1. APPLICATION OF THESE CONDITIONS
These conditions shall apply to all orders for the purchase of goods and services by the Company from our suppliers and sub-contractors from within and outside the UK. Any qualification of these Conditions by the Supplier or any other Conditions that the Supplier seeks to impose will be inapplicable unless expressly accepted in writing, signed by the Company. The Company agrees to buy the goods or services specified on the order from the Supplier on the terms set out below. Only written orders on the Company’s official purchase order form and signed by an authorised person are valid. Reference must be made to the Company’s purchase order in all correspondence, invoices and delivery notes enclosed with the goods. Failure to include such a delivery note may result in the Company incurring additional costs, which the Supplier shall pay. If further documentation is required this will be stated on the order or on annexed delivery instructions.
2. DEFINITIONS
‘the Company’ means Audience Systems Limited of Washington Road, West Wilts Trading Estate, Westbury, Wiltshire, BA13 4JP, Tel: +44(0)1373 865050, Fax: +44(0)1373 827545, E-mail: sales@audiencesystems.com.‘the Supplier’ means the supplier of goods or services or the sub-contractor whose name appears on the purchase order.‘Purchase Order’ shall mean the Purchase Order placed by the Company with the Supplier for the supply of the Goods and/or services.‘Services’ means the services you will perform for the Company described on the purchase order.‘Goods’ means and includes goods of any description including, but without limitation, plant, machinery, equipment, vehicles and materials, whether raw, partly or wholly manufactured.‘Tools’ means tools, gauges, dies, jigs, fixtures, patterns of drawings, computer software, plans, diagrams or materials.
3. DELIVERY/ADVICE NOTES
Any delivery against this order must be accompanied by an advice and/or packing note quoting the order number. If the Suppliers invoice does not quote the order number payment will be subject to delay.
4. SPECIAL CONDITIONS
All terms of the Order as to quantity, description, specification, weight, price, quality or otherwise shall be Conditions of the Contract and any breach thereof shall entitle the Company to repudiate its obligations hereunder.
5. TIME
Failure by the Supplier to adhere to any provision as to time contained in the Order shall entitle the Company at its option to treat the Contract as repudiated in whole or in part. The Company shall be entitled to exercise its option at any time unless a written extension of time has been given to the Supplier by a duly authorised officer of the Company and the time of any extension has not elapsed and the Company shall be entitled to recover from the Supplier any loss or damage or expense incurred by the Company by reason of such delay.
6. PRICE AND PAYMENT
Unless otherwise specified by the Company, all prices are firm and are not subject to variation unless the Company agree in writing and unless the Company also have been given 28 days’ notice of the proposed variation. If the Company does not accept the variation the Company shall be entitled to cancel the whole or any part of the order, at the Company’s discretion, without prejudice to the Company’s rights and remedies. All invoices for Goods and Services supplied must be rendered bearing the Company’s Order number. Unless otherwise agreed in writing invoices shall not be payable until sixty days after the end of the month in which delivery if effected.
7. DELIVERY
Unless otherwise specified on the purchase order, the Supplier shall deliver the Goods to the Company or provide Services to the Company at the address on the purchase order. Where terms on the order such as FOB, Ex works, etc. are used these shall be construed in accordance with Incoterms 2010 or latest version. The Goods and/or Services must be delivered or provided not later than the delivery date on the purchase order or otherwise agreed in writing by the Company or where delivery is to be by instalments not later than the agreed date. Time shall be of the essence. Where additional goods or work are delivered or modifications are made the Supplier shall not be entitled to extra time for delivery except where agreed in writing with the Company in advance. The Supplier shall only be entitled to payment for the quantity of goods specified on the purchase order which comply with these terms and the purchase order. The Company shall be under no obligation to accept delivery of Goods or provision of Services before the agreed date. Should the Company agree to accept early delivery the Company shall be entitled to withhold payment in respect of such deliveries until the agreed date. The Company shall be entitled to reject all the Goods or Services if any part is not delivered by the agreed date or any agreed extension of such date. No responsibility can be accepted by the Company for goods received damaged. In such cases the Supplier will be notified and required at the Company’s option to credit or exchange the goods.
8. PACKAGING
The Company shall only be responsible for returning cases or other durable packaging to the Supplier if such responsibility is accepted by the Company in the Order. In such an event the price agreed in respect of packaging shall be invoiced on a separate invoice to be credited in full upon despatch of the said cases or packaging by the Company to the Supplier: such cases or packaging to be clearly marked ‘returnable’ and to show the Supplier’s name. All costs incurred by the Company in the return of packaging as herein provided shall be for the account of the Supplier. In the event that the Supplier fails to comply with the requirements of this Condition, the Company shall not be held liable or responsible for the return of or for any debit for the value of cases of packaging. The type of packing material shall be such as will adequately protect the Goods in transit for storage at the Company’s premises or those of our customer. The Supplier will mark the goods in accordance with the Company’s instructions. Such instructions shall not obviate the need for the Supplier to mark the Goods according to their nature such as ‘Fragile’.
9. TITLE AND RISK
Title to the Goods purchased shall pass to the Company upon delivery but risk shall not pass until the Goods are subject to inspection, when they are accepted by the Company following such inspection but the Company shall be under no obligation to inform the Supplier that inspection of the Goods has taken place. The Supplier shall be responsible for transport and unloading costs and insurance of Goods to their full value against all risks of damage or loss prior to completion of delivery by whosoever effected. Where the Company supply Tools of any kind, including without limitation, patterns, measuring devices and packaging, to the Supplier to fulfil the obligations of the Order, they remain the property of the Company and should be returned to the Company immediately on request and only used for the purposes of the contract. The Company shall supply a list of Tools to the Supplier. The Supplier will store the Company’s Tools separately from the Suppliers property and name them as the Company’s property. The Supplier will maintain, insure and store them at the Suppliers expense and to the Company’s standards. Under no circumstances whatsoever shall the Supplier transfer the Tools to an alternative location without prior agreement from the Company.
10. INSPECTION
In addition to the Company’s right to inspect the Goods on delivery, any inspector or representative authorised by the Company shall be entitled to inspect the Goods or work-in-progress at any reasonable time at the Supplier’s works or, where applicable, at the works of any sub-Contractor or of any customer. All defects or deficiencies shall be made good and alterations made where the Supplier or Sub-Contractor as the case may be has failed in the opinion of the Company to comply with the terms of the Company’s Order provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval of the Goods of Services, nor shall it absolve the Supplier of his responsibility to provide an acceptable product nor shall it preclude subsequent rejection by the Company. In the event that the Company elects to carry out inspection at the premises of any sub-Contractor to the Supplier, such inspection shall not be used by the Supplier as evidence of effective control of quality by the Supplier.
11. INTELLECTUAL PROPERTY
The Intellectual Property rights in any documents or any Tools and any data or other information including, for the avoidance of doubt, any specifications provided by the Company to the Supplier/Service provider shall belong to the Company. The Supplier shall waive all moral rights therein. The Supplier shall not register any right in such Tools and shall not use them except for the purposes of performance of the Suppliers obligations under this agreement. The Intellectual Property rights in any computer programming work provided by the Supplier in accordance with this Order shall be the exclusive property of the Company. The Supplier undertakes to execute such documents and take such action as the Company shall reasonably require to confirm the Company’s ownership of any Intellectual Property rights, subject to the Company paying the Suppliers reasonable costs of doing so.
12. DRAWINGS AND DESIGN
Title and copyright in all drawings and designs of the goods or any part thereof and in all specifications and data relating thereto provided to the Supplier by the Company or prepared or made by the Supplier, its employees, agents or sub-Contractors for the express purpose of fulfilling this Contract, shall vest in and belong to the Company absolutely. The Supplier hereby agrees that in circumstances where drawings and designs referred to in this Condition are prepared by it or by persons employed, commissioned or otherwise engaged by the Supplier for the purposes of fulfilling this Contract with the Company then it will, without charge, upon request execute an assignment of copyright or procure that an assignment of copyright is obtained from the author of the drawing or design as the case may be in favour of the Company. Drawings and designs referred to in this Condition shall under no circumstances be used, copied, loaned or otherwise, made use of by the Supplier save in the fulfilment of this Contract or any other Order placed by the Company upon the Supplier for Goods or Services of the same specification. The Supplier shall forthwith upon request at any time and without charge, deliver to the Company all drawings, specifications, data and other documentation relating to the Goods or Services or any part thereof or used in the manufacture thereof then in the possession of any other person, firm or company who has possession of such documentation through, under or by direction of the Supplier. The Supplier shall be responsible for any discrepancies, errors or omissions in the drawings and other particulars supplied by him, whether such drawings and particulars have been approved by the Company or not. The Supplier confirms that all designs and specifications originated or developed by it or any other person, firm or company at its direction are such that goods or Services supplied in conformity therewith will be safe and without risk to health or safety when properly used. The Supplier shall take all reasonable steps to ensure that its employees and any Supplier to whom it shall disclose any of its drawings, designs, specifications and data of the Company as herein before provided shall not disclose the same, or any part therefore, to any unauthorised persons.
13. TOOLS
In the event that the Supplier manufactures, fabricates or otherwise obtains from any source whatsoever Tools specifically for the purpose of manufacture of the Goods or any parts thereof, or in the case of general utility dies, tools and patterns where they are to be charged to the Supplier as a specific prices item then: Title in such Tools (if not previously vested in the Company) shall upon the happening of such event become vested in the Company absolutely. Any price quoted by the Supplier for the Goods shall include for the price of Tools where required by the Supplier for the performance of this Contract and if no separately priced item is included in the quotation then the Supplier shall not make any separate or further charge therefore. The Supplier shall, at any time upon request, forthwith deliver up to the Company all Tools belonging to the Company which are in the possession of the Supplier or any other person, firm or company who has possession of such Tools through under direction of the Supplier. No lien set off claim or counter-claim of the Supplier against the Company shall entitle the Supplier to withhold delivery of Tools as herein provided save that if there is any outstanding charge or cost which has been agreed as a specific priced items to be paid by the Company to the Supplier in respect of any dies, tool or pattern so requested then such outstanding amount shall first be paid by the Company to the Supplier before delivery of Tools by the Supplier to the Company. Under no circumstances whatsoever shall the Supplier use, nor permit to be used by, any other party the Tools referred to in this Condition, otherwise than in the fulfilment of the Company’s Order or any other Order placed by the Company upon the Supplier for Goods of the same specification.
14. QUALITY AND GUARANTEE
Goods shall be of first class quality and shall be supplied strictly in accordance with the quantities, specifications and stipulations contained in the Order and all work and Services performed by the Supplier shall be in accordance with best practice. Unless the Goods are proprietary Goods of the Supplier’s designed intended to sale generally, the Supplier shall not affix any trade name, device or other markings to the Goods except such as are approved by the Company. The Supplier warrants his expertise and confirms the accuracy of all statements and representations made in respect of the Goods, work or Services prior to the Order. Nothing contained in these Conditions shall in any way detract from the Supplier’s obligations under common law or status or any express warranty or Condition contained in the Order. Where the Company notifies the Supplier of any defective or damaged Goods or faulty workmanship, the Supplier shall instruct the Company within 14 days with regard to the disposal, storage or return of such Goods or rectification of workmanship as the case may be and in default all such matters shall be in the Company’s decision. All costs and expenses hereunder shall be borne by the Supplier. The Supplier shall be responsible for making good with all possible speed the defective or damaged Goods or faulty workmanship (fair wear and tear excepted) including full replacement, where necessary, together with all costs of delivery to site and installation and all other costs incurred by the Company arising out of the faulty design, materials or workmanship or any act or omission by the Supplier which is in breach of Contract.
15. LICENCES
If the performance of the Order requires the Company to have any licence or other permit from any government or other authority at home or overseas, the Order shall be Conditional upon such licence or other permit being available at the required time.
16. PUBLICITY
Neither the Order nor the name of the Company shall be used by the Supplier for advertisement or publicity purposes without the Company’s prior written consent.
17. SUB-CONTRACTORS
The Supplier shall not, without the written consent of the Company, sub-Contract or assign all or any part of the Order. Any authority given by the Company for the Supplier to sub-contract the Order or any part thereof shall not impose any duty on the Company to enquire as to the competence of any authorised sub-contractor but the Supplier shall ensure that any authorised sub-contractor is competent and that the work is properly done.
18. HEALTH AND SAFETY
The Supplier warrants that in the design, manufacture, supply and installation of the Goods (including all work on site) and the provision of information relating thereto, it will comply with the duties imposed on it by the Health and Safety at Work Act 1974 or any amendment thereto or re-enactment thereof and of all other statutory provisions, bye-laws, rules and regulations so far as they are applicable to the site or the Goods and that it will perform the Contract such that no liability is incurred by the Company under such statutory provisions, bye-laws, rules and regulations.
19. INDEMNITY
The Supplier shall indemnify the Company against all those claims, costs, expenses, loss or damage which the Company may incur and which arise, directly or indirectly, howsoever caused, from the Supplier’s breach of any of its obligations under these Terms and Conditions.
20. SUPPLIER’S DEFAULT & TERMINATION
Without prejudice to other remedies hereof or any other lawful right available, the Company shall have the right to terminate the Contract in whole or part by serving written notice on the Supplier in any of the following circumstances: a material failure (in whole or in part) by the Supplier to perform any obligation of the Supplier under the Contract provided that (if capable of remedy) such failure has not been remedied to the Company’s reasonable satisfaction within a period of 30 days following written notice demanding remedy of the failure in question being served by the Company; or the Supplier shall become bankrupt or insolvent or compound with its creditors or in the event of a resolution being passed or proceedings commenced against or in respect of the Supplier under the Insolvency Act 1976 or if an administrative receiver is appointed of all or any part of the assets or undertaking of the Supplier; or the Supplier fails (in whole or in part) to perform any material obligation of the Supplier owed to the Company or any Beneficiary on more than 3 occasions.
21. CHANGES
The Company may, at any time, make written changes within the general scope of the Order and the Supplier shall comply with such changes. If a change affects the time for or cost of performance, a mutually agreed equitable adjustment shall be made in the delivery schedule, purchase price or both. All claims for adjustment by the Supplier under this Condition must be asserted in writing within 30 days from date of notification of the change, in default of which such claims shall be waived. Nothing herein shall excuse the Supplier from proceeding with the Order as changed.
22. VALUE ADDED TAX
All Suppliers who are registered for Value Added Tax are required to issue a proper tax invoice in accordance with the relevant legislation before the Company shall be required to make payment for Goods or Services (or both) supplied in accordance with the Order.
23. GIFTS AND PAYMENTS OF COMMISSION
The Company may terminate this contract and recover all its losses if the Supplier, its employees or anyone acting on the Supplier’s behalf: offers to give, or agrees to give to any member, employee or representative of the Company, any gift or consideration or any kind of inducement or reward for doing or refraining from doing or having done or refrained from doing, any act in relation to the obtaining or execution of this or any other contract with the Company or for showing or refraining from showing favour or disfavour to any person in relation to this contract. offers to sell goods or services to any member, employee or representative of the Buyer on the terms specified under the Contract between the Company and the Supplier. commits an offence under the Bribery Act 2010.
24. FORCE MAJEURE
Neither party shall be liable for failure to perform its obligations under the Contract if such failure results from circumstances beyond the party’s reasonable control provided that labour disputes (including disputes between the Supplier and its own employees) and lack of goods, equipment or materials shall not be taken to be matters outside the Contract of the Supplier unless, in the case of lack of goods or equipment, the Company is itself responsible for the lack thereof.
25. ENGLISH LAW
Unless otherwise agreed in writing between the parties, the Contract shall be subject to and construed and interpreted in accordance with English law and shall be subject to the jurisdiction of the Courts of England.
26. ARBITRATION
All disputes and differences which arise out of or in connection with the Contract, its construction, operation, termination or liquidation shall, if practicable be settled by means of negotiation between the parties. If the parties cannot settle any dispute or difference within 28 days after first conferring, then such dispute or difference shall be settled by arbitration. The place, date and the arbitrator shall be agreed between the parties or where the parties cannot so agree within a further 28 days, by the London Chamber of Commerce.
27. SUPERVENING ILLEGALITY
If any term within the Contract is held by any court of law or in arbitration to be illegal or unenforceable, or is rendered by any enactment, in whole or in part, such term or part shall to that extent be deemed not to be part of the Contract. Provided that, where the Company is of the view that it would not have entered into the contract in the absence of the particular term, it may terminate the contract forthwith by notice in writing to the Supplier and without liability on its part, but without prejudice to such rights on its part which had already been accrued.