Terms and Conditions of Purchase
The following conditions shall apply to the purchase of all goods by Jayex Technology Limited (“the Buyer”) from any supplier of goods (“the Seller”) and also where appropriate, to any work by the Seller for the Buyer.
This purchase order, including the terms, conditions and the specifications contained or referred to herein or attached hereto, constitute the sole and entire agreement between the parties hereto. The Seller’s acceptance of the purchase order is limited to the terms and conditions hereof and written confirmation hereof or commencing performance or making deliveries hereunder constitutes such acceptance. The Seller’s quotation is incorporated and made a part of this purchase order only to the extent of specifying the nature and description of the goods and services ordered and then only to the extent that such items are consistent with the terms of this purchase order. All the Seller’s conditions of sale are hereby excluded and no course of prior dealings between the parties and no usage of the trade shall be relevant to, supplement or explain any of the terms or conditions hereof.
(a) The agreed time of delivery shall be of the essence of the contract.
(b) The goods, properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport, shall be delivered by the Seller at, or dispatched for delivery to, the place or places and in the manner specified in the purchase order or as subsequently agreed.
(c) The Buyer shall not be required to take delivery prior to the agreed date if not convenient to the Buyer. In the event that the Buyer is not able to take delivery when due, the Seller shall arrange storage at the Buyer’s expense at suitable premises approved by the Buyer and shall arrange insurance cover against the storm and theft.
(d) Where it is evident or should be evident to the Seller that goods or the quality and quantity specified by the order will not be delivered by the agreed date, the Seller shall without delay give notice of this to the Buyer and failure by the Seller to give such notice will be treated by the Buyer as a breach of condition. The Buyer shall on receipt of such notice or on non-delivery of the goods on the specified date, have the option to treat the contract as repudiated and place orders elsewhere, the Seller being liable for any increased costs or other loss incurred thereby, and will not be guilty of any anticipatory or other breach of the contract should it exercise such option. Any failure by the Buyer to exercise its option with respect to any shipment of goods shall not be deemed to constitute a waiver with respect to subsequent shipments.
(e) No substitute materials should be used without the prior written consent of the Buyer.
(f) The Buyer shall not be liable to return any packing materials, cases or other containers, unless it has been agreed in writing to do so.
(g) A statement of contents must accompany the goods and an advice note must be posted to the Buyer on the day the goods are dispatched. The Buyer’s order number, part number and quantity shipped must be marked on each statement and note, and if there is any delay in non-receipt of statements or notes, or error in or omissions from any of them, the Buyer will be entitled to withhold payment without loss of any cash discount until the statement or note has been received or rectified as the case may be.
The Seller warrants to the Buyer and its successors and assigns -
(a) that the goods shall be of the quality specified, or of the best grade of their respective kind if no quality is specified, shall conform to specifications, drawings, samples and other descriptions contained herein, all relevant British standard specifications whether specifically mentioned or not, and to representation made by the Seller or its representatives.
(b) that the goods shall be merchantable and that the installation of the goods shall so conform to and operate in the Buyer’s product as not to prejudice the proper operation thereof.
(c) that at the time the goods are accepted by the Buyer they shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws, ordinances, regulations, rules, labour agreements and working conditions to which the goods are subject.
(d) that the goods furnished hereunder are free of any claims or liens of whatever nature whether rightful or otherwise, of any person, corporation, partnership or association.
4. Fit for Buyer’s Purpose
In performing this contract, the Seller, as a person supplying goods or performing work in the course of his business, shall exercise his skill and judgment so as to ensure that the goods or work shall be fit for the purposes of the Buyer and the Buyer will rely thereon. The Seller shall ensure that he understands the Buyer’s requirements in time to prevent delay on account of any alterations or modifications that may be necessary to meet the Buyer’s needs. The cost of such alterations or modifications shall be deemed to be included in the price, and the cost of returning the goods for such alterations or modifications shall be borne by the Seller. All relevant British standard specifications shall be deemed to have been specified unless expressly excluded.
Save as in herein expressly provided this Agreement can be modified or varied only in writing signed by both parties or their duly authorized agents.
No waiver by either Seller or Buyer with respect to any breach or default of or with respect to any provision or condition of this order and no course of dealing shall be deemed to constitute a continuing waiver or any other breach or default of or with respect to the same or any other provisions or condition of this Agreement. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
The Buyer shall have a reasonable time after delivery within which to inspect the goods, and the Buyer shall not be deemed to have accepted the goods, nor shall the property in the goods pass from the Seller to the Buyer until the Buyer has completed his inspection and has acknowledged that they correspond with the specifications, requirements or samples as notified to the Seller, provided that where the inspection of the goods has been made before delivery and the Buyer has acknowledged that they correspond with its specifications, requirements or samples as notified to the Seller, the property in the goods shall pass when the Seller delivers the goods to the Buyer at the place designated by the Buyer. If the Buyer refuses to accept the goods or part of them, having the right to do so, it will, be at the Seller’s expense, return the goods to the Seller or otherwise dispose of them as the Seller shall reasonably request. The cost of inspection of goods rightfully rejected shall be charged to the Seller, if part only of the goods are found on inspection to be defective or not in accordance with the Buyer’s specifications, requirements, or samples, the Buyer shall have the right to cancel any unshipped portion of the order.
In special cases and as an act of grace the Seller may be given the opportunity to inspect goods rejected by the Buyer, in which event such inspection must be made within seven days of notification by the Buyer. At the expiration of such period the goods will be dispatched without further notice to the Seller’s address.
Payment for goods prior to inspection or failure to inspect the goods shall not constitute acceptance thereof and is without prejudice to any and all claims the Buyer may have against the Seller.
The risk of loss or damage to the goods shall remain with the Seller until the property in the goods has passed to the Buyer until the provision of this clause.
If the Buyer discovers any defect in the goods within four months of acceptance of the goods by the Buyer, or where the Buyer discovers that any work performed by the Seller for the Buyer does not conform with the Contract within four months of the acceptance of the work by the Buyer, the Buyer shall have the right to request the Seller to, and the Seller shall immediately replace the defective goods by goods free from defects or to refund monies paid at the Buyer’s option within a period stipulated by the Buyer PROVIDED THAT where the defect in the goods is latent, or where the Buyer discovers after the lapse of the said four months that any work performed by the Seller for the Buyer does not conform with Contract, and the Buyer could not reasonably have been expected to discover such non-conformity within the said four months, then the Seller shall replace the said goods or perform any further work which is necessary for the work to conform with these conditions even after the lapse of the said four months at Seller’s expense.
9. Buyer’s Options
The Buyer reserves the right to change specifications and delivery dates. Any difference in price required by such changes shall be equitably adjusted and the agreement shall be modified in writing accordingly. The Buyer further reserves the right to terminate all or part of the work to be performed pursuant to this order. In such event the Buyer shall be liable only for materials or components procured or work done or supplies partially fabricated within the authorization of this order. In no event shall the Buyer be liable for incidental or consequential damages by reason of such termination.
The price as agreed between the Seller and the Buyer shall not be subject to change without the written consent of the Buyer and (Domestic orders only) shall include packing, delivery at the place stipulated by the Buyer and all Customs and Excise duties, value added tax and other purchase or sales taxes and any increases in such duties or taxes shall be borne by the Seller.
The Buyer operates a twelve fiscal month accounting calendar and payment for goods shall be due on the last day of fiscal month following that in which the invoices are received, provided that they are received not later than three working days before the end of that fiscal month. Payment shall be subject to set-off in respect of all claims for breach of contract and any sums due from the Seller to the Buyer in respect of any other contract or transaction between the Buyer, the Seller and or in conjunction with other persons or not.
The Seller agrees to protect, indemnify, save and hold harmless the Buyer, its officers and employees from and against all losses, costs and expenses and from and against all claims, demands, suits and actions for damages, losses, costs and expenses and from and against all liability, awards, judgments and decrees of whatsoever nature for any and all damages to property of the Buyer or others of whatsoever nature and for any and all injury to any persons arising out of or resulting from the negligence of the Seller, his servants or agents, breach of this order in manufacturing the goods, any defects in the material or workmanship, the failure of the goods to perform their full capacity as specified in the order or specification or other data, from the breach of any express or implied conditions or warranties, and from the presence of any of the Seller’s workmen upon any premises, plant, vessel or erection in the occupation of or under the control of the Buyer.
13. Patent Indemnification
The Seller shall indemnify the Buyer against any claim or demand by any third party under patent design, trademark or any other monopoly or proprietary rights in the goods or materials supplied under this Agreement and all costs and expenses relating thereto, whether the claim or demand is justified or not.
14. Confidential Information
All information, specifications, drawings, designs and samples communicated or supplied by the Buyer to the Seller shall be treated by the Seller as confidential and shall not be disclosed to any third party without the Buyer’s written consent. The Seller shall, at the request of the Buyer, forthwith return to the Buyer all documents containing such information, specifications, drawings or designs, and all samples communicated or supplied by the Buyer to the Seller.
15. Restrictions on Use
The Seller shall not manufacture, sell or supply directly or indirectly for the benefit of itself or any third party any item made in accordance with the Buyer’s information, specifications, designs, drawings or samples without the Buyer’s prior written consent.
16. Time for Payment
Any agreed period for payment or any discount shall be calculated either from the receipt of the proper invoice, or delivery to the Buyer, whichever is later.
17. Proper Law
The validity interpretation and performance of this Agreement shall be governed and construed in accordance with the laws of England.