1.1 In these Conditions the following words have the following meanings:
"Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
"Buyer"" means the person(s), firm or company who purchases Goods and/or Services from the Company as detailed in the Order;
"Commencement Date" has the meaning set out in Condition 2.5;
"Company" means Stride Supplies Limited (company number 1790795) whose registered office is at Derek Young and Co Accountants LLP, Estate House , Evesham Street , Redditch , Worcestershire , B97 4HP, and whose main trading address is at Lakeside Industrial Estate, Broad Ground Road, Redditch. B98 8YP.
"Contract" means any contract between the Company and the Buyer for the supply of Goods and/or Services, incorporating these Conditions and the Order;
"Goods" means any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them), as detailed in the Order;
"IPRs" means any and all patents, trade marks, service marks, registered designs, drawings, design rights, database rights, copyright (including but not limited to copyright in computer software), inventions, trade secrets, confidential information, technical information, know-how, business or trade names, goodwill and all other intellectual property and rights of a similar or corresponding nature in any part of the world, whether registered or not or capable of registration or not and including all applications and the right to apply for any of the foregoing rights;
"Materials" means any designs, specifications, drawings or other materials or information of any nature provided to the Company by the Buyer pursuant to an Order;
"Order" means the Buyer’s written or verbal order for the supply of Goods and/or Services from the Company, made following a quotation given by the Company;
"Redelivery Costs" means all associated costs incurred by the Company arising out of a failure to off-load the Goods in circumstances set out in Condition 4.2(b); and
"Services" means any services agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them), as detailed in the Order;
"Specification" means the specification (if any) of the Goods and/or Services as agreed between the parties from time to time.
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3, the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company's sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a duly authorised officer of the Company.
2.4 Each Order placed by the Buyer with the Company shall be deemed to be an offer by the Buyer to purchase Goods and/or Services from the Company subject to these Conditions.
2.5 Any Order placed by the Buyer shall only be deemed to be accepted by the Company when the Company confirms, in writing or verbally, that it has accepted such Order at which point and on which date the Contract shall come into existence ("Commencement Date"). Where acceptance is communicated verbally, it shall be followed by confirmation in writing from the Company to the Buyer.
2.6 The Buyer must ensure that the terms of its Order and any related Specification are complete and accurate.
2.7 Any quotation is valid for a period of 30 days only from its date, provided that the Company has not withdrawn it in this time.
3.1 The Goods are described in the Company's catalogue or website, or as described in any applicable Specification.
3.2 To the extent that the Goods are to be supplied in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Company against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses) interest, penalties and professional costs and expenses) suffered or incurred by the Company in connection with any claim made against the Company for actual or alleged infringement of a third party's IPRs arising out of or in connection with the Company's use of the Specification. This Condition shall survive termination of the Contract.
3.3 The Company reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
4.1 Delivery shall be deemed to take place when the Goods arrive at such place as is agreed by the Company except that delivery to a carrier for the purpose of transmission to the Buyer shall be deemed to be delivery to the Buyer. Section 32(2) and (3) of the Sale of Goods Act 1979 shall not apply.
4.2 If the Company agrees the delivery of the Goods shall take place at the Buyer's premises then:
(a) the Buyer will provide at its expense adequate and appropriate equipment and manual labour for off-loading the Goods without assistance from the driver; and
(b) where the Buyer fails to comply with Condition 4.2(a) within 2 hours of arrival at the Buyer's premises, the driver may return the Goods to the Company and, where prior arrangements had been made with the Buyer for delivery of the Goods, the Buyer shall be responsible and invoiced for any Redelivery Costs.
4.3 If the Company agrees from time to time that the Buyer can collect the Goods from the Company's place of business then delivery shall be deemed to take place when the Company notifies the Buyer that the Goods are ready for collection.
4.4 The Buyer will take delivery of the Goods within 5 Business Days of the Company giving it notice that the Goods are ready for delivery.
4.5 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.6 Subject to the other provisions of these Conditions, the Company will not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company's negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
4.7 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations, or has failed to comply with Condition 4.2:
(a) risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company's negligence);
(b) the Goods will be deemed to have been delivered;
(c) the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance); and
(d) the Company may sell the Goods on the expiry of 30 days written notice to the Buyer and any costs and expenses incurred by the Company shall be payable by the Buyer.
For the avoidance of doubt, this Condition 4.7 (a) and (c) where delivery of the Goods has been delayed or deferred at the Buyer's request and the Company has agreed to such request.
4.8 If the Company delivers to the Buyer a quantity of Goods of up to 15% more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.9 The Company may, at its own discretion, deliver the Goods in instalments. Deliveries of further instalments may be withheld until the Goods comprised in earlier instalments have been paid for in full. Default by the Company, howsoever caused, in respect of one or more instalments shall not entitle the Buyer to terminate the relevant Contract as a whole.
4.10 Where the Buyer requests that an Order is delivered in instalments, but fails to provide the dates for delivery of each instalment, the Company shall be entitled to determine a date for delivery of the instalments. The Company shall notify the Buyer of the proposed date for delivery of the instalments and the parties will agree the dates for delivery, in good faith, acting reasonably. For the avoidance of doubt, the Company shall have no responsibility to store undelivered instalments of the Goods for more than 3 months after the Commencement Date. If a date for delivery of any instalments of the Goods has not been agreed on the expiry of 3 months after the Commencement Date, the Company may, at its option, apply the terms of Condition 4.7 and/or invoice the Buyer for the Price (as defined in Condition 10).
4.11 The Buyer is deemed to have examined the Goods on delivery.
5.1 The quantity of a consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any shortages in, or non-delivery of, Goods (even if caused by the Company's negligence) unless written notice is given to the Company within 5 Business Days of the date when the Goods would in the ordinary course of events have been received.
5.3 Any liability of the Company for shortages in, or non-delivery of, the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods and/or the Services; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
(a) hold the Goods on a fiduciary basis as the Company's bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company;
(e) hold the proceeds of the insurance referred to in Condition 6.3(d) on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account; and
(f) make every reasonable endeavour to ensure, where the Goods are incorporated with any other goods, that title in such Goods (or in goods that may result from the incorporation of the Goods) passes to the Company and Conditions 6.3(a) – (e) are deemed to apply to such goods.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer's business at full market value; and
(b) any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately if:
(a) any of the events listed in Conditions 17.1 apply to the Buyer; or
(c) the Buyer encumbers or in any way charges any of the Goods.
Where the Buyer's right to possession of the Goods has terminated, the Company may, without prejudice to its other rights or remedies, cancel or refuse to make any further deliveries.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
7.1 The Buyer is relying on its own skill and judgement in relation to the Goods irrespective of any knowledge of the Company or its employees or agents as to the purpose for which the Goods are supplied or its suitability.
7.2 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Goods will:
(a) comply with the Specification;
(b) be reasonably fit for the purpose as notified in writing to the Company by the Buyer.
The Company makes no further express or implied warranties in respect of the Goods and excludes all other remedies.
7.3 The warranties given in Condition 7.2 will not apply:
(a) where the defect complained of arises from fair wear and tear, wilful damage, the Buyer's negligence, abnormal working conditions, exposure to the weather, misuse or alteration of the Goods without the Company's approval, or arises from any failure to follow the Company's instructions (whether oral or in writing or whether relating without limit to the fabrication, operation, use or maintenance of the Goods); or
(b) if the total price for the Goods has not been paid by the due date for payment.
7.4 The Company shall not be liable for a breach of the warranties in Condition 7.2 unless:
(a) the Buyer gives written notice of the defect to a duly authorised officer of the Company, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of:
(i) in the case of defects apparent on visual inspection, delivery; and
(ii) in the case of defects not apparent on visual inspection, discovery of the defect, provided always that such notice is given within 3 months from the date of delivery; and
(b) the Company is given the opportunity to inspect the Goods and to investigate the complaint, and no use is made of, alteration made to, or interference made with the Goods before such inspection.
The Buyer shall make appropriate inspection of the Goods on delivery and ensure that they are in such condition that no risk or hazard could arise from their use. In the event of such possibility arising, the Buyer shall immediately notify the Company.
7.5 Subject to Conditions 7.3, 7.4 and 11, if there is a breach by the Company of the warranties in Condition 7.2 or any defect in the Goods which in the reasonable opinion of the Company was not caused by an act or omission of the Buyer, the Company shall at its option repair, replace such Goods (or the defective part) or refund the price of the Goods at the pro rata Contract rate provided that if the Company so requests the Buyer shall, at the Buyer's expense, return the Goods or the part of such Goods which is defective to the Company.
8. SUPPLY OF SERVICES
8.1 The Company shall provide the Services to the Buyer in accordance with the Specification in all material respects.
8.2 The Company shall use reasonable endeavours to meet any performance dates for the Services in the Specification, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
8.3 The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Company shall notify the Buyer in any such event.
8.4 The Company warrants to the Buyer that the Services will be provided using reasonable care and skill.
9. BUYER'S OBLIGATIONS
9.1 The Buyer shall:
(a) ensure that the terms of the Order and the Specification are complete and accurate;
(b) co-operate with the Company in all matters relating to the Services;
(c) provide the Company, its employees, agents, consultants and subcontractors, with access to the Buyer's premises, office accommodation and other facilities as reasonably required by the Company to provide the Services;
(d) provide the Company with such information and materials as the Company may reasonably require to supply the Services, and ensure that such information is accurate in all material respects;
(e) prepare the Buyer's premises for the supply of the Services;
(f) obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start; and
(g) keep and maintain all materials, equipment, documents and other property of the Company ("Company Materials") at the Buyer's premises in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company's written instructions or authorisation.
9.2 If the Company's performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Buyer or failure by the Buyer to perform any relevant obligation ("Buyer Default"):
(a) the Company shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Buyer remedies the Buyer Default, and to rely on the Buyer Default to relieve it from the performance of any of its obligations to the extent the Buyer Default prevents or delays the Company's performance of any of its obligations;
(b) the Company shall not be liable for any costs or losses sustained or incurred by the Buyer arising directly or indirectly from the Company's failure or delay to perform any of its obligations as set out in this Condition 9.2; and
(c) the Buyer shall reimburse the Company on written demand for any costs or losses sustained or incurred by the Company arising directly or indirectly from the Buyer Default.
10. PRICE AND PAYMENT
10.1 The price for the Goods and/or Services shall be the price set out in any applicable price list on the date of delivery or deemed delivery or the price as agreed between the parties in the Order ("the Price").
10.2 The Company reserves the right to increase the Price by giving notice to the Buyer at any time before delivery, to reflect any increase in the cost of the Goods and/or Services to the Company that is due to:
(a) any factor beyond the control of the Company (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods and/or Services ordered, or the Specification; or
(c) any delay caused by any instructions of the Buyer in respect of the Goods and/or Services or failure of the Buyer to give the Company adequate or accurate information or instructions in respect of the Goods and/or Services.
10.3 The price for the Goods and/or Services shall be exclusive of any value added, purchase or other taxes and, unless otherwise agreed between the parties, shall be exclusive of all costs or charges in relation to loading, unloading, carriage, insurance and import and expert duties all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
10.4 Payment of the Price is due within 30 days from the end of the month in which the invoice is dated. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
10.5 All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision. The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
10.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract the Buyer will be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of National Westminster Bank Plc, accruing on a daily basis until payment is made, whether before or after any judgement. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998. The Company also reserves the right to withhold the supply of Goods under this or any other contract.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The Buyer grants the Company a worldwide non-exclusive royalty free licence to use the Materials for the sole purpose of supplying the Goods and/or Services, with the ability to grant sub-licences of this licence to suppliers of the Company that manufacture the Goods and/or Services.
11.2 The Company gives no assurance or guarantee where the Goods are not manufactured by it, that the sale or use of the Goods will not infringe the IPRs of any third party.
11.3 All IPRs in or arising out of or in connection with the Services shall be owned by the Company.
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 Condition 12 shall survive termination of the Contract.
13. LIMITATION OF LIABILITY
13.1 Nothing in these Conditions shall exclude or limit the liability of the Company for death or personal injury caused by the Company's negligence, or fraudulent misrepresentation.
13.2 The Company shall not be liable to the Buyer in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, (i) for any economic loss of any kind whatsoever, including without limit loss of profit, business contracts, revenues or anticipated savings, or (ii) for damage to the Buyer's reputation or goodwill, or (iii) for any loss resulting from any claim made by any third party, or (iv) for any special, indirect or consequential loss or damage of any nature whatsoever.
13.3 Without prejudice to Condition 13.1 and 13.2, the Company's liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with the Contract shall be limited to the Price.
14. PRODUCT RECALL
14.1 The Buyer undertakes to maintain appropriate up-to-date and accurate records to enable the immediate recall of any Goods or goods incorporating the Goods. These records shall include records of deliveries to customers (including details of batch numbers, delivery date, name and address of customer, and telephone number and fax or telex number (and e-mail address if available)).
14.2 The Buyer shall, at its own expense, give such assistance as the Company shall require for the purpose of recalling as a matter or urgency any quantities of the Goods or goods incorporating the Goods and take prompt action and accede to any reasonable request from a third party to secure the withdrawal of the Goods, or goods incorporating the Goods, from sale or supply.
15.1 The Buyer shall be liable for and shall indemnify the Company against any and all liability, loss, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered by the Company whether direct or consequential (including but without limitation any economic loss or other loss of profits, business or goodwill) arising out of:
(a) any claim made under the Consumer Protection Act 1987 in respect of the Goods supplied to the Buyer;
(b) recall of the Goods or goods incorporating the Goods where the defect is due to the Specification and/or is not due to fault on the part of the Company;
(c) any claim made by a supplier of the Company in respect of work-in-progress in relation to Goods ordered by the Buyer and where the Buyer cancels an order in whole or in part pursuant to Condition 16.1; and
(d) any claim made or threatened against the Company that its use of the Materials infringes the rights of any third party.
16.1 The Buyer shall not be entitled to cancel an Order, unless the Company expressly agrees such cancellation in writing. If the Company agrees such cancellation, in addition to its rights in Condition 15.1(c), the Company reserves the right to make a reasonable charge as an administration fee without having to prove its action and has the right to charge the Buyer for the Goods and Services supplied up to the date of cancellation.
17.1 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of its obligations under this Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receiving notice so to do;
(b) the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstructions or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
(c) the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade;
(d) any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Conditions 17.1 (b) or 17.1 (c); or
(e) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business.
17.2 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under this Contract on the due date for payment.
17.3 Without limiting its other rights or remedies, the Company may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Buyer and the Company if the Buyer fails to pay any amount due under this Contract on the due date for payment, the Buyer becomes subject to any of the events listed in Conditions 17.1 (c) or (d), or the Company reasonably believes that the Buyer is about to become subject to any of them.
17.4 On termination of the Contract for any reason:
(a) the Buyer shall immediately pay to the Company all of the Company's outstanding unpaid invoices and interest and, in respect of Goods and/or Services supplied but for which no invoice has yet been submitted, the Company shall submit an invoice, which shall be payable by the Buyer immediately on receipt;
(b) the Buyer shall return all of the Company Materials and any Goods which have not been fully paid for. If the Buyer fails to do so, then the Company may enter the Buyer's premises and take possession of them. Until they have been returned, the Buyer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
18.1 The Company reserves the right to defer the date of delivery and to invoice the Buyer for such reasonable charges as are incurred by such delay or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
18.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company. The Company may assign the Contract or any part of it to any person, firm or company.
18.3 The Contract constitutes the entire understanding between the parties with respect to the subject matter of the Contract and supersedes all prior agreements, negotiations and discussions between the parties relating to them.
18.4 If any provision of the Contract shall be found by any judicial or other competent authority to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remaining provisions of these Conditions and/or Contract which shall remain in full force and effect.
18.5 The failure on the part of either of the parties to exercise or enforce any right conferred upon it under this Agreement shall not be a waiver of any such right nor operate to bar the exercise or enforcement thereof of any other right under this Agreement at any time or times thereafter.
18.6 A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
18.7 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission: (a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or (b) (in the case of communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer. Communications addressed to the Company shall be marked for the attention of the Managing Director.
18.8 The formation, existence, construction, performance, validity and all aspects of these Conditions and the Contract shall be governed by English law and the Buyer submits to the exclusive jurisdiction of the English courts.
1.1 In these Conditions the following words have the following meanings:
"Company" means Stride Supplies Limited (company number 1790795) whose registered office is at Derek Young and Co Accountants LLP , Estate House , Evesham Street , Redditch , Worcestershire , B97 4HP , and whose main trading address is at Unit 7 Lakeside Industrial Estate, Broad Ground Road, Redditch, Worcestershire, B98 8YP
"Contract" means the contract between the Company and the Seller for the supply of Goods and/or Services, incorporating these Conditions and the Order;
"Delivery Date" means the date as stated in the Order, or if no such date is specified then delivery shall take place within a reasonable time and at the latest within 6 months of the Order;
"Goods" means any goods agreed in the Contract to be purchased by the Company from the Seller (including any part or parts of them);
"Order" means the Company's written instruction to supply the Goods, incorporating these Conditions;
"Place of Delivery" means such place as stated in the Order (or, if none, to the Company's premises or such other address as the Company may notify from time to time);
"Seller" means the person, firm or company who accepts the Company's Order;
"Services" means any services agreed in the Contract to be purchased by the Company from the Seller (including any part of them);
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
2. APPLICATION OF TERMS
2.1 These Conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.
2.2 Each Order for the supply of Goods and/or Services placed by the Company with the Seller shall be deemed to be an offer by the Company to purchase Goods subject to these Conditions and no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.
2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller's quotation, acknowledgement or acceptance of order, delivery note, invoice, specification or other similar document will form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.
2.4 These Conditions apply to all the Company's purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by either the Purchasing Director or the Managing Director of the Company.
3. THE GOODS
3.1 The Seller shall ensure that the Goods:
(a) Correspond with their description and any applicable Specification;
(b) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and
(c) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Seller shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
4.1 The Seller shall deliver the Goods DAP (Delivery at Place) (Incoterms® 2010) on the Delivery Date and to the Place of Delivery in accordance with such delivery instructions as the Company may notify to the Seller from time to time. The Seller shall pay for the carriage of the Goods to the Place of Delivery. The Seller must obtain at its own risk and expense any export licence and other official authorisation or other documents and carry out, where applicable, all customs formalities necessary for the export of the Goods and for their transit through any country.
4.2 The Seller shall invoice the Company upon, but separately from, despatch of the Goods to the Company.
4.3 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
4.4 Time for delivery shall be of the essence but in any event the Seller shall notify the Company of any anticipated delay in the provision of the Goods. If the Seller fails to meet the Delivery Date then the Company shall be entitled to exercise its rights under Condition 9.
4.5 Unless otherwise stipulated by the Company in the Order, deliveries shall only be delivered to the Company during the hours 8am – 4 pm.
4.6 The Seller shall, at its cost ensure that all Goods are properly packed, secured and labelled so that they are delivered in perfect condition and so as to prevent misuse causing harm or injury. If the Seller requires the Company to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material will only be returned to the Seller at the cost of the Seller.
4.7 The Seller shall deliver the Goods in a single delivery unless the Company stipulates a requirement for delivery by instalments. Where so stipulated the Contract will be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.
4.8 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess will be and will remain at the Seller's risk and will be returnable at the Seller's expense. If the Seller delivers to the Company a quantity of Goods less than the quantity accepted by the Company, the Company shall be entitled to object to or reject the Goods or any of them by reason of the shortfall. The Company may, in its absolute discretion, accept such excess or shortfall and pay for such Goods at the pro rata Contract rate.
4.9 The Goods shall only be delivered once the Seller has, on arrival of the Goods at the Place of Delivery, ensured that a duly authorised representative of the Company signs a valid delivery note (which shall quote the Company's order number and full details of the Goods supplied) to confirm delivery of the Goods but any such signature shall not be evidence that the Goods delivered comply with Conditions 3, 7, or 11 or are of the correct quantity.
5.1 Risk of damage to or loss of the Goods shall pass to the Company at the time of completion of delivery to the Place of Delivery, and acceptance by the Company in accordance with Condition 6.
5.2 In addition to any similar rights implied on behalf of the Company, the Seller warrants that it has the right to sell the Goods; that the Company shall at all times be entitled to use the Goods free from interference by the Seller or a third party; and that the Goods are free from any charge, lien or other encumbrance.
5.3 Title to the Goods shall pass to the Company on the earlier of payment for them or delivery to the Place of Delivery. If delivery of the Goods is postponed for any reason then title but not risk in the Goods shall pass to the Company at the date when, but for such postponement, the Goods would have been delivered.
6. TESTING AND ACCEPTANCE
6.1 The Company shall be under no obligation to accept the Goods or be deemed to have accepted the Goods until it has had reasonable opportunity to examine them to ascertain whether they are in conformity with the Contract.
6.2 The Seller shall test the Goods and provide a test certificate (in respect of each individual item of Goods in respect of every Order and in accordance with Condition 6.3) to the Company at latest on delivery of the Goods.
6.3 Where Goods are to be tested or checked by the Seller, the Company or an agreed third party prior to acceptance by the Company, the parties agree that this will be in accordance with internationally recognised test criteria set out in standards for material specifications from time to time. The Goods shall only be accepted by the Company once they have complied with such criteria. If the Goods do not comply with such criteria within a reasonable period then the Company shall be entitled to exercise its rights under Condition 9. For the avoidance of doubt, where Goods are tested by the Seller and found not to conform with the test criteria, the Seller shall not send such Goods to the Company.
6.4 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or standards supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.
6.5 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller's obligations under the Contract.
6.6 In relation to the Control of Substances Hazardous to Health Regulations 1999, the Seller shall provide all such information as it is required to provide to the Company in compliance with such Regulations.
7. SUPPLY OF SERVICES
7.1 The Seller shall, from the date set in the Order and for the duration of the Contract, provide the Services to the Company in accordance with the terms of the Contract.
7.2 The Seller shall meet any performance dates for the Services specified in the Order or otherwise notified to the Seller by the Company and time is of the essence in relation to any of those performance dates.
7.3 In providing the Services, the Seller shall:
(a) co-operate with the Company in all matters relating to the Services, and comply with all instructions of the Company;
(b) perform the Services with the best care, skill and diligence in accordance with best practice in the Seller's industry, profession or trade and use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Seller's obligations are fulfilled in accordance with the Contract;
(c) ensure that the Services conform with all descriptions and specifications set out in any specification provided by the Company;
(d) provide all equipment, tools and vehicles and such other items as are required to provide the Services;
(e) use the best quality goods, materials, standards and techniques, and ensure that all goods and materials supplied and used in the Services or transferred to the Company, will be free from defects in workmanship, installation and design;
(f) obtain and at all times maintain all necessary licences and consents necessary to perform the Services;
(h) comply with all applicable laws, statutes, regulations and codes from time to time in force in relation to the supply of the Services; and
(i) observe all health and safety rules and regulations and any other security requirements that apply at any of the Company's premises; and
(j) not do or omit to do anything which may cause the Company to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business, and the Seller acknowledges that the Company may rely or act on the Services;
8. SELLER’S OBLIGATIONS
8.1 The Seller must:
(a) promptly notify the Company if the Goods and/or Services do not conform to the Specification; and
(b) obtain the Company’s written approval for disposition of any Goods and/or Services which do not confirm with the Specification;
(c) promptly notify the Company or any changes in the Goods/Services and/or the process for manufacturing the Goods and/or performing the Services, any changes to the suppliers used by the Seller, any changes in the location of any manufacturing facilities used by the Seller, and obtain the Company’s prior written approval to such changes;
8.2 The Seller shall use its best endeavours to procure that any suppliers used by the Seller in the supply of Goods and/or Services to the Company, are bound by obligations which are the same or materially similar to those contained in this clause 7.
8.3 The Company and their authorised representatives and the Company’s customers and their authorised representatives and any relevant regulatory authorities shall have the right, on reasonable notice to the Seller, to enter the Seller’s premises in order to inspect all areas and facilities which are used by the Seller, at any level of the supply chain, in order to supply the Goods and/or Services and to inspect all records which are applicable to the supply of the Goods and/or Services.
9.1 If the Goods and/or Services are not delivered on the Delivery Date or, or do not comply with the requirements set out in the Contract, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, or supply of the Service has been completed, the Company may exercise any one or more of the following remedies:
(a) to terminate the Contract;
(b) to reject the Goods and/or Services (in whole or in part) and in respect of the Goods, return them to the Seller at the Seller's own risk and expense;
(c) to require the Seller to repair or replace the rejected Goods and/or re-perform the rejected Services, or to provide a full refund of the price of the rejected Goods and/or Services (if paid);
(d) to refuse to accept any subsequent delivery of the Goods or any future supply of the Services which the Seller attempts to make;
(e) to recover from the Seller any costs incurred by the Company in obtaining substitute goods and/or services from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by the Company which are in any way attributable to the Seller's failure to carry out its obligations under the Contract.
9.2 If the Goods and/or Services are not delivered on the Delivery Date the Company may at its option claim or deduct 10% of the price of the Goods and/or Services for each week's delay in delivery by way of liquidated damages, up to a maximum of 100% of the total price of the Goods and/or Services. If the Company exercises its rights under this Condition 9.2, it shall not be entitled to any of the remedies set out in Condition 9.1 in respect of the Goods' and/or Services’ late delivery (but such remedies shall be available in respect of the Goods' and/or Services’ condition).
9.3 These Conditions shall apply to any repaired or replacement Goods or any re-performed Services supplied by the Seller.
9.4 The Company's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
10. PRICE AND PAYMENT
10.1 The price for the Goods and/or Services shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax (which shall be payable by the Company subject to receipt of a VAT invoice) but inclusive of all other charges (including without limit charges for testing carried out by the Seller and test certificates, packaging, freight, travel time, carriage, insurance and delivery charges and any duties).
10.2 No variation in the price nor extra charges will be accepted by the Company.
10.3 Subject to having received a valid invoice (including without limit the Company's order number), the Company shall pay the price of the Goods and/or Services within the number of days as agreed in writing between the parties prior to the commencement of the Contract or by the end of the month of delivery of the Goods or performance of the Services (as applicable), but time for payment shall not be of the essence of the Contract.
10.4 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller whether under the Contract or otherwise.
11. QUALITY AND DEFECTS
11.1 In addition to any statutory rights implied in favour of the Company and any warranty or guarantee given by the Seller in respect of the Goods and/or Services, the Seller warrants to the Company that:
(a) the Goods shall be of the best available design, of the best quality, material and workmanship, be without fault, be fit for the purpose indicated, reasonably inferred or made known to the Seller by the Company, be safe and without risk to health or property when properly used and conform in all respects with the Order, the International Wire Standards from time to time and specification and/or standards supplied or advised by the Company to the Seller;
(b) the Goods shall conform to all relevant UK and EC laws (including without limit the Control of Substances Hazardous to Health Regulations 1999 and the Health and Safety at Work Act 1974), bylaws, regulations, orders, directions, standards, specifications and codes of practice and be in accordance with best practice and pass such inspections and tests as may be required by the Company; and
(c) the Services will be performed using the best care, skill and diligence in accordance with best practice in the Seller's industry, profession or trade and use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Seller's obligations are fulfilled in accordance with the Contract;
11.2 If any of the Goods and/or Services fail to comply with the provisions set out in this Condition 11 the Company shall be entitled to exercise its rights under Condition 12.
12.1 The Seller shall be liable for and keep the Company indemnified in full against all direct, indirect or consequential liability, loss, damages, injury (including but without limitation any economic loss or other loss of profits, business or goodwill), costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:
(a) defective workmanship, quality or materials;
(b) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods and/or Services;
(c) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods and/or Services (including but without limitation by reason of the manufacture, use or sale of any Goods and/or Services).
13. PRODUCT LIABILITY, SAFETY AND RECALL
13.1 In addition to its obligations in Condition 12.1(c), the Seller shall obtain and maintain in effect at its cost, with a reputable insurer, for 15 years from the Delivery Date product liability insurance, professional indemnity insurance and public liability insurance (a copy of which will be supplied to the Company on demand) covering liabilities to the persons and property of third parties to a minimum limit of £5,000,000 per occurrence in respect of claims arising out of the manufacture, use or sale of the Goods and/or Services or goods incorporating the Goods, naming the Company as an additional named insured under the policy.
13.2 The Seller shall immediately notify the Company, the relevant trading standards authorities and any other appropriate authority with a legitimate interest if an issue in relation to product safety arises or is likely to arise or where the Seller has any reason to suspect that a defect exists in the Goods and/or Services or may develop in the Goods and/or Services when incorporated into other goods.
13.3 The Seller shall keep the Company fully informed of any factors which affect the safe use of the Goods or incorporation of the Goods into other goods. The Seller shall ensure that all of its suppliers are under the same duty to it and, for the avoidance of doubt, this duty survives the termination of the Contract.
13.4 The Seller shall, at its own expense, give such assistance as the Company may reasonably require for the purpose of recalling as a matter of urgency any quantities of the Goods.
13.5 The Seller undertakes to maintain appropriate up-to-date and accurate records to enable the tracing of any of its suppliers.
14.1 The Seller 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 Seller by the Company or its agents and any other confidential information concerning the Company's business or its produces which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller's obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.
15.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Company shall pay the Seller fair and reasonable compensation for work-in-progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.
15.2 The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:
(a) the Seller commits a breach of any of the terms and conditions of the Contract;
(b) any distress, execution or other process is levied upon any of the assets of the Seller;
(c) the Seller has a bankruptcy order made against it, or makes an arrangement or composition with its creditors, or otherwise takes the benefit of any legislation for the time being in force for the benefit of insolvent debtors, or suffers or allows any execution whether legal or equitable to be levied on its property or obtained against it, or (being a body corporate) has convened a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory but excluding a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation), or has a receiver, manager, administrative receiver or administrator appointed over its undertaking or any part of it, or if a resolution has been passed or a petition presented to any court for its winding up or a provisional liquidator is appointed, or any similar or equivalent event in any jurisdiction whatsoever;
(d) the Seller ceases or threatens to cease to carry on its business;
(e) the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy; or
(f) there is a change of control of the Seller (control shall mean the ability to direct the affairs of the Seller whether by virtue of ownership of shares, control of the board of directors, contract or otherwise).
15.3 The termination of the Contract, however arising, will be without prejudice to the rights and duties of the Company accrued prior to termination. The Conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
16.1 The Seller shall not be entitled to assign or sub-contract any of its rights or obligations under the Contract or any part of it without the prior written consent of the Company.
16.2 The Company may assign the Contract or any part of it to any person, firm or company.
17. FORCE MAJEURE
17.1 The Company shall not be liable to the Seller in any manner or be deemed to be in breach of the Contract because of any failure to take delivery of or pay for the Goods and/or Services and/or any cancellation of the Contract as a result of any cause beyond its control such as but not limited to: acts of God, governmental intervention or restriction, import or export regulations, war, riots, strikes or trade disputes (including by and with the Company's own employees), power failure, inadequate performance or failure of or incorrect processing by computer systems, fire, flood, default of suppliers or sub-contractors, or breakdown of plant, machinery or vehicles.
18.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
18.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
18.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
18.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
18.5 A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from the Act.
18.6 All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission: (a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Seller by the Company; or (b) (in the case of communications to the Seller) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Seller set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Seller. Communications addressed to the Company shall be marked for the attention of the Managing Director.
18.7 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.