The Autocraft Drivetrain Solutions Limited General Conditions of Purchase
1 .1 In these Conditions of Purchase:
‘Conditions of Purchase’ means the terms & conditions set out in this document together with, as appropriate, any other terms or conditions incorporated into the Agreement (if any) by express written agreement between Autocraft Drivetrain Solutions Limited (ADS) & the Company:
‘Agreement’ means the Conditions of Purchase or, as appropriate, the supply agreement identified by the supply agreement number, for the sale of the Goods & / or the Services by the Company & purchase of the Goods & / or the Services by ADS (the “Supply Agreement). In the event of any conflict between the terms of the Supply Agreement & the terms set out here, the former shall apply;
‘Delivery Address’ means the delivery address stated on the Purchase Order;
‘Goods’ means the goods (if any) stated on the Purchase Order;
‘Order / Purchase Order’ means the order; ‘Order Number’ means the Purchase Order number as stated on the Purchase Order;
‘Services’ means the services (if any) described on the Purchase Order;
‘Company’ means the person, firm or company identified as supplier on the Purchase Order; ‘ADS’ means Autocraft Drivetrain Solutions Limited whose registered office is Syston Lane, Belton, Grantham, Lincolnshire, NG32 2LY;
‘Writing’ means & includes one or more of post, fax & email only to the correct address; time being of the essence telephone calls may be acceptable but not in replacement or obligation to writing.
1.2 The headings in these Conditions of Purchase are for convenience only & shall not affect their construction.
AGREEMENT TO PURCHASE
2.1 The Order constitutes an offer by ADS to purchase the Goods and/or the Services subject to the Conditions of Purchase & despatch or delivery of the Goods, or the commencement of supply of the Services by the Company shall constitute the Company’s acceptance of these Conditions of Purchase.
2.2 These Conditions of Purchase or, as appropriate the terms of the Supply Agreement shall prevail to the exclusion of any other terms & conditions on which any quotation has been given to ADS or other variation & no variation of the Conditions of Purchase, Order or Agreement shall be binding unless made by written agreement between ADS & the Company.
3.1 The price of the Goods &/or the Services shall be as stated in the Order &, unless otherwise so stated, shall be exclusive of value added tax (which shall be payable by ADS subject to receipt by ADS of a value added tax invoice) & inclusive of all charges for packaging, packing, carriage, insurance, & delivery of the Goods to the Delivery Address &any other duties or imposts other than value added tax.
3.2 ADS shall be entitled to set off any sum due by ADS to the Company against any sum due to ADS by the Company.
The Company shall provide an itemised invoice for every dispatch and payment will be due within 60 days end of month from the invoice date.
INSPECTION & TESTING
5.1 The Company shall permit ADS or ADS’s authorised representative to inspect & test the Goods at any time during manufacture, processing or storage & to inspect & test performance of the Services at the premises of the Company or any third party & the Company shall provide or procure the provision of all such facilities & accommodation as may reasonably be required by ADS for inspection & testing. The Company shall at the request of ADS, supply to ADS a copy of the Company’s test sheets certified by the Company to be a true copy.
5.2 If, as a result of such inspection or testing, ADS is of the opinion that the Goods do not comply with the Agreement or are unlikely on completion of manufacture or processing so to comply, upon ADS so informing the Company, the Company shall immediately take such steps as may be necessary to enable the Company to comply with the Agreement.
5.3 For the avoidance of doubt such inspection or right to inspect on the part of ADS shall not constitute acceptance or approval by ADS of the Goods or Services.
6.1 The Goods shall be delivered & the Services shall be performed on the date or within the time period stated in the Order at the Delivery Address or as may be directed by ADS. Where the date of delivery of the Goods or of performance of the services is not specified in the Order, the Company shall give ADS reasonable notice of the date thereof & shall not perform their duties under this order until ADS have confirmed that the date of performance is acceptable.
6.2 The Company shall give ADS in good time any instruction or information required to enable ADS to take delivery of the Goods & performance of the Services.
6.3 ADS shall be entitled to reject any Goods delivered which are not in accordance with the Agreement & shall not be deemed to have accepted any Goods until ADS has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent. In the event of any failure on the part of the Company to supply Goods or Services of the quality, in the quantity & to the time specified, ADS shall be entitled to:
6.3.1 reject, & to require the Company to replace, at no charge, any such Goods; or 5.3.2 reject & obtain equivalent Goods or Services from an alternative source & the Company undertakes to reimburse ADS for any reasonable additional costs incurred in so doing.
6.4 Time of delivery of the Goods & of performance of the Services shall be of the essence of the Agreement.
6.5 Any extension of time for delivery or performance must be agreed in advance between ADS & the Company in writing. If time is so extended, time as extended shall be of the essence of the Agreement.
6.6 If the Goods are to be delivered or the Services are to be performed by instalments, the Agreement will be treated as a single contract & not severable.
6.7 Delivery shall not be effected until the Goods have been unloaded & (if relevant) the Services have been performed & accepted in writing by an authorised officer, employee, or representative of ADS.
6.8 The Order Number must be quoted on all correspondence relating to the Order. A delivery or advice note must accompany all Goods dispatched to the Delivery Address. Goods or Services not accompanied by a delivery or advice note may be refused.
TITLE & RISK
7.1 Title in the Goods shall pass to ADS upon delivery unless payment is made prior to delivery in which case it shall pass to ADS once payment has been made & the Goods have been appropriated to the Agreement.
7.2 Risk of damage to or loss of the Goods supplied shall pass to ADS upon delivery in accordance with the Agreement.
7.3 The Company shall insure the Goods to their full value against all risks of damage or loss prior to completion of delivery by whomsoever effected.
WARRANTIES & LIABILITIES
8.1 The Company warrants to ADS that the Goods will:
8.1.1 be of satisfactory quality & fit for any purpose made known to the Company by ADS. When assessing satisfactory quality, ADS will take into account any public statement made by the Company or by any third party supplier engaged by the Company; 8.1.2 be free from defects in design, material & workmanship, & that the Company, upon becoming aware of any defect whatsoever in the Goods immediately notify ADS of such defect & confirm the same in writing to ADS within three (3) days of such defect being identified; 8.1.3 correspond in quality, quantity & description with any specifications, stipulations or any other information contained in the Order or supplied by ADS to the Company or agreed in writing by ADS & shall correspond in all respects with any samples or patterns provided by the Company to ADS or by ADS to the Company; 8.1.4 comply with all applicable regulations & other legal requirements concerning the manufacture, sale, packaging, carriage, packing, delivery or disposal of the Goods & the performance of the Services; & 8.1.5 be trackable or locatable, by any means, whilst in transit.
8.2 The Company warrants to ADS that the Services will be performed by appropriately qualified & trained personnel acting with due care & diligence & to the best industry standard.
8.3 The Company shall indemnify ADS in full against all losses, damages (including but not limited to loss or damage to property or ADS’s business or death or personal injury), liabilities, fines, penalties, costs & expenses (including legal expenses whether or not proceedings are brought) of whatsoever nature awarded against or incurred or paid by ADS as a result or in connection with:
8.3.1 any breach of any warranty given by the Company in relation to the Goods or Services; 7.3.2 any claim that the Goods infringe or their importation use or resale infringes the patent, copyright, design right, trade mark or other intellectual property rights of any other person except to the extent that any such claim arises from compliance with a specification or design supplied by ADS;
8.3.3 any liability under the Consumer Protection Act 1987 or subsequent consumer protection legislation; 7.3.4 any act or omission of the Company or its employees, agents or subcontractors in supplying delivering & installing the Goods or in performing the Services; & 7.3.5 the supply, delivery & installation of the Goods & the performance of the Services.
8.4 Nothing in this clause shall render the Company liable to indemnify ADS if & to the extent that it is proved to ADS’s satisfaction that such losses, damages, claims, liabilities, fines, penalties, costs & expenses result from any act, negligence or default of ADS’s authorised servants or agents.
8.5 The Company warrants that any equipment, software & system to be developed for or supplied to ADS pursuant to the Agreement, & any equipment, software & system used by the Company or used by any supplier of goods or services to the Company to provide the Goods & / or services to ADS is & will be programmed to adapt to & accommodate changes in dates, including without limitation, century dates & leap years, without detriment or deterioration in performance affecting ADS & undertakes to indemnify ADS & hold ADS harmless against all costs, losses & liability including legal fees arising from any breach of this Clause.
9.1 ADS & the company shall not be liable for any failure or delay in supplying the Goods or Services or in receiving or making use of the Goods or Services due wholly or partially to any event beyond the reasonable control of the parties (“Force Majeure Event”) including without limitation, acts of God, war, acts of terrorism, riot, civil commotion, malicious damage, fire, flood or storm. For the avoidance of doubt strikes, industrial action, third party insolvency and/or failure shall not be considered a Force Majeure Event.
9.2 If either party Is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by reason of a Force Majeure Event, it shall within 2 days give written notice to the other party declaring the extent of the Force Majeure Event, the date of its commencement & the effects of the Force Majeure Event on its ability to perform its obligations under this Agreement & if mutually agreed by the parties then the obligations of the party so affected shall thereupon be suspended for so long as the circumstances may continue.
9.3 A party affected by a Force Majeure Event is to use every reasonable effort to minimise the effects thereof & shall resume performance as soon as possible after the removal of such Force Majeure Event. If the period of non-performance exceeds fourteen (14) days from the receipt of the notice of the Force Majeure Event, the party whose performance has not been so affected may, by giving written notice, terminate the agreement forthwith.
TERMINATION & BREACH
10.1 ADS shall have the right to terminate this Agreement with immediate effect by notice in writing to the Company being in breach of any of its obligations under this Agreement. In case of any breach which is capable of remedy, ADS shall serve a written notice on the company specifying the nature of such breach & where such breach is remediable the company shall have failed to remedy such breach within the maximum period of fourteen (14) days from the date of service of such notice.
10.2 In the case of a material breach, which is not capable of remedy, ADS shall have the right to terminate this Agreement with immediate effect.
10.3 The Company shall have the right to terminate this Agreement in the event of ADS being in breach of “any of its obligations under this Agreement, provided that the Company shall first have served a written notice on ADS specifying the nature of such breach & where such breach is remediable ADS shall have failed to remedy such breach within the maximum period of fourteen (14) days from
the date of service of such notice.
10.4 The Company or ADS may (without prejudice to any other rights or remedy of the other party) terminate this Agreement by notice to take immediate effect if any of the following events occur in respect of the other: a) The Company or ADS makes or offers to make any arrangement or composition with or for the benefit of its creditors (including any voluntary arrangement as defined in the Insolvency Act 1986); or b) The Company or ADS ceases or threatens to cease to carryon business or suspends or threatens to suspend all or substantially all of its operations (other than temporarily by reason of a strike) or suspends payments of its debts or becomes unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 where applicable) or commits any act of insolvency or bankruptcy; or c) A petition or resolution for the making of an administration order for the bankruptcy, winding-up or dissolution of the Company or ADS for the purposes of reconstruction or amalgamation of the solvent company is presented or passed; or d) The Company or ADS files a voluntary petition in bankruptcy or insolvency; or e) A liquidator, trustee, supervisor, receiver, administrator, administrative receiver or encumbrancer takes possession of or is appointed over the whole or any part of the assets of the Company or ADS; or f) There is a change of control of the Company. For the purpose of this Clause 9.4 (f), “control” means the ability to direct the affairs of another whether by voting or contractual rights or otherwise & whether directly or indirectly.
If ADS reasonably apprehends that any of the events mentioned in Clause 9.4 (a) to (f) above are about to occur in relation to the Company then ADS shall be entitled to terminate this Agreement immediately upon written notice at which point any sums payable by the Company to ADS under this Agreement shall become due & payable.
10.5 ADS shall have the right to terminate this Agreement at any time on three (3) months’ written notice.
ELECTRONIC DATA INTERCHANGE
Where the parties communicate using direct computer to computer interchange of computer processable data (whether with or without the assistance of a value added network or other intermediary) then the terms & conditions of the Interchange Agreement shall apply, a copy of which is available from ADS upon request. In the event of any conflict between the terms of the Interchange Agreement & the terms here set out, the latter shall apply.
ASSIGNMENT & CONTRACTING
12.1. The Company shall not assign, sub-contract or transfer or purport to assign, sub-contract or transfer any of its rights or obligations under this Agreement without the prior written consent of ADS.
12.2 Any consent given by ADS to the Company under condition 11.1 shall not impose any duty on ADS to enquire as to competency of any sub-contractor & the Company shall ensure that any subcontractor is competent & that performance of the Agreement is properly carried out. In the event that any sub-contractor is subsequently deemed in ADS’S reasonable opinion not to be suitable on technical or commercial grounds then the Company shall replace that sub-contractor with an alternative sub-contractor also approved in writing by ADS.
12.3 ADS shall have the right to assign, sub-contract or transfer any or all of its rights or obligations under this Agreement in whole or in part.
13.1 No waiver by ADS of any breach of the Agreement shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.2 If any provision of these Conditions of Purchase is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions of Purchase & the remainder of the provision in question shall not be affected thereby.
13.3 Any notice required or permitted to be given by either party to the other shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.4 Notwithstanding the fact that the Company may have or have had business dealings with ADS, ADS’s name shall not be used by the Company for the purpose of advertisement or publicity without the prior written consent of ADS.
13.5 All copyright, designs, domain names, patents, trade marks & all other intellectual property, which may from time to time be licensed to the Company under this Agreement, shall remain the exclusive property of ADS.
14.1 During the term of this Agreement & after termination or expiration of this Agreement the terms of this Agreement & any information concerning the business affairs of the one party which comes into the possession of the other party or any other contracted party under or pursuant to this Agreement shall be confidential to the parties & shall not be disclosed to any outside party (save as required by any law, regulation or court order) or used other than for the purposes of this Agreement without the prior written consent of the other party, unless the information is manifestly in the public domain or already in the possession of the receiving party (other than as a result of a breach of confidentiality).
14.2 In particular, the Company shall not disclose to any outside party any prices being paid by ADS or any details of any computer or other data of ADS to which the Company may have access from time to time for the purposes of this Agreement & the Company shall take all actions as are necessary to ensure that their personnel & any subcontractors engaged by it in accordance with this ‘Agreement observe these provisions of confidentiality.
LAW & JURISDICTION
15.1 This Contract shall be governed by English law.
15.2 The Parties to this Contract submit to the exclusive jurisdiction of the English Courts.