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Modulift UK Limited Terms and Conditions of Purchase

1. INTERPRETATION

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

Company: Modulift UK Limited (company registration number 4601952).

Contract: the Order and the Seller ́s acceptance of the Order.

Goods: any goods agreed in the Contract to be bought by the Company from the Seller (including any part or parts of them and any services whether ancillary to goods or supplied without goods).

Order: the Company ́s written instruction to supply the Goods, incorporating these Conditions.
Seller: the person, firm or company who accepts the Company ́s Order.
Business Day: a day that is not a Saturday, Sunday or public or bank holiday in England and/or Wales.

Know-How: formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions.

Prices: the prices set out in the Seller’s quotation or Company purchase order. Insolvent: the Seller is Insolvent where it:

(a) gives notice under section 84 Insolvency Act 1986 of or proposes or passes a resolution for, its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up;
(b) has a winding-up order or a notice of striking off made in respect of it;

(c)
(i) has an administration order made in respect of it; or
(ii) has a notice of appointment of an administrator filed in respect of it at any court;

(d) proposes, makes or is subject to:
(i) a company voluntary arrangement;
(ii) a composition with its creditors generally;
(iii) an application to a court of competent jurisdiction for protection from its creditors generally; or
(iv) a scheme of arrangement under Part 26 Companies Act 2006;

(e) has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income;
(f) ceases to trade or appears, in the reasonable opinion of the Company, to be likely to cease to trade;

(g)
(i) Is unable to pay its debts as they fall due; or
(ii) the value of its assets are less than its liabilities, including its contingent and prospective liabilities.

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

1.3  A reference to one gender includes a reference to the other gender.

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

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.

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 no Order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Order, in whole or in part accepts the offer.

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 a duly authorised Company representative.

2.5  Each quotation for Goods from the Seller will be deemed to be an offer by the Seller to sell the Goods upon these Terms and Conditions. All quotations provided by the Seller, including the price provision, will remain open for a minimum of 30 days from its date of receipt.

3. QUALITY, DEFECTS AND ASSURANCE

3.1  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 specification and/or patterns supplied or advised by the Company to the Seller.

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 and the Consumer Rights Act 2015.

3.3  At any time prior to delivery of the Goods to the Company, the Company shall have the right to inspect the premises of the Seller and inspect and/or test the Goods.

3.4  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 and in addition the Company shall have the right to require and witness further testing and inspection at no additional cost to the Company.

3.5  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.

3.6  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.

3.7  The Company may at any time make changes in writing relating to the Order, including changes in the drawings or Specifications, method of shipment, quantities, packing or time or place of delivery. If such changes result in an increase in cost of, or time required for, performance of the Contract an equitable adjustment will be made to the price, delivery schedule or both. Any such claim or adjustment must be approved by the Company in writing before the Seller proceeds with such changes.

3.8  In respect of the Goods the Seller will maintain and observe quality control, supplier quality assurance, environmental protection and safe working practises in accordance with the requirements of the Company, its customs, relevant British Standards and statutory and regulatory bodies.

3.9  Adherence by the Seller, to the Modulift Supplier Code of Conduct, is implied within these Terms & Conditions of Purchase.

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.

4.2  Specifically any design work conducted as part of the Contract by the Seller, shall be covered in full by the Seller’s Professional Indemnity Liability Insurance.

5. DELIVERY

5.1  The Goods shall be delivered, carriage paid, to the Company ́s place of business or to such other place of delivery as is agreed by the Company in writing prior to delivery of the Goods. The Seller shall off-load the Goods at its own risk as directed by the Company.

5.2  The date for delivery shall be specified in the Order or in related correspondence, or if no such date is specified then delivery shall take place within 7 days of the Order.

5.3  The Seller shall invoice the Company upon, but separately from, despatch of the Goods to the Company.

5.4  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 and, in the case of part delivery, the outstanding balance remaining to be delivered.

5.5  Time for delivery shall be of the essence.

5.6  Unless otherwise stipulated by the Company in the Order, deliveries shall only be accepted by the Company on a business day and during the Company’s business hours.

5.7  If the Goods are not delivered on the due date and/or to the agreed specification and condition as stipulated by the order, 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;

(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 including (i) any liquidated damages imposed on the Company by any third party, or (ii) any other loss or expense incurred by the Company which is in any way attributable to the Seller's failure to deliver the Goods on the due date.

5.8  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.

5.9  Where the Company agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.

5.10  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.

5.11  The Company shall not be deemed to have accepted the Goods, until it has had a reasonable period of time to thoroughly inspect and/or test them following delivery. This right of inspection supersedes any signatures or documentation exchanged upon immediate delivery. Such inspection is deemed to be completed only when it has been conducted by an authorised Company representative.

5.12  The Company shall also have the right to reject the Goods as though they had not been accepted, for 7 days after any latent defect in the Goods has become apparent.

6. RISK/PROPERTY
The Goods shall remain at the risk of the Seller until delivery to the Company is complete (including off-loading and stacking) when ownership of the Goods shall then 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.

8. PAYMENT

8.1  The Company shall pay the price of the Goods 45 days from the end of the month in which the invoice is supplied by the Seller, or within such later period time, as agreed between the Company and the Seller. Any shorter payment period shall have no effect, unless expressly agreed in writing by an authorised Company representative.

8.2  All payments will be made in pounds sterling (GBP) unless agreed differently in writing by the Company.

8.3  Time for payment shall not be of the essence of the Contract in all circumstances.

8.4  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.

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

8.6  The Company maintains the right to immediately recover from the Seller, any amount overpaid or wrongfully paid to the Seller.

9. CONFIDENTIALITY & DATA PROTECTION

9.1  The Seller shall keep in strict confidence all confidential information exchanged, technical or commercial know-how gained from the Company or its agents, necessary to the fulfilment of the Contract. This includes any other confidential information concerning the Company ́s business or its products and services which the Seller may obtain by other means.

9.2  Confidential information shall include but is not limited to: customer information, employee information, specifications, designs, drawings, inventions, processes, procedures, initiatives, operational or commercial practices or plans.

9.3  In all circumstances 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.

9.4  Where there is any uncertainty by the Seller whether information is of a confidential nature or not, it shall be treated as confidential in all circumstances, until advised otherwise by the Company in writing.

9.5  Any requirements and obligations under current data protection laws, applicable to UK based operating businesses, are to be implied into these Terms & Conditions of Purchase, regardless of the geographical location of the Seller.

10. THE COMPANY'S PROPERTY

Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications, designs 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.

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 to terminate the Contract forthwith if:

(a)  the Seller commits a material breach of any of the terms and conditions of the Contract; 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 of the Company and duties of the Seller 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) and return them to the Seller 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 theContract; and

(f)  to claim such damages as may have been sustained in consequence of the Seller ́s breach or breaches of the Contract.

13. ASSIGNMENT

13.1  The Seller shall not be entitled to assign 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

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.

15.ANTI-SLAVERY

15.1 In performing its obligations the Seller will comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force, including the Modern Slavery Act 2015 (“Anti- Slavery Laws”).

16. ANTI-CORRUPTION

16.1 The Seller will, and will procure that its officers, employees, agents and any other persons who perform services for Seller or on the Seller’s behalf in connection with the Contract, will not commit any act or omission which causes or could cause the Company or Seller (or that person) to breach, or commit an offence under, any laws relating to anti-bribery and/or anti-corruption, including the Bribery Act 2010.

17. GENERAL

17.1  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.

17.2  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.

17.3  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.

17.4  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.

17.5  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.

17.6  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 courts of England & Wales.

18. BREXIT HAS NO EFFECT

18.1 The UK’s withdrawal from the European Union (“Brexit”), any change or occurrence arising out of or in connection with Brexit or any movement in exchange rates relating to UK pounds sterling will not:
(a)  affect any obligation under the Contract; or

(b)  have the effect of altering any term of the Contract or of discharging or excusing performance under the Contract.

Modulift UK Limited Terms & Conditions of Purchase 2018 Revision