Suppliers: Purchase Order Terms & Conditions
General Terms and Conditions for Use
As used throughout these Purchase Order Terms and Conditions, “Seller” and “Buyer” shall mean those parties respectively designated as such on the face of the Purchase Order. “Purchase Order” shall mean Buyer’s written instructions to buy Goods and/or Services, incorporating these Purchase Order Terms and Conditions. “Goods” shall mean any materials and/or Services, incorporating these Purchase Order Terms and Conditions. “Goods” shall mean any materials and/or equipment, including tools and items to be sold by the Seller to the Buyer under the Purchase Order. “Equipment” shall mean all items, plant, equipment, and tools to be hired without an operator by the Seller to the Buyer under the Purchase Order. “Services” shall mean the activities, operations, tasks, and duties to be performed by the Seller under the Purchase Order, including the provision of equipment, personnel, design and engineering services, reports, and documentation in relation thereto. “Work” shall mean all the work that the Seller is required to carry out in accordance with the provisions of the Purchase order, including the provision of all Goods, Services and hire of Equipment.
The Purchase order shall become a binding contract upon the Seller signing and returning an unqualified acceptance of the Purchase Order or upon shipment of any Goods ordered or commencement of performance by the Seller, whichever occurs first. In the event of conflict between any terms and conditions on the face of the Purchase Order and these Purchase Order Terms and Conditions, the terms and conditions expressed on the face of the Purchase Order shall prevail. No terms and conditions submitted or referred to by the Seller in any quotation or tender or during the course of any negotiations between the parties shall form part of the contract unless the Buyer specifically agrees in writing to their incorporation in the contract.
Conflict with existing contracts
If the Purchase Order is made under an existing written contract between the Seller and the Buyer (by specifically making reference to such contract in the Purchase Order) the terms of said contract shall prevail over these Purchase Order Terms and Conditions in the event of a conflict.
A separate advice notice, bearing the order number contained in the Purchase Order, must be sent to the Buyer at the address (email or physical address) stated on the Purchase order on or before the day any Goods are despatched. All certificates (test or other) required in terms of the Purchase Order or otherwise by law or regulation must accompany said advice notice or be forwarded separately to the Buyer on or before the day any Goods are despatched. The Buyer’s order number (or order reference) must be included on all shipping papers and invoices. The Seller’s invoice/s must be forwarded to the Accounts Department of the Buyer (email@example.com) or to the address (email or physical address) stated on the Purchase Order within ten days following the despatch of the Goods or the completion of Services.
Documentation, specifically accreditation/certification documents, will be held for technical files for a period of time to comply with relevant legislation. Where applicable, documents specifically relating to WEEE, RoHS, REACH, CE and UKCA should be provided to Coolicon Lighting Limited.
Delivery of Goods and Services
The Seller shall deliver the Goods, Services and/or Equipment on the date/s and at the point/s of delivery stated on the face of the Purchase Order or as the Buyer may otherwise specify. Unless otherwise stated on the face of the Purchase Order, the Buyer is under no obligation to accept partial shipments. The Goods must be suitably packaged and prepared for shipment to ensure the lowest transportation rates and must be in accordance with all applicable statutes, rules and regulations and any requirements stated in the Buyer’s Purchase Order. Unless expressly agreed by the Buyer, no charges (additional or otherwise) will be allowed for loading and unloading costs, the costs, if any, of obtaining all necessary export and import licences and consents, export and import duties, packing, crating, transportation, or freight. The Seller will use the most economical and efficient means for shipment unless otherwise directed by the Buyer. The Seller will be liable for excess transportation costs resulting from any deviation from the Buyer’s instructions, where given. If the Seller fails to deliver the Goods, Equipment and/or perform Services ordered by the Buyer on time, the Buyer is entitled, without prejudice, to the Buyer’s rights, under clause Breach and Termination, to claim damages from the Seller for any costs, losses or expenses which are attributable to the Seller’s delay.
Title and Risk
Always subject to clause ‘Acceptance, Rejection and Revocation of Acceptance’ and unless otherwise stated on the face of the Purchase Order:
Goods and Equipment shall be at the Seller’s sole risk until delivered to the Buyer at the point specified in the Purchase Order and accepted by the Buyer.
The Seller shall specifically identify all such Goods at the earliest possible time and shall clearly mark and segregate those Goods in the Seller’s facility
Title in Goods, but not risk, shall pass to the Buyer upon delivery or, if earlier, upon payment. In the event of delivery or payment by instalments, title shall pass to the Buyer progressively with such delivery or payment. Each instalment delivery shall constitute part of the Purchase Order and shall not constitute separate contracts. The Seller shall provide the Buyer reasonable access to its facilities for verifying compliance with this provision and to take possession of Goods to which title has passed to the Buyer.
The Seller expressly warrants that Goods shall be (i) fit for any intended purpose indicated by the Seller or made known by the Buyer expressly or by implication, (ii) of satisfactory quality, (iii) new, (iv) free from liens, claims and/or encumbrances, (v) of good material and workmanship, (vi) free from defects and (vii) in conformity with sample. The Seller agrees to replace or rectify, at the Buyer’s sole discretion and without cost to the Buyer, any Goods not conforming to the foregoing warranties. The Seller shall bear the cost of retrieval and re-delivery of the Goods to the Buyer. The Seller expressly warrants that Services shall be performed in a good and workmanlike manner and in accordance with industry standards or any higher standard specified in the Purchase Order. At the Buyer’s sole discretion, the Seller shall re-perform any Services not performed to the Buyer’s reasonable satisfaction at no cost to the Buyer. The duration of the foregoing express warranties shall commence upon the date of acceptance of Goods or completion of Services and remain valid for twenty-four months from such date, or eighteen months from the date of putting into commercial use in the case of Goods, whichever is sooner. If any Goods are replaced or repaired or Services reperformed under the provisions of this clause ‘Warranties’, this clause ‘Warranties’ shall apply to the portion so replaced, repaired or re-performed and the warranty period in such cases shall commence on the date upon which such replacement, repair or re-performance was completed. The Seller shall undertake all reasonable endeavours to ensure that the Buyer is afforded the benefit of all warranties of third parties previously granted in respect of Goods. If the Buyer furnishes the Seller drawings, prints or other specifications, the Seller shall, prior to the commencement of any work hereunder, review the Buyer’s documents for completeness, accuracy and compliance with the Purchase Order and any industry regulations and standards.
Acceptance, rejection and revocation of acceptance
Following receipt of any Goods, the Buyer shall have a reasonable time, but not less than ten days, in which to inspect and accept or reject the Goods.
The Buyer has the right to reject Goods not conforming to the Purchase Order. Rejected Goods shall be returned to the Seller for full refund, repair, or replacement, at the Buyer’s discretion, at the Seller’s sole risk and expense, including transportation costs.
Acceptance by the Buyer of part of the Goods shall not amount to an acceptance of the remainder nor shall it bind the Buyer to accept the remainder. Acceptance of all or part of the Goods shall not deprive the Buyer of the right to reject part of the Goods not conforming to the Purchase Order or to revoke acceptance and return any part of the Goods because of any defect that was or was likely in the Buyer’s reasonable opinion to be latent at the time of delivery, nor shall it deprive the Buyer of the right to claim damages on the grounds the Goods do not conform to the Purchase Order.
Payment shall not of itself constitute acceptance of or satisfaction with Goods supplied or Services provided by the Seller.
Acceptance and/or payment shall not constitute any waiver by Buyer of its rights and remedies hereunder or at law.
Intellectual property and confidentiality
Any information, property or materials in whatever form or format furnished by the Buyer directly or indirectly to the Seller to facilitate performance under the Purchase Order, and any invention, know-how, design or copyright arising from development of any Goods or Equipment specifically produced for the Buyer by the Seller, shall:
Belong exclusively to the Buyer,
Be held in strict confidence during and after the term of the Purchase Order by the Seller and not transferred by the Seller to any third party without the Buyer’s prior written consent,
Be used exclusively by the Seller to complete the Purchase Order. Any Buyer-furnished property and materials shall be at the Seller’s risk and maintained in good order and condition from the time of dispatch from the Buyer’s premises until returned thereto along with any Buyer-furnished information, copies, and reproductions thereof, which shall be returned to the Buyer within five days after completion, termination, or cancellation of the Purchase Order. The Seller shall co-operate with the Buyer as required to give full effect to this provision.
Except insofar as attributable to fault of the Buyer, the Seller agrees to indemnify and hold the Buyer harmless from and against any loss, liability, damage, or claim including, but not limited to, legal costs incurred by the Buyer as a result of the infringement or alleged infringement of any patent rights, registered or unregistered design, copyright, trademark or name or any other intellectual property rights relating to the performance of the Purchase Order. Furthermore, at the Buyer’s option, the Seller shall defend at its own expense any claim which would allow the Buyer to invoke such indemnity. The foregoing indemnity is conditional upon:
Prompt written notice of any claim to the Seller if a claim is made against the Buyer,
Reasonable cooperation and assistance by the Buyer in the defiance and settlement of such claim at the expense of the Seller. If any Goods or Services become, or in the Buyer's reasonable opinion are likely to become, the subject of an infringement claim, the Seller shall at the Buyer’s discretion either procure for the Buyer the right to continue the use thereof or replace or modify the same so that it becomes non-infringing (provided that the same level of functionality is maintained).
The provisions of this clause ‘Intellectual Property and Confidentiality’ shall survive the expiration, cancellation, or termination of this Purchase Order.
Indemnities and insurance
Always subject to the applicable provisions of law, the following indemnities shall apply in respect of Services performed and shall not apply to Goods or Equipment provided under the Purchase Order. All exclusions and indemnities given under this clause ‘Indemnities and Insurance’ shall apply to the maximum extent permitted by law, howsoever caused and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party and shall apply irrespective of any claim in tort, under contract or otherwise at law. To the maximum extent permitted by law, the Seller shall be responsible for and shall save, indemnify, defend and hold harmless the Buyer and its directors, officers and employees from and against all claims, demands, proceedings, losses, damages, costs (including but not limited to legal costs), expenses and liabilities (collectively “Claims”) in respect of death of or injury to personnel, and/or damage to or loss of property (whether owned, leased or otherwise), of the Seller and/or its subcontractors arising from or relating to the performance of the Purchase Order. The Buyer shall be responsible for and shall save, indemnify, defend and hold harmless the Seller and its directors, officers and employees from and against all “Claims” in respect of death of or injury to personnel, and/or damage to or loss of property (whether owned, leased or otherwise), of the Buyer arising from or relating to the performance or non-performance of the Purchase Order. The above indemnities shall not apply to:
Loss or damage to Goods or Equipment,
Loss or damage to property or materials furnished by the Buyer to the Seller pursuant to clause ‘Intellectual Property and Confidentiality’ (which loss or damage shall be determined in accordance with clause ‘Intellectual Property and Confidentiality’).
The Seller shall maintain levels of insurance sufficient to cover its liabilities and obligations under the Purchase Order and at law. Both parties' insurances shall be endorsed to provide that underwriters waive any rights of recourse, including in particular subrogation rights against the other party, their co- ventures and its and their respective affiliates in relation to the Purchase Order to the extent of the valid and enforceable indemnities assumed by the party hereunder arising from the Work.
The price of Goods and/or Services shall be as specified in the Purchase Order. The Seller shall invoice the Buyer following completion of the Work or, in the case of ongoing provision of Services or hire of Equipment, on a monthly basis and payment shall be made within thirty days (or such other period specified in the Purchase Order) of the Buyer’s receipt of the Seller's proper invoice issued in accordance with clause ‘Documentation’ above. In the event any Goods or Services are rejected by the Buyer as being not in conformity with the Purchase Order, the Buyer may withhold payment of all or part of the Seller’s invoice. Undisputed portions of invoices shall remain due.
The Buyer and the Buyer’s customer/s shall be entitled, upon giving reasonable notice, to check and verify the progress of the Seller’s fulfilment of the Purchase Order, including inspecting Goods any time prior to delivery. In such regard, the Seller shall afford the Buyer access to the Seller's (and its subcontractors’) premises at all reasonable times. Any such inspections performed by the Buyer shall not in any way relieve the Seller from any of its obligations under the Purchase Order or applicable law.
Assignation and subcontracting
The Seller may not assign, transfer, or subcontract any part of its obligations under the Purchase Order without the prior written permission of the Buyer. The Buyer may assign the Purchase Order or any part of it or any benefit or interest in or under it to any affiliate of the Buyer. “Affiliate” shall mean any other entity directly or indirectly controlled by, controlling, or under common control with the Buyer. In addition, the Buyer may make any such assignment to any other third party but only with the prior agreement of the Seller, which shall not unreasonably be withheld or delayed.
Breach and termination
In the event that the Seller becomes unable to meet delivery dates stated in the Purchase Order or is unable to render performance in compliance with the terms and conditions of the Purchase Order, the Seller must notify the Buyer in writing immediately. Where dates for delivery of Goods/Equipment or provision of Services are specified in the Purchase Order, failure by the Seller to adhere to such dates shall be deemed a material breach of contract unless such dates are specifically stated to be approximate. In the event of default by the Seller in the performance of its obligations under the Purchase Order, or should the Seller
be declared bankrupt,
go into liquidation,
or in the event of the appointment of an administrator, receiver or trustee of all or a substantial part of the Seller’s assets,
the Buyer may, at its discretion, cancel the Purchase Order without penalty or liability and may also hold the Seller responsible for all damages arising out of any default. Default shall be deemed to occur if, in the reasonable opinion of the Buyer, the Seller is unable to comply with its obligations under the Purchase Order.
The Buyer may, at its convenience, for reasons other than the Seller’s default, terminate the Purchase Order, in whole or in part, and the Seller shall cease all further performance under the Purchase Order or any part thereof that has been terminated. In the case of termination by the Buyer for convenience, the Buyer shall pay the Seller the agreed price for Services properly rendered and the order price of finished Goods up to the date of termination, and the reasonable documented cost incurred by the Seller in respect of work in progress and raw materials relating to the Purchase Order. The Seller shall promptly advise the Buyer of the quantities of finished Goods and raw materials on hand or purchased prior to such termination and the Seller shall comply with any instructions of the Buyer regarding disposal of such finished Goods and raw materials. Payment as provided under this clause ‘Breach and Termination’ shall constitute the Buyer’s only liability to the Seller in the event the Purchase Order is terminated for convenience.
Unless otherwise stipulated in the Purchase Order, the Seller shall be responsible for any and all taxes that are lawfully due by the Seller with respect to Work provided to the Buyer, including, but not limited to, value added tax and similar taxes pertaining to any provision of the Seller’s Goods, Equipment or Services hereunder and, in addition, the Seller shall be solely responsible for all costs and expenses of import and export, customs duties, imports, taxes, tariffs, and all other fees which may be assessed on the performance of the Purchase Order.
Nothing contained herein or any document executed in connection herewith, shall be construed to create an employer/employee relationship, partnership or joint venture relationship between the Buyer and the Seller. The Seller is an independent contractor and not an employee of the Buyer. The Seller will not represent to be or hold itself out as an employee of the Buyer.
Health, safety and environment
The Seller shall comply with all applicable laws and regulations pertaining to health, safety, security, and environmental protection at all work sites. Furthermore, unless indicated otherwise, the Seller represents and warrants that all Goods, Equipment, or any other items provided in relation to the Work are, and will be when delivered, free of all hazardous substances. The Seller shall provide a material safety data sheet for each item containing toxic or otherwise hazardous substances purchased by the Buyer from the Seller, and the Seller shall affix on each container containing such substances the chemical name and the appropriate hazard warning for the use and safe handling of the substance, along with any other required markings and legends. The Seller shall provide other material safety data sheets relating to such item/s upon request.
The Seller shall give reasonable notice to the Buyer of its intention to cease supply of component parts or replacements in respect of any Goods sold to the Buyer, to enable the Buyer to make alternative arrangements for the purchase of such component parts or replacements.
The Buyer’s failure to insist upon strict performance of any term or condition set forth herein shall not be deemed a waiver of any rights or remedies that the Buyer may have and shall not be deemed a waiver of any subsequent breach of the same or any other term or condition hereof.
The Seller shall comply with all laws, rules, regulations, decrees and/or official governmental orders referenced in the Purchase Order or applicable to the performance of the Seller’s obligations under the Purchase Order and applicable international export control and customs regulations. Without limiting the foregoing, the Seller represents that it has obtained all licenses and authorisations necessary to export or re-export goods, technology, or services under the Purchase Order to the Buyer or to the ultimate end user as identified by the Buyer to the Seller.
Subject to clause ‘Conflict with Existing Contracts’, the Purchase Order and the Buyer’s acceptance thereof constitutes the entire agreement between the parties and supersedes all prior discussions, negotiations, understandings, and agreements in respect of its subject matter. The Purchase Order shall not be varied except by an instrument in writing of subsequent date duly executed by authorised representatives of the parties. Any accrued but unperformed obligations and any representations, indemnities and warranties shall survive expiration or termination of the Purchase Order.
If a court or any other competent authority finds that any provision, or part of any provision, of the Purchase Order 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 Purchase Order shall not be affected.
The Seller represents, warrants, and covenants that it and its ‘Associated Persons’ have conducted, and will at all times conduct, its and their respective businesses in accordance with applicable laws, rules, regulations, decrees and/or official governmental orders of the United Kingdom and any country in which goods and/or services are provided hereunder relating to anti-bribery, anti-corruption and anti-money laundering. The Seller and its ‘Associated Persons’ shall maintain adequate procedures in furtherance of the foregoing. Seller and its ‘Associated Persons’ have not made, offered, promised to make or authorised the making of, and shall not make, offer or promise to make, or authorise the making of:
Any payment or other transfer of anything of value if and to the extent that to do so is or would be in violation of or inconsistent with the principles or requirements of any anti-bribery, anti-corruption or anti-money laundering laws applicable to the Buyer or to the Seller, or to their respective parent companies, including without limitation, and where applicable, the UK Bribery Act (2010);
Any so-called “facilitation” or “grease” payments irrespective of local custom and even though in some countries such payments may be lawful. Any failure to comply with this clause shall be a material breach of the Purchase Order not capable of remedy.
“Associated Persons” means any person associated with the Seller including, but not limited to, the Seller’s parents, subsidiaries and its and their respective owners, directors, officers, employees, agents, representatives, sub-contractors, and suppliers.
The Seller represents, warrants, and covenants that, to the Seller’s knowledge after reasonable investigation, the goods are, and upon delivery will be, DRC Conflict Free. The Seller shall promptly notify the Buyer in writing in the event that the Seller is or becomes aware of any reason to believe that the goods are not DRC Conflict Free. To the extent the Seller procures gold, tin, tantalum and/or tungsten from a smelter or refiner for incorporation into the goods, the Seller represents, warrants and covenants that such materials shall be procured solely from one or more of the smelters or refiners appearing on the applicable compliant smelter and refiners list available at www.conflictfreesmelter.org.
Code of conduct
In connection with the Seller’s provision of goods and/or services under the Purchase Order, the Seller represents, warrants and covenants that it and its ‘Associated Persons’ have conducted, and will at all times conduct, its and their respective businesses in a manner that is consistent with and adheres to the rules, regulations and laws of the governing authority or authorities. Without limiting the generality of the foregoing, no payment or other transfer of anything of value, including without limitation the provision of any funds, services, gifts or entertainment has been made or will be made directly or indirectly to any person or entity for the purpose of obtaining or influencing the award of the Purchase Order or for any improper advantage or improper purpose in connection with any business transactions involving the Buyer. The Seller shall not engage in any activity, practice, or conduct which would constitute either a UK tax evasion facilitation offence under section forty-five of the Criminal Finance Act or a foreign tax evasion under section forty -six of the Criminal Finance Act. The Seller shall maintain throughout the term of this agreement policies and procedures which are reasonable in all circumstances to prevent the facilitation of tax evasion by an individual, including without limitation employees of the Seller and any substitute, in accordance with any guidance issued under section forty-seven of the Criminal Finances Act. The Seller shall promptly report to the Buyer any request or demand received by the Seller or any individual from a third party to facilitate the evasion of tax within the term part three of the Criminal Finances Act in connection with the agreement.
During engagement, the Buyer may obtain individually identifiable data about individuals, "personal data", in connection with the Seller’s provision of Work to the Buyer under the Purchase Order. Such information may include but not be limited to: name, contact and other limited information about employees or other individuals who interact with the Buyer on the Seller's behalf, as well as other information needed to verify such individual's or the Seller's eligibility to conduct business with the Buyer. Unless the Buyer specifically indicates otherwise, the Buyer acts as the owner/controller of such personal data, and retains responsibility to comply with data protection laws applicable to the Buyer. The Buyer implements standard contractual clauses and other measures to address cross-border data transfer restrictions in data protection laws and provides notice of its data privacy practices with regard to such Seller personal data. In addition, when required, the Buyer shall provide notice with regard to eligibility and/or background reviews via separate notification provided at the time of such reviews.
Governing law and jurisdiction
Unless otherwise specified in the Purchase Order, the construction, interpretation, and performance of the Purchase Order shall be determined in accordance with Scots law and subject to the exclusive jurisdiction of the Scottish Courts. Terms are applicable to Coolicon Lighting Limited (SC497963).