1 – Definitions
2 – Formations of Contracts
3 – Price of Goods Purchased by The Company
4 – Payment for supply of foods to The Company
5 – Title Quality and Rejection of goods purchased by the company
6 – Delivery of goods purchased by the company
7 – Inspection of goods purchased by the company
8 – Packing of goods purchased by the company
9 – Property and Risk of goods purchased by the company
10 – Sub-Contracting and Assignment of goods purchased by the company
11 – Health and Safety Legislation for goods supplied to the company
12 – Patents and other intellectual Property Rights relating to goods purchased by the company
13 – Injury and Damage relating to goods purchased by the company
14 – Default of goods purchased by the company
15 – Goods Supplied by the Company to the Supplier
16 – Tools and Designs
17 – Force Majeure
18 – Publication
19 – Waiver
20 – Quantity
21 – Tolerance
22 – Colour
23 – Delivery of goods to the customer
24 – Risk and Title
25 – Consequential Loss
26 – Terms of Payment
27 – Price Variations
28 – Intellectual Property Rights relating to goods supplied by the company
29 – Insolvency
30 – General
31 – Jurisdiction
1. Definitions
“The Company” is Hydropac Limited.
“The Supplier” means the person, firm or company to whom the Purchase Order is addressed.
“The Customer” means the person, firm or company with whom or with which Hydropac contracts to supply goods to.
“The Goods” means the goods or work and materials, or services specified in the Purchase Order or Sales Order.
A “Purchase Order” means a properly signed, printed and numbered form issued by the Company.
A “Sales Order” means a properly signed printed and numbered form issued by the Customer or issued by the Company and authorised by way of signature by the Customer.
“Conditions of Purchase” means the terms and conditions set out herein together with the terms stated, and any Additional Terms referred to in the Purchase Order.
“Conditions of Sale” means the terms and conditions set out herein together with the terms stated, and any Additional Terms referred to in the Sales Order.
A “Quotation” means the quotation or tender given by the company
“Additional Terms” are conditions of purchase or supply specified by the Company from time to time relating to the Company’s purchase or supply of particular types of goods. Copies of such terms will normally be attached to the order referring to them.
2. Formation of Contracts
(a) All contracts of purchase or sale made by the Company shall be governed exclusively by the Conditions of purchase or the Conditions of sale.
(b) Only a supplementary Purchase/Sales Order may vary the Conditions of Purchase/Sale or another document in writing signed by a Director of the Company and/or his authorised deputies and not by an act or statement by any person acting or purporting to act on behalf of the Company.
(c) The Conditions of Purchase/Sale shall override and take the place of any other terms or conditions in any document or other communication used by the Supplier/Customer in concluding the contract with the Company. Acceptance of an Order constitutes a contract which incorporates the Conditions of Purchase/Sale. Without prejudice to any other mode of acceptance the commencement by the Supplier/Customer of any work on or connected with the Goods (including work done in connection with samples and tooling) will comprise acceptance by the Supplier/Customer of the Purchase/Sales Order on these Conditions of Purchase/Sale.
(d) The headings used in these Conditions of Purchase/Sale are for convenience only and shall not affect the construction thereof.
(e) The application of the Uniform Laws on International Sales shall be excluded. English law shall be the law applicable to this contract and, for the benefit of the Company, the courts of England shall have jurisdiction to settle any disputes.
3. Price of Goods Purchased by The Company
(a) The prices stated in a Purchase Order are fixed prices and are not subject to alteration for any reason whatsoever.
(b) If the price of the Goods comprised in a Purchase Order is not stated but calculable the Supplier will notify a company Director of the monetary amount (which shall be no more than that charged to other companies for the same Goods and/or Services) as soon as possible after receipt of a Purchase Order, and a Purchase Order shall not be binding on the Company until the monetary amount is agreed in writing by a Director of the Company.
(c) The prices on the Purchase Order exclude Value Added Tax.
(d) Errors and omissions are excepted
4. Payment for supply of goods to The Company
(a) Unless otherwise agreed in writing, the Supplier will render a Statement of Account to the Company at the end of the month in which delivery of the Goods is made. Unless otherwise agreed in writing payment by the Company will be at the end of the month following the month in which delivery of the Goods is made, subject to the account being received no later than the first week of the month, failing which payment shall be due at the end of the succeeding month. Any delay in payment due to the Supplier’s failure to render such account will not prejudice the Company’s entitlement to any special discounts that may be agreed.
(b) In no circumstances will the Company be liable for any interest or surcharge for any delay in payment.
(c) This section applies to credit account customers only.
5. Title Quality and Rejection of goods purchased by the company
(a) The Supplier hereby agrees that as conditions of any purchase order for goods supplied to the company:
(i) The Supplier has the right to sell the Goods and the Goods are and will remain until property therein passes to the Company the absolute property of the Supplier free of any lien, charge or other encumbrance and the Company will enjoy quiet possession thereof;
(ii) all Goods ordered shall correspond strictly with description and specification and with any sample provided and shall be in every respect fit for the purpose for which the Company has expressly or by implication made known that it requires the same and shall be of best quality which is also of a standard not less than that of previous supplies (if any) approved by the Company. The Supplier’s obligations under this Condition shall be in no way affected by whether or not the Goods are bought by description, or the Supplier deals in goods of the same description, or the Goods are specified under a patent or trade name, or the Company has examined the Goods or the sample or any defect would have been apparent had it done so;
(iii) the Company shall not be bound to accept and pay for any Goods unless the same are specified in a Purchase order on the Conditions of Purchase and the Company will not accept responsibility for the safe custody of protection of Goods left at its premises and the risk shall pass only when the signature of an authorised member of the Company’s goods receiving department is obtained on a document quoting the number of a Purchase Order on the Conditions of Purchase and thereafter in accordance with Clause 9. The Company will not accept Goods until it has had a reasonable opportunity of examining them following delivery for the purpose of ascertaining whether they are in conformity with the contract;
(iv) without prejudice to any other rights or remedies possessed by the Company, the Company shall be entitled to reject any Goods (or any part of them) delivered to it if the same do not comply exactly with any drawings, specifications or instructions supplied or given by the Company or with any sample provided or if the Goods (or any part of them) prove defective under normal conditions of use (excluding normal wear and tear) or if the Supplier is in breach of any of the Conditions of Purchase, but if the Company does accept any such Goods which is entitled to reject, it reserves the right to pay a reduced price for them.
(b) The Company shall advise the Supplier of non-receipt, shortages, rejection of the Goods or non-conformity with the conditions set out in 5(a) above within 21 days after such defaults have come to the Company’s knowledge.
(c) If the Company rejects or refuses to accept any Goods (or any part of them) having the right so to do, it shall not be bound to return them to the Supplier, but if it nevertheless decides to return them the Goods returned shall be at the risk and expense of the Supplier. Where the Company is entitled to reject or refuse to accept any Goods or if the Goods (or any part of them) prove defective under normal conditions of use (excluding normal wear and tear), the Supplier shall, at the option of the Company and without prejudice to any other remedies to which the Company may be entitled, repair or replace the goods, reimburse the Company in full for the cost of repair carried out by the Company or any third party at the Company’s direction, or refund the full purchase price.
(d) The Company reserves the right by written notice to require changes in the designs and/or the specifications applicable to the Goods.
(e) The Supplier shall not make any changes in the design or composition of the Goods without the Company’s prior written consent.
(f) If the Goods have a determinable shelf life, the Supplier shall inform the Company of the storage conditions recommended for the longest possible shelf life and the minimum duration thereof.
6. Delivery of goods purchased by the company
(a) All Goods to be delivered Carriage and Insurance Paid (as defined by Incoterms 1990) to the place of delivery specified in the Order.
(b) The time stipulated for delivery of the Goods shall be of the essence of the Order. Should the Supplier fail to deliver the goods within the period specified the Company (without prejudice to any other remedies to which it may be entitled) reserves the right to:-
(i) cancel that part of the Order which is undelivered at the end of the specified period, and
(ii) charge to the supplier any additional costs, losses or expenses in which they may be involved due to the Supplier’s failure to deliver the Goods at the stipulated time.
(c) Goods delivered in excess of specified requirements remain at the risk of the Supplier and may be returned to the Supplier at no risk or expense to the Company.
(d) The Company shall be entitled to regulate the rate of delivery of the Goods by means of delivery schedules.
(e) The Company reserves the right by written notice to require changes in the method of carriage and place of delivery.
(f) Unless otherwise stated delivery is to be made, between the hours of 8am to 11.50am and 1pm to 4pm on Monday to Friday inclusive, and during Statutory Holidays and Annual Closure as advised. No deliveries can be accepted on Saturdays, except by special arrangement made with the Company in advance. Deliveries will not be accepted ahead of due date without our prior agreement. Should the Goods arrive earlier than this date, then the Company reserves the right to withhold payment of the invoice until the end of the month following the month in which delivery was due under the Conditions of Purchase, or alternatively, return the Goods to the Supplier at his cost.
7. Inspection of goods purchased by the company
(a) The Company reserves the right at any time to inspect the Goods at the place where the Goods are being manufactured or stored but such inspection shall neither relieve the Supplier of any obligation under the Conditions of Purchase nor impose any obligations on the Company.
(b) If required by the Company the Supplier shall submit samples for approval and the manufacture of the bulk of the Goods shall not be started until the Company has communicated its approval in writing. The Company may retain the samples until the whole of the Goods are delivered.
(c) Any person duly authorised by the Company shall not unreasonably be refused permission by the Supplier to enter any works, warehouses or other premises under the Supplier’s control to inspect any tools or materials procured or used for the manufacture of the Goods or the process of manufacture carried out by the Supplier or the completed Goods themselves before despatch.
(d) Any person duly authorised by the Company shall be entitled to remove samples of tools and Goods in process of manufacture and completed Goods and if any changes, adaptions, modifications or improvements are required by the Company to bring the Goods up to specification the Supplier shall carry out the same immediately.
(e) All items on this order are subject to inspection and certification by your inspection organisation as approved under your ISO9000 registrations or subject to inspection by your inspection organisation as approved by the Company.
8. Packing of goods purchased by the company
(a) The Goods shall be properly packed and secured by the Supplier in such a manner as to reach their destination in good condition.
(b) Unless agreed in writing the Company shall not be required to pay for or to return to the Supplier any such packaging or containers for the Goods. Where packaging and containers are agreed to be returnable, all packaging materials must be branded or stamped with the Supplier’s name and address and all costs of return and all risk in the returned materials shall be borne by the Supplier.
9. Property and Risk of goods purchased by the company
The property in the Goods shall pass to the Company on payment of the price invoiced for the Goods or on acceptance, whichever first occurs. The Goods shall remain at the risk of the Supplier until the property in the Goods passes to the Company. If the Goods are rejected by the Company the property and the risk therein shall remain with or thereupon revert to the Supplier.
10. Sub-Contracting and Assignment of goods purchased by the company
The Supplier shall not assign or sub-contract this contract or any part of it without the written permission of the Company. The Company may assign the contract to other subsidiary or associated companies or other unconnected companies or persons.
11. Health and Safety Legislation for goods supplied to the company
Goods to be supplied must be designed, tested and constructed so as to be safe and without risks to health when used at work and all necessary information for the safe and proper use of the Goods must be supplied to the Company prior to delivery of the Goods. Any exemption from the foregoing must be requested in writing and must be specifically agreed to by a statement on the Conditions of Purchase or supplementary Purchase Order. In particular the Supplier must specify in his quotation or as soon as identified any operational or health risk which may arise during handling, storage, use, or disposal after use, including known mis-uses of the goods.
12. Patents and other intellectual Property Rights relating to goods purchased by the company
The Supplier warrants that Goods and parts of Goods not to the Company’s design do not infringe any patent, trademark, registered or unregistered design or any other like protection or the provisions of any statute, statutory instrument or regulation for the time being in force in any country and agrees to indemnify and hold harmless the Company against all judgements, decrees, costs and expenses and at its own expense and at the Company’s request defend or assist in the defence of any action which may be brought against the Company or those selling or using any of the Company’s products resulting from any infringement or alleged infringement.
13. Injury and Damage relating to goods purchased by the company
(a) The Company hereby gives notice that the Business of the Company is such that any defect in the Goods which the Supplier supplies, is liable to cause serious financial loss and/or physical injury.
(b) The Supplier will at all times maintain product liability insurance cover in respect of the Goods of a kind and in an amount satisfactory to the Company. The Company shall on demand be entitled to inspect and receive copies of all documents relating to the said insurance cover.
(c) If any claim is made against the Company by any of its customers or employees or by any third party in respect of injury, liability, claim, proceedings, loss (including financial, consequential or purely economic loss) or damage o any kind due or alleged to be due to a defect in the materials, workmanship or (save where the same has been stipulated by the Company) design of the Goods the Supplier will:-
(i) provide all facilities, assistance or advice required by the Company for the purpose of contesting or dealing with such claim; and
(ii) indemnify and hold harmless the Company against the same and against any damage, loss of any kind incurred of suffered by the Company (including financial, consequential or purely economical loss incurred by the Company resulting from the failure of, or stoppage of, or interference with the production or manufacture of any equipment, goods or stock) cost (including legal and other professional costs) or expense incurred in connection herewith.
(d) If any such claim is made against the Supplier, the Company shall be promptly notified thereof and shall have full power and authority (if he thinks fit) to take over the conduct of the matter and to make any disposal or settlement thereof as agent of the Supplier, as may seem to the Company in its absolute discretion to be appropriate.
(e) The Supplier shall if so requested by the Company accept as final and binding the decision of any English or foreign court in relation to such liability, claim, proceedings, loss or damage.
14. Default of goods purchased by the company
(a) The Company may by notice in writing to the Supplier terminate any contract forthwith either in its entirety or to the extent Goods are undelivered and in any event without prejudice to any other rights of the Company if:-
(i) the Supplier shall commit any breach of the terms of that or any other contract with the Company and on its part to be observed of performed PROVIDED that if such breach is remediable the Company has given notice thereof to the Supplier and the same has not been remedied within seven days thereafter;
(ii) the Supplier is, or for statutory purposes is deemed or appears in the opinion of the Company to be unable to pay its debts as they become due, or the value of its assets is less than the amount of its liabilities (including contingent and prospective liabilities), or the Supplier otherwise become insolvent or suspends payment or threatens to do so;
(iii) steps are taken to (a) propose any composition, scheme of arrangement, compromise or arrangement involving the Supplier and its creditors generally; (b) obtain an administration order or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against the Supplier or any of its property; (c) enforce any charge or other security over the Supplier’s property; (d) repossess any goods in the Supplier’s possession under any agreement; or (e) wind up or dissolve the Supplier;
(iv) where the Supplier is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner; or
(v) outside England and Wales, anything corresponding to any of the above occurs.
(b) Without prejudice to any other rights or remedies possessed by the Company it is entitled to recover damages and loss (including financial, consequential or purely economical loss) for:-
(i) any delay in the Company’s business due to late delivery by default of the Supplier from whatever cause, including but not limited to rejection by the Company for non-compliance with the Conditions of Purchase and subsequent sorting, alteration, repair or replacement;
(ii) non-delivery due to the fault of the Supplier;
(iii) non-compliance with the Conditions of Purchase.
(c) Where the Supplier delivers or the Company accepts a part of any Goods the Company shall be entitled to pay only for the part of the Goods actually accepted and may claim any applicable remedy.
(d) If the Supplier fails to accept and comply with any delivery schedule submitted by the Company the Supplier shall deemed to be in breach of the Conditions of Purchase and shall pay to the Company as damages for the breach all costs and expenses incurred by the Company as a result hereof and in particular but without prejudice to the generality of the foregoing all sums expended by the Company in the price thereof and loss suffered by the Company as a result of delays in their production.
15. Goods Supplied by the Company to the Supplier
Where the Goods are manufactured by the Supplier using goods or materials supplied by the Company an allowance of 5% of the quantity of such goods or materials will be made by the Company to cover scrap. In the event that all goods or materials supplied by the Company to the Supplier (after taking into account the 5% scrap allowance) are not accounted for to the Company in the supply of finished Goods the Company reserves the right to charge the Supplier with the cost of goods or materials for which the Supplier is unable to account.
16. Tools and Designs
(a) Any tools, patterns, plates, designs, drawings, specifications, free issue materials or documents or other items supplied by the Company to the Supplier, or for which the Company has provided the whole or a part of the cost, to enable the Supplier to execute this Order shall become and/or remain the property of the Company, shall be kept in good condition and be returned to the Company on demand at the Supplier’s risk (in the case of items for which the Company has provided a part only of the cost, upon payment of the remainder of such cost) and shall not be used by the Supplier without the agreement in writing of the Company for any purpose other than for the supply of Goods to the company. The Supplier agrees to insure and indemnify the Company against any loss or damage to such items whilst they are in the custody of the Supplier and to procure that the interest of the Company is noted on any policy covering such items.
(b) In addition, the Supplier shall ensure that all such tooling is maintained in good condition and shall replace any such tooling, or part thereof, lost or damaged and shall adequately insure against loss or damage thereof.
(c) The Supplier waives any lien which might otherwise have whether the date hereof or subsequently on any of the Company’s property for work done thereon or otherwise. This paragraph shall not be construed as a waiver of any other right of recovery of any charges that may be due to the Supplier for such work.
(d) The Supplier will not without the prior written authority of the Company sell, hire, use or otherwise dispose of, to or for any other person, any goods manufactured by the Supplier to the Company’s designs, drawings or specifications or based upon them or any tooling designed for use in their manufacture and the Supplier shall refer to the Company all enquiries received for such goods or tools.
(e) The Supplier warrants its detailed design and application of its knowledge to all patterns, designs, drawings, specifications or other documents supplied by the Company to the Supplier and hereby agrees to indemnify the Company in respect of all claims arising out of the Supplier’s detailed design, application and know-how.
17. Force Majeure
The Company shall be entitled to rescind any contract for Goods which have not been delivered in whole or in part or to require the Supplier to suspend delivery for any period if the activities of the Company for which the Goods were ordered are stopped or seriously interfered with by any causes of any kind whatsoever beyond the Company’s control.
18. Publication
The Supplier shall not advertise or publish the fact that it is or has become a Supplier to the Company without the Company’s prior written consent.
19. Waiver
Failure by the Company to enforce any of the Conditions of Purchase/Sale shall not be construed as a waiver of its rights hereunder.
Items relating to the supply of goods to the customer by the company
20. Quantity
The price is for the stipulated quantity of goods only and must not be taken to apply to an order for any lesser quantities. All quotations for goods to be delivered from stock are subject to these goods being available on receipt of order
21. Tolerance
No claim will be allowable on the grounds that goods supplied do not conform to certain dimensions where it is shown that such goods come within the bounds of a stated and agreed tolerance.
Level of tolerance set as standard to +/- 10% on manufactured quantity and quality.
22. Colour
Colour shall be subject to reasonable variation.
23. Delivery of goods to the customer
Any stipulated period of time for delivery shall date from the receipt by the company of the Customer’s written order to proceed or of all necessary information and drawings enabling the company to put the work in hand, whichever shall be the later. Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by company to deliver any one or more of the instalments or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated. Where delivery of the goods is to be made by the company in bulk the company reserves the right to deliver up to 10 per cent more or less than the quantity ordered and the price shall be adjusted accordingly. The company shall not be liable for any loss or damage which may be sustained by the Customer through failure on the part of the company to deliver at the rate or within the time specified, nor for any loss or damage incurred by reason of Acts of God, war, riots, fires, strikes, lockout, cessation of labour, accidents of any kind, inability to procure materials or articles required for the performance of the order or any other cause whatsoever beyond the company’s control whether similar to those aforesaid or not. In the event of any such delay from any cause beyond the company’s control continuing for a period of more than three calendar months, the company reserves the right to cancel the Contract by notice in writing in respect of any Goods undelivered at the time of the giving of such notice. No claim for loss or damage in transit or non-delivery will be claimable unless the Customer shall have advised the company and the carriers within three days of the termination of the transit, or, in the case of non-delivery within fourteen days from the date of the invoice.
24. Risk and Title
In the case of Goods to be collected from the company the point of delivery and transfer of risk shall occur as the Goods are loaded on to the collection vehicle or as the Goods pass out of the company’s storage area as the case may be. In the case where Goods are delivered to an address in Great Britain the delivery point shall occur as the Goods are removed from the transportation vehicle. Off loading shall be at the Customer’s risk. Notwithstanding delivery and passing of risk, property in and title to the Goods shall remain in the company (which reserves the right to dispose of them) until the company has received payment in cash or cleared funds of all debts owed by the Customer to the Company in respect of the supply of goods or services. The Customer’s power to deal with the Goods shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency. Until title in the Goods passes to the Customer under this condition the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorised without the need for consent of any third party using only such force as may be necessary to enter upon any premises of the Customer for the purpose of removing the Goods.
25. Consequential Loss
The company shall not be liable for personal injuries or consequential damage or loss arising from any defects (including in particular damage to goods or persons caused by leakage from or explosion of a bottle, container or moulding supplied by the company) or from the use of any of the company’s Goods.
26. Terms of Payment
Unless otherwise stated on the quotation payment for goods shall be due by the Customer on the 14th day following the date of invoice. The company may appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the company and the Customer) as the company may think fit (notwithstanding any purported appropriation by the Customer). The Customer shall not be entitled to withhold or delay payment or exercise any right of set-off whatsoever and howsoever arising or arisen which might otherwise be available to it.
27. Price Variations
If during the Contract there are increases in labour, material or transport costs, the company may submit to the Customer a revised price and such revised price may have regard not only to such specific items. In the event of the Customer not agreeing to pay any such increased revised price the company shall have the option of continuing the Contract on existing terms or regarding the Contract as terminated and in the latter event may terminate the Contract by notice to the Customer to that effect.
28. Intellectual Property Rights relating to goods supplied by the company
If the Goods are to be manufactured or any process is to be applied to the Goods by the company in accordance with a specification or design submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of the Company) indemnify the company in full against all loss, costs, damages, charges, expenses and other liabilities suffered or incurred by the Company as a result of or in connection with:
(a) Any allegation relating to infringement of any patent, copyright design, registered trade or service mark or other industrial or intellectual property rights of any kind or any person, firm or company and/or passing off and/or unauthorised use of confidential information which results from the Company’s use of the Customer’s specification or design;
(b) Any other liability of any kind to any third party, including without limitation for defective goods, personal injury or death to the extent that it arises from the specification or design.
29. Insolvency
If there shall be an Act of Insolvency in relation to the Customer then the company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if Goods and Services have been delivered but have not been paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
30. General
It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. No failure to delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by the company of any breach by the Customer of any of its obligations under the Contract shall not affect the rights of the company in the event of any further or additional breach or breaches. Each and every obligation contained in these conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation. Any notice required to be given in writing under the Contract shall be given, where possible, by facsimile transmission and otherwise by first class post addressed to the registered office (in the case of a limited company) or to the last known address of the party for which it is intended, or to such other address as may be notified in writing by either party to the other for the purpose, and shall be deemed to have been received, in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In providing service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
31. Jurisdiction
The Contract shall in all respects be governed by and constructed in accordance with English Law and it is irrevocably agreed that the Courts of England are to have jurisdiction in respect thereof.
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