TERMS AND CONDITIONS FOR SUPPLY OF GOODS
1. In the Supply Contract (as hereinafter defined) all words and expressions have the same meaning as in the Main Contract (as hereinafter defined) and the following words and expressions shall have the meanings given below.
a. ‘the Contractor’ means [LGM DEVELOPMENTS LTD] and ‘the Supplier’ means the person named as Supplier in the Purchase Order.
b. ‘the Purchase Order’ means the Contractor’s Purchase Order in which these terms and Conditions are incorporated.
c. ‘the Supply Contract’ means the Purchase Order, these Terms and Conditions, the Contractor’s Safety Policy Statement and such other documents, if any, as are specified in the Purchase Order but excluding any standard conditions (printed or otherwise) of the supplier that may be included in such other documents, if any.
d. ‘the Goods’ means the goods to be supplied by the Supplier under the Supply Contract, including any changes ordered in accordance with Clause 1 (g), and which form part of the Works to be supplied and executed by the Contractor under the Main Contract; where the Purchase Order does not specify a quantity for goods described therein then in consideration of the Contractor issuing the Purchase Order to the Supplier the Supplier binds himself to supply such quantities, if any, of such goods as the Contractor may from time to time and in his absolute discretion require from the Supplier under this Supply Contract.
e. ‘Delivery Address’ means the delivery address stated in the Purchase Order.
f. ‘Delivery Date’ means the delivery date stated in the Purchase Order or, if no delivery date is so stated, the delivery date to be notified by the Contractor allowing the notice period stated in the Purchase Order or, if no notice period is so stated, allowing a reasonable notice period, and includes the specific delivery time notified by the Contractor and in any such case, such later delivery date as may be required and notified by the Contractor as shall be fair and reasonable as a result of any breach of the Supply Contract by the Contractor.
g. ‘the Price’ means the total price stated in the Purchase Order as adjusted for any change in the quantity, kind or quality of the Goods specified in the Purchase Order and which may be ordered in writing by the Contractor or the price calculated at the rate(s) stated in the Purchase Order as adjusted for any change in the kind or quality or the Goods so specified and which may be ordered in writing by the Contractor; and in all cases less the discount (if any) specified in the Supply Contract. Each such adjustment, if any, shall be a fair and reasonable amount determined by reference to the price or rate(s) stated in the Purchase Order. Where the Supplier is registered as a taxable person under the Value Added Tax Act 1983 as amended from time to time the Value Added Tax properly payable by the Supplier to the Commissioners of Customs and Excise on the supply of the Goods shall form part of the Price.
h. ‘the Main Contract’ means the contract between the Employer and [LGM DEVELOPMENTS LTD] for the Works, or where there is no such contract, the purposes for which the Contractor requires the Goods; ‘the Employer means the party acting as the employer of the Contractor under the Main Contract; and ‘the Works’ means the works as defined in the Main Contract.
2. Words importing the singular include the plural and vice-versa where the context or the subject matter requires. All references herein to Clauses are references to Clauses numbered in these Terms and Conditions. Any reference to legislation shall be deemed to include a reference to any amendment or re-enactment thereof for the time being in force.
3. Without prejudice to the other provisions of the Supply Contract, the terms set out in Sections 12, 13, 14 and 15 of the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994 shall not apply to the Supply Contract. For the avoidance of doubt, where the delivery of any goods has been delayed through the fault of the Contractor such Goods shall still be and remain at the risk of the Supplier notwithstanding Section 20(2) of the Sale of Goods Act 1979.
4. The Supplier shall supply the Goods in accordance with the Supply Contract and in conformity with the Contractor’s directions and shall ensure that the Goods are of the quality specified in the Supply Contract or, to the extent that no such quality is so specified, are of the quality reasonably to be inferred from the Supply Contract. The Supplier shall not supply any quantity of goods beyond that specified in the Purchase Order, unless specifically ordered in writing by the Contractor.
5. The Supplier shall not without the express written consent of the Contractor assign the Supply Contract or any part thereof or any benefit or interest therein or thereunder or sub-contract the whole or any part of the supply of the Goods. The Supplier shall in any event remain fully liable to the Contractor notwithstanding any assignment or sub-contracting.
6. The Supplier shall be deemed to have full knowledge of the provisions of the Main Contract (other than details of the Contractor’s prices thereunder). Save where the provisions of the Supply Contract otherwise require, the Supplier shall so supply the Goods that no act or omission of his in relation thereto shall constitute, cause or contribute to any breach by the Contractor of any of his obligations under the Main Contract and The Supplier shall, save as aforesaid, assume and perform under the Supply Contract all the obligations and liabilities of the Contractor under the Main Contract in relation to the supply of Goods. Nothing herein shall be construed as creating any privacy of contract between the Supplier and the Employer. The Supplier shall not act upon any instruction which is directly received by him from the Employer or any of his agents, or representatives, rather than directly from the Contractor.
7. The Supplier shall supply samples of the Goods as and when may be required by the Contractor. The Goods shall (amongst other things) correspond with the sample approved by the Contractor.
8. The Supplier shall comply with all laws, regulations, British Standards, industry codes of practice and the like applicable to the design and/or supply of the Goods.
9. The Supplier shall provide the Contractor with reasonable access to make inspections and/or tests.
10. The Contractor may at any time by notice to the Supplier cancel the supply of all or any Goods, in which event the Supplier shall be entitled to be paid only such proportion of the Price as is for work, if any, properly done by the Supplier under the Supply Contract in preparation for the supply of such Goods. If such notice is not given in writing then it shall be confirmed in writing by the Supplier to the Contractor within 3 days. Provided that if any such cancellation was wholly or partially due to any act, neglect or default of the Supplier then the Supplier shall not be entitled to any payment in connection with the Goods so cancelled, but rather shall be fully liable to the Contractor for all loss, damage and costs suffered or incurred by the Contractor by reason of such cancellation.
11. The Supplier shall give adequate notice in writing to the Contractor of any directions, documents or other information that the Contractor is obliged to provide to the Supplier under the Supply Contract.
12. The Supplier shall prepare and submit to the Contractor for prior approval before preparing the goods such design drawings and working/shop drawings and other information in regard to the Goods as the Contractor may reasonably require. The Supplier shall also provide the Contractor with such information, certificates, and other documentation in regard to the goods, including their quality, maintenance and operation, as the Contractor may reasonably require. Copyright in all and any drawings, specifications and other information prepared by the Supplier specifically for the Supply Contract shall be the property of and shall vest in the Contractor. No copyright shall pass from the Contractor to the Supplier.
13. The Supplier shall ensure that the Contractor’s Site Manager receives reasonable notice of delivery of the Goods, which in all cases where it is possible shall be at least two working days’ notice.
14. The Supplier shall deliver all the Goods to the Delivery Address on the Delivery Date. Provided that where it is stated in the Purchase Order or in any direction of the Contractor that the Goods are to be delivered by instalments, then in the case of each such instalment the Supplier shall deliver the whole of the instalment to the Delivery Address on the Delivery Date, therefore. The Contractor shall be entitled to reject any Goods not so delivered and such rejection shall be regarded as a cancellation due to a default of the Supplier.
15. The Supplier shall properly off-load the Goods at the Delivery Address and shall provide all necessary labor, craneage, plant and equipment for that purpose, except if and to the extent that it is otherwise specifically stated in the Purchase Order. The Supplier shall ensure that all vehicles, cranes, plant and equipment used in the supply and/or off-loading of the Goods by the Supplier are suitable for the purpose, having full and proper regard to the type of Goods and to the nature and extent of the access and areas for off-loading at the Delivery Address. The Supplier shall be responsible for, amongst other things, any deterioration in or damage to the Goods arising out of the supply of the Goods, including his off-loading.
16. The Supplier shall in all cases at the time and place of delivery of the Goods provide the Contractor with an accurate and fully detailed delivery note for the Goods and where the Goods are supplied by weight, together with a duly executed weight docket issued for such Goods by a properly registered and approved weighbridge. The Contractor shall not at any time be obliged or held to have examined, counted, weighed or tested the Goods delivered, notwithstanding any signature, statement or provision to the contrary.
17. The weight shown on any delivery note or weight docket shall be checked by way of an independent weighbridge as and when may be required by the Contractor. The Supplier shall comply with each such requirement and shall be bound by the result of each such check. If any such check shows an apparent shortage of delivery, then the Price for the Goods that were the subject of the weight docket in question and for all Goods that were the subject of similar such weight dockets shall be reduced in proportion to such shortage.
18. If the Supplier supplies defective goods or goods beyond those required under the Supply Contract, then notwithstanding receipt of or any signature for the same, the Supplier shall not be entitled to any payment for such goods. Such goods may be held and/or disposed of by the Contractor at the cost and risk of the Supplier.
19. The Supplier warrants and undertakes to the Contractor that the property in the Goods will pass to the Contractor upon payment of the Price for the Goods or upon delivery of the Goods to the Contractor, whichever first occurs, and that the Goods are free and will in all circumstances remain free from any charge, interest, encumbrance or lien or right of re-sell retention, use or stoppage in transit of whatsoever nature against the Contractor. This Clause shall also apply separately to each part of the Goods.
20. The Goods shall be and remain at the sole risk of and be insured by the Supplier at all times until the property in the Goods is transferred to the Contractor free of any charges, interests, encumbrances, liens or other rights of retention, use or re-sell or until the Goods have been supplied to the Contractor at the Delivery Address and in accordance in all respects with the Supply Contract, whichever is the later.
21. The Supplier shall be deemed to have satisfied himself before entering in the Supply Contract as to all conditions and circumstances that may affect the execution of the supply of the Goods. For the avoidance of doubt, the Price shall be regarded as a fixed price and shall not be subject to adjustment for any cost or price increases which the Supplier may incur or seek in any way to impose. The Price shall be deemed to include for (amongst other things) secure and proper packaging and palleting of the goods as appropriate and for the delivery of the Goods to the Delivery Address.
22. The Supplier shall submit to the Contractor an invoice or invoices for the Goods, as appropriate, in accordance with this Clause. Each invoice shall state the Purchase Order number and shall for each and every delivery to which it relates state the ticket number, the date of delivery, the Goods delivered and the correct Price therefore and where the Price is so based the rate and quantity. Amounts for discount and for VAT shall be shown separately on the invoice. Each invoice shall be submitted to the Contractor at the address stated at the head of the Purchase Order, within 7 days from the end of the month following that in which the Goods were delivered. Within 28 days from receipt by the Contractor of the Supplier’s invoice submitted in accordance with this Clause or within 31 days from the end of the month in which the Goods were supplied to the Contractor in accordance with the Supply Contract, whichever is the later, the Supplier shall subject to the Contractor’s rights and remedies be paid the Price for the Goods so invoiced and delivered. The currency of such payments shall be English pounds sterling.
23. Without prejudice to any other rights or remedies he may possess, the Contractor shall be entitled to deduct and withhold from any monies otherwise payable to the Supplier under the Supply Contract or under any other contract between the Contractor and the Supplier any sum agreed by the Supplier as due to the Contractor or awarded in any proceedings in favour of the Contractor and against the Supplier or any sum which the Contractor has suffered or incurred or anticipates suffering or incurring due to a breach of or failure to observe the terms of the Supply Contract or of such other contract by the Supplier.
24. The Supplier warrants and undertakes to the Contractor that neither the supply or use of the Goods will infringe any property or other right of any third party. All royalties, license fees and/or other expenses in respect of any relevant patented article, patent, process, drawing, model, plan, invention or information shall be deemed to have been included in the Price.
25. The Supplier acknowledges and accepts that he shall not be relieved of any liability towards the Contractor by reason of any terms or conditions of the Supplier, wherever such terms may appear and irrespective of any communication or signature on behalf of the Contractor or by reasons of any approval of any sample, design, selection, or other matter.
26. Where the Supplier undertakes or supplies the design or selection of the whole or any part of the Goods or to satisfy any performance specification or requirement then the Supplier shall save harmless and indemnify the Contractor from and against all and any claims, demands, proceedings, damages, losses, costs and expenses whatsoever and whenever made against or incurred by the Contractor by reason of any defect or insufficiency in respect thereof or in relation thereto.
27. The Supplier shall save harmless and indemnify the Contractor from and against every liability which the Contractor may incur to any other person whatsoever and from and against all and any claims, demands, proceedings, damages, losses, costs and expenses whatsoever and whenever made against or incurred by the Contractor by reason of any breach by the Supplier of the Supply Contract (including but not limited to any defect in the Goods) or any negligence, breach of statutory duty, omission or other default of the Supplier or of any of his servants or agents.
28. No remedy or liability expressed in the Supply Contract shall be construed as a limitation of the Contractor’s rights or remedies against the Supplier or of the Supplier’s liabilities under the Supply Contract.
29. The Supplier’s right, if any, to damages and/or other relief due to the default, if any, of the Contractor under the Supply Contract shall be extinguished if the Contractor has not received written notice of claim in respect thereof in clear and specific terms from the Supplier with 56 days from the date of such default first occurring and in any event if an action is not brought against the Contractor within 6 months from such date.
30. The Supply Contract shall in all respects be construed in accordance with and be governed by the Law of England and subject to the following provisions of the Clause any dispute between the Contractor and the Supplier arising under or otherwise in connection with the Supply Contract (a Supply Dispute) shall be determined by the English Courts. If any dispute arises between the Contractor and the Employer or any other party in connection with the Works (a Works Dispute) and the Contractor is of the opinion that the Works Dispute has a connection with the Goods and/or the Supply Contract and the Works Dispute is referred to an adjudicator or arbitrator or a Court, the Contractor may by notice in writing require that the Supplier provide such statements, information and assistance and attend such meetings and hearings in connection therewith as the Contractor may request. The Contractor may also by notice in writing require that any Supply Dispute be dealt with jointly and in like manner to any Works Dispute. In connection with any such Supply Dispute the Supplier shall be bound in like manner as the Contractor by any decision of the adjudicator or any award by the arbitrator or any judgement of the Court as the case may be in relation to such Works Dispute.