Purchasing Terms & Conditions

Conditions of purchase (March 2018)

1. DEFINITIONS

a. Buyer” means Constantia FFP Limited a company registered in the United Kingdom under number 893217 whose registered office is at 1-7 Tenter Road, Moulton Park Industrial Estate, Northampton, NN3 6PZ

b. Day” means a working day (other than a Saturday, Sunday or a public holiday) when banks are open for business.

c. “Commencement Date” has the meaning set out in condition 2.

d. “Conditions” means these terms and conditions as amended from time to time in accordance with condition 3.

e. “Contract” means a valid contract in accordance with condition 2 of these conditions for the provision of the Goods specified in the Buyer’s Purchase Order.

f. “Goods” means all goods or any part of them, including plant machinery, equipment, materials, apparatus and services to be supplied under the Contract.

g. “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

h. “Purchase Order” means any order placed by the Buyer on its official order form for the supply of Goods or Services by the Supplier.

i. “Services” means the services (if any) to be supplied pursuant to the Purchase Order.

j. “Specifications” means, in relation to Goods, any specification for the Goods (including any relevant plans or drawings) provided by the Buyer to the Supplier (whether or not contained or referred to in the Purchase Order) or produced by the Supplier and agreed in writing by the Buyer, and, in relation to Services, the description or specification for Services produced by the Supplier and agreed in writing by the Buyer. In the absence of express wording, Specifications shall be deemed to accord with best practice and the highest reasonable quality standards for the relevant goods and services and the relevant industry, profession or trade.

k. “Supplier” means the person, firm or company to whom the Buyer’s Purchase Order is addressed.

2. BASIS OF CONTRACT

a. The Supplier agrees to sell and the Buyer agrees to purchase the Goods and/or Services in accordance with these Conditions.

b. These Conditions apply to the Contract to the exclusion of any other terms that the Supplier may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

c. The return of the Buyer’s form of acknowledgement or the supply of goods or services in response to the Buyer’s Purchase Order (whichever is the earlier) shall be the Supplier’s acceptance of the Purchase Order and these Conditions. At which point and on which date the Contract shall come into existence (Commencement Date).

d. Failure of the Buyer to enforce any provision of these Conditions shall not be construed as a waiver of any past or future breach of such or any other provision of these Conditions.

3. VARIATIONS

a. No variations to these Conditions or to the Buyer’s Purchase Order shall be effective except with the prior written approval of the Buyer, confirmed by an official amendment to the Purchase Order or otherwise in writing by the Buyer.

b. The Buyer shall have the right at any time to vary the materials, design or specification of any or all of the goods or materials not then made or in the course of manufacture and to vary the quantity or the time of delivery. In this event the Buyer shall notify the Supplier accordingly in writing and the Supplier shall advise the Buyer in writing as soon as possible whether such variation would affect the delivery time or the price. The Buyer may thereafter instruct the Supplier in writing to make the variation (in which case the Supplier shall implement the variation forthwith) or to continue to supply goods or materials in accordance with the original Contract requirements.

4. ASSIGNMENT

a. The Supplier shall not assign, transfer or charge the benefit of the Contract in whole or in part, or any of its obligations under the Contract.

b. The Supplier shall not subcontract without the Buyer’s written consent any Contract or part thereof other than for raw materials, minor component parts or for any part of the goods for which the manufacturer is specified by the Buyer or to the extent to which subcontracting is a trade custom in relation to the subject of the Contract.

5. DELIVERY

a. It is a condition of this Contract that the Goods are delivered at the date(s), in the sequence and at the places specified in the Buyer’s Purchase Order. Any delays caused by the Buyer shall be deemed to extend the due delivery date by that delay time.

b. In the event of late delivery by the Supplier, the Buyer, without prejudice to any other rights of the Buyer, shall be entitled to liquidated damages from the Supplier equal to 2% of the total order value so delayed for the first week and 2% per week for each subsequent week from delivery date up to a maximum of 10%, and the Buyer and the Supplier agree that such liquidated damages represents a genuine estimate of the costs and losses incurred and suffered by the Buyer by reason of such delay. Additionally if the delivery is late by five weeks or more, the Buyer shall have the right to terminate the Contract without incurring any liability to the Supplier and without prejudice to any other rights of the Buyer.

c. Unless otherwise agreed between the parties, all Goods shall be delivered, carriage paid, during the Buyer’s normal working hours, to the address for delivery specified by the Buyer and, until off-loaded and signed for at such address, will be at the Supplier’s risk in all respects.

d. Title and property in the Goods shall pass to the Buyer on delivery. Any reservation of title, or purported reservation of title, by the Supplier shall be of no effect. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the location specified in the Purchase Order.

e. The Goods shall be properly packed and protected and marked as detailed in the Buyer’s Purchase Order, but the Supplier shall retain responsibility for ensuring that the Goods are delivered without damage or defects. Unless otherwise agreed in writing, containers and packaging shall be non-returnable and free-of-charge.

f. All Goods shall be accompanied by a delivery note stating, the date of the Purchase Order, the Purchase Order number and giving full particulars of the Goods supplied, including the type and quantity of the Goods, the outstanding balance of Goods remaining to be delivered (if the Goods are being delivered in instalments) and by a European Union compliant Certificate of Conformity or Incorporation as appropriate.

g. The Supplier shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods.

h. If for any reason the Buyer is unable to accept delivery of the Goods on or after the agreed delivery date, the Supplier shall store the goods, safeguard them and take all reasonable steps to prevent their deterioration until delivery. Where such period of storage exceeds thirty days from the agreed delivery date, the Buyer shall reimburse the Supplier for his reasonable costs of storage (including insurance). The Supplier shall not dispose or otherwise destroy any such Goods stored without giving written notice to the Buyer in reasonable time for it to take appropriate action, including arranging alternative storage facilities.

i. The signature of the Buyer given in respect of receipt of the goods or materials is evidence only of the number of packages received. In particular it is no evidence that the correct quantity has been delivered or that the goods or materials delivered are in good condition or of the correct quality.

j. If the quantity of Goods delivered by the Supplier differs from the quantity of Goods ordered by 5 per cent or greater, then the Buyer shall be entitled to reject the Goods (if less than the ordered quantity is delivered) or reject the excess Goods (if more than the ordered quantity is delivered), and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Buyer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods and the Buyer shall be entitled to defer any additional payment due until the month following the month in which delivery took place.

6. SUPPLY OF SERVICES

a. Where applicable, the Supplier shall from the date and for the duration set out in the Purchase Order provide the Services to the Buyer in accordance with the terms of the Contract.

b. The Supplier shall meet any performance dates for the Services specified in the Purchase Order or notified to the Supplier by the Buyer and time shall be of the essence.

c. The Supplier shall:
i. co-operate with the Buyer in all matters relating to any Services, and comply with all instructions of the Buyer;
ii. perform Services with the best care, skill and diligence in accordance with best practice in the relevant industry, profession or trade;
iii. 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 the Contract;
iv. ensure that any Services will conform with all descriptions and specifications set out in the Specification, and that the Services shall be fit for any purpose expressly or impliedly made known to the Supplier by the Buyer;
v. provide all equipment, tools and vehicles and such other items as are required to provide any Services;
vi. use the best quality goods, materials, standards and techniques, and ensure that any Services, and all goods and materials supplied and used in any Services or transferred to the Buyer, will be free from defects in workmanship, installation and design;
vii. observe all health and safety rules and regulations and any other security requirements that apply at any of the Buyer’s premises;
viii. hold all materials, equipment and tools, drawings, specifications and data supplied by the Buyer to the Supplier (the Materials) in safe custody at its own risk, maintain the Materials in good condition until returned to the Buyer (and the Supplier shall indemnify and keep indemnified the Buyer against all loss thereof or damage thereto whilst the same are in the Supplier’s possession or control), and not dispose or use the Materials other than in accordance with The Buyer’s written instructions or authorisation; and
ix. 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.

7. THE BUYER’S OBLIGATIONS

The Buyer shall:

a. provide the Supplier with reasonable access at reasonable times to the Buyer’s premises for the purpose of providing the Services; and

b. provide such information as the Supplier may reasonably request for the provision of the Services and the Buyer considers reasonably necessary for the purpose of providing the Services.

8. PRICE AND PAYMENT

a. No increase in the Contract price shall be accepted without the Buyer’s express consent in writing. Any invoice price not in accordance with the Purchase Order or this Condition 8(a) shall be invalid and ineffective and no payment shall be due in respect thereof.

b. Without prejudice to the Buyer’s rights under any terms of these Conditions, payment shall be made thirty days from the end of the month of (i) receipt of the Supplier’s invoice or (ii) delivery if later, unless otherwise agreed in writing by the Buyer.

c. Value Added Tax (if applicable) shall be charged by the Supplier at the rate prevailing on the date when the Supplier’s invoice is raised.

d. The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow the Buyer to inspect such records at all reasonable times on request

e. The Supplier shall not be entitled to assert any credit, set-off or counterclaim against the Buyer in order to justify withholding payment of any such amount in whole or in part. The Buyer may, without limiting its other rights or remedies, set off any amount owing to it by the Supplier against any amount payable by The Buyer to the Supplier.

9. QUALITY

It is a condition of the Contract that the Goods are without defect in materials, workmanship or (where the Goods have not been designed by the Buyer) design and conform in all respects with the Buyer’s specification and drawings (if any) and/or description which shall form part of this Contract and from which no deviation shall be accepted unless with the Buyer’s prior written approval. The Goods shall: be of satisfactory quality (within the meaning of the UK Sale of Goods Act 1979) and fit for any purpose and capable of any standard of performance set out in the Buyer’s Purchase Order, held out by the Supplier or made known to the Supplier by the Buyer, expressly or by implication, and in this respect the Buyer relies on the Supplier’s skill and judgment; be free from defects; and comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.

10. INSPECTION AND ACCEPTANCE

The Buyer and the Buyer’s client shall be entitled to inspect and test the Goods during manufacture at the Supplier’s premises or the premises of any sub-contractor of the Supplier and the Supplier shall provide or procure reasonable facilities therefore. The Buyer shall inspect and where applicable test the Goods within a reasonable time following delivery. Such inspection and testing shall not release the Supplier from any obligation under the Contract and the Buyer reserves the right to reject any of the Goods found not in accordance with the Purchase Order during such inspection or testing or after delivery. If following such inspection or testing the Buyer considers that the Goods do not comply with or are unlikely to comply with the requirements set out in condition 9, the Buyer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. The Buyer shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions. The Goods will only be deemed accepted following Buyer’s inspection and tests after delivery to the Buyer’s satisfaction (“Acceptance”).

11. GUARANTEE

Without prejudice to the Buyer’s rights under any other terms of these Conditions or at law, the Supplier shall make good by repair or, at the Buyer’s option, by the supply of a replacement, defects in the Goods or any other failure of the Goods to comply with these Conditions which appear in the Goods within a period commencing at the date of Buyer’s Acceptance of the Goods and ending 12 months thereafter, and which arise from faulty materials, workmanship or design (where this is the responsibility of the Supplier) or failure of the Goods to comply with their description and/or the terms of these Conditions. The Supplier shall instigate such repair or replacement satisfactory to the Buyer forthwith on being required to do so by the Buyer and the Goods shall be removed and the repaired or replacement Goods installed at the cost of the Supplier. All repaired or replacement Goods shall be subject to a further guarantee as detailed above from the date of repair or replacement.

12. REGULATIONS

a. The Supplier shall observe and maintain quality control and supplier quality assurance standards in respect of the Goods in accordance with the requirements of the Buyer, the Buyer’s clients (where these are notified to the Supplier in the Buyer’s Purchase Order), relevant British Standards, The Health and Safety at Work Act 1974, the Consumer Protection Act 1987 and any other statutes or regulatory bodies without limitation.

b. The Supplier shall maintain detailed manufacturing and quality control records for a period of at least ten years from the date of delivery of the Goods and the Supplier shall allow the Buyer to inspect such records at all reasonable times on request.

c. Where required by statute or regulatory bodies or otherwise as specified in the Purchase Order, the Supplier shall provide with each item or delivery of goods a European Union compliant Certificate of Conformity, Manufacturing Materials Certificates, Product Data Sheets, Health and Safety notices, Declaration of Compliance for Food Contact materials, or other documentation relating to the goods subject of the Purchase Order.

d. The Supplier shall mark all hazardous goods or materials with international danger symbols where they exist and shall display the name of the material in English. Transport and other documents shall include declaration of the hazard and the name of the material in English. All hazardous goods or materials shall be accompanied by emergency information in English in the form of written instructions labels or markings. The Supplier shall observe the requirements of UK legislation and any relevant international agreements relating to the packing, labelling and carriage of hazardous goods or materials. All information held by or reasonably available to the Supplier regarding any potential hazards known or believed to exist in the transport, handling or use of the goods or materials supplied shall be promptly communicated to the Buyer prior to delivery.

e. The Supplier shall ensure that at all times it has and maintains all licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

13. LIABILITY FOR ACCIDENTS AND DAMAGE ETC.

a. The Supplier shall keep the Buyer indemnified in full against all actions, injury, suits, claims, demands, costs, charges, damages, losses (including, without limitation, all and any special, indirect or consequential losses (which shall include, without limitation, loss of profit, loss of business and loss of goodwill)) and expenses suffered or incurred by the Buyer and/or for which it may be liable to any third party as a result of or in connection with:
i. any claim made against the Buyer by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
ii. any claim made against the Buyer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services (save to the extent that the Buyer has supplied a specification or design to the Supplier and the Supplier has manufactured the Goods in compliance with such specification or design);
iii. the negligent or wilful acts or omissions of the Supplier, its servants, agents or contractors in supplying, delivering and/or installing the Goods or performing the Services;
iv. any defect in (i) the workmanship, materials or design of the Goods or their packaging; or (ii) the performance of the Services;
v. any liability under the Consumer Protection Act 1987 in respect of the Goods; and
vi. the execution of the Contract by the Supplier or arising from or caused by any breach by the supplier of these Conditions.
whether or not such actions, injury, suits, claims, demands, costs, charges, damages, losses or expenses were foreseeable by the Supplier or the Buyer at the date of the Order.

b. For the duration of the Contract and for a sufficient period thereafter to comply with any liabilities under the Contract, 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, at 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. Should the Buyer so request at any time, the Supplier shall have the Buyer’s interest noted in the insurance policy.

c. This condition 13 shall survive termination of the Contract.

14. TERMINATION WITH AND WITHOUT CAUSE

If the Supplier is in breach of these Conditions, the Buyer may instruct the Supplier to remedy the default within 14 days (if it is capable of remedy) and, if the Supplier fails to do so or it is irremediable, the Buyer shall be entitled on written notice forthwith to terminate the Contract in whole or in part by serving notice to this effect without prejudice to the Buyer’s other rights. The Buyer may also terminate the Contract at any time for the Buyer’s convenience and in such case, as the sole remedy of the Supplier, the Buyer shall pay the Supplier all reasonable costs incurred against detailed documentation with any sum already paid to the Supplier being deducted provided such costs will not include loss of anticipated profits or any indirect or consequential loss and the Supplier must mitigate its loss and sell or use elsewhere any goods bought or partly made for the purposes of these Conditions and the Supplier shall supply such of the Goods as are completed which the Buyer requests. The Buyer may also terminate the Contract forthwith by notice under condition 18 hereof.

15. INTELLECTUAL PROPERTY RIGHTS

The Supplier represents and warrants that the Goods and parts of the Goods not of the Buyer’s design, and/or the use, sale or disposal of such Goods, do not infringe any patent, copyright, trade mark, registered design or other Intellectual Property Right of any third party, or the provisions of any statutory instrument or regulation for the time being in force and undertakes fully to indemnify the Buyer against all judgments decrees orders damages costs and expenses arising from actual or alleged infringement of the same.

All Intellectual Property Rights in or to any Services done or Goods supplied by the Supplier which are bespoke or customised for the Buyer under the Contract shall vest in the Buyer and the Supplier shall execute all documents necessary to vest such ownership in the Buyer.

16. DRAWINGS AND INFORMATION

Drawings, specifications and information supplied by the Buyer to the Supplier for the purposes of the Contract shall remain the property of the Buyer and shall not be used, copied or communicated to a third-party by the Supplier otherwise than as strictly necessary for the purposes of the Contract. All invoices submitted by the Supplier shall be accompanied by any drawings, specifications and information supplied by the Buyer to the Supplier as part of the Contract.

17. TOOLING

If any jigs, tools, dies, patterns, moulds, gauges, components, materials of whatsoever nature are supplied to the Supplier by the Buyer for use in connection with the Contract, the same shall be at the Supplier’s risk from the time they leave the Buyer’s premises until they are returned thereto but shall remain the Buyer’s property. The Buyer shall have the right of reasonable access to the Supplier’s premises to inspect such items while they are there. The Supplier shall not use any of the foregoing except in connection with the Buyer’s Purchase Orders and the Supplier shall maintain the same in good condition and return them to the Buyer on demand or automatically on completion of the Contract. Gauges are issued as reference standards only. All jigs, tools, dies, patterns, moulds, and gauges manufactured or supplied by the Supplier for the Buyer in connection with the Contract shall, at the Buyer’s option and upon agreed payment to the Supplier, become the property of the Buyer and shall be retained by the Supplier at the Supplier’s risk until disposal instructions are given by the Buyer, which instructions shall be complied with forthwith.

18. RECEIVERSHIP OR LIQUIDATION

If the Supplier shall become bankrupt or insolvent or have a receiving order made against him or compound with his creditors or commence to be wound up or to have an administration order made against him or carry on his business under an administration or a receiver or manager for the benefit of his creditors or any of them the Buyer shall be entitled to cancel any Purchase Orders not yet delivered by the Supplier at no charge or penalty.

19. CONFIDENTIALITY

a. The Supplier shall treat any Purchase Order issued by the Buyer and all designs, drawings, specifications, patterns, gauges, samples and information supplied therewith and prepared either by the Buyer or the Supplier solely in connection therewith as confidential and as the property of the Buyer and the Supplier shall not disclose the same to any third party without the Buyer’s express consent and shall not infringe any patent, trade mark, trade name or registered design or copyright vested in the Buyer.

b. Neither any Purchase Order nor the Buyer’s name nor the goods forming the subject of the Contract shall be used for any advertisement or publicity material without the Buyer’s prior written consent.

c. This condition 19 shall survive termination of the Contract.

20. FORCE MAJEURE

Neither party shall be liable to the other for any failure to perform its obligations under the Contract due to events or circumstances beyond that party’s reasonable control (which shall not include any failure of any sub-contractor to deliver) and which by its nature could not have been foreseen by said party or if it could have been foreseen was unavoidable. Where such failure causes a delay of more than 2 months in delivery or performance the other party shall have the right by written notice to terminate the Contract.

21. THIRD PARTY RIGHTS

No provision in this Contract shall confer any benefit on a third party whether under the Contracts (Rights of Third Parties) Act or otherwise.

22. WAIVER AND CUMULATIVE REMEDIES

a. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

b. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

23. SEVERENCE

a. If a court or any other competent authority finds that any provision (or part of any provision) of the Contract is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

b. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

24. NO PARTNERSHIP

Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

25. LAW

All Contracts shall in all respects be treated and construed in accordance with English Law and the Courts of Law in England shall have jurisdiction to entertain any claims in respect thereof whether in contract or in tort. All rights and remedies of the Buyer and the Supplier detailed in these Conditions are in addition and without prejudice to the rights of the Buyer and Supplier under statute or at common law.