Standard Terms and Conditions of Order

(1) INTERPRETATION.

1.1 Definitions. In these Conditions, the following definitions apply:

Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.

Delivery Location: has the meaning set out in clause 4.

Force Majeure Event: has the meaning given to it in clause 11.1.

Goods: the goods (or any part of them) set out in the Order.

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights and all similar or equivalent rights or forms of protection in any part of the world.

Services: the services, supplied by the Supplier to All-Counties Supplies Limited (henceforth referred to as ACS).

Construction: In these conditions, the following rules apply;

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);

(b) A reference to a party includes its personal representatives, successors and assigns;

(c) A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provisions includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

(d) Any phrase introduced by the terms including, include in particular or similar expression will be construed as illustrative and will not limit the sense of the words preceding those terms; and

(e) A reference in writing or written includes faxes and e-mails.

(2) BASIS OF CONTRACT.

2.1. this Order constitutes an offer by ACS to purchase the goods and/or services in accordance with these terms.

2.2. This Order will be deemed to be accepted when on the earlier of:

(a) the Supplier signs on the final page of this Order and returns this document within 7 days to the address shown on page 1 of this Order; or

(b) any act by the Supplier consistent with fulfilling the Order.

2.3. All of these conditions shall apply to the supply of both goods and services except where application to one or the other is specified.

2.4. The price(s) on this Order are firm and fixed unless otherwise stated on page 1 of this Order.

2.5. The Supplier MUST make ACS aware of any sub suppliers and/or sub-contractor that it proposes to use in the provision of these goods or services.

2.6. The Supplier will be responsible for and will hold ACS harmless for any and all payments to its vendors or subcontractors utilized in the performance of the Services.

(3) SUPPLY OF GOODS.

3.1. The Supplier will ensure that the Goods are

(a) As described in the Purchase Order;

(b) Be of satisfactory quality and fit for the purpose held out by the Supplier or made known to the Supplier by ACS, expressly or by implication, and in this respect, ACS relies on the Supplier’s skill and judgment;

(c) Where applicable be free from defects in design, materials and workmanship and remain so for the duration of any agreed warranty period as agreed between the parties, or if not so specified for a period of 12 months after delivery; and

(d) Comply with all applicable statutory and regulatory requirements in all respects including EU laws and directives and will be in accordance with CE marking.

3.2. The Supplier shall ensure that at all times it has and maintains all the licences, permission, authorisations, consents and permits that it needs to carry out its obligations under the Order.

3.3. ACS may inspect and test all Goods at reasonable times before, during and after manufacture. If any inspection or test is made on the Suppliers premises then the Supplier shall provide reasonable facilities and assistance for the safety and convenience of ACS and/or their agents/clients in such manner as shall not unreasonably hinder or delay the Suppliers performance.

3.4. If following such inspection or testing ACS considers that the Goods do not conform or are unlikely to comply with the Order or specifications given by ACS, ACS shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5. Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Order, and ACS shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.

(4) DELIVERY OF GOODS.

4.1. The Supplier shall ensure that:

  1. the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
  2. each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered, and clearly mark the Goods with warning notices where they pose a risk to health and safety including the actions to be taken in the event of any such risk occurring;
  3. persons delivering the Goods to construction sites (“Sites”) are in possession of a valid and appropriate CSCS card (UK) or Safepass card (Ireland) and appropriate Personal Protective Equipment (PPE) must be worn at all times whilst within the Site.
  4. if the Supplier requires ACS to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.

4.2. The Supplier shall deliver the Goods:

  1. on the date specified in the Order
  2. to the location as is set out in the Order or as instructed by ACS before delivery (Delivery Location);
  3. during ACS’s normal hours of business, or as instructed by ACS.
  4. giving adequate notification of proposed deliveries.

4.3. All goods shall be prepared for shipment in a manner which:

  1. Follows good commercial practice;
  2. Is acceptable to common carriers for shipment at the lowest commercial rate; and
  3. Is adequate to ensure safe arrival
  4. Follows the requirements of International Standards for Phytosanitary Measures. Publication No 15 (March 2002)

4.4. Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.

4.5. If the Supplier:

  1. delivers less than 95 per cent of the quantity of Goods ordered, ACS may reject the Goods; or
  2. delivers more than 105 per cent of the quantity of Goods ordered, ACS may at its sole discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers less than the quantity of Goods ordered, and ACS accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.

4.6. The Supplier shall not deliver the Goods in instalments without ACS’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle ACS to the remedies set out in clause 6.1.

4.7. The Supplier shall notify ACS in writing within five (5) business days of receipt of this Order if they are unable to deliver the Goods at the date and time specified in this Order.

4.8. The Supplier warrants that title to the Goods is vested unconditionally in the Supplier and subject to clause 4.10 is capable of becoming the absolute property of ACS, and the Supplier warrants that the Goods will be free of liens and encumbrances.

4.9. Title to the goods will pass to ACS the earlier of either:

  1. When they are paid for in whole or in part; or
  2. When ACS takes possession of the Goods.

4.10. Risk in the Goods will pass to ACS only when they have been delivered to the destination stated in this Order.

4.11. Acceptance of delivery of the Goods by ACS will not absolve the Supplier from any liability which may arise if the Goods are subsequently found to be defective.

4.12. The Supplier will replace at the discretion of ACS any defective goods. The Supplier will pay to ACS any direct or indirect losses suffered as a result of the supply of defective Goods and the Supplier will supply replacement Goods at its sole cost.

4.13. The Supplier agrees to provide to ACS (or their client/customer) with continuous support and parts supply for a period of five (5) years after the last delivery of goods.

4.14. The Supplier agrees to provide ACS with a minimum period of six (6) months’ notice of discontinuance of manufacture or of end of life of goods during the term of this Order or within one (1) year after the final delivery is made under this Order, during which time ACS may place Orders for Goods for delivery up to six (6) months from the date of the Order. If any warranty return claims are made for such discontinued Goods, then such returns will be subject to clause 6.

(5) SUPPLY OF SERVICES.

5.1. The Supplier shall from the date set out in the Order and for the duration of this Order provide the Services to ACS in accordance with the terms of the Order.

5.2. The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by ACS.

5.3. In providing the Services, the Supplier warrants that it will:

  1. co-operate with ACS in all matters relating to the Services, and comply with all instructions of ACS;
  2. perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier's industry, profession or trade;
  3. use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier's obligations are fulfilled in accordance with this Order;
  4. ensure that the Services will conform with all descriptions and specifications set out in this Order or such other document as agreed between the parties, and that the Services shall be fit for any purpose expressly or impliedly made known to the Supplier by ACS;
  5. provide all equipment, tools and vehicles and such other items as are required to provide the Services;
  6. use the best quality goods, materials, standards and techniques, and ensure that the Services, and all goods and materials supplied and used in the Services or transferred to ACS, will be free from defects in workmanship, installation and design;
  7. obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
  8. observe all health and safety rules and regulations and any other security requirements that apply at any of ACS’s premises or that of its clients, and ensure that Site areas are kept neat and free

from debris;

  1. hold all materials, equipment and tools, drawings, specifications and data supplied by ACS the Supplier (Customer Materials) in safe custody at its own risk, maintain ACS Materials in good condition until returned to ACS, and not dispose or use ACS’s Materials other than in accordance with ACS written instructions or authorisation;
  2. not do or omit to do anything which may cause ACS to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that ACS may rely or act on the Services; and

5.4 If the Services provided are defective or do not confirm to the Order during a period of 3 years from completion of the Services, then the Supplier shall at ACS’s option, promptly repair, replace or refund the amount for such Goods or Services. The Supplier will bear the risk and cost of all shipping and/or transport costs.

(6) ACS REMEDIES

6.1. If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, ACS shall, without limiting its other rights or remedies, have one or more of the following rights:

  1. to terminate the Contract with immediate effect by giving written notice to the Supplier;
  2. to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
  3. to recover from the Supplier any costs incurred by ACS in obtaining substitute goods and/or services from a third party;
  4. where ACS has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier; and
  5. to claim damages for any additional costs, loss or expenses incurred by ACS which are in any way attributable to the Supplier's failure to meet such dates.

6.2. If the Goods are not delivered by the date stated in this Order or as agreed in writing between the Parties, the Supplier will indemnify ACS in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, legal and other professional fees and expenses awarded against or incurred by ACS as a result of the Suppliers failure to deliver the Goods in accordance with this Order or as agreed between the Parties in writing.

6.3. If the Supplier has delivered Goods that do not comply with the Order then, without limiting its other rights or remedies, ACS shall have one or more of the following rights, whether or not it has accepted the Goods:

  1. to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier's own risk and expense;
  2. to terminate the Contract with immediate effect by giving written notice to the Supplier;
  3. to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
  4. to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
  5. to recover from the Supplier any expenditure incurred by ACS in obtaining substitute goods from a third party; and
  6. to claim damages for any additional costs, loss or expenses incurred by ACS arising from the Supplier's failure to supply Goods in accordance.

6.4. ACS's rights under this Contract are in addition to its rights and remedies implied by statute and English common law.

(7) CHARGES AND PAYMENT

7.1. The price for the Goods:

  1. shall be the price set out in the Order,
  2. shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by ACS. No extra charges shall be effective unless agreed in writing and signed by ACS.

7.2. The charges for the Services shall be set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by ACS, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.

7.3. Should the Suppliers personnel be required to travel (including foreign travel), in order to perform the Services then the Supplier shall take out any necessary travel and medical insurances. ACS will not be liable for any expenses arising out of any medical or medevac requirements, death or injury.

7.4. The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow ACS to inspect such records at all reasonable times on request.

7.5. ACS may, without limiting its other rights or remedies, set off any amount owing to it by the Supplier against any amount payable by ACS to the Supplier under the Contract.

(8) INTELLECTUAL PROPERTY RIGHTS.

8.1. In respect of the Goods and any goods that are transferred to ACS as part of the Services under this Contract, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to ACS, it will have full and unrestricted rights to sell and transfer all such items to ACS.

8.2. The Supplier assigns to ACS, with full title guarantee and free from all third-party rights, all Intellectual Property Rights in the products of the Services.

8.3. The Supplier shall obtain waivers of all moral rights in the Goods and or Services, to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.

8.4. The Supplier shall, promptly at ACS's request, do (or procure to be done) all such further acts and things and the execution of all such other documents as ACS may from time to time require for the purpose of securing for ACS the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to ACS.

(9) INDEMNITY.

9.1. The Supplier will keep ACS indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by ACS as a result of or in connection with:

  1. any claim made against ACS by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
  2. any claim made against ACS by a third party arising out of, or in connection with, the supply of the Goods or Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
  3. any claim made against ACS for actual or alleged infringement of a third party's Intellectual Property Rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services.

9.2. For the duration of the Contract and for a period of one (1) year, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract and shall, on ACS's request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.

9.3. This clause 9 shall survive termination of the Contract.

(10) TERMINATION.

10.1 Without limiting its other rights or remedies, ACS may terminate the Contract with immediate effect by giving written notice to the Supplier if:

  1. the Supplier commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of receipt of notice in writing of the breach;
  2. the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
  3. the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
  4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
  5. the Supplier (being an individual) is the subject of a bankruptcy petition order;
  6. a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
  7. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
  8. a floating charge holder over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
  9. a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
  10. any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 10.1.b to clause 10.1.i (inclusive);
  11. the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business; or
  12. the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
  13. The Supplier is under any investigation or is arrested in connection with any offence under the Bribery Act 2010

10.2 Without limiting its other rights or remedies, ACS may terminate the Contract:

  1. in respect of the supply of Services, by giving the Supplier two (2) weeks written notice; and
  2. in respect of the supply of Goods, with immediate effect by giving written notice to the Supplier, in which case M+W UK shall pay the Supplier fair and reasonable compensation for any work in progress on any other Goods at the date of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

(11) GENERAL.

11.1. Force majeure: Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable. If such event or circumstances prevent the Supplier from supplying the Goods and/or Services for more than three (3) weeks, ACS shall have the right, without limiting its other rights or remedies, to terminate this Contract with immediate effect by giving written notice to the Supplier.

11.2. Assignment and subcontracting:

  1. The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of ACS.
  2. ACS may at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.

11.3. Severance:

  1. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

11.4. Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

11.5. Variation: Any variation, including any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by ACS.

11.6. Governing law and jurisdiction: The Contract, and any 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.