In these Conditions the “Purchaser” means Devol Engineering Limited, the “Seller” means the person, firm or company selling the goods and/or work, which shall be the subject of the Contract between the Purchaser and the Seller.
1. Formation of contract
1.1. These Conditions apply to a contract (“the Contract”) of purchase of the goods and/or work identified on the Purchaser’s Purchase Order (“the Order”). No addition alteration or substitution of these terms will bind the Purchaser or form part of any contract unless they are expressly accepted in writing by a person authorised to sign on the Purchaser’s behalf.
1.2. These Conditions shall override any contrary different or additional terms or conditions (if any) contained or referred to in any quotation, acceptance or other documents or correspondence from the Seller, and no addition, alteration or substitution of these terms will bind the Purchaser or form part of any Contract unless they are expressly accepted in writing by a person authorised to sign on the Purchaser’s behalf.
1.3. If the goods and/or the work specified in the Order are to be used in carrying out or otherwise in connection with another contract specified in the Order, the Order shall be subject to the contract conditions of such specified contract in so far as the same may be relevant and do not conflict with these purchase conditions. Details of any such contract conditions will be supplied by the Purchaser on request, but the Seller will be deemed to have accepted the same as part of the terms of the Order, whether such request has been made by the Seller or not.
1.4. In regard to performance of this Contract by the Seller time is of the essence. The goods shall be delivered and/or the work performed on the date and at the place stated in the Order, and in accordance with the instructions specified in the Order, during normal business hours unless previously arranged otherwise. Delivery of goods shall be to the place specified in the Order and terms of carriage shall be as specified in the Order.
1.5. If for any reason the Purchaser is unable to accept delivery of the goods on or after the agreed delivery date, the Seller will store the goods, safeguard them and take all reasonable steps to prevent their deterioration until delivery.
1.6. Delivery of goods and the performance of work by instalments shall not make the Seller’s obligations severable and acceptance of one instalment shall not preclude the Purchaser from rejecting any subsequent instalment.
1.7. The Purchaser shall not be obliged to return to the Seller any packaging or packing materials for the goods whether or not any goods are accepted by the Purchaser.
3. Specifications, quality, tests, rejection
3.1. The goods and/or the work must conform in all respects with the drawings, specifications and other requirements or descriptions stated in the Order and be of sound materials, workmanship and design, and shall be equal in all respects to relevant samples, unless the Seller notifies the Purchaser of its inability to so supply in which case the Seller shall in writing detail the proposed non-conformance(s) and request from the Purchaser a formal Concession in respect of the same. The Purchaser shall approve or deny the Concession, at its sole discretion, and as a condition for so doing, the Purchaser may request samples of the goods for trial, accept the goods “on approval”, issue a Concession for permanent deviation from Specification, or decline to issue the Concession. Goods and/or works supplied against such a Concession shall be clearly identified and labelled as such. Changes made by the Supplier to the goods or process of manufacture that may materially affect quality in terms of fit, form, function or appearance shall be notified to the Purchaser.
3.2. All of the goods and/or the work must pass the acceptance tests of the Purchaser’s inspector. The Purchaser shall be entitled to reject all goods and/or work, which do not conform completely in every respect with the terms of the Order. If by the nature of the goods and/or the work, any defects therein or any failure thereof to conform as aforesaid does not or would not become apparent (despite the carrying out of any examination and/or such tests) until after use the Purchaser may reject the same even after a reasonable period of use. It is agreed that in the case of goods the Purchaser may exercise the aforesaid rights of rejection notwithstanding any provision contained in s 11 or 35 of the Sale of Goods Act 1979. Payment for any goods or work shall not be deemed to be acceptance of them.
3.3. Any goods and/or work rejected under Condition 3.2 must at the Purchaser’s request be replaced or re-performed as the case may be, by the Seller at its expense; alternatively the Purchaser may elect (at its option) to cancel the Contract as provided in Condition 10.2 both in respect of the goods and/or the work in question and of the whole of the undelivered balance (if any) of the goods and/or the remainder of the work (if any) covered by the Contract. All rejected goods will be returned to the Seller at its expense.
3.4. The Purchaser’s signature given on any delivery note or other documentation presented for signature in connection with delivery of the goods, is evidence only of the number of packages received
notwithstanding the terms of any such delivery note or other documentation. In particular, but without imitation to the generality of the foregoing it is no evidence that the correct quantity or number of goods has been delivered or that the goods delivered are in good condition or of the correct quality.
3.5. The Purchaser may at any time and in any circumstances alter by notice in writing to the Seller any one or more of the following: – (i) specifications, drawings and data incorporated in the Contract either in
respect of work or in respect of goods to be specifically manufactured by the Purchaser; (ii) methods of shipment or packaging; (iii) place or time of delivery of goods or performance of work.
3.6. The Purchaser reserves the right, in respect of itself, its customers and any regulatory authority to inspect the Seller’s roduction facilities and records in connection with the Order.
4. Property and risk
1.8. Property and risk in the goods shall pass to the Purchaser when they are delivered in accordance with Condition 2.1. Such passing of property and risk shall be without prejudice to any right of rejection arising under these Conditions.
5. Prices and payment
1.9. Prices and currency shall be those specified in the Order, which shall be exclusive of V.A.T at UK rates unless specifically shown. On despatch of the goods or completion of the work the Seller will send the Purchaser a detailed advice note (which shall accompany the goods) and an invoice in which VAT will be itemised. Payment of the Seller’s invoice will be 60 days following the end of the month of the date shown on the Seller’s invoice. No interest charges, penalties or losses of discount on overdue accounts will be accepted. Unless otherwise specified in the Order: (i) any applicable taxes or duties are included in the price of the goods or work; (ii) prices include the cost of carriage, packing and transit insurance of the goods.
6. Industrial property
1.10. The Seller warrants that neither the sale, importation or use of the goods nor the performance of the work will infringe any United Kingdom or foreign patent, trademark, registered design, copyright, design right or other industrial or intellectual property rights and the Seller shall indemnify the Purchaser from all actions, costs, claims, demands, expenses and liabilities whatsoever resulting from any actual or alleged.
7. Indemnities, third party liabilities
1.11. The Seller shall indemnify the Purchaser against all losses, actions, costs, claims, demands, expenses and liabilities whatsoever which the Purchaser may incur in respect of personal injury to or the death of any person or in respect of any loss or destruction of or damage to property, which shall have occurred in connection with any work executed by the Seller against the Contract or shall be alleged to be attributable to some defect in the goods.
1.12. The Seller will indemnify the Purchaser against any and all losses, costs, expenses and liabilities caused to the Purchaser (including any consequential or indirect loss) whether directly, or as a result of the action, claim or demand of any third party, by reason of any breach by the Seller of these Conditions or the Contract or of any terms or obligations on the Seller’s part implied by the Sale of Goods Act 1979, by the Supply of Goods and Services Act 1982 or by any other statute or statutory provision relevant to the Order or to goods or work covered thereby. This indemnity shall not be prejudiced or waived by any exercise of the Purchaser’s rights under Condition 3.3.
1.13. Whenever any sum of money is recoverable from or payable by the Seller to the Purchaser as a result of the operation of any of these Conditions or any breach by the Seller of the same, such sum may be deducted by the Purchaser from any sum then due or which at any time thereafter may become due to the Seller under any other order or transaction placed or entered into by the Purchaser with the Seller.
8. Jigs, tools, gauges, etc
1.14. If any jigs, tools, dies, patterns, moulds, gauges, components, materials or any other items of whatsoever nature are supplied to the Seller by the Purchaser for use in connection with the Order, the same shall be at the Seller’s risk from the time they leave the Purchaser’s premises until they are returned thereto, but shall remain the Purchaser’s property. All such items manufactured or supplied by the Seller for the Purchaser in connection with the Contract shall become the Purchaser’s property and shall be retained by the Seller until disposal instructions are given by the Purchaser to the Seller which instructions shall be complied with forthwith.
1.15. The Seller shall indemnify the Purchaser against any loss or damage to the items mentioned in Condition 8.1, arising while such items are in the Seller’s possession or before redelivery to the Purchaser and the Seller will insure the aforesaid items against all risks.
1.16. Copyright, design rights and any other intellectual property rights in the aforesaid items shall belong exclusively to the Purchaser and, to the extent not vesting automatically in the Purchaser, the Seller shall assign such rights to the Purchaser. Approval of designs or drawings by the Purchaser shall not release the Seller from liability for any errors therein.
9. Assignment and sub-contracting
The Seller may not assign or transfer any of its rights or obligations under the Contract to any other person without the Purchaser’s written consent nor without the Purchaser’s written consent, sub-contract the Contract or part thereof, other than for materials, minor details or for any part of the goods in respect of which the makers are specified in the Order, or to the extent to which sub-contracting is a trade custom in relation to the subject matter of the Contract.
10. Force Majeure and cancellation
1.17. If the Seller is delayed or prevented from performing its obligations under the Contract by circumstances beyond its reasonable control and the contract cannot be completed within a reasonable time as determined by the Purchaser after the due date as specified in the Order, the Purchaser may cancel the whole or any part of the Contract.
1.18. Subject to Condition 10.1, the Purchaser reserves the right to cancel the whole or any part of the Contract if the same is not completed in all respects in accordance with the Order and the Purchaser shall be entitled to purchase the same from a third party and in that event the Seller shall be liable to reimburse to the Purchaser on demand all expenditure, including any increase in the price over that stated in the Order.
The Purchaser shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if: – the Seller makes any voluntary arrangement with its creditors within the meaning of the Insolvency Act 1986 or being an individual or firm the Seller becomes bankrupt or being a company become subject to an administration order or go into liquidation (otherwise than for the purpose of bona fide solvent amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed, of any of the Seller’s property or assets; or the Seller ceases, or threatens to cease, to carry on business; or the Purchaser reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
The Seller will keep secret and will not use for any other purpose than the Contract, any information given by the Purchaser in connection with the Order, and the Seller will not mention the Purchaser’s name in connection with the Order or disclose the existence of the Order without the Purchaser’s prior consent in writing.
13. Applicable law
The Contract shall be considered a contract made in England and shall be governed in all respects by the law of England and the parties agree to submit to the exclusive jurisdiction of the English Courts.
Issue Date 27 March 2008