Supplier terms and conditions
1. Parties and Defined Terms
1.1 In this Contract the following words shall have the following meanings:
'Buyer' shall mean The Children’s Hospice South West, a company registered in England and Wales (number 2620879) whose registered office is at Little Bridge House, Redlands Road, Fremington, Barnstaple, Devon, EX31 2PZ.
'Conditions' shall mean these Terms and Conditions of Purchase;
‘Confidential Information’ means the terms of this Agreement, secret or confidential commercial, financial including costs to the Buyer, marketing, technical, know-how, trade secrets and other information relating to The Buyer or the Supplier, in any form or medium whether disclosed orally or in writing before or after the date of this Agreement, together with any reproductions of such information in any form or medium or any part of this information;
'Contract' shall mean the contract between the Buyer and Supplier consisting of the Purchase Order, the Conditions and any other documents specified in the Purchase Order;
'Goods' shall mean all goods specified in the Purchase Order;
'Purchase Order' shall mean the Buyer's Purchase Order that specifies that the Conditions apply to it;
'Supplier' shall mean the person, firm or company to whom the Purchase Order is addressed;
'Services' shall mean the services specified in the Purchase Order.
1.2 If there is any inconsistency between the documents comprising the Contract, they shall have precedence in the following order: (1) the Purchase Order; (2) the Conditions; (3) any other documents specified in the Purchase Order. To the extent that the parties have executed a separate agreement covering the subject matter of this Purchase Order, the terms of that separate agreement will supersede and prevail over the Conditions and the Conditions shall not apply to any such agreement.
1.3 This Contract comprises the entire agreement between the parties and replaces any previous agreement relating to the same subject matter. The Conditions shall apply to the Contract to the exclusion of any other terms and conditions that the Supplier seeks to incorporate or which are implied by trade, custom, practice or course of dealing and the acceptance of Goods and/or Services by the Buyer shall not constitute acceptance of any terms or conditions of the Supplier.
1.4 A Contract shall come into existence when the Buyer accepts the Supplier's offer to provide Goods or Services by placing a Purchase Order. Any order acknowledgement sent by the Supplier shall be confirmation of receipt of the Purchase Order and these Terms and Conditions.
2. Quality and fitness for purpose of Goods and Services
2.1 The Supplier warrants that all Goods delivered shall:
2.1.1 be of satisfactory quality and for a period of 12 months from the date of delivery be free from defects in material, design or workmanship;
2.1.2 be fit for the purpose for which the Goods are required. If the Supplier has any doubts as to the purpose for which the Buyer requires the Goods, it must seek clarification from the Buyer;
2.1.3 conform with any specifications, drawings, descriptions and samples referred to in the Contract;
2.1.4 be free of any third party lien, claim, title or interest; and
2.1.5 conform with all laws and regulations applicable to the Goods.
2.2 The Supplier warrants that the Goods shall be fit for the purpose intended, and that each item and any component parts comprising the Goods shall be fit for the purpose intended.
2.3 The Supplier warrants that it shall carry out the Services promptly and with all due skill, care and diligence, and that Services shall be performed by appropriately experienced, qualified and trained personnel who will liaise with the Buyer in a professional and courteous manner at all times.
2.4 The Supplier shall meet any performance dates for the Services specified in the Contract or notified to the Supplier by the Customer.
2.5 In providing the Services, the Supplier shall:
2.5.1 co-operate with the Buyer in all matters relating to the Services, and comply with all instructions of the Buyer;
2.5.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
2.5.3 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Contract;
2.5.4 ensure that the Services, together with the associated supply of any Goods, will conform with all descriptions and specifications set out in the Contract, and shall be fit for any purpose expressly or impliedly made known to the Supplier by the Customer;
2.5.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
2.5.6 use the best quality goods, materials, standards and techniques, and ensure that the delivered goods and materials supplied and used in the Services or transferred to the Customer, will be free from defects in workmanship, installation and design;
2.5.7 comply with all applicable laws and regulations;
2.5.8 observe all health and safety rules and regulations and any security requirements that apply at any of the Buyer’s premises;
2.5.9 hold all materials, equipment and tools, drawings, specifications and data supplied by the Buyer to the Supplier (Buyer Materials) in safe custody at its own risk, maintain the Buyer Materials in good condition until returned to the Buyer, and not dispose or use the Buyer Materials other than in accordance with the Buyer’s written instructions or authorisation;
2.5.10 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 Supplier acknowledges that the Buyer may rely or act on the Services
2.6 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.
3.1 The date for delivery of the Goods or performance of the Services shall be that specified in the Purchase Order. Delivery may only be made in instalments if specified in the Purchase Order. Time shall be of the essence and the Supplier shall be responsible for any loss the Buyer suffers because of late delivery or performance of Goods or Services.
3.2 The Supplier shall be responsible for packaging the Goods safely so as to protect any item or part during transportation, unloading or storage. The Supplier must separately label all cases, packages or items. The Supplier shall submit an itemised packing list or delivery note with the Goods showing the packing numbers and the Buyer's Purchase Order number. The Purchase Order number must also be shown on the corresponding invoice and monthly statements.
3.3 Any charges for delivery, installation and insurance must be agreed by the parties prior to placement of the Purchase Order and specified separately on the Purchase Order and the Supplier's invoice. If the charges for delivery, installation and insurance are not shown separately in the Purchase Order, the price for the Goods shall be inclusive of delivery, installation and insurance.
3.4 The property and risk in the Goods shall remain with the Supplier until they are delivered and/or installed in accordance with the terms of the Contract and shall transfer to the Buyer upon completion of delivery. The Supplier shall be responsible for insuring the Goods during delivery, unloading and installation.
4. Price and Payment
4.1 The price for the Goods or Services shall be as specified in the Purchase Order, unless the Supplier's standard charges for the goods or Services are lower on the scheduled delivery date than the prices quoted in the Purchase Order. In this event, the Buyer shall be entitled to purchase the Goods or Services at the lower price.
4.2 The Supplier warrants that the price for the Goods and/or Services is at least as low as the price at which the Supplier is currently selling the Goods and/or Services or similar goods and/or services in the same or similar quantity and value to its most favoured customers.
4.3 VAT (where applicable) shall be payable by the Buyer in addition to the price for the Goods or Services subject to presentation of a valid VAT invoice and shall be clearly identified in the Supplier's invoice.
4.4 Any advance or staged payments made by the Buyer shall be held by the Supplier as a part payment and not as a deposit.
4.5 Unless otherwise agreed in writing the Supplier shall invoice the Buyer upon delivery of the Goods or performance of the Services. Unless otherwise agreed in writing payment shall be due within one calendar month from the end of the month in which delivery of the Goods or Services having been performed, subject to receipt by the Buyer of a correctly presented invoice PROVIDED that such invoice:
4.5.1 refers to the correct Purchase Order (if applicable);
4.5.2 is issued in pounds Sterling;
4.5.3 refers to the time period to which they relate (if appropriate);
4.5.4 is issued at the correct time as provided in this Agreement;
4.5.5 is addressed to ‘Children’s Hospice South West’ unless otherwise specified by the Buyer;
4.5.6 includes the Supplier’s bank details and account for payment; and
4.5.7 is a valid VAT invoice.
and the Supplier shall issue the Buyer with a regular monthly statement showing amounts due or payable in respect of outstanding invoices.
5.1 The Supplier acknowledges that a complete inspection of the Goods cannot always be made on delivery and agrees that, by taking delivery of the Goods, the Buyer is not agreeing that their delivery constitutes satisfactory performance of the Contract and does not waive or relinquish any rights that it may have against the Supplier for failure to discharge its obligations under the Contract.
5.2 Where the Goods that are delivered or the Services performed by the Supplier are defective for any reason, the Buyer shall give notice to the Supplier of its rejection of the Goods or Services or part of them within a reasonable time of delivery or performance.
5.3 Any rejected Goods shall be returnable at the Supplier’s risk and expense.5.4 Without prejudice to any other remedies available to the Buyer, the Buyer shall have the option to require the Supplier to replace defective Goods or re-perform defective Services promptly and at no expense to the Buyer, or to refund to the Buyer the price for the defective Goods or Services. Repaired and replaced Goods, and re-performed Services, shall be subject to the terms of the Contract. 5.5 During any warranty period specified in the Contract, where applicable, software updates and corrections shall be provided by the Supplier promptly and free of charge.
6.1 Any variation to the Contract must be agreed in writing by both parties using the Buyer's order amendment form whichand must refer to the original Purchase Order number.
7. Order Cancellation
7.1 The Buyer shall have the right at any time to cancel any Purchase Order for standard stocked Goods or standard Services at any time prior to delivery without incurring any charge. If the Buyer cancels a Purchase Order for non-standard stocked Goods or Services the Buyer shall reimburse the Supplier's reasonable costs incurred as a result of cancellation.
7.2 In addition, the Buyer may terminate the Contract immediately by giving notice in writing to the Supplier if the Supplier fails to supply the Goods or Services within the delivery times specified in the Purchase Order, or the Buyer reasonably believes at any time that the Supplier will not supply the Goods or Services within the delivery time, or the Supplier is in material breach of the Contract, and the Buyer shall have no further liability to the Supplier following cancellation of the Contract for these reasons.
8. Intellectual Property Rights
8.1 The Supplier warrants that it is the sole owner of the Goods and has full and unrestricted right and authority to supply the Goods and Services to the Buyer on the terms of this Contract.
8.2 The Supplier shall, promptly at the Buyer’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Buyer may from time to time require for the purpose of securing for the Buyer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned.8.3 The Supplier will indemnify and keep indemnified the Buyer against all losses, costs and expenses arising from any claim of infringement of third party intellectual property rights by the Supplier's supply or the Buyer's use of the Goods or Services.
9.1 Each party undertakes to keep confidential the Confidential Information of the other party disclosed to it and to use the other party's Confidential Information solely for purposes related to this Agreement.
9.2 Receiving Party will not disclose, copy, reproduce or distribute Disclosing Party’s Confidential Information to any person, except:
9.2.1 with the prior written consent of Disclosing Party;
9.2.2 to its employees, professional advisors, consultants and authorised representatives (including to such persons representing its group undertakings), but only to the extent that disclosure is necessary for the purposes related to this Agreement; or
9.2.3 where disclosure is required by law, by a court of competent jurisdiction, by the rules of any stock exchange or by the mandatory requirements of another appropriate regulatory body, provided that all reasonable steps to prevent such disclosure will be taken, the disclosure will be of the minimum amount required, and the Receiving Party consults the Disclosing Party first on the proposed form, timing, nature and purpose of the disclosure.
9.3 The obligations under Clauses 9.1 and 9.2 will not apply to Confidential Information:
9.3.1 to the extent it is or becomes generally available to the public other than through a breach of this Agreement; or
9.3.2 which the Receiving Party can show by its written or other records was in its lawful possession prior to receipt from the Disclosing Party and which had not previously been obtained from the Disclosing Party or another person under an obligation of confidence; or
9.3.3 which subsequently comes into the possession of the Receiving Party from a third party who does not owe the Disclosing Party an obligation of confidence in relation to it.
10. Remedies and Indemnity
10.1 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 Supplier fails to comply with any of the terms of this Agreement, 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:
10.1.1 to rescind the Purchase Order;
10.1.2 to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by the Supplier;
10.1.3 at the Buyers option to give the Supplier the opportunity at the Supplier’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 this Agreement are fulfilled;
10.1.4 to recover from the Supplier any costs incurred by the Buyer in obtaining substitute goods and/or services from a third party;
10.1.5 to refuse to accept any further deliveries of Goods or Services
10.1.6 to carry out at the Supplier’s expense any work necessary to make the Goods or Services comply with this Agreement; and
10.1.7 to claim such damages as may have been sustained in consequence of the Supplier’s breaches of this Agreement.
10.2 The Supplier shall keep the Buyer indemnified in full against all direct, indirect or consequential liability, loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:
10.2.1 any act or omission of the Supplier or its employees, contractors or agents in supplying, installing and delivering the Goods or Services; and
10.2.2 any claim made against the Buyer in respect of any liability, loss, damage, injury, cost or expense sustained by the Buyers employees or agents or by
10.2.3 any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods or Services.
11. Assignment and Subcontracting
11.1 Notwithstanding any provision to the contrary in this Agreement, the Supplier may not subcontract, assign, transfer, novate or otherwise dispose of to any third party, this Contract, any right to receive payment, or any right to receive interest on late payment under this Contract without the Buyer’s prior written consent.
12. Hazardous Goods and Regulatory Requirements
12.1 Any Goods having a toxic hazard or other hazard to the safety of persons or property must be marked by the Supplier with appropriate internationally recognised danger symbols clearly identifying the name of the material in English, and the Supplier should give the Buyer as much prior written notice as possible of such Goods. Transport and other documents must include a declaration of the hazard and name of the material in English. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings giving full details of precautions to be taken on the delivery of such Goods and their handling or storage. The Supplier shall observe the requirements of the UK and international law relating to the packaging, labelling and carriage of all Goods.
13.1 Without limiting its other rights or remedies, the Buyer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
13.1.1 the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing to do so;
13.1.2 the Supplier repeatedly breaches any of the terms of the 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;
13.1.3 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
13.1.4 the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
13.1.5 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
13.1.6 the Supplier (being an individual) is the subject of a bankruptcy petition or order;
13.1.7 a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
13.1.8 an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
13.1.9 the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.1.10 a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
13.1.11 any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.1.3 to clause 13.1.10 (inclusive);
13.1.12 the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business; or
13.1.13 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
14.1 During the term of the Contract and for a period of three years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the 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.
15.1 This Contract shall be governed by and construed in accordance with English law and shall be subject to the exclusive jurisdiction of the English courts.
15.2 Failure or delay by the Buyer to exercise any of its rights shall not be a waiver or forfeiture of such rights. Any waiver by the Buyer of any term or condition of this Contract or of any breach by the Supplier may be terminated by the Buyer at any time and shall not prevent the Buyer from enforcing any term of this Contract or from acting on that or any subsequent breach.
15.3 The Supplier shall keep full and accurate records relating to its performance of the Services and performance by its sub-contractors ('Records'). The Supplier shall grant to the Buyer and its authorised agents the right of access at all reasonable times to inspect and take copies of the Records and any part of them and shall allow the Buyer to obtain such information as it considers necessary to monitor and verify the Supplier’s performance provided that any such inspection is carried out with reasonable prior notice and so as not to have any material adverse effect on the performance of the Services or other business of the Supplier.
15.4 The Buyer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Buyer against any liability of the Buyer to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
15.5 Subject to clear written confirmation from the Buyer to the contrary, these Terms and Conditions of Contract are the only conditions upon which the Buyer is prepared to deal with the Supplier and they shall govern all orders and supply of Services (as the case may be) to the entire exclusion of all other terms or conditions. No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or confirmation of order, specification or similar document will form part of this Contract and the Supplier hereby waives irrevocably any right which it otherwise might have to rely on such terms and conditions.
15.6 A person who is not a party to the Contract shall not have any rights to enforce its terms.
15.7 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.