Terex - Conditions

TERMS AND CONDITIONS OF PURCHASE

1. DEFINITIONS

1.1. In these Terms and Conditions each of the following expressions, unless the context otherwise requires,has the meaning set out against it.

1.1.1. Buyer
The company identified on and issuing the purchaser order.
1.1.2. Supplier
The person, firm or company identified as Supplier on the purchase order.
1.1.3. Order
The order placed upon the Supplier by the Buyer as set out on the purchase order form of which these Terms and Conditions form a part, and any amendments to it.
1.1.4. Goods
Any goods or services agreed in the Contract to be purchased by the Buyer from the Supplier including any part or parts of them.
1.1.5. Price
The price contained in the Order, exclusive of value added tax, but inclusive of all other costs.
1.1.6. Delivery Date
Not later than, nor earlier than, the date specified for delivery or rendering of services in the Order.
1.1.7. Late Delivery
One day or more after the Delivery Date.
1.1.8. Early Delivery
One day or more before the Delivery Date.
1.1.9. The Contract
The Contract for the supply of the Goods formed by the Supplier's acceptance of the Order containing these Terms and Conditions, and any other documents (or parts thereof) specified in the Order. Should there be any inconsistency between the documents comprising the Contract the inconsistency shall be resolved by giving such documents the following order of preference (a) the text of the purchase order; (b) any documents (or parts thereof) specified in the text of the purchase order; and (c) these Terms and Conditions.
1.1.10. Delivery Point
If not otherwise specified, will be the Buyer facility specified in the Contract.

2. ACCEPTANCE OF ORDER

2.1. Each Order constitutes an offer by Buyer to purchase the Goods from the Supplier subject to these Terms and Conditions which shall apply to the Contract to the exclusion of any terms or conditions on or attached to or otherwise forming part of any quotation, acknowledgment or acceptance prepared by the Supplier. The Order is placed (subject to any variation expressly accepted by an authorised signatory of the Buyer in writing) to the entire exclusion of all other terms and conditions and the Supplier waives any right which it otherwise might have to rely on such terms and conditions. No order is valid, nor will the Buyer be liable in respect of any purported order, unless it is issued or confirmed on the Buyer’s official Order containing these Terms and Conditions and signed by an authorised signatory of the Buyer.
2.2. No Order will be accepted until the Supplier either expressly by giving notice of acceptance, or impliedly by fulfilling the Order in whole or in part, accepts the offer. Such acceptance of the Order indicates acceptance of these Terms and Conditions of Purchase, which shall be exclusive of, and prevail over, all other terms and conditions, written or oral, implied by trade custom or course of dealing, wherever appearing or however introduced. The order is liable to cancellation by the Buyer if not acknowledged by the Supplier within three business days from the date on the Order, or if Supplier transmits its own terms and conditions in connection with its acceptance of the Order.

3. ACCEPTANCE OF TERMS AND CONDITIONS

3.1. Unless agreed in writing, all other terms and conditions are expressly rejected by Buyer. These Terms and Conditions and any alterations thereto agreed in writing by Buyer comprise the entire terms of the Contract which may be amended or varied only by supplemental written agreement signed on behalf of the Buyer and the Supplier which is expressly stated to amend or vary these Conditions with reference to the Order.

4. PRICE

4.1. The Price quoted in the order will be firm for the duration of the Order, except when the Supplier and Buyer agree otherwise in writing and such agreement is the subject of an amendment to the Order. No variation in the price nor extra charges will be accepted by the Buyer unless agreed in writing.
4.2. All Prices set forth in the Order will be carriage and insurance paid to Delivery Point set forth in the Order.
4.3. Buyer shall not be responsible for the payment of any charges for Goods supplied in excess of Goods required by the Contract and such excess Goods shall remain at the Suppliers risk and shall be returnable at the Suppliers expense.
4.4. Value Added Tax, where applicable, must be shown separately on all invoices as a strictly net extra charge. All invoices and statements must show separately the VAT rate and the amount of VAT charged and the Supplier’s VAT registration number.
4.5. No payment of or on account of the Contract Price shall constitute any admission by Buyer as to proper performance by Supplier of its obligations.
4.6. The Buyer shall pay the Price of the Goods within 90 days following the end of the month of delivery or rendering of services to the Buyer (or such other period as shall be specified overleaf), but time for payment shall not be of the essence of the Contract. Any portion of the Price of Goods which remains due after such time shall bear interest at the rate of 6% per annum.
4.7. Without prejudice to any other right or remedy the Buyer reserves the right to set off any amount owing at any time from the Supplier to the Buyer against any amount payable by the Buyer under this Contract

5. DELIVERY

5.1. Time of delivery is of the essence of the Contract and delivery or rendering of services shall be strictly in accordance with the Order.
5.2. Unless written notice is given by the Buyer to the contrary, the Supplier must deliver the quantity specified on the Order in one delivery. Failure by the Supplier to deliver in one delivery will give the Buyer the option to cancel the balance of the Order with no further liability whatsoever.
5.3. The Delivery Point may change upon written notification by the Buyer.
5.4. Unless otherwise agreed upon in advance and in writing, delivery of all Orders shall be carried out DDP (delivered duty paid) according to Incoterms ICC 2000. Title will pass to Buyer upon delivery and unloading at the Delivery Point.
5.5. Buyer will not accept deliveries before 7.45am and after 3.30pm Monday to Thursday and before 7.45am and after 12 noon on a Friday without prior arrangement. All weekend deliveries MUST be by prior arrangement. Any delivery arriving outside the stated times without prior agreement will not gain entry to the plant.
5.6. Early Delivery or Late Delivery shall entitle the Buyer, without prejudice to any other rights which it may have, to :

5.6.1. terminate the Contract in whole or in part;
5.6.2. refuse to accept any subsequent performance or delivery of the Goods which the Supplier attempts to make;
5.6.3. recover from the Supplier any expenditure reasonably incurred by the Buyer in obtaining the Goods in substitution from another supplier; and/or
5.6.4. claim damages for any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Supplier's failure to deliver the Goods on the Delivery Date.

5.7. The Goods shall:

5.7.1. remain at the risk of the Supplier until delivery to the Buyer is complete (including off-loading and stacking) when ownership of and title to the Goods shall pass to the Buyer; and
5.7.2. be suitably packed and protected from damage during transit to the Delivery Point and in particular the Supplier shall take all necessary steps to prevent corrosive damage to the Goods during transit, especially for shipment over seas.

6. DOCUMENTATION

6.1. The Supplier will send to the Buyer, at the “bill to” address specified in the Order, the following documents:

6.1.1. Invoices fully priced and quoting the order number and stating the place of delivery; and
6.1.2. statements quoting invoice number and our order number.

6.2 Advice notes quoting order number are to be sent at the same time the Goods are despatched, addressed to the Buyer at the Delivery Point of the Goods.

7. QUALITY OF GOODS

7.1. All Goods supplied shall be of first class quality and shall use the best materials and workmanship of their respective kinds and the Supplier recognises that the Buyer has placed the Order relying upon the skill and expertise of Supplier and any statements and representations made by it.
7.2. Supplier warrants that the Goods shall conform to all relevant UK and EC standards, specifications and conditions, and shall conform to all relevant environmental standards, guidelines and Codes of Practice issued by the EU, or any relevant governmental authority, agency or body or any relevant local authority and shall take all practical steps in the design of the work to be performed to minimise any risk to the environment.
7.3. If samples or patterns are provided by the Supplier and approved by the Buyer, then the Goods will not be inferior in any respect to the said samples or patterns.

8. INSPECTION

8.1. The Buyer will have the right to inspect the Goods during manufacture, processing, or testing and the Supplier will furnish all reasonable assistance necessary therefor. Such inspection by the Buyer shall not relieve the Supplier of any responsibilities under the Contract.
8.2. Both during such inspection and for 30 days after their delivery to the Delivery Point, the Buyer will have the right to reject all Goods which do not conform to the requirements of the Contract. Notwithstanding the foregoing, Buyer shall have the right to reject Goods based on a latent defect within 30 days after the discovery of such defect.
8.3. In the interests of both parties, the Buyer shall inspect the Goods as quickly as reasonably possible upon arrival at the Delivery Point and shall promptly advise the Supplier of any matter or any thing by reason whereof the Buyer alleges that the Goods are not in accordance with the Contract whether as to quantity, quality or otherwise. Buyer shall have the right to advise Supplier of any latent defects within 30 days after the discovery of such defect. Advice of any such defect may initially be given by telephone and subsequently in writing. Buyer will advise the Supplier as promptly as is reasonably possible of any such condition.
8.4. Upon receipt of such notice, Supplier shall be responsible for making good with all possible speed the defective or damaged Goods or faulty workmanship, including full replacement where necessary together with all costs of delivery to Buyer and installation and all other costs incurred by the Buyer arising due to faulty design, materials or workmanship or any act or omission of Supplier in the performance, manufacture or delivery of the Goods.
8.5. Any new parts that may be necessary will be delivered by the Supplier, carriage paid, to such address as the Buyer shall specify to the Supplier.
8.6. In the event Supplier is unable to make good the defective or damaged Goods in a timely fashion as determined by Buyer in its sole discretion, such Goods will be either disposed of without further notice or despatched to the Supplier's address and at the Supplier's risk and expense.

9. WARRANTY CONDITIONS; INDEMNITY; LIMITATION OF LIABILITY

9.1. The Supplier warrants that the Goods shall:

9.1.1. be of the best design, quality, material and workmanship, be without fault and conform in all respects with the Order and specifications, drawings, samples, descriptions and/or patterns supplied or advised by the Buyer to the Supplier; and
9.1.2. comply with all statutory requirements and regulations and voluntary codes of conduct in respect of the Goods.

9.2 The Buyer's rights under these Conditions are in addition to the statutory conditions implied in favour of the Buyer by the Sale of Goods Act 1979.
9.3 The duration of the warranty shall be the greater of:

9.3.1 a period of 24 months from the date of commissioning of the Buyer's product incorporating the Goods;
9.3.2 30 months from performance or delivery of the Goods to the Buyer; or
9.3.3 the minimum warranty period that the Supplier attaches to the Goods.

9.4 The Buyer shall notify the Supplier within 60 days of the discovery of the defect(s) requesting remedial action.
9.5 The Supplier shall indemnify and keep the Buyer, its directors, officers, parents, affiliates, subsidiaries, employees, agents, successors and assigns indemnified in full from and against all direct, indirect or consequential liability (which terms shall 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) arising out of or resulting in any way from:

9.5.1 defective design, workmanship, quality or materials in relation to the Goods and/or breach of the warranty contained in these Terms and Conditions generally;
9.5.2 any act or omission of the Supplier or its employees, agents or sub-contractors in supplying, delivering and installing the Goods;
9.5.3 any discrepancies, errors or omissions in drawings, documentation or other information supplied in writing by Supplier, whether they have been approved by the Buyer or not, provided that such discrepancies, errors or omissions are not due to inaccurate drawings or information and decisions supplied in writing to the Supplier by the Buyer;
9.5.4 any claim made against the Buyer in respect of any liability, loss, damage, injury, cost or expense sustained by the Buyer's employees or agents or by any customer or third party to the extent that such liability loss damage 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 Supplier; and
9.5.5 any claim of infringement (including patent, trademark, copyright, industrial design right, or other proprietary right, or misuse or misappropriation of trade secret) arising out of the purchase, sale or use of the goods or services covered by this order whether such goods or services were provided alone or in combination with other products, software or processes. Supplier expressly waives any claim against Buyer that such infringement arose out of compliance with Buyer’s specification

9.6 In no event shall Buyer be liable for anticipated or lost profits or for indirect, incidental or consequential damages, regardless of whether or not Buyer was advised of the possibility of such damage.

10. ASSIGNMENT

10.1. The Supplier shall not sub-contract, assign or otherwise dispose of the Order or any part thereof without the written consent of the Buyer. If the Buyer gives its written consent then the Supplier will inform the Buyer of the name and address of the sub-contractor or assignee as well as a contact name to enable the buyer to carry out inspection during manufacture and allow quality assurance of the sub-contractor.
10.2. The Supplier shall be responsible for the acts, defaults and omissions of its sub-contractors and assignees, whether approval has been given to their appointment under this clause or not, as if they were his own and any consent given under this Clause shall not relieve the Supplier of any of this obligation under these Terms and Conditions.
10.3. The Buyer may assign the Contract or any part of it to any person, firm or company

11. TOOLS; BUYER MATERIALS

11.1. Material, plant, tools, jigs or other equipment supplied by the Buyer for use in connection with Orders placed by the Buyer will remain the property of the Buyer. All such tools, goods, materials and other property shall be surrendered to the Buyer on demand in good and serviceable condition together with any materials added thereto by the Supplier and the Supplier shall have no lien on such items or materials either for any sum payable under this Order or for any other monies or obligations. Payment for work done or materials added to such goods and materials shall not be due unless and until such goods and materials shall have been delivered to the Buyer and the work has been done to the Buyer's satisfaction. If the Supplier shall not deliver such goods and materials to the Buyer on the due date or in accordance with this section the Buyer shall be entitled by its servants or contractors to enter the Supplier's premises and retake such goods and materials utilising where necessary the Supplier's equipment. The cost of so doing shall be recoverable by the Buyer from the Supplier on demand.
11.2. Responsibility for the safe custody and maintenance in good condition, fair wear and tear excepted, of such items and materials referred to above will rest with the Supplier, and Supplier shall keep them insured at the Supplier's expense in their full value against loss or damage, for so long as such items are in the possession of the Supplier, and provide proof of such insurance to Buyer upon Buyer’s request.
11.3. The Buyer will not accept any liability for any items received by the Supplier from the Buyer in a damaged state under or in connection with the Contract unless such damage is notified in writing to the Buyer within 7 days of the receipt by the Supplier of such items.
11.4. For any jigs, tooling, etc., ordered or associated with any Order, the responsibility for the design of such tooling lies solely with the Supplier, regardless of whether or not the Buyer has supplied any drawings, sample parts or information of any kind. It is the Supplier’s express responsibility to ensure that any such tooling, jigs, etc., produces Goods that conform to the description set forth in the Order.
11.5. All material manufactured by the Supplier in accordance with the Buyer’s detailed drawings or with the use of Buyer’s tools, dies, patterns, jigs, fixtures or special tooling shall not be sold by Supplier to anyone other than the Buyer.

12. OWNERSHIP OF WORK PRODUCT

12.1. All materials, and any inventions (whether or not patentable), works of authorship, trade secrets, ideas, concepts, trade names and trade or service marks created or prepared for Buyer (collectively “Inventions”), shall belong exclusively to Buyer. Standard goods manufactured by Supplier and sold to Buyer without having been designed, customized, or modified for Buyer do not constitute Inventions. Furthermore, any works conceived or reduced to practice by Supplier which were developed entirely on Supplier’s own time without using equipment, suppliers, facilities, or Buyer’s information do not constitute Inventions.
12.2. Supplier hereby assigns the worldwide right, title and interest in and to the Inventions to Buyer. Buyer shall have the right, at Buyer’s option and expense, to seek protection by obtaining patents, copyright registrations, and filings related to proprietary or intellectual property rights. Supplier agrees to execute, and to cause its employees to execute, such documents, applications, and conveyances and to supply information as Buyer shall request, in order to permit Buyer (at Buyer’s expense) to protect, perfect, register, record and maintain its rights in the Inventions and effective ownership of them throughout the world. These obligations survive the expiration or termination of this agreement.

13. CONFIDENTIALITY

13.1. Supplier shall consider all information furnished by Buyer (hereinafter referred to as “Information”) to be confidential and shall not disclose any such Information to any other person, or use such Information itself for any purpose other than performing this agreement, unless Supplier obtains written permission from Buyer to do so. Information shall include without limitation, any customer, prospect and price lists, plans, photographs, designs, component designs, drawings, blueprints, specifications, inventions, technical data, trade secrets, and any other materials relating to this order or to the business of Buyer. All Buyer Information is and shall remain the property of Buyer. Upon Buyer’s written request or the termination of this agreement, Supplier shall return to Buyer all Buyer Information.
13.2. In no event will Supplier use less than the degree of care and means that it uses to protect its own confidential information of like kind, but in any event not less than reasonable care to prevent the unauthorized disclosure or use of Buyer’s Information.
13.3. The Supplier will not, without the prior written consent of the Buyer, advertise, publicly announce or provide to any other person information relating to the existence or details of the Order or use the Buyer’s name in any format for any promotion, publicity, marketing or advertising purpose.
13.4. Unless otherwise agreed in writing, no commercial, financial, or technical information disclosed in any manner or at any time by Supplier to Buyer shall be deemed secret or confidential and Supplier shall have no rights against Buyer with respect thereto except such rights as may exist under patent laws.

14. INSURANCE

14.1. In the event that Supplier’s obligations hereunder require or contemplate performance of services by Supplier’s employees, or persons under contract to Supplier, to be done on Buyer’s property, or the property of Buyer’s customers, Supplier agrees that all such work shall be done on an independent contractor basis and that the persons doing such work shall not be considered employees of the Buyer.
14.2. Supplier and/or independent/sub contractor, if applicable, shall maintain all necessary insurance coverage, including public, product and auto liabilities and worker’s compensation insurance. The liability policies shall contain minimum limits of GBP 1 million per occurrence with an aggregate of GBP 2.5 million and, with respect to worker’s compensation insurance, shall contain the limits required by applicable law. Supplier shall provide a certificate to Buyer evidencing such insurance coverage and naming Buyer as an additional insured.
14.3. Supplier shall indemnify, defend and hold harmless Buyer from any and all claims or liabilities arising out of the work covered by this paragraph.

15. TERMINATION

15.1. The Buyer shall have the right at any time and for any reason to terminate the Contract in whole or in part by giving the Supplier written notice whereupon all work on the Contract shall be discontinued and the Buyer shall pay to the Supplier fair and reasonable compensation for the direct costs incurred by the Supplier in relation to the work in progress at the time of termination.
15.2. The Buyer shall have the right at any time by giving notice in writing to the Supplier to terminate the Contract forthwith if:

15.2.1. the Supplier or any of its subcontractors commits a breach of any of the terms and conditions of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of being notified in writing by the Buyer of the breach;
15.2.2. any distress, execution or other process is levied upon any of the assets of the Supplier;
15.2.3. the Supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise take 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 and/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 Supplier or notice of intention to appoint an administrator is given by the Supplier 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 Supplier or for the granting of an administration order in respect of the Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the Supplier;
15.2.4. the Supplier ceases or threatens to cease to carry on its business; or
15.2.5. the financial position of the Supplier deteriorates to such an extent that in the opinion of the Buyer the capability of the Supplier to adequately fulfil its obligations under the Contract has been placed in jeopardy.

15.3 The termination of the Contract, howsoever arising, will be without prejudice to the rights and duties of the Buyer accrued prior to termination. These Terms and Conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
15.4 If the Buyer exercises his right of termination pursuant due to any subsection of paragraph 15.2 above applying to Supplier or any of its subcontractors, then no financial or other liability whatsoever shall be incurred by the Buyer.

16. REMEDIES

16.1. Without prejudice to any other right or remedy which the Buyer may have, if any Goods are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Contract (other than in respect of any materials ordered, provided or specified, or designed by the Buyer or any action, omission or neglect of the Buyer) the Buyer 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 Buyer:

16.1.1. to rescind the Order;
16.1.2. to reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid forthwith by the Supplier;
16.1.3. at the Buyer's option to give the Supplier the opportunity at the Supplier'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 provided that such repair or replacement is completed and sent to the Buyer within 7 days of notification of such defect by the Buyer;
16.1.4. to refuse to accept any further deliveries of the Goods but without any liability to the Supplier;
16.1.5. to carry out at the Supplier's expense any work necessary to make the Goods comply with the Contract; and/or
16.1.6. to claim such damages as may have been sustained in consequence of the Supplier's breach or breaches of the Contract.

17. NOTICES

17.1. All notices or other communications to or between the parties must be in writing and may be sent by hand, internationally recognized overnight courier, fax transmission, or first-class prepaid post. If sent by hand or courier, such notices will be deemed given upon actual delivery; if sent by fax, such notices will be deemed to have been received on the date transmitted provided a transmission report is received during the hours of 9.00am to 6.00pm in the receiving country, otherwise on the next business day; and if by post, such notices will be deemed to have been received on the second business day after posting.

18. FORCE MAJEURE

18.1. The Buyer reserves the right to defer the date of delivery or performance or payment or to cancel the Contract or reduce the volume of 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 Buyer 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 suitable materials.

19. INTERPRETATION

19.1. If any provision of the Contract or part of any provision 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 provisions or part of any provision shall continue in full force and effect.
19.2. Failure or delay by the Buyer in enforcing or partially enforcing any provision or the Contract will not be construed as a waiver of any of its rights under the Contract.
19.3. Any waiver by the Buyer or any breach of, or any default under, any provision of the Contract by the Supplier will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
19.4. The parties to this Contract do not intend that any terms of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
19.5. The Contract shall be interpreted and governed by English law and the parties hereby submit to the exclusive jurisdiction of the courts of London, England.
19.6. Nothing in these Conditions shall prejudice any conditions or warranty (express or implied) or any other right or remedy to which the Buyer is entitled in relation to the Goods whether under the Contract or not.

Rev. 29 Feb. 2008

Conditions of Purchase