SourceApart Limited – Standard Terms, Conditions and Instructions of Purchase
“Purchaser” – SourceApart Limited.
“Order” – means the Purchaser’s purchase Order and incorporates these Conditions.
“Supplier” – means the person, firm or company so described in the Order.
“Products” – means all goods or services covered by the Order whether raw materials, processed materials or fabricated products.
“Buyers” – Any person, or company purchasing or ordering Products on behalf of the Purchaser.
“Contract” – means any contract between the Purchaser and the Supplier for the supply of Products to the Purchaser including these Conditions, the Order and any other documents (or parts thereof) specified in the Order. Should there be any inconsistency between the documents comprising the Contract, these Conditions shall prevail.
“these Conditions” – means these general terms and conditions of contract for the purchase of Products and references to a “Condition” or “Conditions” are to be construed as references to the provisions of these Conditions.
- Orders – Terms, Conditions and Instructions
- a) The Purchaser’s Order number must be quoted on all correspondence, advice notes and invoices. Failure to show the Purchaser’s Order number on an invoice will result in return of the invoice to the Supplier and consequent delay in payment.
- b) Advice of despatch should be sent to the Purchaser’s delivery point on the date of despatch of the Products.
- c) Invoices showing all discount deductions should be posted to the Purchaser’s office, stating the delivery point, within three days of despatch of Products.
- d) Statements should be sent to the Purchaser’s office by the 10th day of each month following delivery of the Products
- a) These Conditions are the only conditions upon which the Purchaser is prepared to deal with the Supplier and they shall govern the Contract to the entire exclusion of all other terms and conditions. No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, invoice or other written correspondence will form part of the Contract and the Supplier waives any right it otherwise might have to rely on such terms and conditions. For the avoidance of doubt and in the event of any conflict between these Conditions and any conditions of sale of the Supplier, these Conditions shall prevail.
- b) The Order constitutes an offer on the part of the Purchaser and the Supplier expressly confirms the acceptance of this condition and of these Conditions in full by Despatch or delivery of the Products to the Purchaser.
- c) Any purported variation of these Conditions shall have no effect unless expressly agreed in writing between the authorised representative of the Supplier and the management of the Purchaser from its headquarters in Ireland.
Unless otherwise agreed in writing, all Products are supplied carriage paid to the Purchaser’s plant or to any branch thereof on the date or within the period stated in the Order.
- Excess Deliveries
The Purchaser may refuse acceptance of all or any Products delivered in excess of quantities ordered. As soon as the Products are rejected by the Purchaser, for whatever reason, such Products remain at the Supplier’s risk notwithstanding that they may be in the possession of the Purchaser or any of its customers.
- Defects, Replacement and late Deliveries
- a) The Supplier shall ensure that the whole of the Product or any part thereof shall be made available to the Purchaser for inspection and testing together with all facilities reasonably required for such inspection and testing. Any such right shall not in any way prejudice or limit the statutory, legal or equitable right of the Purchaser. Where, as a result of such inspection and testing, the Purchaser is of the opinion that the Products do not conform or are unlikely to conform with the Order or any specifications, the Purchaser shall notify the Supplier in writing and the Supplier shall immediately and at its own expense take such action as is necessary to ensure such conformity.
- b) The Supplier shall within the times specified by the Purchaser rectify and replace to the Purchaser’s satisfaction and free of cost to it, all Products found faulty, differing from any specification or in any way whatsoever defective.
- c) The Purchaser reserves the right to cancel the entire Order by notice in writing to the Supplier if the Products are not satisfactory or if deliveries are not made on time, save that such an extension of time as may appear to the Purchaser to be reasonable may, at the Purchaser’s sole discretion be allowed to the Supplier if the delivery or any work required in connection with the Contract is delayed owing to strikes, lock-outs or other circumstances outside the Supplier’s direct control.
- d) Any expense incurred by the Purchaser in respect of any rejected Products not replaced by the Supplier within the time specified, together with any additional expenditure over and above the Contract price reasonably incurred by the Purchaser in obtaining other Products in replacement, shall be deducted from any payment to be made to the Supplier or shall be paid by the Supplier to the Purchaser.
- e) It is understood that time is of the essence with regard to deliveries and agreed delivery times.
- Official Orders
- a) The Purchaser accepts no responsibility for payment for Products supplied other than those supplied under its Order and in accordance with these Conditions.
- b) The Purchaser shall have the right to make changes to the Order including changes in specification, drawings, designs or delivery. Immediately upon such changes being ordered the parties shall undertake to agree on an appropriate adjustment in price and/or other affected items of the Order, such adjustment of the Order is to be in writing and signed by each party hereto.
- a) The Contract price shall be as agreed in accordance with the requirements of Condition 3c and shall be exclusive of any applicable value added tax [(which shall be payable by the Purchaser subject to receipt of a VAT invoice)] and, subject to Condition 4, inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery and any duties, imposts or levies other than value added tax.
- b) Save where otherwise agreed in accordance with Condition 3c, no increase in the Contract price may be made (whether on account of increased material, labour or transport costs, fluctuations in rates of exchange or otherwise). Notwithstanding the foregoing, the Purchaser may at its sole discretion cancel an Order the subject of a price increase.
- c) Non-payment of the Contract price for whatever reason in respect of part of an Order shall not entitle the Supplier to delay or suspend delivery of the remainder thereof.
- d) Any deposit paid by the Purchaser in respect of Products to be supplied shall be returned to the Purchaser forthwith if the Supplier is in breach of the Contract.
- Terms of Payment
- a) Unless otherwise agreed in accordance with Condition 3c, the Supplier’s invoice shall be payable by the Purchaser during the thirty (30) day period commencing on the last day of the month in which delivery takes place, except where Products reached the Purchaser after the time stipulated, in which case, subject to Condition 6c, the said period shall commence on the last day of the month next following that in which delivery actually takes place.
- b) The Purchaser shall not pay interest for late payment.
- c) The Purchaser shall be entitled to set off the Contract price against any sums owed to the Purchaser by the Supplier.
- d) Payment will be made in the invoiced currency unless otherwise agreed in accordance with Condition 3c.
- e) The Purchaser reserves the right to withhold payment in respect of disputed invoices. The Purchaser shall notify the Supplier of any disputed invoices within 14 working days of receipt. When an invoice that has been in dispute is subsequently cleared for payment, then the settlement terms that are applicable will be applied from the date of clearance.
- Title and Risk of Loss
- a) The property in all products supplied shall pass to the Purchaser when it receives possession of the same whether or not payment thereof has been made or is due.
- b) Risk of damage to or loss of the Products (or any part thereof) shall pass to the Purchaser when the Supplier’s invoice has been discharged in full. Notwithstanding the foregoing, the Supplier shall be liable for any loss or damage discovered after transfer of title which is determined by the Purchaser to be a result of negligence, faulty packaging, or handling by the Supplier. All individual packages, crates and equipment to be tagged or marked. All shipped units requiring special handling shall be clearly labelled so as to be clearly noticeable by the shipper and unloading crews.
- c) The Supplier shall not be entitled to exercise a right of retention on any Goods in the Purchaser’s possession and which are the property of the Buyer nor exercise a lien over the Purchaser’s property, which is in the Supplier’s possession.
- Patents, Copyright or Trademark Indemnity
The Supplier warrants that Products supplied do not infringe any patent, trade mark, registered design, copyright or any other like protection or the provision of any statute, statutory instrument or regulation for the time being in force. The Supplier shall hold the Purchaser harmless and defend any suit or proceedings brought against the Purchaser in this regard.
- a) The Purchaser’s rights under these Conditions shall be in addition to any statutory conditions implied in favour of the Purchaser.
- b) The Products and all work performed under the Contract shall be of the best possible character and all materials or articles supplied by the Supplier in connection therewith shall be in accordance with any specifications prescribed or approved by the Purchaser.
- c) The Supplier warrants to the Purchaser that the Products:
(i) shall be of merchantable quality and fit for any purpose held out by the Supplier or made known to the Supplier by the Purchaser;
(ii) shall be free from defects in design, material and workmanship;
(iii) shall correspond with any relevant specification or sample; and
(iv) shall comply with all relevant European Union or national standards, statutory or otherwise, and the Supplier, when requested by the Purchaser, shall ensure that the Product or any part thereof will be certified as in compliance with those standards by a suitably qualified person in the relevant field.
- d) All representations, statements or warranties made or given by the Supplier, its servants and agents (whether orally, in writing or in any of the Supplier’s brochures, catalogues and advertisements) regarding the quality and fitness for purpose of the Products or any part thereof shall be deemed to be express conditions of the Contract.
Supplier shall guarantee and obtain on behalf of the Purchaser, the following guarantee from all his suppliers and sub-contractors. Supplier shall be responsible for and shall repair, at his expense, any goods which prove to be defective with respect to materials, workmanship or design, which defects become apparent within twelve (12) months from the date upon which the goods are put into service by the Purchaser, and shall, at his expense replace and install complete, any part or parts which may prove to be defective during the said period, ordinary wear and tear excepted. All costs of any such repair or replacement, including material, equipment and labour, shall be for the account of the Supplier. Repair and replacement of defects as mentioned above shall be carried out in accordance with the following procedures:
- a) Immediately after any defects in material, workmanship or design, requiring correction, become apparent, they are to be reported and confirmed in writing by the Purchaser to the Supplier or the Supplier’s designated representative.
- b) Supplier or Suppliers representative is to fulfil requests expeditiously.
- c) If correction is made by Supplier, utilising Purchaser’s or his representatives, employees, facilities or materials, Supplier will reimburse Purchaser for costs incurred to be computed at the local labour rates plus fringe benefits and at local cost for any materials required.
- d) For the sake of expediency, where it is feasible for Purchaser or his representatives to make correction but only with consent and authorisation of the Supplier the Purchaser will make the necessary correction and the Suppler will reimburse the Purchaser for labour and materials at rates outlined in the paragraph above.
The Supplier agrees to indemnify save and hold harmless, the Purchaser from and against any and all loss, damage, costs, charges, expenses or claims whatsoever whether in respect of personal injury, infringement of property rights, royalties or otherwise howsoever arising which the Purchaser and/or the Buyers may suffer or sustain or be in any way subjected to on account of or in connection with the performance by the Supplier, its servants, employees, agents or representatives of the Order or on account of or in connection with the Products supplied. The Supplier will at its own expense, if requested to do so by the Purchaser, defend any and all actions or suits in connection with such performance by the Supplier or the Products supplied to which the Purchaser and/or the buyers are joined as party.
- a) The Supplier shall effect and maintain at its own expense in respect of the Products, and shall ensure that any sub-contractors engaged by the Supplier and approved by the Purchaser in accordance with Condition 19 shall effect and maintain at its own expense in respect of the Products, insurance to the satisfaction of the Purchaser with insurers satisfactory to the Purchaser and in any event, insurance sufficient to cover all liability which may be incurred by the Supplier and/or the sub-contractor in fulfilling its obligations under the Contract including the following insurances –
- Employers Liability Insurance with a minimum limit of indemnity of €12.7 million.
- Public Liability Insurance in amounts not less than €6.5 million for each accident or occurrence in respect of bodily injury to any person or accidental loss of or damage to property. There shall be no limit on the number of accidents or occurrences covered during any period of insurance.
- Product Liability Insurance in place for not less than €6.5 million.
- The Employers and Public Liability Insurance shall include an indemnity to the Purchaser as principals in the Contract.
- Motor Vehicle Liability Insurance in respect of all automotive equipment (whether or not owned by the Contractor and including hired or rented equipment) used in the performance of the service in an unlimited amount in respect of bodily injury and in an amount not less than €0.65 million for each occurrence in Property Damage.
- Contractors All Risks Insurance for the value of the works if applicable.
- b) The Supplier and/or the sub-contractor shall in particular ensure that all insurances shall be maintained for the duration of the Contract or work being carried out.
- c) The Supplier and/or the sub-contractor will furnish to the Company from time to time on request and in every case prior to commencing the performance of the Contract details of the insurance cover.
- Contractors Insurance
Builders or other contractors, who perform work on the Purchaser’s premises, shall carry contractors insurance as defined in “Building Contractors Insurance Conditions” documents as supplied by the Purchaser as an appendix to the Order.
- Sub Contracts-Government
Where the Order constitutes a sub-contract for a government department it is made subject to government contract conditions in force from time to time and all applicable government rules, regulations or instructions.
- Drawing, Prints and Specifications
- a) Any specification supplied by the Purchaser to the Supplier, or specifically produced by the Supplier for the Purchaser, in connection with the Products, together with the copyright, design rights or any other intellectual property rights in any such specification shall be the sole and exclusive property of the Purchaser.
- b) The Supplier agrees that he will not, except as required for the purposes hereof, use, sell, loan or publicise details of any of the tools, specifications, designs, technical know-how, data or other confidential information supplied or paid for by the Purchaser for the fulfilment of this Order without the prior written consent of the management of the Purchaser from its headquarters in Ireland.
- Tools, Dies, Moulds
All tools, dies, moulds, printing plates, etc., created for use in relation to the Order shall be the property of the Purchaser and the Purchaser may withdraw them from the Supplier’s premises on demand in writing. Such items shall be carefully preserved by the Supplier and maintained in good operation and condition at all times and insured by the Supplier in the full value against fire, loss, theft or accident.
The Purchaser’s rights shall not be prejudiced or restricted by any indulgence or forbearance extended to the Supplier and no waiver by the Purchaser in respect of any breach shall operate as a waiver in respect of any subsequent breach.
- Assignment and Sub-contracting
The Supplier shall not without the prior written consent of the management of the Purchaser from its headquarters in Ireland (i) assign or transfer the Contract or any part of it; or (ii) sub-contract the performance of an Order or any part thereof.
- Force Majeure
The Purchaser reserves the right to defer the specified date of delivery or payment or to suspend or cancel the Contract or reduce the volume of Products ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, governmental actions, war, threat of war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), interruption or failure of utility service, or restraints or delays affecting carriers or inability or delay in obtaining supplies or adequate or suitable materials.
- a) The Purchaser shall be entitled to cancel the Order in respect of all or part only of the Products by giving notice to the Supplier at any time prior to delivery, in which event the Purchaser’s sole liability shall be to pay to the Supplier the price for the Products in respect of which the Purchaser has exercised its rights of cancellation less the Suppliers net saving of cost arising from cancellation.
- b) If the Supplier commits any breach of the Contract or becomes insolvent or bankrupt or (being a company) makes an arrangement with its creditors or has an administrative receiver or administrator or examiner appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction), ceases, or threatens to cease to carry on business, the Purchaser may without prejudice to any of its rights terminate the Contract forthwith by notice to the Supplier or any person in whom the Contract may have become vested.
- Work, Labour and Services
Where the Contract requires furnishing of work, labour or services, the Purchaser shall be entitled at any time to require deviations from, additions to or omissions in said work, provided, if such change shall make the work more or less expensive than if performed in accordance with original requirements, a fair or reasonable addition or deduction may be made in the Contract price unless same has been ordered in writing by the Purchaser. Acceptance of final payment of the contract price constitutes waiver of all claims for extra work or materials furnished.
The use of packing materials other than those allowed by import authorities is strictly forbidden.
Any notice required or permitted to be given by either party to the other hereunder shall be in writing and sent by registered post to that other party at its registered office or principal place of business or such address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
These Conditions shall in all respects be governed by and construed in accordance with the laws of the Republic of Ireland and the parties hereto hereby submit to the non-exclusive jurisdiction of the Irish Courts.
If any provision hereunder is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions hereunder and the remainder of the provision in question shall not be affected thereby.
- Supplier Default
If the Supplier fails to observe and perform any of these conditions, or shall have a receiver appointed for all or any part of its assets, or shall take or suffer similar action in consequence of debt, or shall be unable to pay its debts as they fall due, or shall permit or suffer any distress to be levied or threatened upon any of its assets, or if any judgement against the Supplier shall remain unsatisfied for more than 14 days or if proceedings shall be commenced by any authorised body for liquidation or bankruptcy of the Supplier otherwise than for the purpose of amalgamation or reconstruction, then the Purchaser shall have the right forthwith, without prejudice to any of its other rights, to treat their contract as been repudiated by the Supplier and to claim all loss or damage resulting from such repudiation.