RADIUS SYSTEMS LIMITED GENERAL TERMS AND CONDITIONS OF PURCHASE
1 Interpretation
1.1 In these terms and Conditions:
Affiliate
means another entity directly or indirectly controlled by the Buyer or the Supplier, under the same direct or indirect ownership or control as such party or directly or indirectly controlling such party;
Buyer
means Radius Systems Limited (registered number 1585669) (including its Affiliates) with its registered address at Radius House, Berristow Lane, South Normanton, Alfreton, Derbyshire, United Kingdom, DE55 2JJ;
Conditions
means the terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and Conditions agreed in Writing between the Buyer and the Seller;
Contract
means acceptance or execution of an Order by Supplier;
Control
means the power to control the affairs of the relevant corporate entity;
Goods
means the goods, products, materials and/or works and, if relevant, any Services (including any instalment or any part of them) described in the Order;
Incoterms
means the international rules for the interpretation of trade terms of the International Chamber of Commerce sales dated 2000;
Materials
means any tools, materials, drawings, specifications or other equipment or data owned by the Buyer;
Order
means the Buyer's purchase order signed by its authorised representatives;
Services
means the services (if any) described in the Order;
Supplier
means the services (if any) described in the Order;
Third Party Rights
means any rights belonging to a third party including, without limitation, patents, utility models, copyrights, registered designs, unregistered design rights, applications for registration of any of these and the right to apply for any of these in any part of the world, rights in know how and other confidential information;
Working Day
means a day when the banks are ordinarily open for business in the City of London; and
Writing
includes facsimile transmission (but not email) and other comparable means of communication.
1.2 The Conditions shall be applied to all deliveries of Goods and/or performance of Services to Buyer.
1.3 Acceptance or execution of an Order by Supplier constitutes a Contract.
1.4 The Contract is concluded exclusively on the terms and Conditions stated in the Order and these Conditions.
1.5 It is an express term of any Contract that any and all terms and Conditions of Supplier are expressly excluded, wherever referred to by Supplier..
1.6 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
1.7 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.8 Any reference to any English legal concept or term shall, where relevant, be deemed to apply to the nearest analogous concept or term in any other jurisdiction.
2 Change or cancellation of the Order
2.1 By providing to the Supplier a written notice no later than seven (7) days before delivery, Buyer may at any time change or cancel the Order. If the change would result in a material change in price or delivery date, Supplier will notify Buyer in Writing without delay, calculating the new price and delivery date maintaining the same level of cost and profitability as the original price; such changes must be accepted in Writing by Buyer. The changed Order is subject to these Conditions.
2.2 On any cancellation by Buyer, Buyer will, upon receipt of a fully detailed claim by the Supplier, pay Supplier's direct costs which in the Buyer's reasonable opinion were a reasonably foreseeable consequence of the cancellation. If Buyer has not received from the Supplier an invoice within twenty-eight (28) days of the date of Buyer's notice of cancellation, Buyer shall have no further liability to the Supplier in respect of that Order.
3 Price and payment
3.1 The price for the Goods and/or Services shall be the price in the Order, as applicable. The price shall be fixed for the duration of Contract and be an all inclusive price; including all packaging, insurance, delivery and all taxes, other than value added tax (or any other sales tax).
3.2 The payment term is sixty (60) days from the later of (a) the end of the month in which delivery in full of the Goods in conformity with the Contract was made, or (b) the end of the month of receipt of an undisputed invoice by the Buyer.
3.3 Unless otherwise agreed, undisputed invoices shall become payable only after the whole delivery has taken place.
3.4 If the delivery is not in conformity with the Contract, Buyer is entitled to postpone payment until Supplier has provided full remedy or the matter is otherwise finally settled.
3.5 The Buyer may set off against the price any sums owed to the Buyer by the Supplier under any other contract or arrangement, and may deduct from the price any sums required to be deducted by law.
3.6 Interest shall be paid for the late payment of any undisputed invoices at the rate of two (2) per cent above the base rate of Barclays Bank plc.
4 Warranty
4.1 Supplier warrants that the Goods shall comply with all applicable laws, any description, samples, drawings, plans and specifications referred to in the Contract and shall be free from defects in design, materials and workmanship, and the Goods shall be of satisfactory quality and fit and functioning for their particular purpose for the period in the Order or if none for the longer of the manufacturer's warranty (if not Supplier) or 3 years from delivery.
4.2 Supplier warrants that:
4.2.1 the Services will be performed by appropriately qualified and trained personnel;
4.2.2 it shall perform the Services in accordance with the specificationand the time periods specified in the Order using such skill and care as are to be expected from an experienced service provider of the size, type, scope and complexity of the Services ; and
4.2.3 it shall supply the Services in accordance with all applicable laws.
4.3 Supplier warrants that the Goods and/or Services nor Buyer's use of them will infringe any Third Party Rights.
4.4 Where there is any breach of the Supplier's warranty in this Condition 4 or if any obligation, warranty or requirement imposed by, given or stated in this Contract in respect of the Goods is not complied with or the Goods delivered are damaged the Buyer shall be entitled at its sole discretion at any time after delivery of the Goods and without prejudice to any other right or remedy in respect of the matters to:
4.4.1 reject the relevant Goods and raise a debit note against the Supplier's invoice for them; and/or
4.4.2 require the Supplier to repair/replace Goods/reperform Services forthwith without charge to comply with Contract and to delay payment until the requirements of this Contract are fulfilled entirely; or
4.4.3 treat this Contract as discharged by the Supplier's breach and require the repayment of any part of the price paid whether or not the Buyer has previously required the Supplier to repair the Goods or to supply any replacement Goods; or
4.4.4 to purchase the nearest equivalent goods and/or services elsewhere at Supplier's sole cost and expense. Upon request, Supplier shall promptly return any payments made for the defective Goods and/or Services under the Contract without any retention or offset whatsoever.
4.5.1 If the Buyer exercises any right conferred by this Condition 4 Buyer may at its absolute discretion require the Supplier to collect the relevant Goods forthwith or return the Goods to the Supplier and raise a debit note against the Supplier's invoice for the carriage costs and any other costs incurred in connection with the rejection of and return of the Goods.
5 Delivery
5.1 Unless otherwise agreed, time of delivery is twenty-eight (28) days from the date the Contract and term of delivery is DDP Buyer's location (Incoterms). Time is of the essence and Supplier shall inform Buyer immediately in Writing of any likely delay and the new delivery date.
5.2 if there is delay the Buyer may, at its option (and at any point in the delivery schedule) elect that:
5.2.1 the Supplier shall pay liquidated damages of two (2) per cent of the value of the Order for each week of delay and/or part thereof, up to a maximum of twenty (20) per cent of the price and this sum will be deducted from Supplier's invoice; or
5.2.2 terminate the Contract, in whole or in part and where the Buyer has purchased from another party and Supplier shall pay any additional costs incurred by the Buyer including any difference in price.
6 qUALITY CONTROL
6.1 Supplier agrees to maintain authenticated inspection, quality system and test results (appropriate for the Goods) for a period of ten (10) years after the expiration of the Contract.
6.2 Upon request, Supplier shall identify in Writing the country of origin of the Goods.
6.3 Subject to Buyer's prior request in Writing, Supplier shall permit Buyer or Buyer's representatives to enter Supplier's, and its sub-supplier's, premises to ensure compliance with the Contract.
7 code of conduct
7.1 Supplier represents and warrants that it is not engaged in and will not engage in any unfair, unsafe or unhealthy labour practices such as the employment of child, uncompensated labour, and discrimination based on race, gender, nationality, religion or other similar employment conditions.
7.2 Supplier represents and warrants that it follows and continues to follow, the highest ethical standards and integrity whilst conducting business with Buyer and all other parties in whatever jurisdiction and is in compliance with and will continue to comply with all applicable laws, regulations and standards, including but not limited to those related to employment, health, safety and environment.
8 Risk and property
8.1 Without prejudice to any right of rejection the Buyer may have under this Contract or at law, title and risk to the Goods shall pass on delivery; provided that if Buyer pays prior to delivery title shall pass on payment and risk on delivery.
8.2 Any goods which are waiting repair/replacement shall be at the Supplier's risk from time of receipt of notice rejecting such Goods.
9 Manufacturing materials and tools
9.1 If Buyer provides Supplier with any Materials to be used by Supplier solely for the completion of the Contract, the Materials shall remain Buyer's property and shall be returned upon request in good condition, normal wear and tear accepted.
9.2 Materials shall be at Supplier's risk and insured by Supplier at its own expense against all relevant risks until returned to Buyer.
9.3 Supplier shall ensure that the Materials are fit for their intended purpose.
10 Indemnity
10.1 Supplier shall defend, indemnify and hold Buyer harmless from and against all claims, liability, damages (including indirect, consequential, special, punitive and exemplary damages), loss (including loss of profits), costs and expense (including legal expenses) claimed from, incurred by or paid by or made, brought or awarded against Buyer or its Affiliates as a result of, or in connection with, (I) the manufacture or sale of the Goods, (II) breach of warranty or Contract (III) tort, including negligence, or wilful misconduct, (IV) product liability (including liability arising out of personal injury or death or any damage to property caused by the Goods), (V) environmental liability, and (VI) infringement of any Third Party Right.
10.2 Supplier shall at its expense maintain liability insurance at a level sufficient to satisfy any claim or liability arising out of manufacture, sale or delivery of the Goods or arising from performance of this Contract.
11 termination
The Buyer may terminate the Contract without liability to the Supplier by giving notice to the Supplier at any time if:
11.1 the Supplier breaches any material term of this Contract or fails to remedy a breach of any term of this Contract within 14 days;
11.2 the Supplier becomes insolvent or bankrupt or goes into liquidation, receivership or administration or is wound up or enters into a composition or arrangement with its creditors or ceases or threatens to cease to carry on business or takes or suffers any similar or analogous action in any jurisdiction; or
11.3 the Buyer reasonably believes that any of the events mentioned above is about to occur in relation to the Supplier and notifies the Supplier accordingly.
12 Confidentiality
12.1 Each party to the Contract shall keep strictly confidential all information concerning the business and affairs of the other obtained from the other either pursuant to the Contract or in contemplation of it, shall use the same exclusively for the purposes of the Contract, and shall disclose the same only to those of its directors, shareholders and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract (or, in respect of the Buyer, is required for disclosure for its business purposes including discussions with a bona fide purchaser).
12.2 The obligations of Condition 12.1 above shall survive expiry or termination of the Contract but shall not apply to any information which:
12.2.1 the recipient can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 14.1 above;
12.2.2 is subsequently disclosed to the recipient without any obligation of confidence by a third party who has not derived it directly or indirectly from the disclosing party;
12.2.3 enters the public domain through no acct or default of the recipient, its agents or employees; or
12.2.4 is required by law to be disclosed.
13 General
13.1 No waiver by Buyer of any breach of the Contract by Supplier shall be considered as a waiver of any subsequent breach of the same or another provision.
13.2 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 the Contract shall not be affected.
13.3 Each party acknowledges that, in entering into this Contract, it does not do so on the basis of and does not rely on any representation, warranty or other provision except as expressly provided in this Contract and all Conditions, warranties or other terms implied by statute or common law are excluded. This Condition shall only apply to the extent permitted by law.
13.4 The Order is personal to the Supplier and the Supplier shall not assign, transfer or subcontract any of its obligations under the Contract without the prior written consent of the Buyer. The Buyer may assign the Contract and/or its rights and obligations under it without the consent of the Supplier.
13.5 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
13.6 Any notice given or made under or in connection with the Contract will be in Writing and given to the Company Secretary of the relevant party, either personally, by prepaid first class post (or registered carrier if the address for service is outside the United Kingdom) or facsimile. Notices will be deemed to have been duly given or made:
13.6.1 if delivered by hand, upon delivery at the registered office address of the relevant party;
13.6.2 if sent by prepaid first class post, 2 Working Days after posting (or if sent by registered carrier if the address for service is outside the United Kingdom, 5 Working Days after posting); or
13.6.3 if sent by fax, at the time of transmission (provided a confirmatory letter is sent by prepaid first class post or registered carrier if the address for service is outside the United Kingdom).
14 Governing law and disputes
14.1 The Contract shall be governed by and construed in accordance with the laws of England, and the Supplier agrees to submit to the non-exclusive jurisdiction of the English courts.
14.2 Any dispute or difference between the parties arising under this Contract shall first be submitted to mediation in accordance with the CEDR Mediation Rules. The place of mediation shall be England. The language to be used in the mediation shall be English.
