In these Conditions:
1.1 “MYSHON Limited, “the company”
1.2 “the Contract” means the agreement concluded between the company and the Contractor for the supply of goods and/or services (including all specifications, patterns, samples, plans, drawings and other documentation which are referred to therein) which, however made, shall be deemed to be made subject to these Conditions.
1.3 “the Contractor” means the Organisation, Company or Person who under the Contract undertakes to supply the Goods to the company.
1.4 “the Goods” means all goods, materials, articles or services which the Contractor is required under the Contract to supply.
1.5 “the Contract Price” means the price exclusive of Value Added Tax payable to the Contractor by the company under the Contract for the full and proper performance by the Contractor of its obligations as determined under the provisions of the Contract.
2. FORMATION OF CONTRACT
2.1 All sales to the company are made subject to these Conditions of Purchase which shall be the sole terms and conditions of any purchases by the company from the Contractor. Terms and conditions on the contractor’s acceptance of order form, invoice or other documents shall not be binding on the company.
2.2 The Contractor will ensure that the prices, quantities and delivery times and all drawings, photographs, illustrations, performance data, dimensions, weights and other technical information and particulars of the Goods given by the contractor are accurate and as stated in any quotations in the event a Contract is concluded on the basis of them.
2.3 No amendment or addition to the Contract or these Conditions shall be deemed to have been accepted unless accepted in writing by a duly authorised representative of the company.
3. DELIVERY DATE
3.1 The date and address for the delivery of the Goods shall be specified in the Contract. If no date for delivery is specified therein, delivery shall be made within 14 days of receipt by the Contractor of a purchase order from the company.
3.2 The time of delivery shall be of the essence and the Contractor shall be liable to the company for any loss or damage, (whether direct, indirect, or consequential) suffered or incurred by the company as a result of the contractors failing to deliver the Goods (in whole or in part), on the due date of delivery.
3.3 Delivery will be made by the method specified in the Contract and the company shall not be obliged to accept delivery in instalments.
4. PASSING OF PROPERTY AND RISK TO THE COMPANY
The property and risk in the Goods shall remain with the Contractor until they are delivered to the point specified in the Contract. Title to the Goods shall pass to the company forthwith on completion of such delivery.
5. PRICE AND PAYMENT
5.1 The Contract Price shall be “net”, that is after deduction of all agreed discounts. It shall include the cost of packaging, packing materials, addressing, labelling, loading and delivery and any duties and taxes (except Value Added Tax, where applicable) to the addresses named in the Contract. The amount of any Value Added Tax (together with the Contractor’s registration number) and any early settlement discounts shall be shown separately.
5.2 The company shall pay the Contract Price for the Goods to the Contractor 30 days from the end of the month (unless a variation of payment terms have been agreed with the company) when the invoice is received by the company or the Goods are delivered, whichever is the later, subject to:
5.2.1 delivery of the goods without subsequent rejection of them in accordance with the Contract.
5.2.2 the company’s purchase order number being quoted on the Contractor’s invoices and delivery documents; and,
5.2.3 an invoice bearing the date and price being received at the Bitt To Address as specified in the Company’s purchase order.
5.3 No variations in the Contract Price or the method of payment specified in the Contract will be accepted without the prior written approval of the company.
5.4 Whenever under the Contract any sum of money shall be recoverable from or payable by the Contractor, the same may be deducted from any sum then due, or which at any time thereafter may become due, to the Contractor under the Contract or under any other Contract with the company.
5.5 Where an order is placed for scheduled maintenance work, the annual cost shall be invoiced in 12 equal monthly instalments on the basis of 30 days following the end of the month (unless a variation of payment terms have been agreed with the company) when the invoice is received by the company or the goods are delivered, whichever is the later, subject to Clause 5.2.1, 5.2.2 and 5.2.3.
5.6 Fully complete invoices received later than 30 days following the completion of services or delivery of goods may result in late or non-payment.
6. LOSS OR DAMAGE IN TRANSIT
6.1 the company will advise the Contractor in writing of any loss or damage to the Goods discovered by the company within the following time limits:
6.1.1 Partial loss, damage, defects or non-delivery of any separate part of a consignment shall be advised within 30 days of the date of delivery of the consignment or part consignment.
6.1.2 Non-delivery of the whole of any consignment shall be advised within 30 days of notice of despatch being received by the company.
6.2 The Contractor shall forthwith make good free of charge to the company any loss of or damage to or defect in the Goods where notice is given by the company in compliance with this condition.
7. CONTRACTOR’S WARRANTIES
7.1 The Contractor warrants that the Goods:
7.1.1 will conform in all respects to the specifications provided by the company or previously supplied by the Contractor to the company (if any; and,
7.1.2 are of satisfactory quality and are fit for the purpose which the company has made known to the Contractor or, where the company does not make any purpose known to the Contractor, for the Purpose for which the Goods are normally used.
7.2 The Contractor also warrants that:
7.2.1 all reasonable care and skill has been used in manufacturing the Goods and that the Goods will be free from all defects in materials and workmanship; and,
7.2.2 the Contractor has free and unencumbered title and right to sell the Goods to the company and that they are sold free from all charges, liens or other encumbrances.
7.2.3 Unless the Contractor expressly informs the company in writing to the contrary the Contractor warrants that insofar as the goods are or contain or are associated with any computer software, embedded software, firmware, integrated circuit or other logic or control function, the Goods shall continue to operate at all times normally, correctly, and in accordance with all specifications and material obligations contained in the Contract or these Conditions an/or implied by law on and after 1 January year 2000 and shall not at any time be affected so as not so to operate by dates prior to, during or after the year 2000 in relation to either performance or functionality including without limitation the handling of date information and any process, calculation or result which uses date information.
8.1 the company shall have the right to reject Goods which are faulty in quality or manufacture or which are not fit for the purpose for which they are supplied or which do not conform to the specifications given in the Contract. Inspection of the Goods will normally take place within 30 days of delivery and the company will in no circumstances be deemed to have accepted the Goods prior to inspection. Inspection of, or failure to inspect, or payment for the Goods by the company shall not affect its right to reject any Goods which are subject to hidden defects or its right to claim for any breach of Contract.
8.2 The company shall give the Contractor notice of its rejection of the Goods in writing sent to the Contractor by first class post and, from a date 3 days after the date of the posting of such notice, the Goods shall be deemed to be at the Contractor’s risk. Rejected Goods may be returned by the company to the Contractor at the Contractor’s expense or, at the company’s option, may be kept at the company’s premises until collected by the contractor. The Contractor will reimburse the company for the cost of any storage or other expenses incurred.
8.3 On rejection of the Goods, the company shall have the option of requiring the Contractor either to replace the rejected Goods or to credit or reimburse the company in full for the cost of such Goods and any other expenses incurred by the company in accordance with Clause 8.2 above.
8.4 Any rejection by the company or any acceptance of credit, reimbursement or replacement by the company shall be without any liability whatsoever to the Contractor and without prejudice to the company’s other rights in respect of the defect or other failure of the Goods to comply with the requirements of the Contract.
9.1 The Contractor shall not vary any of the terms of the Contract, except as directed in writing by the company but the company shall have the right, from time to time during the execution of the Contract, by notice in writing direct to the Contractor to add to or to omit, or otherwise vary, the terms of the Contract and the Contractor shall carry out such variations and be bound by the same conditions, so far as applicable, as though the said variations were stated in the Contract.
9.2 Where the Contractor is notified of any variation to the Contract by the company which would occasion an amendment to the Contract Price the Contractor shall, within 7 days of receipt of such notification, advise the company in writing of the amount of any such amendment to the Contract Price, such amendments to be ascertained and determined in the same manner in which the Contract Price was ascertained and determined.
9.3 If, in the opinion of the Contractor, any such variation is likely to prevent the Contractor from fulfilling any of his obligations under the Contract he shall notify the company and the company shall decide as soon as reasonably practicable whether or not the same shall be carried out and shall confirm its instructions in writing and modify the said obligations to such an extent as the company considers may be justified. Until the company so confirms its instructions they shall be deemed not to have been given.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Contractor warrants that the sale or use of the Goods for any purpose whatsoever by the company will not infringe any UK or foreign patent, copyright, trade name, trade mark, design right (whether registered or unregistered) or any other intellectual property right whatsoever (“Intellectual Property”) of any third party and the Contractor further agrees to fully and effectively indemnify the company and hold it harmless against any actions, proceedings, costs, claims, demands, loss, damage, or expense (whether direct, indirect or consequential and whether foreseeable or not) suffered or incurred by the company as a result of any claim for any such infringement or alleged infringement, provided always that this indemnity shall not apply to any infringement which is due to the Contractor having followed any instructions furnished or given by the company.
10.2 Any and all intellectual Property arising or resulting from any work carried out or materials produced by the Contractor in execution of the Contract shall belong to and vest exclusively in the company and the Contractor as legal and beneficial owner hereby assigns all such intellectual Property that shall be copyright or design right and agrees to assign all other Intellectual Property to the company absolutely. In the event that the Contractor is unable to effect the foregoing assignment, the Contractor hereby grants to the company an irrevocable, non exclusive, royalty free, world-wide licence to use such work and or materials for any purpose whatsoever.
10.3 The Contractor undertakes at the request of the company to do all acts and execute all documents which may be necessary to confirm the title of the company to the Intellectual Property assigned, whether in connection with any registration of title or otherwise.
10.4 The Contractor agrees to maintain secret and confidential all technical and other information received or obtained by it pursuant to the Contract and prior to and in contemplation of it and all other information that it may acquire from the other in the course of the Contract, to respect the company’s proprietary rights therein, to sue the same exclusively for the purposes of this Agreement and to disclose the same only to those of its employees and authorised sub-contractors to whom and to the extent that such disclosure is reasonably necessary for the purpose of this Agreement. This obligation shall not apply to information already in the Contractor’s possession prior to its receipt from the company, information generally available to the public or which is disclosed to the Contractor by a third party with no obligation of confidence to the company.
11. FORCE MAJEURE
The company shall not be liable for any delay or failure to take delivery of or pay for the Goods caused by any event beyond its control including but not limited to any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo and labour disputes of whatever nature.
12. ASSIGNMENT AND SUB-LETTING
12.1 The Contract shall not be assigned or sub-contracted by the Contractor without the company’s prior written consent.
12.2 In any case where the Contract is sub-contracted in accordance with Clause 12.1, the Contractor will ensure that the sub-contractor agrees to be bound by all applicable terms of the Contract and any such sub-contract shall in no way limit or affect the obligations of the Contractor who shall remain responsible for all Goods supplied under, and the full performance of its obligations under, the terms of the Contract.
12.3 Copies of any sub-contract made in accordance with Clause 12.1 shall forthwith be delivered to the company.
13. PROGRESS AND INSPECTION
the company’s representatives shall have the right to inspect all Goods at the Contractor’s works (and the works of any approved sub-contractors) at all reasonable times and to reject Goods that do not comply with the terms of the Contract. The Contractor’s sub-contracts shall include this provision. Any inspection, checking, approval or acceptance given on behalf of the company shall not relieve the Contractor or his sub-contractors from any obligation under the Contract.
14. THE COMPANY’S RIGHTS TO DOCUMENTATION AND OTHER INFORMATION
Any documents, specifications, plans, drawings, process information, patterns, designs or any other information supplied by the company to or otherwise obtained by the Contractor in connection with the Contract or the company shall remain the property of the company (including, without prejudice to the generality of the foregoing, all intellectual property rights therein) and they and any information derived therefrom or otherwise communicated to the Contractor in connection with the Contract shall be kept secret and shall not without the consent in writing of the company be copied, published or disclosed to any third party, or made use of by the Contractor except for the purpose of implementing the Contract. Any such documents, specifications, plans, drawings, process information, patterns or other information must be returned to the company on fulfilment of the Contract.
15. FREE-ISSUE MATERIALS
Where the company for the purpose of the contract issues materials ‘free of charge’ to the Contractor such materials shall be and remain the property of the company. The Contractor shall maintain such materials in good order and condition subject in the case of tooling, patterns and the like, to fair wear and tear. The Contractor shall use such materials solely in connection with the Contract. Any surplus materials shall be disposed of at the company’s discretion. Waste of such materials arising from bad workmanship or negligence of the Contractor shall be made good at the Contractor’s expense. Without prejudice to any other of the rights of the company, the Contractor shall deliver up such materials whether further processed or not to the company on demand.
16. LIABILITY AND INSURANCE
16.1 The Contractor shall be liable for any indirect, special or consequential loss (including loss of anticipated profit) howsoever arising either from breach or non-performance of any of its obligations under the Contractor from the supply, use or intended use of the Goods.
16.2 The Contractor shall fully indemnify and keep fully indemnified the company against all claims, actions, costs, loss, damages or expenses or other matters (whether foreseeable or not) suffered or incurred by the company and/or in connection with the Goods or the supply, use or intended use of them. Such indemnity shall cover all consequential and indirect losses suffered by the company.
16.3 The Contractor shall at all times and for an unlimited number of occurrences, maintain in force such policies of insurance with reputable insurers of underwriters as shall fully insure and indemnify the Contractor against any Loss of Property or any damage which may occur to any property for the minimum sum of £5,000,000 and for any damage, or loss or injury to any person for a minimum of £10,000,000.
17. LABELLING AND REGULATIONS
17.1 Hazardous goods must be marked by the Contractor with international Danger Symbol(s) and display the name of the material in English. Transport and other documents must include 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. The Contractor shall observe the requirements of UK and International agreements relating to the packing, labelling and carriage of hazardous goods. All information held by, or reasonably available to the Contractor regarding any potential hazards known or believed to exist in the transport, handling or use of the Goods supplied shall be promptly communicated to the company.
17.2 The Contractor shall be responsible for compliance with all relevant laws and regulations, including those of any country where the Goods are to be delivered or, to the knowledge of the Contractor, ultimately resold or used, for obtaining and maintaining at its expense any necessary import or export license, customs clearance, exchange control consent or other authorisations and permits whatsoever and the Contractor shall ensure that the Goods when delivered to the company are labelled and packaged in such a way as to ensure the safety which a person is entitled to expect from the Goods.
18.1 The Contractor will package and protect the Goods with appropriate non-returnable packaging so as to avoid damage, destruction or theft in transit.
18.2 Where the company has an option to return packages and does so, the company will return such packages empty in good order and condition (consigned ‘carriage paid’ unless otherwise agreed) to the Contractor’s supplying works or depot indicated by the Contractor, and will advise the Contractor of the date of despatch.
18.3 Packages returned promptly in the manner aforesaid shall be subject to an allowance at the Contractor’s standard rate operating at the time of delivery to the company.
18.4 Where the Goods are delivered by road vehicle, available empty packages may be returned by the same vehicle.
18.5 Where Goods are delivered by tank wagons these will be emptied and returned without delay.
19. WARRANTY AND INDEMNITY
19.1 The Contractor shall forthwith repair or replace all Goods which are or become defective during the period of 12 months from putting into service or 18 months from delivery, whichever shall be the longer, where such defects occur under proper usage and are due to:
19.1.1 faulty design;
19.1.2 the Contractor’s erroneous instructions as to use or erroneous use data;
19.1.3 inadequate or faulty materials or workmanship; or
19.1.4 any other breach of the Contractors warranties expressed or implied. Repairs and replacement shall themselves be subject to the foregoing obligations for a period of 12 months from the date of delivery, reinstallation of passing of tests (if any) whichever is appropriate after repair or replacement.
20.1 If the Contractor is in break of any of the terms hereof (including, but not limited to, its delivery obligations), the company may without any liability whatsoever to the Contractor terminate the Contract in whole or in part by notice in writing to the Contractor. In such event, the company shall pay to the Contractor the pro rata invoice value of any Goods received by the company under the Contract at the date of receipt of the notice cancelling the Contractor.
20.2 If the Contractor becomes bankrupt or (being a Company) becomes insolvent, makes an arrangement with its creditors or has a receiver, administrative receiver, or trustee or administrator appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction), the company may, without prejudice to any other of its rights, terminate the Contract forthwith by notice to the Contractor or any person in whom the Contractor may have become invested.
21. GENERAL CONDITIONS IN A TENDER
No conditions submitted or referred to by the Contractor when submitting a tender shall form part of the Contract unless otherwise agreed to in writing by the company.
The failure of the company to insist upon the strict performance of any terms and conditions of the Contract shall not be construed as a waiver of any such term or condition and shall be in no way affect the company’s right to enforce such provision later.
If any of the terms and conditions of the Contract (or part thereof) shall be found to be invalid ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
The Contractor hereby undertakes with the company that it will not at any time during the continuance of or after the termination of this contract publicise the existence of the Contract or claim, present or otherwise indicate any present or past association with the company without the company’s prior written consent.
25. CONSTRUCTION OF CONTRACT
The construction, validity and performance of the Contract shall be governed by the law of England.