SONARDYNE INTERNATIONAL LIMITED
PURCHASE TERMS AND CONDITIONS
1.1 Any order shall constitute an offer by the Buyer and shall lapse unless unconditionally accepted by the Seller within 10 days of the date of the Buyer’s order. Acceptance of any order is subject to these terms and conditions which shall apply to the exclusion of the Seller’s or any other terms and conditions.
1.2 Subject to Clause 5, no waiver, modification or addition to these terms or conditions (including as to price) shall be valid unless in writing and agreed by the parties in advance.
1.3 For these purposes “Buyer” shall mean Sonardyne International Ltd and “Specifications” shall include all documents, plans, drawings, information, designs, data, instructions, discs, tooling or other information relating to the goods or services.
2.1 The price is as stated by the Buyer in the Purchase Order. No increase in the price may be made by the Seller without the prior written consent of the Buyer in accordance with these terms and conditions.
2.2 Unless otherwise specified, the price includes all charges for the goods or services, the Specifications, packing, storage and transportation to the delivery address specified in the order. Any additional charges shall be borne by the Seller. The Seller shall be responsible for obtaining any export or import licences.
2.3 The price includes all taxes and duties in respect of exportation and importation of the goods except VAT where the Seller is required by law to collect VAT from the Buyer. VAT, if any, shall be separately stated in the Seller’s invoice and paid by the Buyer subject to receipt of a valid VAT invoice from the Seller unless an exemption is available.
2.4 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the order, and the invoice shall quote the order number.
2.5 Unless otherwise stated in the order, the Buyer shall pay the price within 30 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after the acceptance of the goods or services in question by the Buyer.
2.6 The Buyer shall be entitled to set off against the price any sums owed by the Seller to the Buyer.
3.1 Time is of the essence in this order and substitutions will not be accepted.
3.2 Orders shall be delivered to the delivery location specified by the Buyer in the order.
3.3 The entire order must be delivered by the date requested, but it may not be delivered more than one week in advance of the time(s) specified without the Buyer’s prior written approval.
3.4 If the Seller fails to meet the delivery schedule, the Buyer, without limiting any order rights or remedies it may have may:
3.4.1 direct an expedited form or route of delivery and any excess costs incurred as a result thereof will be at the Seller’s cost;
3.4.2 or treat the contract as discharged by the Seller’s breach.
3.5 If the goods or services are delivered or performed by instalments, the order will be treated as a single contract and shall not be severable. Without prejudice to the foregoing when more than one delivery is made against any order, the invoice and papers accompanying the last delivery must indicate that it is the final instalment.
3.6 The Buyer is not obliged to accept instalments, untimely, excess or under deliveries, and such deliveries in whole or in part may, at the Buyer’s option, be returned to the Seller, or held for disposition by the Seller at the Seller’s expense and risk. The Buyer will not be liable for the Seller’s commitments or production arrangements in excess of the amount or in advance of the time necessary to meet the Buyer’s delivery schedule.
4. RISK & TITLE
4.1 Risk shall pass once the goods have been unloaded upon delivery to the delivery location specified in the order.
4.2 Subject to the following provisions:-
4.2.1 each order as it is constructed together with its component parts and equipment so far as incorporated therein; and
4.2.2 all materials and other things whatsoever which the Seller shall acquire or allocate for incorporation in any of the order shall vest in and become the absolute property of the Buyer, as from the time the construction begins or the materials or things are so acquired or allocated and are in the possession of the Seller for the sole purposes of completing the order and delivering it when completed to the Buyer, and shall not be within the ownership, control or disposition of the Seller.
4.3 Neither the Seller nor any other person shall have a lien on any goods, materials or things which have vested in the Buyer under Clause 4.2 for any sum due to them and the Seller shall take all such steps as may be reasonably necessary to ensure that the title of the Buyer and the exclusion of any such lien, are brought to the notice of all sub-contractors and other persons dealing with any such goods, materials or things.
4.4 Without prejudice to the above the, the Seller shall ensure that as from the time when the construction beings, or as soon thereafter as is practicable and that as from the time when any such materials or things are so acquired, or allocated, a mark shall be placed thereon where possible, or where this is not possible, such a notice shall be displayed and record made in the books of the Seller as may be necessary for the purpose of ensuring that all such goods, materials or things as aforesaid are readily identifiable as being the property of the Buyer and if any direction is given by the Buyer to the Seller as to the steps to be taken to ensure that any such goods, materials or things shall be readily identifiable as being the property of the Buyer, the Seller shall comply with that direction.
4.5 In the event of the rejection of any goods or of any materials or things, the goods, materials or things so rejected shall forthwith re-vest in the Seller.
4.6 Without prejudice to any other rights it may have, any payment made by the Buyer in respect of the goods, materials or things which re-vest in the Seller under Clause 4.5 shall be recoverable from the Seller.
5. MODIFICATION OF ORDER
The Buyer may modify any order in all or in part at any time prior to delivery of the order by notice in writing. If such modification affects the price or time for performance, the Seller may make a written claim for an equitable adjustment within thirty (30) days after receipt of notification of change, and only in that event will an adjustment be made by the Buyer to the price and/or performance (which shall be reasonable in the circumstances) and this shall be the Seller’s sole remedy in respect thereof.
6.1 The Seller warrants that:
6.1.1 the quantity of the goods shall be as specified in the order;
6.1.2 the goods and services provided will conform to all applicable Specifications and samples;
6.1.3 the goods and services will be of satisfactory quality (as defined in the Sale of Goods Act 1979 (as amended)) of good material and workmanship, free from defects and will be fit and sufficient for the purpose intended;
6.1.4 the services will be performed by appropriately qualified and trained personnel, with due care and diligence;
6.1.5 the goods and services shall comply with the Buyers’ Quality Conditions as issued by the Buyer from time to time;
6.1.6 the processes and practices used by the Seller in the supply shall comply with applicable Health and Safety and Environmental regulations.
6.2 These warranties shall be in addition to all other warranties, express, implied or statutory.
6.3 Payment for, inspection of, acceptance or receipt of goods or services shall not constitute a waiver of any breach of warranty.
7. INSPECTION AND TESTS
7.1 The Buyer reserves the right to inspect and/or test goods or services to the extent practicable on reasonable notice, including during manufacture and, in any event, prior to acceptance.
7.2 The Seller hereby permits access to the Seller’s facilities for inspection of goods or services by the Buyer, its’ agents or employees and will, at no additional cost to the Buyer, provide all tools, facilities and assistance reasonably necessary for such inspection.
7.3 It is expressly agreed that inspection and/or payment for the goods or services prior to final acceptance will not constitute acceptance of the goods or services. The Buyer shall be entitled to reject any goods or services delivered which are not in accordance with these terms and conditions. The Buyer shall not be deemed to have accepted the order unless it has failed to reject them after having had 30 days within which to inspect them or, in the case of a latent defect, 30 days from such latent defect becoming apparent to the Buyer.
7.4 Without prejudice to any other rights it may have and in addition to the right to indemnity pursuant to Clause 17, the Buyer shall have the right upon rejection of goods or services which do not comply with these terms and conditions (or any part thereof):
7.4.1 to require the Seller to repair or correct the same or to supply replacements in accordance with these terms at the Seller’s expense and risk within 7 days or such other period as specified by the Buyer; and/or
7.4.2 at the Buyer’s sole option the right for the Buyer to correct or repair the same and the Seller shall indemnify the Buyer against all costs (including as to labour or spare parts) in respect of such correction or repair; and/or
7.4.3 at the Buyer’s sole option (and whether or not the Buyer has previously required the Seller to repair or to supply any replacement goods or services), to treat the contract as discharged by the Seller’s breach and require the repayment of any part of the price which has been paid.
7.5 Goods or services which have been delivered and rejected in whole or in part may, at the Buyer’s option, be returned to the Seller or notified in writing to the Seller for collection in either case at the Seller’s risk and expense. The Buyer reserves the right to charge storage costs and rejected goods will be stored at the Sellers risk.
8. SELLER’S CONFIDENTIALITY OBLIGATIONS
8.1 The Seller will keep confidential the terms of this order together with all Specifications furnished by the Buyer or prepared by the Seller in connection with the performance of this order, and will not divulge or use the same for the benefit of any other party.
8.2 The Seller shall not advertise or make reference to the Buyer or the goods or services comprising any order without prior written consent of the Buyer.
8.3 Except as required for the efficient performance of this order, the Seller will not make copies or permit copies of such Specifications without the prior written consent of the Buyer.
8.4 The Seller will not use, either directly or indirectly, the Specifications or any data or information derived there from for any purpose other than to perform this order without obtaining the Buyer’s written consent.
8.5 The Seller will immediately return all such Specifications upon completion of the order or at any time upon demand by the Buyer at the Seller’s risk and expense.
9. BUYER’S CONFIDENTIALITY OBLIGATIONS
The Seller agrees that all information furnished or disclosed to the Buyer by the Seller in connection with the placing or filling of this order is furnished or disclosed as a part of the consideration for this order, and that such information is not, unless otherwise agreed to by the Buyer in writing, to be treated as confidential or proprietary to the Seller, and that Seller shall assert no claims (other than for patent infringement) by reason of the use or disclosure of such information by the Buyer, its assigns or its customers.
10. PROPERTY AND INTELLECTUAL PROPERTY RIGHTS
10.1 Any Specifications (whether supplied by the Buyer to the Seller or produced by the Seller for the Buyer, in connection with the order) together with the copyright, design rights or other intellectual property rights therein shall be the exclusive property of the Buyer.
10.2 The Seller shall immediately upon request by the Buyer enter into such documents or agreements and provide such assistance (at no additional cost to the Buyer) as the Buyer shall reasonably require to evidence such rights.
11.1 Unless otherwise specified in the order, all tooling and/or all other articles required for the performance of the order shall be included in the cost of the goods or services and shall be maintained in good condition and replaced when necessary at the Seller’s expense.
11.2 Property in the tooling and/or all other articles required for the performance of the order shall pass to the Seller in accordance with the provisions of Clause 4.
The Seller shall obtain the Buyer’s prior written consent before subcontracting out any part of this order, provided this limitation shall not apply to the purchase of standard supplies or raw materials.
13. BUYER’S PROPERTY
13.1 The Seller acknowledges that Specifications supplied by the Buyer, including any tools, jigs and dies furnished to the Seller are the Buyer’s property.
13.2 The Seller will keep adequate records of such property which will be made available to the Buyer upon request, and will store, protect, preserve, repair and maintain any property belonging to the Buyer in accordance with sound industrial practice, at the Seller’s expense and risk. Unless otherwise agreed the Seller will insure the Buyer’s interest in such property against loss or damage. Copies or certificates of such insurance will be furnished to the Buyer on demand.
13.3 The Seller shall indemnify and keep indemnified the Buyer against any loss or damage to the Buyer’s property or (at the Buyer’s sole discretion) replace such items.
The Buyer may terminate the order in whole or in part at any time(s), prior to delivery of any goods or full performance of the services by notice in writing to the Seller. Upon receipt of such notice, the Seller will, unless the notice directs otherwise, immediately discontinue all work and cease to place orders for materials or facilities in connection with the performance of the order and will promptly cancel all existing orders and terminate all subcontracts in so far as such orders or subcontracts are chargeable to this order. The sole liability of the Buyer to the Seller shall be to pay the:
14.1 Seller the percentage of the total order price corresponding to the proportion of the amount of work completed on the date of termination provided that the Seller shall have provided evidence of work done to the reasonable satisfaction of the Buyer; and
14.2 the provisions of Clause 15.2 shall apply to the terminated order.
15.1 The Buyer shall be entitled to terminate the order without liability to the Seller by giving notice in writing to the Seller at any time if:
15.1.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
15.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
15.1.3 the Seller ceases, or threatens to cease, to carry on business or is unable to pay its debts as and when they fall due; or
15.1.4 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly; or
15.1.5 anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Seller; or
15.1.6 the Seller is in breach of these terms and conditions.
15.2 Upon termination for any reason whatsoever all goods or services whether in finalised or in semi-processed state, work in progress and Specifications in which title has passed to the Buyer or supplied by the Buyer in connection with the order shall be immediately transferred to the Buyer at the Seller’s risk and expense. The Buyer (or its agents) at the Buyer’s sole option, may enter upon the premises of the Seller where such items are stored to collect the same and the Seller hereby grants the Buyer an irrevocable licence for the Buyer or its agents to enter and do so.
15.3 The rights of termination shall be without prejudice to any other rights or remedies the Buyer may have and the Buyer’s right to indemnification shall survive termination.
16. COMPLIANCE WITH LAWS
16.1 Subject to Clause 16.4 the Seller warrants that it will fully observe and comply with all applicable UK, EU and local laws, rules, regulations and orders pertaining to the production and sale of the goods or services ordered, and, upon request, the Seller will furnish the Buyer with certificates of compliance with such laws, rules, regulations and orders.
16.2 Without prejudice to the above but subject to Clause 16.4 the Seller warrants all goods (including components) shall comply with the following EC Directives and implementing legislation:
73/23/EEC Low Voltage
89/336/EEC Electromagnetic Compatibility (EMC)
89/392/EEC Safety of Machinery
16.3 Upon request, the Seller will provide to the Buyer at no additional charge the following documentation confirming compliance with the provisions in Clauses 16.1 and 16.2 above, including without limitation:
16.3.1 a statement confirming the Seller’s compliance with the relevant EC Directives; and
16.3.2 a set of any applicable installation instructions of sufficient detail to ensure the Buyer’s goods to comply with the EC Directives; and
16.3.3 an appropriate EC Declaration of Conformity together with such Test Schedules, Reports and Analyses as necessary to support the Declaration.
16.4 This Clause 16 shall not apply in so far as failure to comply is as a result of a compliance with Specifications supplied by the Buyer, provided the Seller has informed the Buyer in writing, prior to entering into the order, that any of the Buyer’s Specifications or designs for the goods or services may result in any part of the order so failing to comply.
16.5 Where required, the Seller will affix the appropriate CE marks for conforming components in compliance with applicable EC Directives.
17.1 The Seller agrees to indemnify and hold harmless the Buyer, its successors, assigns, customers and users of the goods or services in full from and against all loss, damage, liability, claims, costs and demands arising out of or in connection with:
17.1.1 the breach of the Seller (its employees, agents, subcontractors, officers or suppliers) of the contract;
17.1.2 any act or omission of the Seller (its employees, agents, subcontractors, officers or suppliers) including, without limitation, in negligence, other tort or breach of statutory duty or otherwise, in the supply, delivery or installation of the goods or performance of the services.
17.2 The Buyer shall at its sole discretion choose to defend or settle any such claim or require the Seller to defend or settle any such claim at the Buyer’s direction and this indemnity shall apply whether or not the Buyer chooses to defend any such claim.
18. INTELLECTUAL PROPERTY INDEMNITY
18.1 The Seller shall indemnify and hold harmless the Buyer, it successors, assigns, customers and users of the goods or services in full, from and against all loss, damage, liability, claims, costs and demands, arising out of or in connection with any claim that the manufacture, use, sale or resale or importation of any goods or services supplied under this order infringe any patent or patent rights, copyright, design right, trademark or other intellectual property right of any other person, except to the extent that the claim arises from compliance with any specification supplied by the Buyer.
18.2 The Buyer shall at its sole discretion choose to defend or settle any such claim or require the Seller to defend or settle any such claim at the Buyer’s direction and this indemnity shall apply whether or not the Buyer chooses to defend any such claim.
19. INVOICES AND NOTICES
19.1 Invoices shall be marked for the attention of the Finance Department. Any other communications or notices issued by the Seller must be marked F.A.O the Buyer’s named personnel referred to in the order, or in the absence of named reference, the Purchasing Department and shall refer to the Buyer’s purchase order reference number.
19.2 Any notice or other communication hereunder shall be in writing and for these purposes notices or communications by e-mail shall be deemed to be sufficient for these purposes.
19.3 Any such notice may be served by delivering it personally or by sending it by pre-paid first class post or by telex, facsimile transmission or e-mail at or to the address of the relevant party or any other address which it may from time to time notify in writing to the other parties.
19.4 Any notice to be given shall be in writing, and may either be delivered personally or sent by first class prepaid post, facsimile transmission or email to the address of the recipient set out in the Contract or such other address as the recipient may designate by notice given pursuant to this clause. Each such notice shall be deemed to have been served, when delivered.
20.1 Any reference in these terms and conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time and in the case of any EC Directive any implementing legislation or modifications thereto.
20.2 Headings are for convenience only and shall not affect the interpretation.
20.3 No waiver by the Buyer of any breach of the contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
20.4 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
20.5 Neither this order not any rights or obligations herein may be assigned by Seller nor may Seller delegate the performance of any of its duties hereunder without, in either case, the Buyer’s prior written consent.
20.6 This Agreement shall be agreed by the laws of England and the parties submit to the non-exclusive jurisdiction of the English Courts.