General Purchase Conditions

Of Smith’s (Harlow) Limited (“SHL”)

Effective 1st January 2009

  1. General

1.1    All SHL orders shall be governed exclusively by the special conditions set forth therein and these (subordinated) general purchase conditions.  The Supplier’s general terms and conditions of business shall not apply, even if SHL has not expressly objected to them in each individual case or the Supplier has declared that it is willing to deliver only subject to its own terms and conditions.

1.2    Contracts for deliveries and services (and also purchase orders and acceptance), delivery call-offs as well as amendments and supplements shall be valid only if in writing.  Electronic transfer of data shall be acceptable if mutually agreed upon.  Oral declarations or agreements must be confirmed in writing by SHL.

  • Purchase orders not accepted by the Supplier within two (2) weeks may be cancelled by SHL.

 

  1. Scope of the Contract

2.1    The scope of deliveries and services to be provided by the Supplier shall be determined by the specifications, drawings, design schemes, films, samples and descriptions submitted at the time the contract is concluded and/or – in the absence of such documents – by the information contained in the Supplier’s quotations and brochures.  The Supplier shall provide the deliveries and services using suitable approved materials. The deliveries and services shall comply with all relevant statutory/official provisions.  The Supplier shall provide for a suitable quality assurance and control system and comply with any quality specifications expressly called out in the purchase order.

  • SHL will accept only the quantities ordered. The delivery of excess or smaller quantities as well as partial deliveries shall be subject to SHL’s prior written consent.
  • The Supplier shall make sure, as appropriate, that the deliveries and services provided comply with environmental, accident prevention and other health and safety regulations, as well as the safety engineering regulations and all legal requirements applicable in the United Kingdom and/or the European Union.  Furthermore, the  Supplier shall notify SHL of any special, not generally known handling and disposal requirements that may apply to any delivery or service.

 

  1. Changes to the Scope of the Contract
  • If, in the course of performance of the contract, deviations from the agreed original scope of the contract are deemed necessary or appropriate, the Supplier shall notify SHL without delay stating the cost increases or reductions resulting from the change. SHL will then inform the Supplier of its decision regarding the proposed change. If the change is approved by SHL, the compensation agreed upon with the Supplier will automatically be increased or reduced in accordance with the change proposal submitted as per sentence 1 of this clause.  The notification of consent shall only be legally binding upon SHL if made out in writing.
  • The Supplier shall also notify SHL without delay of any intended changes in the composition of the materials being processed or in the design as compared with deliveries or services of the same kind previously provided to SHL. Any such changes are subject to SHL’s written consent.

 

  1. Furnishing of Material and other items
  • Materials and other items of any kind furnished by SHL shall remain the sole property of SHL, to the extent that such materials and items are processed or transformed by the Supplier, SHL shall be deemed to be the sole manufacturer within that meaning. If such materials or items are joined or blended with other materials or items in a manner that the result may be regarded primarily as the Supplier’s property, SHL shall be entitled to co-ownership pro rata of the value of the materials or items, and the Supplier shall retain custody of the property co-owned by SHL.  Insofar as items are developed or manufactured by the Supplier with substantial participation by SHL (tests etc) or are manufactured by the Supplier to SHL specifications or are paid for in full by SHL, they may be used only for purposes pertaining to the SHL purchase order.  If such items are SHL’s property, they shall be returned to SHL without delay and ‘carriage paid’ at SHL’s request.  The Supplier shall bear all risks of loss of or damage to the materials and items furnished by SHL, unless the Supplier cannot be held liable for loss or damage.
  • The Supplier undertakes to carry out any maintenance or inspection that may be required on the items furnished by SHL and to take out adequate insurance coverage for them – especially for transportation to and from third parties – at Supplier’s own cost, and to provide evidence thereof if so requested by SHL.

 

  1. Confidentiality
  • The parties undertake to treat as confidential all commercial and technical details that become known to them in the course of their business relations.
  • Technical documents, drawings, models, templates, samples and similar objects made available by SHL shall not be placed at the disposal of or otherwise made accessible to unauthorised third parties. The duplication/reproduction of such objects is permissible only within the limits of internal requirements and the terms of copyright.  Authorised third parties, e.g. subcontractors, shall be committed to confidentiality in a similar manner.
  • In references or publications the Supplier may not use SHL’s name or trademark without SHL’s prior written approval.

 

  1. Subcontracts
  • The placement of subcontracts is subject to SHL’s prior written consent.

 

  1. Delivery Dates/Shipment/Pricing
  • Agreed delivery dates shall be binding. The date of receipt at SHL shall determine whether deliveries have been made in due time.
  • As soon as the Supplier becomes aware that specified delivery dates cannot be adhered to, the Supplier undertakes to notify SHL without delay and in writing of such delay stating the reasons and the expected duration. If the Supplier fails to inform SHL of delays for any reason whatsoever, SHL shall be entitled – without prejudice to the penalty claim as per clause 7.3 – to claim damages.
  • In the event of default on the part of the Supplier, the Supplier shall be obliged to pay a penalty in the amount of 1.0% of the order value for each week commenced, up to a maximum of 10% of the order value. The right to claim further damages remains unaffected.  SHL may claim the penalty also in the event SHL reserves the right to claim penalties within one (1) month after acceptance of the last delivery or service due under the purchase order.
  • The agreed deadlines for the provision of deliveries and services by the Supplier may be postponed by SHL by up to four (4) months maximum if SHL’s envisaged demand of such deliveries/services is delayed by strikes or interruptions of operations of another kind. This does not give rise to any claims on the part of Supplier.  If the delay in SHL’s demand is attributable to force majeure and if its duration exceeds four (4) months, either party may terminate the contract in whole or in part.  The same applies to delays in delivery attributable to a substantiated case of force majeure, if the duration of the delay exceeds one (1) month.
  • Each shipment shall be accompanied by a delivery note and a Certificate of Conformity, where relevant, and attached at a conspicuous location. The delivery note shall state the SHL’s purchase order number and item number, date of despatch, type of packaging, identification of the goods, quantity and weight, as appropriate, as well as the recipient’s address.
  • The place of performance for deliveries and services in SHL’s head office.
  • Otherwise SHL shall be entitled to all statutory claims for delays in delivery.

 

  1. Payment
  • The commencement of an agreed period for payment shall depend on the agreed delivery date. The payment term shall, however, not commence before the goods/service and an invoice as per clause 8.2 has been received by SHL.
  • Invoices shall state SHL’s purchase order number and item number as well as the date of despatch, identification of the goods, quantity and all other data required. The original invoice that constitutes SHL’s obligation to pay shall be sent separately through the post. If the invoice does not comply with the above requirements, SHL shall be entitled to refuse payment.
  • Normally payment shall be effected by BACS or cheque. The date on which this is sent shall be decisive for determining whether payment has been effected within the period allowed.  Payment can also be effected by other means, but in no event cash on delivery. VAT treatment and all other tax obligations shall be governed by the applicable tax laws.
  • SHL’s normal payment terms are 60 days from receipt of invoice or goods/service whichever is the later.
  1. Purchase Order Quality Terms and Conditions

          Unless otherwise stated on the purchase order the following terms and conditions apply.

  • The Suppler shall retain records in accordance with the Suppliers internal requirements* and SHL’s customer requirements** where applicable. Where there is no SHL’s customer specified on the purchase order the minimum retention period for records shall be five (5) years.
  • The requirements for approval of product procedures, processes and equipment shall be in accordance with the Suppliers internal requirements* and SHL’s customer requirements** where applicable.
  • The requirements for qualification of personnel shall be in accordance with the Suppliers internal requirements* and SHL’s customer requirements** where applicable.
  • The quality management system requirements shall be in accordance with ISO9001, where the aerospace volume of the Supplier’s business exceeds 50% then the requirements shall also be in accordance with AS9100, AS9110 or AS9120 as applicable. In addition the quality management system requirements shall be in accordance with SHL’s customer requirements** where applicable.
  • The Supplier is required to obtain and work to the latest issue of all applicable technical data. The name or other positive of specifications, drawings, process requirements, inspection instructions and other relevant technical data as applicable shall be specified on the purchase order.  Where the technical data is specified on a SHL or SHL’s customer drawing (component definition, condition of supply etc) the purchase order will normally state the drawing identification only, the Supplier is responsible to comply with all the applicable technical data listed on the drawing.
  • The requirements for test, examination, inspection and related instructions shall be in accordance with the Suppliers internal requirements* and SHL’s customer requirements** where applicable.
  • The requirements for test specimens (e.g. production method, number, storage conditions) for inspection, investigation or auditing shall be in accordance with the Suppliers internal requirements* and SHL’s customer requirements** where applicable.
  • The requirements for notifications of non-conforming product shall be in accordance with the Suppliers internal requirements* and SHL’s customer requirements** where applicable and the following:

Non-conforming product already shipped – The Supplier must notify SHL promptly of non-conforming product or processes discovered that may affect the product or processes discovered that may affect the product already delivered. Notification may be by any documented means (email, fax, etc) giving the details of all products affected.

          Non-conformance contained at the Supplier – Unless the Supplier can rework the product to drawing requirements, the supplier must notify SHL promptly of non-

conforming  processes discovered that affect the product.  Notification may be by any documented means (email, fax etc) giving the details of all products affected.

The Supplier shall obtain SHL’s documented approval for any non-conforming products/material that cannot be fully reworked to conform to drawing/specification

requirements.

  • The Supplier shall notify SHL by any documented means prior to making any changes to product and/or process definition. The Supplier shall also obtain SHL’s

or SHL’s customer** approval prior to implementing any changes as applicable.

  • The Supplier shall allow right of access by SHL, SHL’s customer, and regulatory authorities to all facilities involved in the order and to all applicable records.
  • The Supplier shall flow down to all sub-tier Suppliers the applicable requirements in the purchase order, including key characteristics where required.

 

*The Supplier’s internal requirements shall be conforming to ISO9001, where the aerospace volume of the Supplier’s business exceeds 50% then the requirements shall also be conforming to AS9100, AS9110 or AS9120 as applicable.

** The SHL’s customer requirements document(s) will be shown on the purchase order where applicable.

                               

  1. Quality – See the separate Quality Terms and Conditions                

 

  1. Warranty/Claims based on Defects/Liability

10.1   SHL will notify the Supplier in writing of any defects in the deliveries as well as handling damage and damage to the packaging as soon as such defects or damage can be detected in the ordinary course of business.  Reasonable periods for notification of defects are one (1) month after delivery for obvious defects and 14 workdays after detection for hidden defects.

  • If the Supplier fails through its own fault to rectify the defects within the reasonable period of time allowed by SHL, if the Supplier wrongfully refuses to rectify the defects, if attempts at rectification have not been successful or if SHL cannot be reasonably expected to accept rectification, particularly in the event of impending danger, SHL may, without prejudice to its legal claims vis-à-vis the Supplier, take the necessary measures at the Supplier’s cost and risk or have the defects rectified by third parties. SHL shall be entitled to set off the costs incurred for rectification of defects or claim its right of retention.  This shall also apply in the event that claims and counter-claims arise from different business transactions/contracts.
  • The Supplier shall be liable for any damage which is associated with the deliveries and services to be provided and attributable to its own fault or negligence. This also includes damage occurring during performance of the contract.  The Supplier shall be liable for its own fault and that of subSuppliers and persons employed in the performance of the contract.

 

  1. Property Rights
  • The Supplier warrants that the delivery, use and operation of the contractual items as well as the services rendered do not infringe upon third party property rights, in particular patents or licenses.
  • The Supplier shall indemnify and hold SHL and SHL’s customers harmless from any third party claims based on the violation of property rights and shall bear all costs incurred by SHL in connection with such claims.

 

  1. Assignment of Claims/Set-offs
  • Without SHL’s prior written consent, the Supplier shall not be entitled to assign any claims under the contract to third parties or have them collected by third parties; this applies only in the event that extended reservation of title has been agreed upon between the Supplier and its sub-tier suppliers.
  • SHL reserves the right of set off against the Supplier’s claims. A final statement of the claims set off or approval by the Supplier shall not be required.

 

  1. Right of Withdrawal from the Contract/Termination
  • If one of the parties fails to meet its payment obligations or if insolvency proceedings over its assets are initiated or if a petition for settlement in court or out of court has been filed, the other party shall be entitled – after having allowed a reasonable period of grace – to withdraw from the part of the contract that has not been performed or to terminate the contract. With respect to the right of withdrawal of termination agreed at the time the purchase order is placed the following shall apply; any other costs incurred up to the termination of the contract will be reimbursed.  The Supplier shall provide evidence of the facts on which its claims are based.

 

  1. Partial Invalidity
  • If a contract provision is or becomes invalid this does not affect the legal validity of the remaining contract.  Both parties undertake to replace the invalid provision  by a valid one which as closely as possible reflects the intent of the invalid provision.

 

  1. Law and Jurisdiction

15.1    This Agreement and any action, claim, dispute or other proceedings arising out of or in connection with it shall be governed by and construed in accordance with English law and the Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the English courts.

 

CONDITIONS OF SALE

 

 

  1. Definitions

In these conditions the following expressions shall have the following meanings:

 

“Company”

means Smith’s (Harlow) Limited (a Company incorporated in England with Company Number 549932 and having its registered office at The Pinnacles, Harlow, Essex CM19 5AT

“Contract”

means the Contract for the supply and purchase of the supplies between the Company and the Customer described in the Order Acknowledgement made in accordance with these Conditions and all other documentation attached to the Order of Acknowledgement.

“Conditions”

means these terms and conditions which shall include any special and/or additional terms attached to these terms and conditions or agreed in writing between the Company and the Customer.  In the event of any conflict between these terms and conditions and any special and/or additional terms, the special and/or additional terms shall prevail.

“Customer”

means the individual, company, institution or other party who or which places an order for the supplies and where relevant all members of the customer’s group.

“Order Acknowledgment”

means the written order acknowledgement issued by the Company.

“Price”

means the Price for the Supplies as set out in the Order Acknowledgement (subject to Clause 3 hereof).

“Supplies”

means the products supplied to the Customer by the Company pursuant to the terms set out herein.

 

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

 

  1. Contract Terms

2.1           These Conditions shall be incorporated in and govern the Contract and shall supersede and operate to the exclusion of all other terms and conditions that may have been issued by the Customer.  For the avoidance of doubt, any failure by the Company to reject or challenge any terms and conditions submitted by the Customer shall not imply acceptance of those terms and conditions by the Company.

2.2           In the absence of any contrary agreement, these Conditions shall govern all agreements between the Company and the Customer for all goods and services supplied by the Company to the Customer.

2.3           Quotations issued by the Company are subject to these Conditions but are not offers capable of acceptance so as to make a binding contract.

2.4           Any order placed by the Customer is not binding on the Company until either accepted by the Company in writing or by way of delivery of an order acknowledgement or until the Company delivers all or part of the Supplies.

2.5           No variation to the Conditions shall be binding unless specifically accepted in writing by an authorised employee of the Company.

2.6           The Customer acknowledges that in entering into the Contract it has not relied upon any representation made by or on behalf of the Company and that the relationship between the Customer and the Company shall be wholly governed by the Contract.

 

  1. Prices

3.1           The Company reserves the right at any time prior to delivery of the order acknowledgement to increase the price to take account of any increase in costs  of materials, labour, transport or any other matter having effect on costs.

3.2           Unless agreed otherwise in writing or as set out in the order acknowledgement the price shall be in sterling but where the price is

set out in a currency other than sterling (hereinafter “the Agreed  Currency”) the Company reserves the right at any time prior to delivery of the order acknowledgement to increase the price to take account of any alteration to the rate of exchange of the agreed currency relative to sterling and/or any alteration to the rate of exchange of sterling relative to the agreed currency.

3.3           The price is exclusive of Value Added Tax and any other tax or duty that shall be charged to the Customer in addition, in accordance with the regulations from time to time in force.  The price is also exclusive of any charges for special packaging, transportation and insurance, all of which shall be the responsibility of and for the account of the Customer.

 

  1. Payment
    • Payment shall be made within thirty (30) calendar days of delivery of the supplies and in the case of delivery of part of the supplies, such proportion of the price shall be due and owing 30 days from delivery of that part.
    • The time of payment shall be of the essence to the Contract. If the Customer fails to make payment on the due date (without prejudice to any other remedy available to the Company) the Company shall be entitled to:
  • charge the Customer interest at the rate of four (4) per cent per annum over the base rate of the Bank of England from time to time in force and if at any time the base rate of 4% is deemed unlawful, interest shall be charged at such other rate as may be allowed by law. For the avoidance of doubt where relevant the interest rate shall apply before and after the issue of any such legal proceedings.
  • withhold any further deliveries to the Customer and repossess the supplies already delivered.
  • treat the Contract as repudiated.
    • Any sums received from the Customer may at the Company’s discretion be allocated to any debt due by the Customer to the Company.
    • The Company reserves the right to set off any sums due and owing from the Company to the Customer from time to time.
    • The Customer is prohibited from setting off any amount owed by the Company to the Customer against amounts it owes to the Company.

 

  1. Delivery
  • Any dates quoted or contained in the order acknowledgement for delivery represent the Company’s estimate of when delivery should be possible but shall not bind the Company, who shall not be liable for any loss or damage occasioned by late delivery. Time of delivery for all or part of the supplies shall not be of the essence of the Contract and the Customer shall have no right to seek to cancel or terminate the Contract as a result of late delivery of all or part of the supplies. The Company reserves the right to deliver before the quoted delivery date subject to giving prior notice of its intention to do so and the Customer is prohibited from rejecting delivery on the basis that it is prior to the quoted delivery date.
  • The right to deliver the supplies in instalments is expressly reserved by the Company and the conditions shall apply to any such instalments and in which case each delivery shall constitute a separate contract between the Company and the Customer. A failure of the Company to comply with its obligations in respect of one instalment shall not entitle the Customer to terminate the entire Contract in respect of the entire order placed by the Customer.
  • Delivery shall take place Ex Works (INCOTERMS 2000) unless otherwise agreed in writing or stated in the order acknowledgement.
  • The Company reserves the right to deliver more or less supplies in one instalment subject to a variation allowance of 5% and the Company reserves the right to address any discrepancies in numbers set out in clause 5.4 in the subsequent instalment.
  • If the customer fails to give adequate instructions regarding delivery or take delivery at the time of delivery the Company at its option may:
  • store the supplies and recover all costs thereby incurred from the Customer; or
  • sell the supplies and recover all costs thereby caused, together with any shortfall in the price from the Customer.

 

  1. Title and Risk
    • Risk of damage, loss or destruction shall pass to the Customer on delivery in accordance with Clause 5.
    • Notwithstanding delivery and the passing of risk no legal or equitable title to the supplies shall pass to the Customer until the Company has received:
  • payment in full of the price in respect of the supplies and of all other sums due; and
  • payment in full of all other sums owing from the Customer to the Company howsoever arising.
    • Until title passes the Customer shall keep the supplies separate from those of the Customer and all third parties, properly stored and maintained, insured for their full replacement value and identified as belonging to the Company.
    • The Company and its employees are entitled to enter the site at which the supplies are stored to inspect the supplies and where applicable repossess the supplies.

 

 

  1. Warranties and Liabilities

7.1           Subject to the provisions of this clause the Company warrants that the supplies shall comply in all material respects with any specification referred to in the order acknowledgement and shall, subject thereto, be free from defects resulting from faulty workmanship for a period of twelve (12) months from the date of delivery.

  • Save as provided in this clause all warranties, conditions or other terms implied by statute or common law are hereby expressly excluded save to the extent they may not be lawfully excluded.
  • In the event of the Customer making a claim in respect of any defect in terms of clause 7.2 hereof the Customer must:
  • reasonably satisfy the Company that the supplies have been properly installed, commissioned, stores and used and without prejudice to the generality of the foregoing that any defect is not the direct or indirect result of lack of repair, incorrect repair, use of wrong oil and/or incorrect spare parts; and
  • allow the Company to inspect the supplies and/or any installation and any relevant packaging as and when reasonably required by the Company.

7.4           The Company shall not be liable for a breach of the warranty set out at 7.1 above to the extent that:

  • the defect(s) in the supplies occurs as a result of the Customer not adhering to the Company’s instructions relating to storage and/or use of the supplies or as a result of the Customer failing to adopt good industry practice;
  • the Customer altering or attempting to alter or repair the supplies without the prior written consent of the Company; or
  • the defects arise as a result of the provision of inaccurate information (including for the avoidance of doubt any specifications) by the Customer.

7.5           Subject to the Company being notified of any defect as is referred to in sub clause 7.2 hereof with 7 days of delivery or, if the defect would not be reasonably apparent on inspection, 7 days from the Customers discovery of the defect, the Company shall, at its option, replace or repair the defective supplies or refund a proportional part of the price.  The Company shall have no further liability to the Customer.

  • Nothing in the Contract or the Conditions shall attempt to exclude the Company’s liability in respect of death or personal injury occasioned

by the company’s negligence or in respect of fraudulent misrepresentation.

  • The Company shall have no liability whether arising in contract, tort  (including negligence) breach of statutory duty or otherwise for any:
  • loss of profit;
  • loss of anticipated savings;
  • loss of business;
  • loss or damage to goodwill;
  • increased production costs; or
  • any indirect, special or consequential losses or damages.
    • The Company’s entire liability pursuant to the Contract (except in respect of death or personal injury) shall not exceed the price.

 

  1. Force Majeure

The Company shall not be liable or responsible for any loss or damage caused by delay in the performance or non-performance of any of its obligations hereunder including (but not limited to) delayed delivery or non-delivery where the same is occasioned by any cause whatsoever that is beyond the Company’s reasonable control including but not limited to an act of God, trade disputes, strikes, lockouts, governmental or parliamentary restrictions, difficulties in obtaining raw materials or labour, breakdown of machinery, war, civil disturbance, shipwreck, flood, tempest, fire or accident.

 

  1. Specification and Shortage in Delivery
  • The Company reserves the right to amend its specification in respect of the supplies.
  • The Customer shall intimate any claim for shortfall in delivery with seven (7) calendar days from the date of delivery.

 

  1. Insolvency

10.1         In the event that the Customer:

  • makes a voluntary arrangement with creditors or has a Receiver, Administrator or Liquidator appointed or takes any steps for the purpose of having such a person appointed;
  • is sequestrated or signs a Trust Deed or enters into a composition arrangement with creditors;
  • ceases to carry on business;

then the Company, without prejudice to any other rights or remedies it may have, shall be entitled in its option to suspend further deliveries, treat the Contract as repudiated and repossess the supplies.

 

  1. Non-Cancellation

The Customer acknowledges that it shall not have any right to cancel a Contract. In the event that the Customer wishes to amend the specification of the supplies, the quantity of the supplies to be purchased, the time of delivery or otherwise vary the Contract it shall give written notice to the Company who shall forthwith confirm whether it will accept the variation and if so with what effect on the price.  The Customer shall then confirm the variation within three (3) calendar days in writing. In the event that it fails to do so the Contract shall remain in full force and affect as if the Customer had not sought to vary the same.

 

  1. Assignment
    • The Customer shall not assign any of its rights and obligations arising out of the Contract without the written consent of the Company. The Company shall be entitled to assign or sub-contract performance of its obligation but shall remain liable to the Customer in accordance with the terms of the Contract.
    • The Company reserves the right to assign the Contract on notification to the Customer in the event that the Company wishes to sell the business by way of an asset sale.

 

  1. Choice of Law
  • The Conditions and the Contract shall be governed and construed in accordance with English Law.
  • The Customer hereby agrees to the exclusive jurisdiction of the Courts of England.
  • The Customer acknowledges that in the event that any provision in the Conditions or terms of the Contract is void or unenforceable such invalidity or unenforceability shall not invalidate the remaining provisions or terms, which shall be given full effect.

 

  1. Export Regulations

If it is the intention of the Customer to sell or deliver the supplies to a Customer or destination outside the United Kingdom it is the Customer’s responsibility to comply with all relevant United Kingdom export regulations and to obtain any necessary export licence.  In addition the supplies may contain components or subassemblies that originate from beyond the United Kingdom and therefore export regulations of other jurisdictions may also apply.  Any final destination outside the United Kingdom for the supplies must be advised to the Company at the time of enquiry or placement of order.

 

  1. Customer visits to the Company

Customer visits are only to be made with the prior written consent of the Company such consent not unreasonable to be withheld.

 

  1. Return of Non Conforming Products

The Company will not accept the return of non conforming products unless as expressly stated in these Conditions.

 

  1. The Contracts (Rights of Third Parties) Act 1999

The Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract. These Conditions shall be governed by the law of England.