase the goods and/or acquire the services described in it subject to these Conditions.
2.2 These Conditions are to apply to the Contract to the exclusion of all other terms and conditions on which any quotation has been given to the Company or subject to which the Purchase Order is accepted or purported to be accepted by the Supplier.
2.3 The Purchase Order may be withdrawn by the Company at any time prior to its unconditional acceptance by the Supplier. Supply of goods and/or services under the terms of the Purchase Order will be deemed unconditional acceptance.
2.4 No variation to the Purchase Order or these Conditions will be binding unless agreed in writing by an authorised representative of the Company.
3.1 The quantity, quality and description of the goods and/or services are to be as specified in the Purchase Order and/or in any applicable specification supplied by the Company to the Supplier.
3.2 Any applicable specification and/or quantities may be subject to alteration at the instance of the Company at its sole discretion. The Supplier will give effect to any such variation as soon as received by it. In such case the company and the supplier will agree an adjustment in the price.
3.3 Any specification supplied by the Company to the Supplier, or specifically produced by the Supplier for the Company, in connection with the Contract, together with the copyrights, design rights and/or any other intellectual property rights in the specification, are to be the exclusive property of, and confidential to, the Company. The Supplier must not use or disclose any such specification except as required for the purpose of the Contract.
3.4 Unless otherwise agreed in writing by an authorised representative of the Company the Supplier must comply with all applicable British Standards and all regulations or other legal requirements concerning the design, manufacture, testing, packaging, packing, labeling and delivery of the goods and/or the performance of the services.
3.5 Goods must be marked in accordance with the Company's instructions and all lawful requirements and properly packed and secured for delivery to the Company in an undamaged condition.
4.1 The price of the goods and/or services will be as stated in the Purchase Order and may not be varied by the Supplier.
4.2 Unless otherwise stated in the Purchase Order the price is inclusive of all charges for packaging, packing, crates or containers, handling, shipping, carriage, loading, unloading, insurance and delivery of the goods to the point of delivery stated in the Purchase Order and any duties, imposts or levies (other than VAT).
4.3 The price is exclusive of any applicable VAT which will be payable by the Company subject to receipt of a VAT invoice.
5.1 The Supplier will be entitled to invoice the Company on or at any time after delivery of the goods or performance of the services, and each invoice must quote the number of the Purchase Order.
5.2 Unless otherwise agreed in writing by an authorised representative of the Company, payment of the price will be due 60 days after the end of the month of receipt by the Company of a proper invoice or, if later, 60 days after acceptance of the goods or services by the Company.
5.3 The Company will be entitled to set off against the price any sums owed to the Company by the Supplier, whether under the Contract or otherwise.
6.1 Delivery is to be made in the manner stated in the Purchase Order and must be accompanied by a delivery note.
6.2 Signature of a delivery note by the duly authorised representatives or agents of the Company is proof of delivery only.
6.3 The time of delivery of the goods and performance of the services is of the essence of the Contract.
6.4 The Company will be entitled to reject any goods delivered which are not in accordance with the Contract. The Company will not be deemed to have accepted any goods until the Company has actually inspected them following delivery or, if later, within a reasonable time after any latent defect in the goods has become apparent.
6.5 Notwithstanding clause 6.4 and section 35 of the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994, where the goods are to be commissioned by the Supplier on the premises of the Company (or elsewhere at the Company's request) acceptance of the goods will not take place or be deemed to take place until such commissioning has been carried out and completed satisfactorily in all respects.
6.6 Notwithstanding that the Supplier's obligations under this clause may have otherwise been fulfilled, performance of the Contract will not be deemed to have taken place until such time as all documentation specified in the Purchase Order has been furnished.
7.1 Risk of damage to or loss of the goods will pass to the Company on delivery in accordance with the Contract.
7.2 The property in the goods will pass to the Company on delivery, unless payment of the goods is made prior to delivery, when it will pass to the Company once payment has been made and the goods have been appropriated to the Contract.
8.1 The Supplier warrants that the goods: -
8.1.1 will be of satisfactory quality and fit for any purpose held out by the Supplier or made known to the Supplier at the time the Purchase Order is placed;
8.1.2 will be free from all defects in design, material and workmanship.
8.1.3 will correspond with any relevant specification or sample;
8.1.4 will not infringe the rights of any third party.
8.2 The Supplier warrants that any services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as is reasonable for the Company to expect in all the circumstances.
8.3 Without limiting any other available remedy, if any goods or services are not supplied or performed in accordance with the Contract or develop a defect within 12 Months after acceptance of the goods by the company. The Company, at its option, will be entitled, notwithstanding any acceptance of the goods by the Company:
8.3.1 to reject the goods, to require the Supplier to repair the goods or to supply replacement goods or services in accordance with the Contract; or
8.4 The Supplier will indemnify the Company in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with any breach by the Supplier of the Contract or any of these Conditions.
The Supplier warrants and undertakes to the Company:
9.1 that it will promptly supply to the Company from time to time such information as is necessary to enable the Company to assess the nature and extent of any product safety risks associated with the goods or their use and will take such steps as may be reasonably necessary to enable the Company to comply with the requirements of all applicable safety legislation.
9.2 that the goods or materials shall be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health and comply with all British and European standards or other recognised standards of health and safety including the health and safety requirements of the Health & Safety at Work etc Act 1974, the Consumer Protection Act 1987 and the General Product Safety Regulations 1994.
9.3 that any goods or materials which are (or will be upon supply in the European Union) within the scope of the CE marking requirements of any relevant EU directive or local laws implementing the same will satisfy the relevant requirements and shall bear a properly affixed CE mark, have a certificate of conformity and all necessary technical specifications, and will meet all relevant health and safety requirements applicable to the goods both in the state or form supplied to the Company and when combined with other goods. It is the responsibility of the Supplier to acquaint itself with the purpose for which the goods are to be supplied.
9.4 that the Supplier will before delivery furnish the Company in writing with a list by name and description of any harmful or potentially harmful properties or ingredients in any goods or materials to be supplied whether in use or otherwise and thereafter information concerning any changes in such properties or ingredients. The Company will rely on the supply of such information from the Contractor in order to satisfy its own obligations under relevant health and safety requirements including the Health and Safety at Work etc Act 1974 and the Control of Substances Hazardous to Health Regulations 1988.
10.1 The Company will be entitled to require the suspension of deliveries or to cancel the Contract without incurring any liability to the Supplier, and without limiting any other rights it may have against the Supplier, by giving written notice to the Supplier at any time if: -
10.1.1 the Supplier ceases, or threatens to cease, to carry on business; or
10.1.2 the Company reasonably apprehends that the Supplier is about to cease business or is unable to pay its debts; or
10.1.3 delivery is not made within the time specified; or
10.1.4 the Supplier commits any other material breach of any term or condition of the Contract and has failed to remedy the same on receipt of notice from the company.
And in any such circumstances any payments made by the Company to the Supplier under the Contract shall immediately become repayable.
10.2 In addition to its rights under clause 10.1 the Company may cancel the Contract by written notice to the Supplier given at any time in which case the Company (unless at the time of such cancellation it could have terminated the contract under clause 10.1) will be liable to pay a fair and reasonable price to the Supplier:
10.2.1 for goods and services already supplied under the Contract and finally accepted by the Company prior to cancellation
10.2.2 for finished goods in respect of which manufacture had commenced at the date of such termination and which the Supplier subsequently delivers to the Company, provided that the goods and delivery would (if the Contract were then in force) conform with the Contract in all respects
10.2.3 for all stocks of raw materials which at the date of termination the Supplier has acquired or is committed to acquire for the purposes of the Contract and which the Company is satisfied could not otherwise be utilised by the Supplier
And the Company will not be liable for any consequential loss or damage or loss of profit incurred by the Supplier by reason of such cancellation.
11.1 Without prejudice to the right of the Company to reject goods or to any other right or remedy of the Company, the Company may (but will not be obliged to) inspect the goods during manufacture and before despatch and carry out such tests as are called for in the Purchase Order or any specification referred to therein and the Supplier will allow facilities to the Company's representatives for this purpose and where appropriate notify the Company when the goods are ready for inspection and testing.
11.2 Where the Purchase Order comprises a number of similar items and an inspection or test carried out by or for the Company would entitle the Company to reject one or more items, the Company may reject all items comprised in the Purchase Order except to the extent that they are shown to be satisfactory in tests carried out at the Supplier's expense.
12.1 The Purchase Order is personal to the Supplier and the Supplier may not assign or transfer, or purport to assign or transfer, to any other person any of its rights or sub-contract any of its obligations under the Contract.
12.2 No waiver by the Company of any breach of the Contract by the Supplier will be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is 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 provision in question will not be affected.
12.4 The Contract is subject to the law of England and Wales.
12.5 All disputes arising out of the Contract will be subject to the non-exclusive jurisdiction of the courts of England and Wales.