In these terms and conditions (“the Conditions”) the following words shall have the following meanings:
|“Company”||Groovy UK Limited (Company Registration No. 4618091) whose registered office is at 12 Corner House, Narborough Wood Park, Desford Road, Enderby, Leicestershire. LE19 4XT|
|“Goods”||Any goods which the Company is to purchase from the Manufacturer (including any of them or any part of them)|
|“Order”||Any purchase order of the Company for the Goods, incorporating these terms and conditions|
|“Manufacturer”||The person, firm or company who accepts the Company’s Order|
|“Specification”||The specification as detailed in the Order|
|“Confidential Information”||Means information disclosed to the Supplier regarding the products, know-how, designs, customers, prices, finances or business methods and business affairs of the Customer during the Term, other than information which is or becomes (other than through breach of this agreement) in the public domain|
|“Intellectual Property Rights”||Means copyright, rights in designs, trademarks, service marks, business names, rights in get up and rights to sue for passing off or unfair competition, patents, know-how and all other intellectual property rights whether registered or unregistered which relate to any Products and applications for any such rights and all similar or equivalent rights in any part of the world|
|“Delivery Date”||Means the date for delivery of the Products specified in an Order or otherwise agreed between the parties for delivery of an Order or, in the absence of either, such reasonable date for delivery of the Products as shall be specified by the customer, with time being of the essence.|
|“Specification”||Means specifications for the Products as provided by the customer to the Supplier from time to time during the Term.|
|“Term”||Means the term of this agreement which shall continue unless or until either party gives notice to the other that their dealings with regard to the Products shall cease.|
FORMATION AND INCORPORATION
These Conditions are the only conditions upon which the Company is prepared to deal with the Manufacturer and they shall govern to the entire exclusion of all other terms or conditions. No terms and/or conditions endorsed upon, delivered with or contained in the Manufacturer’s quotation, acknowledgement or acceptance of order, specification or similar document will form part of the Conditions and the Manufacturer waives any right which it otherwise might have to rely on such terms and/or conditions. Any reference below to such documents will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referred to in such documents will have effect to the exclusion or amendment of the Conditions.
Each Order for Goods by the Company to the Manufacturer shall be deemed to be an offer by the Company to purchase Goods subject to the Conditions and no Order shall be accepted until the Manufacturer either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part, accepts the offer.
Any variation to the Order or the Conditions shall have no effect unless expressly agreed in writing and signed by a director of the Company. (Mon does these mean you would need to sign Po changes etc)
The quantity, quality and description of the Goods shall, subject as provided in the Conditions, be in accordance with the Specification.
The Manufacturer shall comply with all standards, regulations and/or other legal requirements in force in the United Kingdom from time to time concerning the manufacture, packaging, packing and delivery of the Goods. The Company (acting by itself or through agents) shall have the right to inspect and test the Goods at all times and the Manufacturer shall not unreasonably refuse any request by the Company to inspect and test the Goods during manufacture, processing or storage at the premises of the Manufacturer or any third party prior to despatch and the Manufacturer shall provide the Company with all facilities reasonably required for inspection and testing.
If as the result of such inspection or testing the Company is not satisfied that the Goods will comply in all respects with the Conditions and the Company so informs the Manufacturer within 30 days of inspection or testing the Manufacturer shall take all steps necessary to ensure compliance.
Notwithstanding any such inspection or testing, the Manufacturer shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Manufacturer’s obligations under the Conditions.
The Manufacturer acknowledges that precise conformity of the Specification with the Conditions is of the essence of these Conditions and the Company shall be entitled to reject the Goods if they are not in conformance with the Specification, however slight the breach may be any continual fault which effects the designed function and deems the product not fit for its intended purpose.
The Goods shall be marked in accordance with the Company’s instructions and any applicable regulations or requirements of the carrier and properly packed and stored so as to reach their destination in an undamaged condition in the ordinary course.
The Company may at any time make changes in writing relating to the Conditions including changes in the drawings or specifications, method of shipment, quantities, packing or time or place of delivery. If such changes result in an increasing cost of, or time required for, the performance of the Conditions an equitable adjustment shall be made to the price, delivery schedule or both. Any claim or adjustment by the Manufacturer must be approved by the Company in writing before the Manufacturer proceeds with such changes.
Where any Goods from instruction of initial sample onwards irrespective of whether the Company has rejected the Goods pursuant to the Conditions, the Manufacturer shall not be permitted without the express written consent of the Company, to sell such Goods to any party other than the Company.
The Goods shall be delivered by the Manufacturer on the dates and to the delivery address specified in the Order and delivery shall take place when the Goods are delivered to the Company’s premises.
The Manufacturer shall ensure that each delivery is accompanied by a delivery note which is prominently displayed and which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
Time for delivery shall be of the essence of the Conditions.
If the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Company reserves the right to:
- Reject such Goods and cancel the Conditions in whole or in part
- Refuse to accept any subsequent delivery of the Goods which the Manufacturer attempts to make;
- Recover from the Manufacturer any expenditure reasonably incurred by the Company in obtaining the Goods in substitution from another supplier
- Charge the Manufacturer, in the form of a Late Delivery penalty fine, an amount equal to the amount that the company is fined by its customer due to the late deliver of products supplied by the Manufacturer
No Goods supplied under the Conditions earlier than the date for delivery set out in these Conditions, or in any delivery schedule, will be accepted or paid for unless the Company notifies the Manufacturer in writing of its intention to accept the same.
The Manufacturer shall supply the Company on delivery of the Goods with all operating and safety instructions, warning notices clearly displayed and other information as may be necessary for their proper use, World Wide, including maintenance and repair, for the Company to accept delivery of the Goods.
Where more than one item of Goods is involved in the Order and the Company agrees to accept delivery by instalments, the Conditions shall be construed as a separate contract in respect of each instalment. Nevertheless failure to deliver any instalment shall entitle the Company at its option to treat the Conditions as repudiated.
If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess will be and will remain at the Manufacturer’s risk and will be returnable at the Manufacturer’s expense.
The Manufacturer hereby takes responsibility for all financial penalties incurred by the company due to late delivery of the products and agrees to pay the company by the way of compensation an amount equal to the combined fines and charges incurred by the company because of the Manufacturers late delivery.
RETURN OF FAULTY GOODS
Prior to an order being placed, the Company and the Manufacturer shall agree the process for dealing with the return of faulty Goods or those which fail to conform to the Specification and this shall be detailed in the Order. By accepting these terms and conditions the Manufacturer agrees to accept full responsibility for all manufacturing defects and therefore guarantees to credit the company for the cost of the goods charged to the company by the Manufacturer. Manufacturing defect shall be defined as follows;
Supply. During the Term, the Manufacturer/Supplier shall supply, and the Customer shall purchase, such quantities of Products as the Customer may order in accordance with the terms and conditions of this agreement.
No supply to third parties. The Manufacturer/Supplier undertakes to the Customer not to supply the Products or any product which is similar to or competitive with the Products to any third party without the prior written consent of the Customer. This undertaking is acknowledged to be reasonable taking regard to the disclosure to the Supplier of Intellectual Property Rights and Confidential Information.
Remaining stocks. In the event that the Supplier holds stocks of Products at the end of the Term which are not subject to unfulfilled Orders, these shall at the option of the Customer be purchased by the Customer at the direct cost to the Supplier of such Products or destroyed (with evidence of such destruction to be provided to the Customer).
Risk in the Goods shall pass to the Company upon delivery to the Company in accordance with the Conditions.
The ownership of the Goods shall pass to the Company upon delivery.
The price payable for the Goods shall be the price set out in the Order and shall be inclusive of all charges including delivery of the Goods to the Company’s / Customers premises as advised.
No increase in the price nor extra charges can be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of the Company.
- Will be free from defects in design, material and workmanship;
- Will correspond in every respect with any specifications, drawings, samples or descriptions provided by the Company; and will comply with all statutory requirements and regulations and voluntary codes of conduct relating to the Goods and their sale and supply.
- The Manufacturer shall indemnify and keep indemnified the Company in full from and against all direct, indirect or consequential liability, loss, damages, injury, costs and expenses (including reasonable legal expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
- Breach of any warranty given by the Manufacturer in relation to the Goods;
- Any claim that the Goods infringe, or their use, resale or importation infringes the British or foreign patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right of any other third party except to the extent that the claim arises from any specifications, drawings, samples or descriptions provided by the Company;
- Any claim made against the Company in respect of any liability, loss, damage, cost or expense sustained by the Company’s employees or agents by any customer or third party to the extent that such liability, loss, damage, cost or expense was caused by, relates to or arises from the Goods; or
- Any act or omission of the Manufacturer or its employees, agents or sub-contractors in supplying, delivering and installing the Goods in accordance with the Conditions.
The Company shall be entitled to cancel any Order in whole or in part by giving notice to the Manufacturer at any time prior to delivery of the Goods in which event the Company’s sole liability shall be to pay to the Manufacturer fair and reasonable compensation for work-in-progress at the time of cancellation but such compensation shall not include loss of anticipated profits or any consequential loss.
The Company shall have the right at any time by giving notice in writing to the Manufacturer to terminate the Conditions forthwith if:
- The Manufacturer commits a breach of any of the terms and conditions or terms of the regulatory audit process;
- Any distress, execution or other legal process is levied upon any of the assets of the Manufacturer;
- The Manufacturer enters into any arrangement or composition with its creditors, commits any act of bankruptcy or (being a corporation) if an order is made or an effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction)
- If a petition is presented to court, or if a receiver and manager, receiver, administrative receiver or administrator is appointed in respect of the whole, or any part of, the Manufacturer’s undertaking or assets;
- The Manufacturer ceases or threatens to cease to carry on its business;
- The financial position of the Manufacturer deteriorates to such an extent that in the opinion of the Company the capability of the Manufacturer adequately to fulfil its obligations under the Conditions has been placed in jeopardy; or
- The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Manufacturer.
The termination of the Conditions, however arising, will be without prejudice to the rights and duties of either party accrued prior to termination. The conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with or the Manufacturer fails to comply with any of the terms of these Conditions the Company 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 have been accepted by the Company:
To rescind the Order; to reject the Goods (in whole or in part) and return them to the Manufacturer at the risk and cost of the Manufacturer on the basis that a full refund for the Goods so returned shall be paid forthwith by the Manufacturer at the Company’s option to give the Manufacturer the opportunity at the Manufacturer’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Conditions are fulfilled;
To refuse to accept any further deliveries of the Goods but without any liability to the Manufacturer; to carry out at the Manufacturer’s expense any work necessary to make the Goods comply with the Conditions; and to claim such damages as may have been sustained in consequence of the Manufacturer’s breaches of the Conditions.
HEALTH AND SAFETY
Any Goods supplied under these Conditions shall be so formulated, designed, constructed, finished and packaged as to be safe and without risk to health and all Goods will be supplied with full instructions for their proper use maintenance and repair and with any necessary warning notices clearly displayed.
The Manufacturer agrees before delivery to furnish the Company in writing with a list by name and description of any harmful or potentially harmful properties or ingredients in the Goods 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 Manufacturer in order to satisfy its own obligations under the Health and Safety at Work Act 1974 and any other relevant legislation.
In respect of all Goods supplied the Manufacturer will maintain and observe quality control and supplier quality assurance standards in accordance with the requirements of the Company, its customs, relevant British Standards, statutory and regulatory bodies.
These Conditions are personal to the Manufacturer and the Manufacturer shall not assign or transfer or purport to assign or transfer to any other person any of its rights or subcontract any of its obligations under these Conditions.
The Company may assign these Conditions or any part thereof to any person, firm or company.
The Company reserves the right to defer the date of delivery or payment or to cancel these Conditions or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business through any circumstances beyond its reasonable control.
Without prejudice to the generality of condition the following shall be included as causes beyond the Company’s reasonable control:
- Governmental actions, war or threat of war, national emergency, riot, civil disturbance, sabotage or requisition;
- Act of God, fire, explosion, flood, epidemic or accident;
- Import or export regulations or embargoes labour disputes not including the work-force of the Manufacturer; inability to obtain or delay in obtaining supplies of adequate or suitable material, fuel, parts, machinery or labour; or a power failure or breakdown of machinery.
INTELLECTUAL PROPERTY RIGHTS.
The Supplier acknowledges that all Intellectual Property Right shall remain vested in the Customer absolutely and without exception. In the event that any improvements or enhancement to the Products arise during manufacture or otherwise in the course of this Agreement during the Term, the Supplier will provide full details of these to the Customer and they shall thereafter form part of the Intellectual Property Rights vested in the Customer.
Restricted licence. The only licence (express or implied) granted by the Customer to the Supplier in respect of Intellectual Property Rights relates to the manufacture of Products for sale to the Customer. There is no express or implied licence for the Supplier to manufacture Products for sale to any third party.
Confidential Information. The supplier undertakes to the Customer that during the Term and for a period of two years after the end of the Term it shall not use any Confidential Information for any purpose other than supply of Products to the Customer or disclose any Confidential Information to any third party without the Customer’s consent and that it shall use all reasonable endeavours to prevent use or disclosure of Confidential Information by any of the Supplier’s employees, agents or representatives.
The Manufacturer shall be entitled to invoice the Company before or at any time after delivery of the Goods and each invoice shall quote the number of the Order.
Unless otherwise stated in the Order, the Company shall pay the price of the Goods in accordance with the agreed terms.
Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Manufacturer to the Company against any sums payable by the Company to the Manufacturer under the Conditions.
The Manufacturer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Manufacturer by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Manufacturer may obtain and the Manufacturer shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Manufacturer’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Manufacturer.
WARRANTIES AND INDEMNITY
The Manufacturer warrants to the Company that the Goods:
Will be of satisfactory quality within the meaning of the Sale of Goods Act 1994, and fit for any purpose held out by the Manufacturer or made known to the Manufacturer in writing at the time the Order is placed;
Each right or remedy of the Company under these Conditions is without prejudice to any other right or remedy of the Company whether under these Conditions or not.
Any provision of these Conditions which is held by a competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, void ability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions and the remainder of such provision shall not be affected.
Failure of the Company to enforce or partially enforce any provision of these Conditions will not be construed as a waiver of any of its rights under these Conditions.
The parties to these Conditions do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
The formation, construction, performance, validity and all aspects of these Conditions are governed by English law and the parties submit to the exclusive jurisdiction of the English courts.