General Conditions of Purchase

1. Interpretation

In these conditions:

‘BUYER’ means IPOS Design Limited (registered in England under the number 5489695)

‘CONDITIONS’ means the standard 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 the contract for the sale and purchase of the goods and the supply and acquisition of the Services

‘DELIVERY ADDRESS’ means the address stated on the order

‘GOODS’ means the goods (including any instalment of the goods or any part of them) described in the Order

‘INTELLECTUAL PROPERTY’ means patents, unregistered and registered designs and copyright, and where, appropriate, applications therefore ‘ORDER’ means the Buyers purchase order to which these Conditions are annexed

‘PRICE’ means the price of the Goods and/or the charges for the services

‘PRODUCT’ means the product (if any) described in the order

‘SUPPLIER’ means the person or organisation supplying gods or services to the ‘BUYER’ and so described in the order

‘SERVICES’ means the services (if any) described in the Order

‘SPECIFICATION’ includes any plans, drawings, data or other information relating to the Goods or Services

‘WRITING’ includes, email, facsimile transmission, telex and comparable means of communication

Any reference in these conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.

The headings in these conditions are for convenience only and shall not affect their interpretation.

2. Basis of contract

These Conditions shall be deemed to be incorporated in every request from the Buyer to a Supplier or prospective Supplier for a Quotation, every Order and every Contract. Every Quotation and every acceptance or an Order by the Supplier constitutes unconditional acceptance of the Conditions.

The Conditions shall apply to the contract to the exclusion of any other terms and conditions on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the seller. No variation to the Order or these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.

The Supplier agrees to comply with all requirements of the Buyer in respect of design, production, installation, delivery, storage, invoicing, quality control, return of returnable items or delivery materials, bar coding and labelling and other such requirements (including any amendments to the requirements) as are notified to the Supplier from time to time and these requirements will from part of the Contract. The Buyer agrees to give the Supplier reasonable notice
of its requirements.

The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the services subject to these conditions.

3. Acceptance

These General Conditions of Purchase set forth the terms of Buyer’s offer to Supplier.  When Supplier accepts Buyers’ offer, either by acknowledgement, delivery of any Goods and/or commencement of performance of any Services, a binding contract shall be formed (“Agreement”).  Such Agreement is limited to the terms and conditions specified on the face and reverse of this document and any attachments. The Buyer does not agree to any proposed addition, alteration, or addition by the Supplier.  This Agreement can be varied only in writing signed by The Buyer. Any other statement or writing of Supplier shall not alter, add to, or otherwise affect this Agreement.

The Buyer is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any additional or different terms or provisions that may appear on any proposal, quotation, price list, acknowledgment, invoice, packing slip or the like used by Supplier. Course of performance, course of dealing, and usage of trade shall not be applied to modify these General Conditions of Purchase. All costs incurred by Supplier in preparing and submitting any acceptance of The Buyer’ offer shall be for the account of Supplier.

4. Time of the essence

Time is of the essence and all dates referred to in this Agreement shall be firm. In the event that Supplier anticipates any difficulty in complying with any delivery date or any of its other obligations under this Agreement, Supplier shall promptly notify The Buyer in writing or email.

5. Specifications

The quantity, quality and description of the Goods and the Services shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in Writing by the Buyer.

Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer. The seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.

The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services.

The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, design, development or storage at the premises of the Seller or any third party prior to dispatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.

6. Price of the goods and services

The Price of the Goods and Services shall be as stated in the Order and, unless otherwise so stated, shall be; exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax.

No increase in the Price may be made (whether on account of increase material, labour or transport costs, fluctuation
in rates of exchange or otherwise) without prior consent of the Buyer in Writing.

7. Terms of payment

The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods or performance of the Services, as the case may be, and each invoice shall quote the number of the Order.

Unless otherwise stated on the Order, the Buyer shall pay the Price of the Goods and the Services within 30 Days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods or Services in question to the Buyer.

The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.

8. Delivery

The Goods shall be delivered to, and the Services shall be performed at, the Delivery Address on the date or within the period stated in the Order, in either case during the Buyers usual business hours, unless specified otherwise by the Buyer in Writing.

Where the date of delivery of the Goods or of the performance of the Services is to be specified after the placing of the Order, the Seller shall give the Buyer reasonable notice of the specified date.

A packing note quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently. If the Goods are to be delivered, or the Services are to be performed, by instalments, the Contract will be treated as a single contract and not severable. The Buyer shall be entitled to reject Goods or services delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods or services until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.

The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer
to accept delivery of the Goods and performances of the Services.

The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the goods, whether or not any Goods are accepted by the Buyer. The Seller warrants that they will dispose of any waste in a responsible manner and in keeping with any current legislation. The Seller further warrants that if required by law, the Seller has a valid Waste Transfer License and will provide a copy of the Waste Transfer License to the Seller.

If Goods are not delivered or the Services are not performed on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has paid the price) to claim from the Seller by way of liquidated damages for the delay 20 per cent of the Price for every week’s delay, up to a maximum of 80 percent.

9. Performance of service

Supplier shall perform the Services with due skill and care, using the proper materials and employing sufficiently qualified staff. Supplier shall be fully liable for any and all third parties with which it has contracted in connection with the Services. The Supplier warrants that they have all appropriate insurances and will conduct risk assessments for the Products and Services supplied. Only written confirmation by The Buyer shall constitute acceptance of the Services performed.

10. Inspection, rejection of goods

Inspection of or payment for the Goods by The Buyer shall not constitute acceptance. Inspection or acceptance of or payment for the Goods by The Buyer shall not release Supplier from any of its obligations, representations or warranties under this Agreement.

The Buyer may, at any time, inspect the Goods or the manufacturing process for the Goods. If any inspection or test by The Buyer is made on the premises of Supplier, Supplier shall provide

reasonable facilities and assistance for the safety and convenience of The Buyer’s inspection personnel. If the Buyer does not accept any of the Goods or Services, The Buyer shall promptly notify Supplier of such rejection, and Clause 11 below shall apply. Within two (2) weeks from such notification, Supplier shall collect the Goods from The Buyer at its own expense or shall promptly perform the Services in accordance with The Buyer’ instructions. If Supplier does not collect the Goods within said two (2) week period, The Buyer may have the Goods delivered to Supplier at Supplier’s cost, or with the Suppliers prior consent destroy the Goods, without prejudice to any other right or remedy The Buyer may have under this Agreement or at law.

If, as a result of sampling inspection, any portion of a lot or shipment of like or similar items is found not to be in conformity with this Agreement, The Buyer may reject and return the entire shipment or lot without further inspection or, at its option, complete inspection of all items in the shipment or lot, reject and return any or all nonconforming units (or accept them at a reduced price) and charge Supplier the cost of such inspection.

11. Non-conformity of goods or services

If any Good(s) or Service is defective or otherwise not in conformity with the requirements of this Agreement, The Buyer shall notify Supplier and may, without prejudice to any other right or remedy available to it under this Agreement or at law, at its sole discretion:

(a) claim a full refund of the price paid under this Agreement; or

(b) require Supplier promptly to remedy the non-conformance or to replace the non-conforming Goods with Goods meeting the specifications.

Supplier shall bear all cost of repair, replacement and transportation of the nonconforming Goods, and shall reimburse The Buyer in respect of all costs and expenses (including, without limitation, inspection, handling and storage costs) reasonably incurred by The Buyer in connection therewith. Risk in relation to the nonconforming Goods shall pass to Supplier upon the date of notification thereof.

12. Ownership and intellectual property

It is a condition of this contract/appointment that all Intellectual Property which arises from or is consequent to the work which you carry out pursuant to this contract/appointment will be the property of The Buyer and that you will at the request of The Buyer assign any such Intellectual Property to The Buyer at no cost other than disbursements incurred through the assignment.

All drawings, creative concepts, specifications, raw materials, machinery, tools, and any other property or materials furnished to the Supplier by or for the Buyer, or paid for by the Buyer, for use in the performance of this Agreement, shall be and remain the sole exclusive property of The Buyer and shall not be furnished to any third party without The Buyer’ prior written consent, and all information with respect thereto shall be confidential and proprietary information of The Buyer. In addition, any and all of the foregoing shall be used solely for the purpose of filling orders from The Buyer, shall be marked as owned by The Buyer, shall be held at Supplier’s risk, shall be kept in good condition and be replaced by Supplier, if necessary, at Supplier’s expense, shall be subject to periodic accounting by Supplier as reasonably requested from time to time by The Buyer, and shall be subject to return promptly upon The Buyer’ request. Supplier agrees to furnish at its own expense all machinery, tools, and raw materials necessary to perform its obligations under this Agreement.

Supplier represents and warrants to The Buyer that the Goods and Services do and shall not, alone or in any combination, infringe or violate any patent, trademark, copyright (including portrait rights and moral rights), trade name, trade secret, license or other proprietary right of any other party (including Supplier’s employees and subcontractors), and (ii) that it holds the necessary titles in order to license The Buyer any intellectual property right (including patents, trademarks, copyrights, trade names, trade secret, licenses or other proprietary right) of every component of the Goods and/or Services provided to The Buyer, as a whole or as integrated part of another Good/Service, including but not limited to machinery, tools, drawings, designs, software, demos, moulds, specifications or pieces.

The Buyer shall retain all rights in any samples, data, works, materials and intellectual and other property provided by The Buyer to Supplier. All rights in and titles to deliverables (including future deliverables) and other data, reports, works, inventions, know-how, software, improvements, designs, devices, apparatus, practices, processes, methods, drafts, prototypes, products and other work product or intermediate versions thereof produced or acquired by Supplier,
its personnel or its agents for The Buyer under this agreement (the “Work Product”) shall become The Buyer’ property. Supplier shall execute and deliver any documents and do such things as may be necessary or desirable in order to carry into effect the provisions of this Section.

Supplier shall not have any right, title or interest in or to any of The Buyer’ or any of its affiliates’ samples, data, works, materials, trademarks and intellectual and other property nor shall the supply of Goods and/or Services alone or in any combination and packaging containing The Buyer ‘ or any of its affiliates’ trademarks or trade names give Supplier any right or title to these or similar trademarks or trade names. Supplier shall not use any trademark, trade name or other indication in relation to the Goods or Services alone or in any combination without The Buyer’ prior written approval and any use of any trademark, trade name or other indication as authorized by The Buyer shall be strictly in accordance with the instructions and for the purposes specified by The Buyer or any of its affiliates.

 

13. Risks and property

Risk of damage to or loss of the Goods shall:
pass to the Buyer upon delivery to the Buyer in accordance with the Contract OR remain with the Supplier where the Supplier has continued liability within the contract. The property in the Goods shall pass to the Buyer upon delivery, unless the Buyer pays for any Goods ordered herein prior to delivery, title in the same shall pass to The Buyer on payment, and Supplier agrees to segregate such Goods and any raw materials and work in progress relating to this Agreement.

14. Warranties and Liabilities

The Seller warrants to the Buyer that the Goods:

Will be satisfactory quality (within meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Seller or made known to the Seller in Writing at the time the Order if placed; will be free from defects in design, material and workmanship; will correspond with any relevant Specifications or sample; and will comply with all statutory requirements and regulations relating to the sale of the Goods.

The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in all the circumstances. Without prejudice to any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract, then Clauses 10 and/or 11 shall apply.

The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:

breach of any warranty given by the Seller in relation to the Goods or Services; any claim that Goods infringe, or their importation, use or resale, infringes, the patent, copyright, deign right, trademark or other intellectual property rights of any other person, except to the extent that the claims arises from compliance with any Specification supplied by the Buyer; any liability under the Consumer Protection Act 1987 in respect of the Goods; any act or omission of the Seller or its employees, agents or subcontractors in supplying, delivering and installing the Goods; and any act or omission of any of the Sellers personnel in connection with the performance of the Services.

Neither the Seller not the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods or the Services, if the delay or failure is due to matters beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:

Act of God, explosion, flood, tempest, fire or accident; war or threat of war, terrorism, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, byelaws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import, export regulations or embargoes; strikes, Lockouts or other industrial actions or trade disputed (whether involving employees or either the Seller or the Buyer of a third party).

15. Indemnification

Supplier shall indemnify and hold harmless The Buyer, its agents and employees and anyone selling or using any of The Buyer’ products, from and against all suits, actions, legal or administrative proceedings, claims, demands, damages, judgments, liabilities, interest, attorneys’ fees, costs and expenses of whatsoever kind or nature (including but not limited to special, indirect, incidental, consequential damages), whether arising before or after completion of the delivery
or performance of the Goods or Services covered by this Agreement, in any manner caused or claimed to be caused by the of acts, omissions, faults, breach of express or implied warranty, breach of any of the provisions of this Agreement, or negligence of Supplier, or of anyone acting under its direction or control or on its behalf, in connection with Goods or Services furnished by Supplier to The Buyer under this Agreement.

16. Compliance with law

Supplier shall at all times comply with all laws, rules, regulations, and ordinances applicable to this Agreement, including, but not limited to, all fair labour, equal opportunity, and environmental compliance laws, rules, regulations, and ordinances. Supplier shall furnish to The Buyer any information required to enable The Buyer to comply with such laws, rules, and regulations in its use of the Goods and Services. If Supplier is a person or legal entity doing business in the United States, and the Goods and/or Services are sold by The Buyer under federal contract or subcontract, all applicable procurement regulations required by federal statute or regulation to be inserted in contracts or subcontracts are hereby incorporated by reference.  Additionally, if Supplier is a person or legal entity doing business in the United States, the Equal Employment Opportunity Clauses set forth in 41 Code of Federal Regulations, Chapters 60-1.4, 60-250.5, and 60-741.5, are hereby incorporated by reference.

17. Limitation of liability

The Buyer shall not be liable to supplier for any lost revenue, lost profits or other incidental or consequential damages based on breach or default under this order, even if The Buyer has been advised of the possibility of such damages.
In no event shall The Buyer be liable to Supplier, its successors or assigns for damages in excess of the amount due to Supplier for complete performance under this Agreement, less any amounts already paid to Supplier by The Buyer.

18. Confidentiality

Supplier shall not, without The Buyer’ prior written consent, make any reference to The Buyer or any of its affiliates, whether in sales activities, press releases, advertisements, sales literature or otherwise.

Supplier shall treat all information provided by or on behalf of The Buyer under this Agreement as confidential and shall be used by Supplier use only for the purposes of this Agreement. Supplier shall protect The Buyer’ information using not less than the same care with which it treats its own confidential, information, but at all times shall use at least reasonable care. All such information shall remain The Buyer’ property and Supplier shall, upon The Buyer’ demand, promptly return to The Buyer all such information and shall not retain any copy thereof.

The existence and the contents of this Agreement shall be treated as confidential by Supplier.

19. Miscellaneous

Supplier shall provide Goods and render Services hereunder as an independent contractor and not as an agent of The Buyer and nothing contained in this Agreement is intended to create a partnership, joint venture or employment relationship between the parties.

Supplier shall not subcontract, transfer, pledge or assign any of its rights or obligations under this Agreement without the prior written consent of The Buyer. Any such pre-approved subcontracting, transfer, pledge or assignment shall not release Supplier from its obligations under this Agreement.

The rights and remedies reserved to The Buyer are cumulative and in addition to any other or future rights and remedies available under the Agreement, at law or in equity.

Neither the failure nor the delay of The Buyer to enforce any provision of this Agreement shall constitute a waiver of such provision or of the right of The Buyer party to enforce each and every provision of this Agreement. No course or prior dealings between the parties and no usage of the trade shall be relevant to determine the meaning of this Agreement. No waiver, consent, modification or amendment of the terms of this Agreement shall be binding unless made in a writing specifically referring to this Agreement signed by The Buyer and Supplier.

In the event that any provision(s) of these General Conditions of Purchase shall be held invalid, unlawful or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. Any such provision held invalid, unlawful  or unenforceable, shall be substituted by a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.

In the event of termination, any obligation entered into prior to termination, shall be performed under the terms and conditions of this Agreement. Termination of this Agreement shall not effect either Party’s commitments undertaken pursuant to this Agreement prior to its termination.

This Agreement shall be governed by and construed in accordance with the laws of the country of The Buyer, as applicable.

20. Force Majeure

In the event that Supplier is prevented from performing any of its obligations under this Agreement for reason of force majeure, the performance of the obligation concerned shall be suspended for the duration of the force majeure. If the circumstance constituting force majeure endures for more than thirty (30) days, The Buyer shall be entitled to terminate this Agreement with immediate effect by written notice to Supplier, and upon such notice, Supplier shall not be entitled to any form of compensation. Force majeure on the part of Supplier shall in any event not include shortage of personnel or production materials or resources, strikes, breach of contract by third parties contracted by Supplier, financial problems of Supplier, nor the inability of Supplier to secure the necessary licenses in respect of.

21. Termination

The Buyer shall be entitled to cancel the Order in respect of all or part only of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the Goods or Services in respect of which the Buyer has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation.

22. Law and Jurisdiction

These Terms are governed by English Law. Any disputes shall be submitted to the exclusive jurisdiction of the English courts.

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