1. DEFINITIONS. Purchaser” shall mean Ecolutia Services Ltd. “Seller” shall mean the person, firm or corporation selling the applicable Goods or Services to the Purchaser. “Goods” and “Services” shall mean the goods, materials, machinery, equipment or, as appropriate, work or services described in the Order, whether substituted or additional, and any part or parts thereof. “Order” shall mean these Standard Terms and Conditions of Purchase, and specifications and additional conditions specifically incorporated into this Purchase Order, by memorandum in writing signed by or on behalf of, the Purchaser.
2. TERMS AND CONDITIONS OF PURCHASE. Any Goods or Services the Purchaser purchases from the Seller by electronic, phone, paper or any other form of transmission are purchased subject to the terms and conditions herein. This order constitutes Purchaser’s offer to Seller, which Purchaser may revoke at any time before Seller accepts it. By selling Goods or Services to Purchaser, Seller confirms that the following terms and conditions apply to Purchaser’s purchases. This order does not constitute an acceptance by Purchaser of any offer to sell, any quotation, or any proposal, and reference in this Order to any such offer to sell, quotation, or proposal shall in no way constitute a modification of any of the terms and conditions of this Order. Terms and Conditions different from or in addition to the terms and Conditions herein, whether contained in any quotation or proposal by Seller, acknowledgement of the order, or otherwise, shall not be binding on Purchaser, whether or not they would materially alter the order, and Purchaser hereby objects thereto, unless such Terms and Conditions are contained in a written agreement executed by duly authorised representatives of Purchaser and Seller.
3. ORDER ACCEPTANCE The Seller shall accept this offer and thereby agree to the Terms and Conditions by (a) signing and returning the Acceptance Copy of this Order to the Purchaser, (b) furnishing the Purchaser with any other writing indicating its acceptance, or (c) performance in accordance with the offer. However, the receipt from Seller of an acceptance or any document purporting to be an acceptance of this offer, or the receipt of Goods shipped by Seller and not in accordance with the Terms and Conditions hereof, shall not constitute an assent by Purchaser to any terms or conditions which are different from or in addition to the Terms and Conditions hereof, unless expressly assented to in writing by Purchaser. This offer is revocable at any time prior to acceptance. The acceptance copy of this order must be signed and returned within 10 days to Purchaser. Failure to return within this time indicates complete acceptance by Seller.
4. PRICES, PAYMENT, INVOICES & SET OFF Prices shown on the Order shall be fixed and firm unless otherwise agreed in writing by Purchaser. If the price is not stated on this Order, the Goods and/or Services ordered hereunder shall be billed at the price last quoted or at the prevailing market price, whichever is lower. If prices in effect on the date of the Order are reduced prior to date of shipment or billing, the Goods and/or Services subject to this Order shall be billed at such lower price. Unless otherwise provided elsewhere in the Order, prices are stated in pounds sterling (£) and are not subject to increase for the duration of the Order. Unless stated otherwise prices shown for the delivery of Goods are quoted DDP Purchaser’s dock (INCOTERMS 2000) at a facility specified by Purchaser. No extra charges of any kind will be allowed unless specifically agreed to by Purchaser in writing. Unless otherwise stated in the Order, payment will be net 30 days from the end of the month following the Purchaser’s receipt of a properly prepared invoice and acceptable Goods and/or Services, as applicable. Seller’s price includes all sovereign, state and local sales, use, excise, value added, privilege, payroll, occupational and any other taxes, fees, or duties applicable to the Goods or Services. Unless prohibited by law, Seller will separately indicate on its invoices any taxes imposed on the sale or delivery of Goods or Services. Seller shall remit all taxes paid by Purchaser to the appropriate taxing authority. Seller shall ensure that if any value-added or similar tax is applicable, that it is invoiced in accordance with the applicable rules so as to allow the Purchaser to reclaim that value-added or similar tax from the appropriate government authority. Neither party is responsible for taxes on the other party’s income or the income of the other party’s personnel or subcontractors. If the Purchaser is required by government regulation to withhold taxes for which the Seller is responsible, Purchaser will deduct such withholding tax from payment to Seller. Invoices shall be prepared in triplicate and be mailed to the specified address on this Order at time of shipment or as soon thereafter as practical. In no case shall invoices be included with the Goods. The Seller will attach shipping documentation (if any) to each invoice. The Purchaser’s purchase order number must appear on all invoices, shipping papers and all other communications. Failure to display the purchase order number will result in delayed payment. Under no circumstances shall Purchaser pay any late, interest, carrying, or other charges with respect to any amount invoiced to Purchaser by Seller for the Goods and/or Services ordered hereunder. Purchaser shall be entitled at all times to set off any amount owing at any time from Seller to Purchaser or any of its affiliated companies against any amount payable at any time by Purchaser or any of its affiliated companies to Seller.
5. PACKING, TRANSPORTATION AND DELIVERY Delivery dates on the Order are firm and time of delivery is of the essence. The Seller will promptly notify Purchaser in writing if Seller anticipates difficulty in complying with a required delivery date and will use all reasonable endeavours to meet the required delivery date. Failure by Seller to complete delivery within the time specified, or within a reasonable time if no time is specified herein, shall, at the option of Purchaser, without liability, in addition to Purchaser’s other rights or remedies, relieve Purchaser of any obligations to accept and pay for any such Goods and/or Services. If items are received in advance of schedule, Purchaser may return such items to Seller at Seller’s risk and expense. Deliveries must be made to Purchaser’s “Goods Inwards” department as detailed on the Order, not to individuals, unless otherwise specified on the Order. If Seller shall fail to make delivery as specified on this Order, and Purchaser suffers any damage as a result of late shipment, Purchaser shall have the right to purchase materials from other sources, and Seller agrees to pay whatever additional costs, expenses, loss or damage Purchaser may incur as a result of such late shipment. The Purchaser has no obligation to accept deliveries that are not made on the required delivery date and the failure of Seller to ship in accordance with terms of the Order shall also permit Purchaser to reject and return at Seller’s cost all merchandise delivered late.
6. CHANGES AND CANCELLATIONS No deviation from the specifications and other conditions contained in the Order is permitted without Purchaser’s written agreement. Purchaser may any time by written notice to Seller (a) make any change to this Order, including a change in quantity, specification or drawing, or (b) cancel this Order as to all or any portion of the Goods not transported. Any adjustment to prices and/or delivery resulting from the change or cancellation shall, where possible, be agreed in writing before or at the time the change or cancellation is instituted. Any such price adjustment may include reasonable direct costs incurred by Seller. Such adjustment in price or delivery must in any event be agreed by Purchaser and Seller within 15 days from the date of Purchaser’s written notice, unless otherwise agreed. Any adjustment or any change or cancellation, as applicable, will be confirmed by amendment in writing to this Order. No cancellation shall relieve Purchaser or Seller of any of their obligations as to any Goods already delivered.
7. INSPECTION AND ACCEPTANCE OR REJECTION Before delivery, the Seller shall inspect and test all Goods to ensure that such Goods meet the requirements of the Order. All Goods shall be received subject to Purchaser’s right of inspection and rejection. No inspection or acceptance of, or payment for Goods and Services provided by the Seller shall constitute a waiver of any warranties hereunder or any action against Seller for breach of such warranties. Goods rejected shall be held at Seller’s risk and expense. If the Purchaser rejects all or a portion of this Order, the Purchaser has the right to cancel, at no penalty, the balance of the Order. The Purchaser may inspect and test all Goods and Services and all materials, equipment and facilities utilised by Seller in producing Goods or providing Services for Purchaser, including without limitation reasonable access to the sites where work under this Order is performed, in order to assess work quality, conformance with Purchaser’s specifications, and conformance with Seller’s representations, warranties, certifications and covenants under this Order. Seller will maintain an inspection and testing system for the same that is acceptable to Purchaser and will keep records of all inspection and testing data with respect to Goods for two (2) years after delivery. If any of the Goods or Services are found at any time to be defective, or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, Purchaser may, at is option and sole discretion, and in addition to any other rights and remedies it may have: (a) reject and return such Goods at Seller’s expense; (b) require Seller to inspect the Goods and remove and replace non-conforming Goods with Goods that conform to this Order; (c) upon notice to Seller, take such actions as may be required to cure all defects and/or bring the Goods or Services into conformity with all the requirements of this Order; and/or (d) reject the Services and require Seller to re-perform, at its own expense, any defective portion of the Services performed.
8. QUALITY AND WARRANTIES The Seller warrants that all Goods covered by this Order shall (a) be of merchantable quality, material, and workmanship, free from defects and to the extent that the Purchaser relies on Seller to specify the Goods or Services, fit for their intended purpose; (b) shall conform to any specifications, drawings, samples, or other descriptions furnished by Purchaser. Where there is no specification the Goods are to be the best of their kind and suitable for Purchasers specified and/or reasonable requirements and shall not in any case be inferior to the standards laid down in any appropriate current British Standards Specifications. (c) not infringe any patent or copyrights and be free of any claims by third parties and that Seller will convey clear title thereto to Purchaser. The Seller further warrants that all software, firmware, or computer or electronic equipment provided hereunder will be free of computer viruses, or code or instructions that may be used to access, modify, delete, damage, or disable any computer, associated equipment, computer programs, data files or other electronically stored information operated or maintained by Purchaser. Seller further warrants that all Services will be performed in accordance with the highest standards of care and diligence normally practiced by persons performing similar services and in the best workmanlike manner. The above warranties, except for warranties of title and against third party claims, will be in effect for a period of eighteen (18) months from the date of receipt by Purchaser or twelve (12) months from the date of final acceptance by Purchaser, whichever expires later. If any Goods or Services fail to conform to the above warranties Seller, at Purchaser’s option, will: (a) with respect to Goods, replace or repair the nonconforming Goods; (b) with respect to Services, re-perform all Services necessary to correct any such nonconformity; or (c) refund the purchase price of the nonconforming Goods or Services and any related costs incurred by Purchaser. In additions the Seller agrees to indemnify and hold Purchaser harmless for any and all damages, whether direct, indirect, or consequential, and agrees to reimburse Purchaser for any cost or expenses incurred in defending against claims. Seller agrees that the warranty shall extend to vendees of Purchaser, immediate and ultimate, to the same extent and subject to the same provision that it applies to Purchaser. Any replacement Goods or Services will also be subject to the above warranties and warranty period. The warranty period for repaired Goods will be extended to account for the time lapsed until the repair was completed. If Seller does not replace, repair or re-perform, as applicable, within a reasonable time after notice, Purchaser may do so at Seller’s expense.
9. TITLE Unless otherwise provided elsewhere in the Order, delivery will occur, and title and risk of loss will transfer, when: with respect to Goods not incorporated into Services, Goods pass into Purchaser’s storage facility; or with respect to Goods incorporated into Services, the completed Services have been accepted by Purchaser. Regardless of the passage of title, however, loss or damage discovered after transfer of title, and determined to be a result of faulty packaging or handling by Seller, shall be Seller’s responsibility.
10. SELLERS RISK The Goods covered by this Order shall be at Seller’s risk until such time as they are, under the terms of this Order, accepted by Purchaser. Any material furnished by Purchaser, on other than a charge basis in connection with this Order, shall be deemed as held by Seller upon consignment and Seller agrees to pay Purchaser for all such materials spoiled by it, which become spoiled by Seller’s negligence or inadequate protection, or not otherwise satisfactorily accounted for. Such property, and whenever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as “Property of Purchaser” and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for Purchaser’s property and shall not use Purchaser’s property except in filling Purchaser’s orders. Purchaser’s property shall be subject to removal at Purchaser’s written request, in which event Seller shall prepare such property for shipment and shall deliver it as directed by Purchaser in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense. If this Order funds the development of any item; including without limitation any composition of matter, article of manufacture, machine, process, method, software program, or database; or results in any idea, invention, or work of authorship which may be subject to patent, copyright, trademark or trade secret protection; Seller hereby agrees to assign all right, title and interest in and to said item, idea, invention or work of authorship to Purchaser. Seller shall notify Purchaser of the development of such item, idea, invention, or work of authorship and shall cooperate with and assist Purchaser in every reasonable way to perfect its right, title and interest, such as by executing and delivering all additional documents reasonably requested by Purchaser in order to perfect, register, and/or enforce the same, and Purchaser shall reimburse Seller for reasonable costs incurred by Seller in providing such assistance.
11. INDEMNIFICATION Seller will indemnify, release, defend and hold harmless Purchaser, its subsidiaries, affiliates, licensees and assigns, and their respective officers, directors, agents, representatives, subcontractors and employees, whether acting in the course of their employment or otherwise (each, an “Indemnified Party”), from all claims, demands, losses, damages, liabilities, judgments, costs (including reasonable attorneys’ fees), expenses, liens or actions (collectively, “Claims”) incurred by or asserted against an Indemnified Party, in any manner arising out of or relating to Seller’s performance or failure to perform its obligations, Seller’s breach of any of the representations, warranties, certifications or covenants contained in this Order, or any Goods or Services supplied hereunder, including without limitation Claims relating to death, personal injury, or damage to property. Seller agrees to include this clause in any subcontracts issued hereunder.
12. ASSIGNMENT AND SUBCONTRACTING Any assignment of this Order or of any rights hereunder, or any mortgage, charge, pledge or otherwise of the Goods or Services, in whole or in part, by operation of Law or otherwise without the prior written consent of Purchaser, shall be void. The Seller shall not subcontract any portion of this Order unless prior written agreement has been given by the Purchaser. The Seller shall ensure that approved subcontracts in connection with this Order shall be subject to the same terms and conditions as the Order.
13. CONFIDENTIALITY All writings, drawings, photographs, and other material and specifications furnished or otherwise provided by Purchaser to Seller shall be treated as confidential and remain the exclusive property of Purchaser. Disclosure to third parties of information derived from them is forbidden. All such documents, as well as other materials, shall be returned to Purchaser as soon as the Seller has no further need for them in connection with the Order. Seller shall not in any manner advertise or publish the fact that the Seller has contracted to furnish Purchaser the articles herein mentioned. If Seller violates this confidentiality, Purchaser shall have the right to cancel this Order without any further liability thereon. Except as required for the efficient performance of this order, Seller shall not make copies or permit copies to be made of drawings, specifications, or other data without the prior written consent of Purchaser. If any reproduction is made with prior consent, this notice shall be provided thereon. Upon completion or termination of this order, Seller shall promptly return to Purchaser all materials and any copies thereof, except for one record copy incorporating any such information. Any knowledge or information which Seller has disclosed or may hereafter disclose to Purchaser which in any way relates to the Goods or Services covered by this order shall not, unless otherwise specifically agreed to in writing by Purchaser, be deemed to be confidential or proprietary information, and shall be acquired by Purchaser free from any restrictions (other than a claim for patent infringement) as part of the consideration for this order. Seller shall not assert any claim (other than a claim for patent infringement) with respect to any such information against Purchaser.
14. PATENT AND DESIGN INFRINGEMENT Seller shall indemnify and defend Purchaser against any claim or proceeding based upon a claim that the Goods, or any part thereof, constitute an infringement of any patent, registered design or copyright and Seller shall pay all damages and costs awarded against Purchaser. In case there is found to be an infringement, Seller shall, at his own expense, either procure for Purchaser the right to continue using said Goods, or replace or modify them with substantially equal but non-infringing Goods, or, if these options are not legally possible, remove the Goods, refunding in full the price paid and the transportation and installation costs. Purchaser for its part warrants that any design or instructions furnished or given by it, shall not be such as will cause Seller to infringe any patent, registered design or copyright in the performance of this Order. Seller shall not attempt to register any patent or design where the subject matter of the registration belongs hereunder or otherwise to Purchaser. Seller shall not assert any of its patents or other intellectual property rights against Purchaser or Purchaser’s affiliates or customers worldwide in connection with any use of Goods or Services provided to Purchaser in the production, use, preparation, sale, or delivery of, or other action with respect to, the Goods or Services of Purchaser or Purchaser’s affiliates or customers.
15. INSURANCE When Seller is providing Services to Purchaser Seller will maintain the following minimum insurance coverage: (a) Worker’s compensation as required under the applicable laws of the jurisdiction in which the Services are to be performed; (b) Employer’s Liability as required under the applicable laws of the jurisdiction in which the Services are to be performed, or where no such requirement exists up to a limit of €1,000,000 per occurrence; (c) Property covering the full value of all Goods and Services owned, rented or leased by Seller hereunder; (d) Comprehensive General Liability – Bodily Injury/Property Damage in the amount of €5,000,000 combined single limit per occurrence; and (e) Comprehensive Automobile Liability – Bodily Injury/Property Damage covering all owned or hired vehicles as required under the applicable laws of the jurisdiction in which the vehicles are registered or used, or where no such requirement exists up to the amount of €1,000,000 combined single limit per occurrence. All required insurance must be with companies licensed in the jurisdiction in which Services are performed and acceptable to Purchaser. Upon request, Seller shall furnish Purchaser a Certificate of Insurance completed by its insurance provider certifying that such insurance coverage is in effect and requiring the insurance provider to notify Purchaser at least thirty (30) days prior to any expiration or termination of, or material change to, the policy. In addition, all such policies shall name Purchaser as an additional insured and contain a waiver of subrogation against Purchaser. Seller will also require insurance from all of its subcontractors with the same coverage and limits. Requirements specified herein and Purchaser’s approval of insurance coverage are not intended to and shall not in any manner limit or qualify the liabilities and obligations assumed by Seller under this order.
16. BANKRUPTCY If the Seller becomes bankrupt or goes into liquidation or makes any composition with its creditors or if a Receiver of any of its assets is appointed the Purchaser may either: (a) cancel the Order summarily by notice in writing without compensation to the Seller; or (b) give any such Receiver or Liquidator or other person the option of carrying out the Order.
17. IMPORTATION Unless otherwise agreed by Purchaser in writing, Purchaser will not be a party to the importation of Goods. All purchases under the Order will be consummated subsequent to importation, prices will be inclusive of all duties and other costs of customs clearance and Seller will not cause or permit Purchaser’s name to be shown as “importer of record” on any customs declaration. In any case where Purchaser agrees to be the importer of record, Seller will provide all information needed to effect customs entry into each country into which the Goods are to be imported. Seller will provide such documentation and other assistance as Purchaser may request to allow Purchaser to claim drawback of duties and taxes on Goods or articles manufactured from Goods provided under the Order. Seller will accurately indicate the country of origin of the Goods provided under the Order on the customs invoice and other applicable documentation. Without limiting the generality of the foregoing, Seller will provide certificates of origin relating to such Goods within the meaning of the rules of origin of the applicable preferential duty provisions and execute such other documents as may be necessary for Purchaser to claim duty preference under any applicable programs.
18. GOVERNING LAW AND COMPLIANCE WITH LAW This Order shall be construed and governed in all respects by English Law. The English Courts shall have jurisdiction to entertain any action brought in connection with or arising out of this Order. Seller warrants that the Goods shall have been produced, sold and delivered in strict compliance with all applicable laws, regulations, labour agreements, working conditions and technical codes and requirements to which the Goods are subject. The remedies provided herein are in addition to and not in substitution for any rights or remedies the Purchaser may have under the Sale of Goods act 1893, the Misrepresentation Act 1967, Trade Descriptions Act 1968, the Sale of Goods (implied Terms) Act 1973 or any re-enactment or modification of the same together with any other rights existing from time to time under statutory or common law. Seller will comply with all applicable national, EU, state/provincial and local laws, rules, regulations and orders in performing its obligations under the Order, including without limitation laws and regulations dealing with environmental, health and safety, equal employment opportunity, and privacy of personal data. Goods transferred hereunder may be exported worldwide to countries including those that forbid the importation of goods manufactured with child labour or with forced, indentured or convict labour. No Goods supplied hereunder have been or will be produced utilising forced, indentured or convict labour, or utilising the labour of persons in violation of the minimum working age law in the country of manufacture or in any jurisdiction in which Services are provided hereunder, or in violation of minimum wage, hour of service, or overtime laws in the country of manufacture or provided Services. No Goods transferred hereunder contain: (a) any arsenic, asbestos, benzene, polychlorinated biphenyls (PCBs), carbon tetrachloride, lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBB), polybrominated diphenyl ethers (PBDE); (b) any other hazardous substances the use of which is restricted under EU Directive 2002/95/EC (27 January 2003)(RoHS Directive), as amended; (c) any chemical restricted under the Montreal Protocol on ozone-depleting substances; or (d) any other chemical the use of which is restricted in any other jurisdictions to which the product is likely to be shipped; unless Purchaser expressly agrees otherwise in writing as an addendum hereto. To the extent that any Goods transferred hereunder contain hazardous materials, Seller will provide all relevant information pursuant to applicable requirements, including without limitation Occupational Safety and Health Act (OSHA) regulations 29 CFR 1910.1200, as amended, if applicable, including a completed Material Safety Data Sheet (OSHA Form 20) and mandated labelling information and any similar requirements in any other jurisdictions to which Purchaser informs Seller the Goods are likely to be shipped. Except as specifically listed by Seller in an Addendum hereto, none of the Goods supplied hereunder are as “electrical or electronic equipment” under EU Directive 2002/96/EC (27 January 2003) (WEEE Directive), as amended, and Seller agrees to assume responsibility for taking back those Goods so listed in the future upon the request of Purchaser and treating or otherwise managing them in accordance with the requirements of the WEEE Directive and applicable national implementing legislation and taking back as of the date of this Order such used goods currently owned by Purchaser up to the number of new units being purchased by Purchaser hereunder or to arrange with a third party to do so in accordance with all applicable requirements, with no additional charge to be sought by Seller and no additional payments to be due from Purchaser for Seller’s agreement to undertake these responsibilities. Seller will not pay, promise to pay or authorise the payment of any money or anything of value to any person or entity for the purpose of illegally or improperly inducing a decision or obtaining or retaining business or any advantage in connection with the Order and Seller has established an effective program to ensure that the activities of any suppliers it utilises to provide any goods or services that will be incorporated into Goods or Services supplied hereunder will be in conformance with the requirements of this section.
19. EXCLUSIVE AGREEMENT. This Order, with such documents as are expressly incorporated herein by reference, constitute the entire agreement and understanding of the parties pertaining to the subject matter hereof and supersedes all prior discussions, representations, understanding and agreements, whether oral or in writing. There are no representations, warranties, conditions or other agreements, express or implied, statutory or otherwise, between the parties in connection with the subject matter of this Order, except as specifically set forth herein. If any clause of this Order shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining clauses shall in no way be affected or impaired.
