1.1 In these Conditions the following words and expressions shall mean:
1.1.1 Company: Dawnthrive Limited (company number 2026081), a Company incorporated in England, whose registered office is at Unit 6 Westlink, Belbins Business Park, Cupernham Lane, Romsey, Hampshire, SO51 7AA.
1.1.2 Conditions: Standard conditions of purchase set out in this document, including any special conditions set out in the Purchase Order.
1.1.3 Contract: The contract for the purchase and sale of the Goods and/or Services.
1.1.4 Goods: All products (including any instalment or part thereof), which the Supplier is to supply in accordance with these Conditions.
1.1.5 Order Amendment: An amendment or series of amendments to the Purchase Order issued in Writing by the Company.
1.1.6 Purchase Order: Any order in Writing issued to the Supplier having these general Conditions of purchase on its reverse side or having reference to the Conditions.
1.1.7 Services: The services (including any part of them), which the Supplier is to supply in accordance with these Conditions.
1.1.8 Supplier: The person, firm or organisation who supplies the Goods or Services to the Company.
1.1.9 Writing: Includes email and fax, and “Written” shall be interpreted accordingly.
1.2 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.
1.3 Words denoting the singular number only, include the plural and vice versa.
1.4 The headings used in these Conditions are for convenience only and shall not affect the construction thereof.
1.5 Any phrase introduced by the terms “including“, “include“, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2 BASIS OF CONTRACT
2.1 An order made by the Company constitutes an offer, subject to these Conditions, to purchase Goods and/or Services from the Supplier. An order shall only be valid if it is placed by way of a Purchase Order in the Company’s standard form.
2.2 The Supplier is deemed to have accepted the Company’s order on the earlier of:
2.2.1 the Supplier issuing a written acceptance of the order; and
2.2.2 the Supplier acting upon the order.
2.3 If any of the Goods are subject to onward export control then the Supplier shall notify the Company of that fact prior to acceptance of the Company’s order.
2.4 These Conditions should be read in conjunction with the Purchase Order and any special conditions set out in the Purchase Order (which may include reference to Incoterms which are hereby incorporated into the Contract).
2.5 In order of precedence the Contract shall comprise, any Order Amendments in reverse date order, any special conditions set out or referred to in the Purchase Order (including any Incoterms), the Purchase Order, the Conditions set out herein.
2.6 Unless otherwise expressly agreed in Writing by a director of the Company prior to the Purchase Order being issued, these Conditions (including any statutory implied terms) and the terms of the relevant Purchase Order take the place of any other terms and/or conditions which the Supplier may purport to apply or which may be implied by the trade, custom, practice or course of dealing and constitute the entire agreement between the Company and the Supplier in relation to its subject matter.
3 PRICE AND PAYMENT
3.1 The price stated in the Purchase Order shall be fixed for the duration of the Contract and shall exclude applicable Value Added Tax (VAT) but shall include (unless otherwise stated in the Purchase Order) any other tax, duty, packaging, packing, shipping, carriage, insurance and delivery. No increase may be made to the price without the Written consent of the Company.
3.2 Unless otherwise expressly confirmed in the Purchase Order, the Company will pay the Supplier by the 30th day of the month following receipt of a correctly rendered invoice. The Supplier’s invoice must state the Company’s Purchase Order number and specify the currency of payment. The Company will not accept any responsibility for delays in payment resulting from the Supplier’s failure to comply with these invoicing instructions.
3.3 Notwithstanding clause 3.2, the Company has the right to withhold any amount included in the invoice that it disputes and/or deduct from any money it owes the Supplier any amount that the Supplier owes to the Company, whether arising under the Contract or otherwise.
3.4 Without prejudice to clause 3.3, if the price of the Contract is not paid in full when due then the Supplier may charge interest at 4% above the Bank of England base rate at the time on all unpaid and due amounts.
3.5 The Supplier shall be solely responsible for all costs incurred in connection with the fulfilment of the Contract unless otherwise specifically agreed in Writing by the Company prior to the issue of the Purchase Order.
4 ORDER AMENDMENT AND CANCELLATION
4.1 The Company shall be entitled, prior to the Goods being despatched or Services being rendered, to issue an Order Amendment which may add to, delete or modify the Goods and/or Services. If the Order Amendment will result in a change to the current price or delivery date of the Purchase Order the Supplier must suspend all work on the Contract and notify the Company immediately of any impact on price or delivery date. In calculating a revised price the Supplier shall use the same cost base and profitability as for the original price.
4.2 The Company shall respond to the Supplier without undue delay of receiving the revised price and/or delivery date. The Order Amendment shall take effect only on acceptance of the Supplier’s quotation for a revised price and/or delivery date in Writing by the Company. If the Company does not accept the revised quotation then the Company shall promptly notify the Supplier whether:
4.2.1 the Purchase Order shall revert to its original terms, in which case the Supplier is entitled to delay the delivery date by the number of working days that the Contract was held in suspension pending the Company’s decision; or
4.2.2 the Purchase Order, or the part of it specified by the Company, shall instead be cancelled.
4.3 The Company may cancel a Purchase Order at any time prior to its acceptance by the Supplier by giving notice in Writing to the Supplier.
5 SUPPLY OF GOODS
5.1 The Supplier shall ensure that the Goods shall:
5.1.1 correspond with their description (including part number and NSN) and will be as specified in the Purchase Order and/or any specification;
5.1.2 be accompanied with evidence of airworthiness certification (where applicable) and all manufacturer’s documentation, including any certificates of conformity (CoCs) and specifications (weights, dimensions, harmonised commodity description and coding system (HS), etc.);
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by the Company, expressly or by implication, and in this respect the Company relies on the Supplier’s skill and judgment regardless of any specification;
5.1.4 be free from defects in design, materials and workmanship and remain so for a period of 12 months from date of delivery (the “Defects Period”); and
5.1.5 comply with all applicable legal and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
5.2 From the earlier of termination of the Contract and the end of the Defects Period, the Supplier shall provide to the Company the benefit of any manufacturers’ warranties and guarantees relating to the Goods.
5.3 The Company shall have the right to inspect and test the Goods at any time.
5.4 If following such inspection or testing the Company considers that the Goods do not comply with or are unlikely to comply with the Supplier’s undertakings at clause 5.1, the Company shall inform the Supplier and the Company shall have the remedies as set out in clause 8.
5.5 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and the Company shall have the right to conduct further inspections and tests after the Supplier has carried out any remedial action required in accordance with clause 8.
5.6 The Supplier will not at any time exercise or seek to enforce any lien over any Goods.
6 DELIVERY OF GOODS
6.1 Unless otherwise agreed in Writing, the Supplier shall deliver the Goods during the Company’s normal hours of business on the date specified in the Purchase Order and to such location as is set out in the Purchase Order. Delivery is completed once the Goods have been unloaded at the delivery location.
6.2 Time of delivery shall be of the essence and the Supplier shall inform the Company immediately in the event that the Goods will not be delivered by the date or dates stated in the Purchase Order.
6.3 If the Supplier fails to deliver the Goods on or before the date or dates specified in the Purchase Order, the Company may by giving notice to the Supplier in Writing cancel any undelivered balance of the Goods. The Company may return any Goods for full credit delivered prior to cancellation which in the Company’s view could not be used as a result of such cancellation.
6.4 The Supplier shall pack the Goods in packaging compliant with the standard specified in the Purchase Order. Where no particular packaging has been specified, the Supplier shall use industry standard packaging to ensure that the Goods will arrive intact and undamaged.
6.5 Unless agreed in Writing by the Company all packaging shall be non-returnable.
7 SUPPLY OF SERVICES
7.1 The Supplier shall provide the Services from the start of the Contract for its duration unless another duration is specified in the Purchase Order.
7.2 The Supplier shall meet any performance dates for the Services specified in the Purchase Order.
7.3 In providing the Services, the Supplier shall:
7.3.1 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
7.3.2 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract;
7.3.3 ensure that the Services and any documents, products, drawings or materials developed by or on behalf of the Supplier as part of or in connection with the Service (“Deliverables”) will conform with all descriptions and specifications set out in the Specification, and that the Services and the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Company;
7.3.4 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
7.3.5 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Company, will be free from defects in workmanship, installation and design;
7.3.6 hold all materials, equipment and tools, drawings, specifications and data supplied by the Company to the Supplier (“Company Materials”) in safe custody at its own risk, maintain the Company Materials in good condition until returned to the Company, and not dispose of or use the Company Materials other than in accordance with the Company’s written instructions or authorisation; and
7.3.7 not do or omit to do anything which may cause the Company to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business,
and the Supplier acknowledges that the Company may rely or act on the Services.
8 TERMINATION AND OTHER REMEDIES
8.1 The Company may terminate the Contract, either in full or in part, by giving:
8.1.1 not less than 14 days’ prior Written notice to the Supplier; or
8.1.2 notice in Writing without undue delay if the Company reasonably determines that termination is necessary due to circumstances beyond its reasonable control,
and in each event, the Supplier will be entitled to claim from the Company all reasonable costs incurred for work and procurement of materials to the date that the Contract was terminated.
8.2 Without limiting its other rights and remedies, the Company shall be entitled to terminate the Contract with immediate effect by giving notice in Writing to the Supplier:
8.2.1 where the Supplier fails to deliver the Goods and/or perform the Services by the applicable date;
8.2.2 where the Supplier has delivered Goods that do not comply with the undertakings set out in clause 5 or has performed Services which do not comply with the undertakings set out in clause 7 notwithstanding any inspection or testing undertaken by the Company;
8.2.3 if the Supplier makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt, or (being a company) becomes unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the Supplier, or the Supplier ceases or threatens to cease to carry on business or the Company reasonably apprehends that any of the events mentioned in this clause 8.2.3 is about to occur (and notifies the Supplier accordingly); and
8.2.4 if the Supplier commits a material or persistent breach of the Contract and such breach is not remedied (if capable of remedy) within 14 days of the date of notice in writing of the breach from the Company.
8.3 Without prejudice to the Company’s rights under clause 8.2 and without affecting its other rights or remedies, where clause 8.2.2 applies, the Company shall have one or more of the following remedies:
8.3.1 having notified the Supplier within 14 working days of delivery (or 28 working days if delivery is made to a person other than the Company), to reject the Goods and/or Services (in whole or in part) whether or not acceptance has occurred or title has passed;
8.3.2 to require the Supplier to repair or replace the rejected Goods and repeat the rejected Services, or to provide a full refund of the price paid (if any) for the rejected Goods and/or Services;
8.3.3 to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make; and/or
8.3.4 to recover from the Supplier any costs incurred by the Company in obtaining substitute goods and/or services from a third party,
and the cost for replacing the defective or non-conforming Goods including transportation shall be the responsibility of the Supplier. Where the Goods have not been collected by the Supplier after a reasonable period the Company shall return the Goods to the Supplier at the Supplier’s risk and expense.
8.4 The Supplier shall indemnify the Company in respect of all losses, costs and expenses incurred by the Company arising as a result of:
8.4.1 any claim made against the Company for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply, use or resale of the Goods, or receipt, use or supply of the Services; and
8.4.2 any and all royalties and fees in respect of intellectual property rights embodied in or forming a part of the Goods or Services (including process or method of delivery).
9 COMPLIANCE WITH LAWS AND POLICIES
9.1 The Supplier shall comply with all applicable laws and regulations and shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under this Contract in respect of the Goods and Services.
9.2 Without prejudice to the generality of clause 9.1, if the Supplier performs any Services on Company premises then every employee, sub-contractor and other associated person engaged by the Supplier must adhere in all respects to the requirements imposed on the Supplier by current safety legislation and to any regulations notified to the Supplier in Writing by the Company.
9.3 Without prejudice to the generality of clause 9.1, the Supplier shall:
9.3.1 comply with all applicable laws, statutes, and regulations relating to anti-bribery and anti-corruption (“Anti-Corruption Requirements”), including but not limited to the Bribery Act 2010;
9.3.2 not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out by a person subject to the provisions of that Act;
9.3.3 not do or omit to do anything that will cause or lead to a breach by the Supplier or an person associated with the Supplier (within the meaning of that Act) or which would place the Company in breach of the Anti-Corruption Requirements;
9.3.4 have and maintain in place throughout the term of this Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, designed to ensure compliance with the Anti-Corruption Requirements and the Code of Conduct, and will enforce them where appropriate including without limitation requiring any subcontractors to comply with provisions no less onerous than this Condition 9.3;
9.3.5 ensure persons associated (as defined in the Bribery Act 2010) with the Supplier have in place adequate procedures designed to prevent any such person or anyone associated with any such person from failing to comply with any Anti-Corruption Requirements;
9.3.6 not engage in any activity, practice or conduct which would constitute human trafficking or slavery within the meaning of the Modern Slavery Act 2015; and
9.3.7 shall, on request, provide information required by the Company to support the Company reporting pursuant to section 54 of the Modern Slavery Act 2015,
and breach of this clause 9.3 shall be a material breach of this Contract.
9.4 To the extent that it processes any personal data on behalf of the Company in connection with the Goods and/or Services, the Supplier will comply with its obligations as a processor under the GDPR in full, and comply with the obligations on a processor required to be incorporated into processor agreements under Article 28 of the GDPR as if they were set out herein in full. If the Company so requires, the Supplier will enter into a longer form agreement incorporating: (a) the provisions mentioned in the preceding sentence, (b) any model clauses approved for use by the European Commission, the European Data Protection Board, or any supervisory authority with jurisdiction in relation to the Company, and (c) details of the subject matter, nature purpose and duration of the data processing, and the type of personal data and categories of data subjects involved.
9.5 The Supplier shall inform the Company promptly (and in any event within 24 hours) if any personal data which it processes for the Company is subject to a personal data breach (as defined in Article 4 of GDPR) or is lost or destroyed or becomes damaged, corrupted or unusable.
9.6 For the purposes of clauses 9.4 and 9.5, (a) “GDPR” means EU Regulation 2016/679, and any laws or regulations ratifying, implementing, adopting, replacing or supplementing it, in each case, as such are updated, amended or replaced from time to time, and (b) the terms “personal data“, “data subject“, “processing” and “processor” shall have the meanings set out in GDPR.
10 PASSING OF PROPERTY AND RISK
10.1 Title in the Goods to be supplied by the Supplier shall pass to the Company on the delivery of the Goods to the Company or when the Company pays for the Goods, whichever shall first occur.
10.2 The passing of title in the Goods shall be without prejudice to any right of rejection or other rights of the Company whether contained in these Conditions or implied by law.
10.3 Unless otherwise stated in the Purchase Order, risk in the Goods shall pass on delivery.
11 FORCE MAJEURE
11.1 Neither the Company nor the Supplier shall be liable for breach of the Contract other than payment if and to the extent that fulfilment of a term or condition hereof has been prevented, hindered or delayed by “Force Majeure Event” (as defined in clause 11.2) and in such event the time for fulfilment of such a term shall be extended for such a period as is reasonable in all the circumstances. If the Force Majeure Event persists, the Company may suspend the Contract and/or after a reasonable period cancel the Contract without incurring any liability to the Supplier.
11.2 The expression “Force Majeure Event” shall mean any event of circumstances beyond the reasonable control of either the Supplier or the Company including but without limitation strikes, lockouts, trade disputes, accident to plant or machinery, shortage of any material, riots, civil commotion, war national or international, emergency, destruction or damage due to natural forces, fire, flood, explosion and compliance with orders or requests of any national or local authority.
12 ITEMS AND MATERIALS SUPPLIED BY THE COMPANY
12.1 The Supplier shall be responsible for any property of the Company supplied in connection with the Contract. The Supplier holds such property at its own risk and shall indemnify the Company against any loss or damage to such property howsoever arising. Such property shall on completion of the Contract, or as otherwise directed by the Company, be returned to the Company promptly and in no worse condition than it was originally provided. The Supplier shall not use such property nor shall it authorise or knowingly permit it to be used by anyone else for or in connection with any purpose other than the supply of the Goods and/or Services to the Company.
12.2 The specification and any design or other intellectual property in the Goods provided by the Company for the manufacture of the Goods shall remain at all times the property of the Company and shall be treated as confidential by the Supplier and shall not be disclosed to any third party without the prior written consent of the Company, which may be granted or withheld entirely at the Company’s discretion.
13.1 The Supplier shall not, without the Company’s prior consent in Writing, disclose the existence of the Purchase Order or Contract to any other party, whether through publicity releases, advertisements or otherwise.
13.2 The Supplier shall keep secret and confidential any information (whether oral or in Writing), drawings, artwork, computer files and technical documentation furnished by or on behalf of the Company in respect of the Purchase Order or which become known to the Supplier through its performance of the Contract and such information, drawings, artwork and documentation shall be used by the Supplier only in the execution of the Purchase Order.
14.1 The Supplier cannot, without the Company’s prior written consent, assign, transfer, subcontract or otherwise deal with or dispose of any of its rights or obligations under or its interest in this Contract. The Company may freely assign, transfer or sub-contract all of its interest, rights or obligations hereunder.
15 ENTIRE AGREEMENT
15.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions or the Purchase Order. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Conditions.
16.1 The Company may amend these Conditions from time to time by updating its website or otherwise notifying the Purchaser in Writing but such variations shall not be binding on an existing Contract unless agreed in Writing between the Purchaser and a director of the Company. The Purchaser may not vary these Conditions by any means without the Company’s prior consent in Writing.
16.2 The Supplier shall indemnify and keep indemnified the Company against any loss, liability or expense it suffers, whether arising directly or indirectly, as a result of the Supplier’s breach of these Conditions.
16.3 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified to the party giving the notice.
16.4 No waiver by the Company of any breach of the Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other condition.
16.5 If any of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other Conditions and the remainder of the condition in question shall not be affected and the parties thereto shall negotiate the terms of the Condition so invalidated with a view to agreeing a revised and valid Condition.
16.6 It is not intended that any third parties should be entitled to enforce the terms of the Contract by virtue of the Contracts (Rights of Third Parties) Act 1999.
16.7 The Contract shall be governed by the laws of England, and in accepting the Purchase Order the Supplier agrees to submit to the exclusive jurisdiction of the English courts.