1. INTERPRETATION

1.1 The definitions and rules of interpretation in this condition apply in these conditions:

1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or reenactment and includes any subordinate legislation for the time being in force made under it.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).

1.4 Condition headings do not affect the interpretation of these conditions.

1.5 A reference to writing or written includes faxes and emails.

2. APPLICATION OF TERMS

2.1 Subject to any variation under condition 2.4, these conditions are the only conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.  In the event of conflict between these terms and the terms of any Service Level Agreement, the terms of the Service Level Agreement shall prevail.

2.2 Each Order for Goods by the Company from the Seller shall be deemed to be an offer by the Company to buy Goods subject to these conditions and an Order shall be deemed to be accepted on the earlier of:

(a) the Seller either expressly  giving notice of acceptance; or

(b) any act by the Seller consistent with fulfilling the Order, in whole or in part.

2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.

2.4 These conditions apply to all the Company’s purchases and any variation to these conditions shall have no effect unless expressly agreed in writing and signed by the managing director of the Company.

3. QUALITY AND DEFECTS

3.1 It is a condition of the contract that the Seller shall ensure that the Goods shall be of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Order and any applicable Specification and shall remain so for 3 years after delivery.

3.2 The Company’s rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979.

3.3 The Seller shall ensure that the Goods comply with all applicable statutory and regulatory requirements relating to the manufacture, labeling, packaging, storage, handling and delivery of the Goods.

3.4 The Seller shall ensure that the Goods shall be fit for any purpose held out by the Seller of made known to the Seller by the Company expressly or by implication and in this respect the Company relies on the Seller’s skill and judgment.

3.5 The Company shall have the right to inspect and test goods at any time prior to  delivery of Goods to the Company.

3.6 If the results of such inspection or testing cause the Company to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity. In addition the Company shall have the right to require and witness further testing and inspection.

3.7 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.

3.8 If any of the Goods fail to comply with the provisions set out in condition 3 the Company shall be entitled to avail itself of any one or more remedies listed in condition 12.

4. INDEMNITY

4.1 The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:

(a) defective workmanship, quality or materials;
(b) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods; and
(c) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract by the Seller or its employees, agents or sub-contractors.
(d) Production stoppages of up to a month as a result of the Seller failing to deliver the goods under clause 5.

4.2 For the duration of the Contract and for a period of 3 years thereafter, the Seller 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 Company’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.

4.3 This clause 4 shall survive termination of the Contract.

5. DELIVERY

5.1 The Goods shall be delivered, carriage paid, to the ship to address shown on the Order or such other address as instructed by the Company before delivery (“Delivery Location”). The Seller shall ensure that the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition and to be safely unloaded.

5.2 The date for delivery shall be specified in the Order.

5.3 Delivery of the Goods shall be completed on completion of unloading and stacking of the Goods at the Delivery Location.

5.4 The Seller shall invoice the Company upon, but separately from, delivery of the Goods to the Company.

5.5 The Seller shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the Order number, date of Order, number of packages and contents, special storage instructions (if any) and, in the case of part delivery, the outstanding balance remaining to be delivered.

5.6 Time for delivery shall be of the essence.

5.7 Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company in normal delivery hours as specified on our website (https://www.ingimex.com/contact).

5.8 If the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Company reserves the right to:

(a) cancel the Contract in whole or in part with immediate effect by giving written notice to the Seller,
(b) refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;
(c) recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods in substitution from another supplier; and
(d) claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller’s failure to deliver the Goods on the due date.

5.9 If the Seller requires the Company to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Company and any such packaging material shall only be returned to the Seller at the cost of the Seller.

5.10 Where the Company agrees in writing to accept delivery by installments the Contract shall be construed as a single contract in respect of each installment. Nevertheless failure by the Seller to deliver any one installment on time or any defect in an installment, shall entitle the Company at its option to the remedies set out in condition 5.8.

5.11 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense.

6. RISK/PROPERTY

6.1 The Seller warrants that it has full clear and unencumbered title to the Goods and that at the date of delivery it will have full and unrestricted rights to sell and transfer the Goods to the Company.

6.2 The Goods shall remain at the risk of the Seller until delivery to the Company is complete when ownership of the Goods shall pass to the Company.

7. PRICE

7.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.

7.2 No variation in the price nor extra charges shall be accepted by the Company unless otherwise agreed in writing.

8. PAYMENT

8.1 The Company shall pay the price of the Goods within the period agreed with the Seller in writing, but time for payment shall not be of the essence of the Contract.

8.2 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under the Contract.

8.3 The Seller is not entitled to suspend deliveries of the Goods as a result of any sums being outstanding.

9. CONFIDENTIALITY

The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.

10. THE COMPANY’S PROPERTY

10.1 Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Company to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.  The Seller shall not in any circumstances use any of the Company’s property (including any form of intellectual property rights) for the manufacture of goods or provision of services to any person other than the Company.

10.2 On termination of the Contract for any reason the Seller shall immediately deliver to the Company all property belonging to the Company including without limitation the items listed in condition 10.1.  If the Seller fails to do so, then the Company may without limiting is other rights or remedies enter the Seller’s premises and take possession of them.  Until they have been returned or delivered, the Seller shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.

11. TERMINATION

11.1 The Company shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Seller written notice whereupon all work on the Contract shall be discontinued and the Company shall pay to the Seller fair and reasonable compensation for work-in progress at the time of termination but such compensation shall not include loss of anticipated profits or any consequential loss.

11.2 The Company shall have the right at any time by giving notice in writing to the Seller to terminate the Contract forthwith if:

(a) the Seller commits a material or persistent breach of any of the terms and conditions of the Contract; and (if such breach is remediable) fails to remedy that breach within 7 days of the Company giving notice in writing of the breach; or
(b) any distress, execution or other process is levied upon any of the assets of the Seller; or
(c) the Seller has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Seller or notice of intention to appoint an administrator is given by the Seller or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Seller or for the granting of an administration order in respect of the Seller, or any proceedings are commenced relating to the insolvency or possible insolvency of the Seller; or
(d) the Seller ceases or threatens to cease to carry on its business; or
(e) the financial position of the Seller deteriorates to such an extent that in the opinion of the Company the capability of the Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.

11.3 The termination of the Contract, however arising, shall be without prejudice to the rights and remedies of the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.

12. REMEDIES

Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:

(a) to rescind the Order;
(b) to reject the Goods (in whole or in part) whether or not title has passed and to require the Seller to collect the rejected Goods from the Company at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
(c) at the Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
(d) to refuse to accept any further deliveries of the Goods but without any liability to the Seller;
(e) to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract;
(f) to claim damages for any additional costs, loss or expenses incurred by the Company as may have been sustained in consequence of the Seller’s breach or breaches of the Contract;
(g) To recover from the Seller any expenditure incurred by the Company in obtaining substitute goods from a third party; and
(h) To recover from the Seller the Company’s costs in connection with storage of any Goods rejected by the Company which have not been collected by the Seller within 2 weeks of being required to do so in accordance with clause 12 (b).

13. ASSIGNMENT

13.1 The Seller shall not be entitled to assign, transfer, charge or sub-contract the Contract or any part of it without the prior written consent of the Company.

13.2 The Company may assign the Contract or any part of it to any person, firm or company.

14. FORCE MAJEURE

14.1 The Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, 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), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

14.2 Neither party shall be liable to the other as a result of any delay or failure to perform its obligations under the Contract if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that party which by its nature could not have been foreseen by such a party or if it could have been foreseen was unavoidable.  If such event or circumstances prevent the Seller from supplying the Goods for more than four (4) weeks, the Company shall have the right, without limiting its other rights or remedies, to terminate this Contract with immediate effect by giving written notice to the Seller.

15. GENERAL

15.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

15.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

15.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

15.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

15.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

15.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

15.7 Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between the parties, nor constitute any party the agent of another party for any purpose.  No party shall have authority to act as agent for, or to bind, the other party in any way.

15.8 Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post, recorded delivery,  by commercial courier, or by fax or email:

(a) (in case of communications to the Company) to its registered office or such other address as shall be notified to the Seller by the Company; or in the case of fax, to its main fax number or by email to the email address(es) notified by the Company to the Seller for that purpose.

(b) (in the case of the communications to the Seller) to the registered office of the addressee (if it is a company) or to any address of the Seller set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Seller, or, in the case of fax or email, to such number or email address(es) of the Seller set out in any document which forms part of the Contract.

15.9 The Seller shall ensure that at all times it has and maintains all licences, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.

Document number: BD10106
Revision: 04
Revision Date: 10/07/2013