These Conditions apply to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
In these Conditions:
1.1 “Contractor” – means Moore Concrete Ltd of 41 Woodside Road, Ballymena, Co. Antrim BT42 4QH and includes its successors in title and assigns;
1.2 “Conditions” – means these terms and conditions set out in this document as amended from time to time;
1.3 “Contract” – means the contract between the Contractor and the Supplier for the sale and purchase of the Goods in accordance with these Conditions;
1.4 “Purchase Order” – means this document together with these Purchase Order Conditions and all other documents, provisions, requirements, prices and obligations attached herewith or identified or referred to herein;
1.5 “Goods” – means the materials, goods, plant, equipment and/or services which are the subject of the Purchase Order which are supplied by the Supplier;
1.6 “Supplier” – means the supplier of the Goods.
In these Conditions:
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Contractor to purchase the Goods in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
a) the Supplier issuing a written acceptance of the Purchase Order; and
b) the Supplier doing any act consistent with fulfilling the Purchase Order, at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3.1 The Goods shall be of satisfactory quality and fit for purpose and compliant with all of the requirements set out in the Purchase Order and with all applicable British Standards Specifications and British Standards Codes of Practice.
3.2 The Goods shall comply with all statutory and other requirements and the Supplier shall indemnify and keep indemnified the Contractor from and against all or any breach or non-compliance with any such requirements.
3.3 Where there are no applicable specifications, British Standards Specifications and/or British Standards Codes of Practice the quality of the Goods shall be to the approval of the Contractor.
3.4 Where and to the extent that the Contractor’s quality control and management procedures require stage checks to verify and record compliance with its quality standards the Supplier shall co-operate with the Contractor in implementing those procedures by allowing such access for inspection and testing and/ or providing such documentation as the Contractor may reasonably require.
3.5 No inspection or testing nor any waiver of inspection or testing by the Contractor shall release the Supplier from any of its obligations under the Purchase Order.
3.6 Where the Purchase Order requires the Supplier to undertake or permit testing the Supplier shall give the Contractor not less than 10 days’ notice in writing that the Goods are ready for testing and shall provide free of charge such assistance and materials including electricity, fuel, apparatus and instruments as may be necessary for the purposes of the tests.
3.7 The Contractor may reject the Goods in whole or in part if inspection and/or testing indicate that they do not accord with the requirements of the Purchase Order or may at its sole discretion require the Supplier to replace the Goods. The Supplier shall be responsible for the costs of any additional testing required as a result of any rejection.
3.8 The Goods shall not be deemed to have been accepted until all specified tests have been satisfactorily carried out and all associated documentation has been delivered to the Contractor.
3.9 The Supplier shall provide free of charge such numbers of copies of test reports, information and other data as are required by the Purchase Order.
3.10 The Supplier shall make good by repair or replacement or at the Contractor’s sole discretion shall provide financial compensation to the Contractor in respect of any defect which becomes apparent in the Goods up to and including the last day of the Defects Liability Period/Maintenance Period stipulated in the Purchase Order (or within 12 months of delivery of the Goods if no other period is stipulated) and if repairing or replacing the Goods shall bear any costs or expenses reasonably incurred by the Contractor as a consequence of such defects, provided always that the defects are not due to improper storage or use by the Contractor or by any person for whom the Supplier is not responsible and that where the materials or goods have been used or fixed the defects are not such that reasonable examination by the Contractor ought to have revealed them before they were used or fixed.
4.1 Goods will be delivered to the location set out in the Purchase Order and only on normal working weekdays and between the hours of 8.00 am and 4.30pm. Goods delivered outside of these times shall not be accepted unless alternative arrangements have been agreed by the Contractor in advance.
4.2 The Goods shall be delivered with all relevant manufacturer’s literature and with such further written information as may be necessary for their proper handling, use, processing, storage and maintenance.
4.3 In particular where the Goods are subject to the provisions of the Control of Substances Hazardous to Health Regulations the Supplier shall ensure that the Goods are accompanied on delivery by all necessary assessments, data sheets and associated documents.
4.4 Where the Goods are delivered utilising a vehicle with a mechanical offloading facility the Supplier shall ensure that the operator of the vehicle is the holder of an appropriate competency certificate (e.g. Construction Industry Training Board for safe operation) and will produce appropriate evidence when reasonably requested so to do by the Contractor.
4.5 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.6 If applicable, the weight of each delivery of Goods shall be determined by the Contractor weighing each incoming load of Goods at its weighbridge
prior to and after discharge of the Goods and shall record the details of the load and the exact weight of Goods delivered. Details of this shall be provided to the Supplier’s delivery driver to determine the weight of delivery which will be used to calculate the price which shall be invoiced by the Supplier to the Contractor.
4.7 Promptly after passing the weighbridge, the Supplier shall tip the load of Goods onto the delivery point identified by the Contractor. The Contractor
then shall carry out a visual inspection of the Goods in the presence of the Supplier’s delivery driver. If, having carried out the visual inspection, the Contractor considers that the Goods are not compliant solely because of obvious foreign materials present in the Goods, the Contractor shall, where reasonably practicable to do so, request the Supplier’s driver to rectify the issue by, (for instance) removing any obvious foreign materials present in the Goods, reloading those foreign materials onto the delivery vehicle and removing them from the Site. The Supplier shall be obliged to dispose of the foreign materials at its own cost.
4.8 If the Supplier:
delivers less than 95% of the quantity of Goods ordered, the Contractor may reject the Goods; or delivers more than 105% of the quantity of Goods ordered, the Contractor may at its discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and the Contractor accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.9 The Supplier shall not deliver the Goods in instalments without the Contractor’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Contractor to the remedies set out in clause 30.
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with Quality paragraph above, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Contractor may exercise any one or more of the following remedies:
a) to terminate the Contract;
b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
e) to recover from the Supplier any costs incurred by the Contractor in obtaining substitute goods from a third party; and
f) to claim damages for any other costs, loss or expenses incurred by the Contractor which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.2 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.3 The Contractor’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6.1 Title in the Goods shall pass to the Contractor upon delivery.
6.2 The risk in the Goods shall remain with the Supplier until delivery.
6.3 Copyright in all drawings, plans, specifications and any other documents provided by or on behalf of the Contractor or producer and such documents shall not be copied or disclosed to any third party by the Supplier without the Contractor’s written consent. In the event that such consent is given the Supplier shall impose a similar condition upon the third party. Such documents shall be returned to the Contractor immediately upon receipt of a written request by the Contractor.
6.4 The Supplier shall not without the Contractor’s written consent make nor permit to be made for the purposes of publication any visual record or copy of any document associated with the Goods.
6.5 The Supplier shall indemnify the Contractor against any liability, loss, expense, costs, claims or proceedings resulting from any infringement of patent, copyright, registered design or trademark which results from the use of the Goods.
Variations
6.6 The Contractor’s authorised site personnel may at their sole discretion agree with the Supplier’s personnel to amend the delivery time(s) stipulated in the Purchase Order.
6.7 The Contractor may without additional charge by the Supplier defer the delivery time(s) stipulated in the Purchase Order for such period or periods as may be necessary if the Contractor is unable to accept delivery of the Goods as a result of civil commotion, local combination of workmen, strike or lockout or of any other cause which could not reasonably be foreseen and which is beyond the Contractors reasonable control.
6.8 The Contractor may by written instruction vary any of the provisions of the Purchase Order and the Supplier shall forthwith comply with any such instruction. The Supplier shall be entitled to be paid for complying with the instruction and a fair valuation of the variation shall be determined by the Contractor initially by reference to the Suppliers original prices and cost information. Where these are inappropriate a fair and reasonable valuation shall be determined by agreement.
6.9 No other variation or amendment to any provision of the Purchase Order shall be permitted.
7.1 The Suppliers invoices should be delivered in duplicate to the Contractor’s Ballymena office. Each invoice shall identify the Purchase Order number and delivery address to which the invoice relates and shall be supported by a Purchase Order and related delivery note signed by the Contractor.
7.2 Invoices will be paid strictly on a 60 days term from end of month, invoices properly issued, supported and received at the Contractor’s Ballymena office no later than 5 working days after the close of the month in which the Goods were delivered to the Contractor shall be processed by the end of the month in which the invoice is received. Invoices received after that date will be processed by the end of the following month without loss of the Contractors entitlement to a discount.
7.3 The Supplier shall keep the Contractor indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Contractor as a result of or in connection with:
a) any claim made against the Contractor for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
b) any claim made against the Contractor by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
c) any claim made against the Contractor by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
7.4 This clause shall survive termination of the Contract.
8.1 The Contractor may set-off its costs arising from any Supplier default against any amounts otherwise due and payable to the Supplier by the Contractor under the Purchase Order or under any other agreement.
9.1 During the term of the Contract the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Contractor’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
10.1 The Contractor may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Contractor shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
10.2 Without limiting its other rights or remedies, the Contractor may terminate the Contract with immediate effect by giving written notice to the Supplier if:
a) the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
b) the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
c) the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
d) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
e) the Supplier’s financial position deteriorates to such an extent that in the Contractor’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
10.4 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
11.1 The Supplier shall not without the written consent of the Contractor assign the benefit of this Purchase Order.
Severability
11.2 If any provision of the Purchase Order is held by any competent authority to be invalid or unenforceable in whole or in part it shall be severed from the Purchase Order but the validity of all the other provisions shall remain in full force and effect.
12.1 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
13.1 The Purchase Order shall be the entire agreement between the Contractor and Supplier and any other documents, provisions, requirements, prices and obligations which are not attached therewith or identified or referred to therein are specifically excluded and supersedes and excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written, with respect to the subject matter hereof. Nothing in these terms shall exclude or limit the Supplier’s liability for fraudulent misrepresentations or shall the Supplier for any fundamental misrepresentation (including any misrepresentation as to a matter fundamental to his ability to perform its obligations under this Contract, on the part of the Supplier).
13.2 Notwithstanding any other provision of the Purchase Order nothing in the Purchase Order confers nor purports to confer on any person who is not a party to it any right to enforce any of its terms.
13.3 The Purchase Order shall be governed by Northern Irish law and the parties agree to submit to the exclusive jurisdiction of the Courts of Northern Ireland.
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