Standard Trading Conditions of Purchasing
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Standard Trading Conditions of Purchasing
1.Interpretation
1.1 In these Conditions the following definitions apply:
| Business Day – | means a day other than Saturday, Sunday and public holidays.
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| Buyer – | means Merton Group (UK) Limited (company number 01405254) whose registered office is situated at Unit 9, Foxholes Road, Merton Business Park, Leicester, LE3 1TH
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| Conditions – | means the terms and conditions set out in this document;
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| Confidential Information – | means any commercial, financial or technical information, information relating to products, plans, know-how or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to the Contract;
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| Contract – | means the agreement between the Seller and the Buyer for the sale and purchase of Products incorporating these Conditions and the Order;
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| Delivery Location – | means the address for delivery of the Goods or the performance of the Services as set out in the Order;
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| Force Majeure – | means an event or sequence of events beyond a party’s reasonable control (after exercise of reasonable care to put in place robust back-up and disaster recovery arrangements) preventing or delaying it from performing its obligations under the Contract including an act of God, fire, flood, lightning, earthquake or other natural disaster; war, riot or civil unrest; interruption or failure of supplies of power, fuel, water, transport, equipment or telecommunications service; or material required for performance of the Contract; strike, lockout or boycott or other industrial action except strikes or other industrial disputes involving the Seller’s or its suppliers workforce;
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| Goods – | means the goods set out in the Order and to be supplied by the Seller to the Buyer;
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| Order – | means the Buyer’s order for the Products from the Seller as set out in the Buyer’s order form;
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| Products – | means the Goods as set out in the Order;
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| Seller – | means the person who sells the Products to the Buyer as set out in the Order;
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| Specification – | means the description or specification of the Products and their packaging set out or referred to in the Order;
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| Value Added Tax or VAT – | means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Products.
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1.2 Unless the context otherwise requires:
1.2.1 each gender includes the others;
1.2.2 the singular includes the plural and vice versa;
1.2.3 references to the Contract include the Conditions, the Order and its schedule (the Schedule, if any);
1.2.4 references to persons include individuals, unincorporated bodies, government entities, corporations and other entities;
1.2.5 clause headings do not affect their interpretation;
1.2.6 general words are not limited by example; and
1.2.7 references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Application of these terms and conditions
2.1 These terms and conditions apply to and form part of the Contract between the Seller and the Buyer. They supersede any previously issued terms and conditions of purchase or supply.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Seller’s quotation, sales conditions, confirmation of order, specification or other document will form part of the Contract except to the extent that the Buyer otherwise agreed in writing.
2.3 No variation of an Order will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Buyer.
2.4 No variation of these conditions will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Buyer.
2.5 Each Order by the Buyer to the Seller will be an offer to purchase Products subject to these Conditions.
2.6 An Order may be withdrawn or amended by the Buyer at any time before acceptance by the Seller. An Order will lapse unless accepted by the Seller before the expiry of 14 days after the date of the Order. If the Seller is unable to accept an Order, it shall notify the Buyer
2.7 Acceptance of an Order by the Seller will take place when it is expressly accepted or by any other conduct of the Seller which the Buyer reasonably considers is consistent with acceptance of the Order.
3. Price
The price for the Products will be as set out in the Order. No increase in the price may be made after the Order is placed unless agreed in writing and executed by a duly authorised signatory on behalf of the Buyer. Under no circumstances will the Buyer consider any price increase unless 90 days notice is given in writing and accompanied by agreed market indices.
4. Payment
4.1 The Seller will invoice the Buyer for the Products no sooner than completion of delivery of the Products or, if later, the Buyer’s acceptance of the Products.
4.2 The Buyer will pay each validly submitted invoice as per the terms agreed upon commencement of trading. All invoices must clearly state the Buyer’s purchase order number ; the absence of this may cause delay in payment.
4.3 Time of payment is not of the essence.
4.4 VAT will be charged by the Seller and paid by the Buyer at the then applicable rate.
4.5 The Buyer may set off any liability which it has to the Seller under the Contract against any other liability which it has to the Seller under the Contract, or which it has to the Seller under any other Orders placed under the Conditions or which it has to the Seller howsoever else arising.
5. Cancellation
The Buyer will have the right to cancel the Order for the Products or for any part of the Products which have not yet been delivered to the Buyer, in which case, the Buyer will only be liable to pay for that part of the Price which relates to the Products which at the time of cancellation have been delivered to the Buyer.
6. Delivery
6.1 The Products will be delivered or performed by the Seller to or at the Delivery Location on the date specified in the Order. The Goods will be delivered by the Seller only on completion of unloadingof the Goods at the Delivery Location.
6.2 The Products will not be delivered by instalments unless agreed by the
6.3 Each delivery of the Products will be accompanied by a delivery note stating:
6.3.1 the date of the Order;
6.3.2 the relevant Buyer and Seller details;
6.3.3 the product numbers and type and quantity of Products in the consignment;
6.3.4 the Buyer’s official purchase order number; and
6.3.5 any special handling and other requests.
6.4 Time of delivery is of the essence. If the Seller fails to deliver any of the Products by the date specified in the Order, the Buyer will (without prejudice to its other rights and remedies) be entitled at the Buyer’s sole discretion:
6.4.1 to terminate the Contract;
6.4.2 to purchase the same or similar Products from a supplier other than the Seller;
6.4.3 to recover from the Seller all costs and losses resulting to the Buyer, including the amount by which the price payable by the Buyer to acquire those products from another supplier exceeds the price payable under the Contract and any loss of profit; and
6.4.4 all or any of the foregoing.
7. Acceptance, rejection and inspection
7.1 The Buyer will not have accepted, or be deemed to have accepted, the Products until the Acceptance Conditions are fulfilled.
7.2 The ‘Acceptance Conditions’ are that:
7.2.1 the Products have been deliveredto the Buyer and a valid signature obtained; or
7.2.2 the Products have been delivered to a Delivery Location agreed by both parties and confirmation of the delivery and a valid signature along with confirmation that the Products are complete, undamaged and delivered in full has been obtained by the Buyer.
7.3 The Buyer will be entitled to reject any Products which are not in complete compliance with the Contract. Any acceptance of defective, late or incomplete Products or any payment made in respect thereof, shall not constitute a waiver of any of the Buyer’s rights and remedies, including its right to reject.
7.4 Any rejected Products may be returned to the Seller by the Buyer at the Seller’s cost and risk. The Seller will pay to the Buyer a reasonable charge for storing and returning any of the Products over-delivered or rejected.
7.5 The Buyer may inspect and test the Products during manufacture or processing prior to despatch, and the Seller shall provide the Buyer with all facilities reasonably required.
7.6 Any inspection or testing of the Products shall not be deemed to be acceptance of the Products or a waiver of any of the Buyer’s rights and remedies, including its right to reject.
8. Title and risk
8.1 Risk in the Goods will pass to the Buyer on completion of delivery and when the Buyer has accepted the Goods as conforming in every respect with the Contract.
8.2 Title to the Goods will pass to the Buyer on the sooner of: (a) when the Goods are unconditionally appropriated to the Contract by either party by or with the consent of the other party; or (b) delivery of the Goods to the
8.3 The passing of title will not prejudice any other of the Buyer’s rights and remedies, including its right to reject.
8.4 The Seller and no other person will have a lien on, right of stoppage in transit or other rights in or to any Goods title to which has vested in the Buyer or any Specifications or materials of the Buyer, and the Seller will ensure that relevant third parties accept the exclusion of such lien and rights.
8.5 The Seller undertakes that it:
8.5.1 has at the time the Contract is made full, clear and unencumbered title to the Products, and the full, clear and unencumbered right to sell and deliver them to the Buyer; and
8.5.2 will hold such title and right to enable it to ensure that the Buyer will acquire a valid, unqualified title to the Products and will enjoy quiet possession of them.
9. Warranties, representations and undertakings
9.1 The Seller warrants that on delivery the Products will:
9.1.1 conform in all material respects to any sample, their description and to any applicable Specification;
9.1.2 be free from material defects in design, material and workmanship;
9.1.3 be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
9.1.4 be fit for their purpose and any purpose held out by the Seller.
9.2 The Seller agrees that the approval by the Buyer of any design or specification provided by the Seller will not relieve the Seller of any of its obligations under this clause.
9.3 The Seller will, without prejudice to the Buyer’s other rights and remedies, repair, replace, correct, re-perform or refund the price of defective Products, provided that the Buyer informs the Seller in writing within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 9.1;
9.4 The Seller warrants that, in relation to the Products, it understands the Buyer’s business and needs.
9.5 The Seller warrants and undertakes that it, and all persons associated with it, will comply with all applicable laws, regulations and codes and, in relation to the provision of the Products, will not engage in any activity which is bribery, and will comply with anti-bribery laws, regulations and codes. The Seller shall maintain adequate procedures to ensure compliance.
9.6 The Seller warrants and undertakes that it will not under any circumstances offer to sell any of the Buyer’s branded products either directly or indirectly unless expressly agreed in writing and executed by a Director on behalf of the Buyer.
9.7 The Seller warrants and undertakes that it will not under any circumstances offer to sell any products which have been previously supplied by the Buyer where the Seller obtained third party buyers details from information supplied by the Buyer.
10. Indemnity and insurance
10.1 The Seller shall indemnify and keep indemnified the Buyer against all claims, costs and expenses which the Buyer may suffer or incur directly or indirectly from the Seller’s breach of any of the Seller’s obligations under the Contract.
10.2 The Seller will have in place contracts of insurance with reputable insurers incorporated in the United Kingdom insuring the Goods and any of the Buyer’s materials in the Seller’s possession against the usual risks, including accident, fire and theft, for their full replacement value until the risk in them passes to the Buyer, and insuring against all other risks that a prudent supplier should consider reasonable. On request, the Seller will supply so far as is reasonable evidence of the maintenance of the insurance and all of its terms from time to time applicable. The Seller shall on request assign to the Buyer the benefit of such insurance.
11. Confidentiality and announcements
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.
12. Force majeure
12.1 A party will not be liable if delayed in or prevented from performing its obligations due to force majeure, provided that it:
12.1.2 promptly notifies the other of the force majeure event and its expected duration; and
12.1.2 uses best endeavours to minimise the effects of that event.
12.2 If, due to force majeure, a party:
12.2.1 is or will be unable to perform a material obligation; or
12.2.2 is delayed in or prevented from performing its obligations for a continuous period exceeding 14 days; the other party may, within 30 days, terminate the Contract on immediate notice.
13. Termination
13.1 The Contract may be terminated at any time by the Buyer on written notice to the Seller if:
13.1.1 the Seller commits a material breach, or series of breaches resulting in a material breach, of the Contract and such breach is not remediable or if capable of remedy is not remedied within 7 days of written notice to do so;
13.1.2 the Seller becomes bankrupt;
13.1.3 the Seller suspends or threatens to suspend payment of its debts, or is unable to pay its debts as they fall due;
13.1.4 the Seller (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts or (c) makes an application to court for protection from its creditors generally;
13.1.5 the Seller passes a resolution for winding-up or for the appointment of an administrator, or a step is taken to appoint a liquidator or administrator in relation to the Seller, or a step is taken to obtain a winding-up order in relation to the Seller;
13.1.6 a step is taken to appoint a receiver or administrative receiver in relation to the Seller or any of its assets;
13.1.7 any creditor of the Seller attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Seller’s assets, and such attachment or process is not discharged within 14 days;
13.1.8 the Seller takes or suffers any action similar to any of the above in any jurisdiction;
13.1.9 there is a material change in the management, ownership or control of the Seller;
13.1.10 the Seller suspends trading, ceases to carry on business, or threatens to do either; or
13.1.11 the Seller (being an individual) dies or ceases to be capable of managing his own affairs.
13.2 On termination of the Contract for any reason:
13.2.1 the Seller will return any materials of the Buyer then in its possession or control; if it fails to do so, the Buyer may enter onto any premises owned by or under the control of the Seller and take possession of them;
13.2.2 the accrued rights and liabilities of the parties will not be affected; and
13.2.3 any clause which expressly or by implication is to survive termination will do so.
14. General
14.1 Assignment
14.1.1 The Buyer may at any time assign, transfer, charge, hold on trust for another or deal in any other manner with any or all of its rights under the Contract, or sub-contract any or all of its obligations hereunder.
14.1.2 The Seller will not assign, transfer, mortgage, charge, hold on trust for another or deal in any other manner with any of its rights or obligations under the Contractexcept by a mortgage or charge in the ordinary course of business to its bankers or other lenders, or purport to do so, and the Seller will not sub-contract any of its obligations under the Contract.
14.2 No set-off
All payments by the Seller will be made without abatement, set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless it is compelled by law to deduct or withhold any such amounts, in which case it will pay to the Buyer such additional amount as will ensure that the Buyer is paid the full amount it would have received but for such deduction or withholding.
14.3 Employees
The Seller will indemnify and keep indemnified the Buyer against all claims, costs and expenses suffered or incurred in connection with the transfer by operation of law to the Buyer of the contract of employment of any employee of the Seller or its suppliers arising out of the Buyer’s entry into, performance or termination of the Contract in whole or in part.
14.4 Severability
If any provision in the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Contract and the remaining provisions of the Contract will otherwise remain in full force.
14.5 Notices
Notices under a Contract will be in writing and sent to the persons and addresses set out in the Order and shall be and shall be delivered personally or next working day delivery service, or by commercial courier, fax or e-mail.
14.6 Waiver
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
14.7 Rights of third parties
A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.8 Entire agreement
The parties agree that this agreement constitutes the entire agreement between them in respect of its subject matter. Each party acknowledges that it has not entered into this agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in this agreement.
14.9 Governing law
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
14.10 Jurisdiction
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).