FIREWORKS
Supplier T&C's
BLACKCAT FIREWORKS LIMITED
TERMS AND CONDITIONS OF PURCHASE - OWN PREFERRED SUPPLIERS
These Conditions will govern the Contract between the Buyer and the Seller to the exclusion of any other Terms and Conditions.
These Conditions will be deemed to be incorporated in the Contract and in the case of any inconsistency with any letter incorporating or referring to these Conditions or any quotation, letter or form of contract sent by the Seller to the Buyer or any other communication between the Seller and the Buyer whatever may be their respective dates the provisions of these Conditions will prevail unless expressly varied in writing and signed on behalf of the Buyer.
No variation to the Order or these Conditions will be binding unless expressly agreed in writing by Buyer and signed by a Director or other authorised representative of the Buyer on its behalf.
1. DEFINITIONS
1.1 in these Conditions the following expressions will have the following meaning;
Buyer means Black Cat Fireworks Limited
Conditions means the standard terms and conditions of purchase set out in this document;
Contract means the contract between the Buyer and the Seller consisting of the Order, thee Conditions and any other documents (or part thereof) specified in the Order;
Goods means the goods described in the Order for supply to the Buyer;
Materials means all drawings, information, tools, moulds, patterns, prototypes, formulations, samples, any Specification or other materials supplied or loaned by the Buyer to the Seller in connection with the Contract;
Order means the order placed by the Buyer for the supply of the Goods and Services to which these Conditions are attached;
Price means the price of the Goods and Services;
Seller means the person, film or company to whom the Order is addressed;
Services means the service (if any) described in the Order for supply to the Buyer;
Specification means the technical description or other requirements (if any) of the Goods and Services contained or referred to in the Order.
1.2 Words in the singular will include the plural and visa versa, references to any gender will include the others and references to legal persons will include natural persons and vice versa.
1.3 Any reference in these Conditions to a statute or a provision of a statute will be constructed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
2. ACKNOWLEDGEMENT
The Buyer will be bound by its Order only if;
2.1 it is placed on its official written Order Form (including details of quantity, price, size ratio, place of manufacture, Specification and delivery requirements) signed by an authorized officer of the Buyer; and
2.2 the Seller unconditionally accepts the Order within 30 days of the date of the Order. The Seller must notify the Buyer within that period if the Order details cannot be accepted.
3. PRICE
3.1 The Price of the Goods and Services will be as stated in the Order and, unless otherwise stated on the Order or agreed in writing, will be:
3.1.1 exclusive of the applicable value added tax; and
3.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Buyer and any duties, imposts or levies other than value added tax.
3.2 No increase in the Price may be made (whether an account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.
3.3 The buyer will be entitled to any discount for prompt payment, bulk purchase or volume purchase customarily granted by the Seller, whether or not shown in its own terms and conditions of sale.
4. INSPECTION TESTING AND SAMPLES
4.1 If so required by the Buyer the Seller will submit samples of the Goods and Services for the Buyers approval before the manufacture of the Goods commences. Such samples shall be marked for identification by the Seller and will be retained by the Buyer. All samples supplied during the duration of the Contract will be cost by the Seller. Until a production order has been placed, the freight cost of samples will be borne by the Buyer, but thereafter by the Seller.
4.2 The Buyer, its representative and the Buyer’s customer’s representative will be entitled to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party. If the Buyer exercises the right the Seller, at its own expense, will provide or will procure the provision of all such facilities as may be reasonably required by the Buyer.
4.3 All Goods and Services shall correspond precisely with any agreed sample and Specification.
4.4 All Goods and other items supplied by the Seller will be inspected by reference to sample and Specification. If any are rejected by the Buyer then without prejudice to any other of its rights the Buyer will have the option at its absolute discretion.
4.4.1 to return the entire consignment to the Seller; or
4.4.2 to sort the entire consignment, in which case the Seller will re-imburse the Buyer the costs thereof.
In such event, the Seller will re-imburse to the Buyer any costs associated with the inspection or re-inspection, disposal or rejected Goods and associated transport costs, in addition to reimbursing the Buyer or crediting to the Buyer the invoiced costs of the rejected Goods; but the Buyer will credit the Seller with the net proceeds of the disposal of any rejected Goods.
4.5 The Buyer will notify the Seller monthly of any goods returned to the Seller by its Customers, and weekly of the results of quality inspections.
5. DELIVERY
5.1 Delivery will be made in accordance with the delivery instructions on the Order. The Goods, properly packed and secured in such a manner as to reach their destination in good condition and capable of long term storage upon receipt, unless otherwise specified in writing will be delivered to the Seller carriage paid and the Services will be performed at the place or places and in the manner specified in the Contract or as subsequently agreed in writing by the parties. Time of performance of the Seller’s obligations hereunder will be of the essence of the Contract.
5.2 The Buyer will not be under any obligation to return or pay for packing cases, pallets or other articles used for packing the Goods notwithstanding the acceptance of the Goods by the Buyer.
5.3 If the Goods are not delivered or the Services not performed within the time specified in the Contract the Buyer will be entitled to terminate the Contract forthwith and/or (without prejudice to any other remedy) the Buyer will be entitled to deduct from the Price or (if the Price has been paid) to claim from the Seller by way of liquidation damages for delay 1 per cent of the Price for every week or part thereof from the time specified for delivery or performance to the date upon which the Goods are delivered or the Services performed.
5.4 Unless otherwise agreed in writing by the Buyer all deliveries must be made to the Buyer at times which are published by the Buyer from time to time as the Buyer’s delivery hours.
5.5 The Seller will send to the Buyer on the days of dispatch for each consignment an Advice Despatch. The Seller will mark clearly the Buyer’s Order number and stock code on relevant consignment package(s), packing notes, advice notes, invoices and all other correspondence relating thereto. Any failure by the Seller to comply with the provisions of this clause may result in a delay in payment for or rejection of the Goods.
5.6 If the Goods are to be delivered or the Services are to be performed by installments the Contract will be treated as a single Contract and not severable.
5.7 Where goods are not shipped in accordance with the agreed delivery instructions the Buyers reserve the right to return the goods to the Seller or recharge the losses on disposal where the Buyer’s customer refuses to accept the goods.
6. MATERIAL AND INTELLECTUAL PROPERTY
6.1 Details of the Contact and of all Material and all other information relating thereto will be treated as confidential and will not without the prior written consent of the Buyer be disclosed by the Supplier, its officers or employees, or any sub-contractor of the Supplier to any third party or used by the Supplier of any such sub-contractor for any other purpose than for supplying the Goods to or performing the Services for the Buyer.
6.2 The Materials will be maintained in good condition by the Seller and the Seller will indemnify the Buyer against any loss or damage thereto whilst the same are in the procession or control of the Seller.
6.3 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 specification, will be the exclusion property of the Buyer. The Seller will 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 to the extent required for the purpose of the Contract.
6.4 Where the Goods are designed, created or otherwise developed by the Seller for the Buyer pursuant to the Contract then all intellectual property rights therein or relating thereto throughout the world (including, without limitations, patents, copyrights, design rights, registered forgoing) will belong to the Buyer absolutely. The Seller hereby assigns such intellectual property rights to the Buyer with the intent that upon the making or creation thereof the intellectual property right will automatically vest in the Buyer.
6.5 The Seller will, at the Buyer’s request (and notwithstanding the termination of the Contract), sign and execute and procure the signature and execution of all such documents and do all such acts as the Buyer may reasonably require.
6.5.1 to vest the legal title in, apply for, obtain and maintain in force in the Buyer’s sole name (unless it otherwise directs) the intellectual property rights;
6.5.2 to enable the Buyer to resist any objection or opposition to obtaining, and any petitions or applications for a revocation of, any of the intellectual property rights;
6.5.3 to enable the Buyer to bring any proceedings for infringement of any of the intellectual property rights.
6.6 The Seller irrevocably undertakes that it will not assert against the Buyer or any third party any moral rights in or relating to the intellectual property rights and warrants that all such moral rights are irrevocably waived and extinguished. For the purpose of this clause 6, “moral right” will have the meaning ascribed thereto by the Copyright, Designs and Patents Act 1988 and all rights similar or corresponding thereto subsisting in any other country of the world from time to time.
6.7 The Material will only be used for the purpose of manufacturing and supplying the Goods and will remain the absolute property of the Buyer at all times. Al containers, pallets and packaging materials supplied will remain the property by the Buyer to the Seller will be maintained in good condition and will remain the property of the Buyer at all times. At the request of the Buyer, the Seller will at the Seller’s expense promptly return the Material and the said containers, pallets and packing materials of part thereof to the Buyer.
6.8 The Seller will not supply, manufacture, distribute or sell any goods, packaging or label incorporating the Buyer’s and/or the Buyers customer’s artwork, trade mark or trade names or representation confusingly similar to such artwork, trade marks or trade names nor any part thereof to any person other than the Buyer. Where any Goods are surplus or have been rejected then, subject to the prior written consent of the Buyer and only at times or seasons allowed by the Buyer, the Seller may dispose of or re-label such Goods for sale provided there is a complete removal of all the Buyer’s and/or the Buyer’s customer’s labels, marks and other packaging. Such removal must take place only on sites authorised by the Buyer and without sub-contracting to another party unless this is authorised in writing by the Buyer.
7. RISK AND OWNERSHIP
7.1 Risk of damage to or loss of the Goods will pass to the Buyer on delivery to the Buyer in accordance with the Contract.
7.2 The Seller will maintain such insurance as the Buyer may stipulate in respect of the Materials and as will be necessary to cover the liability of such the Seller specified in clause 6.2 and the Seller will produce to the Buyer on demand such policies of insurance and the receipts for all premiums paid there under.
8. REJECTION
8.1 Without prejudice to any of its other rights the Buyer may by notice in writing to the Seller reject any or all of the goods or Services which are found not to be in accordance with the Contract or in respect of which the Seller has failed to comply with any of its obligations under the Contract.
8.2 The Buyer will when giving notice of rejection specify the reason therefore and the Seller will remove such Goods or Services at its own risk and expense. If not so removed, the Buyer will charge the Seller a reasonable storage charge or may, after proper notice, dispose of uncollected Goods. The Seller will within a reasonable time replace such rejected Goods or Services with Goods or Services which are in all respects in accordance with the Contract and/or Specification or credit the Buyer with the invoice price thereof at the Buyer’s option, or the Buyer may carry out the remedial work on notice to the Seller and the Seller will bear the cost of such remedial work.
8.3 Any money paid by the Buyer to the Seller in respect of any rejected Goods or Services not replaced by the Seller within a reasonable time together with any additional expenditure over and above the Contract Price reasonably incurred by the Buyer or credited to the Buyer at the Buyers option.
3.4 The Buyer will not be deemed to have accepted any Goods or Services until the Buyer has had a reasonable time to inspect them (whether or not they have been Batch Inspected as provided by clause 4 above) following both delivery and removal of the outer packaging or, if later, within a reasonable time after any latent defect in the Goods or Services has become apparent. The Seller accepts and acknowledges that the Buyer cannot reasonably be expected to open the outer packaging/cartons to inspect the Goods on delivery. In the case of rejection, the invoiced cost of the rejected Goods and Services shall be credited by the Seller to the Buyer together with any return carriage costs of the Buyer and also the Buyer’s customer, if rejected by such customer.
9. PRODUCT RECALL
The Seller is responsible for immediately informing the Buyer verbally and then in writing of any adverse safety or other quality checks or results discovered subsequent to delivery. in the event of a decision being made to commence product withdrawal, the Seller is liable for all costs involved including reasonable loss of profits on sales, administration charges, costs of withdrawing and disposal or return to Seller of the Goods and any other consequential costs which may be incurred.
10. PAYMENT
10.1 The Seller invoices must state the Buyer’s Order number.
10.2 All Goods delivered to the Buyer or Service’s performed during any month will be pad for on or before the last day of the month following the month in which a proper invoice is received in respect of such Goods or Services or, if later, after acceptance if the Goods or Services in question by the Buyer.
10.3 The Buyer will be entitled to set off either against any currently outstanding invoice or any subsequent invoice issued by the Seller any sums howsoever incurred owned to the Buyer by the Seller.
10.4 The Buyer will be responsible for all duties incurred in importing the goods into the
11. TERMINATION
11.1 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
11.1.1 the Seller commits a breach of any of the terms of the Contract;
11.1.2 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) become subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
11.1.3 an encumbrancer takes procession, or a receiver is appointed, of any of the property or assets of the Seller; or
11.1.4 the Seller ceases, or threatens to cease, to carry on business; or
11.1.5 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly; or
11.1.6 the Seller, being a supplier nominated or approved by any customer of the Buyer, ceases to be so nominated or approved by such a customer.
11.2 the exercise of any of the rights granted by the Buyer under clause 11.1 above will not prejudice or affect any right of action or remedy which will have accrued or will accrue thereafter to the Buyer.
12. WARRANTS
12.1 The Seller warrants that the Goods will:
12.1.1 conform as to quantity, quality and description with the particulars stated in the Contract;
12.1.2 be of sound materials and workmanship;
12.1.3 comply in all respects to the Specification and the samples or patterns provided or given by either party;
12.1.4 be capable of any standard of performance specified in the Contract;
12.1.5 be of satisfactory quality and fit for the purpose for which they are required as indicated in the Contract either expressly or by implications;
12.1.6 comply with all applicable UK and EEC legislation, regulations and other legal requirements having the force of law in the UK concerning their manufacture, packaging, packing and delivery;
12.1.7 irrespective of the place where the Buyer intends to sell or supply the Goods, comply in all respects with all statutory requirements and regulations or other instrument having the force of law which may be in force at the time in the UK in respect of the design, construction and quality of all the circumstances;
12.2 The Seller warrants to the Buyer that the Seller’s ability to provide Goods and Services to the Buyer will be unaffected by date changes arising before, during and after year 2000.
12.3 The Seller warrants 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.
13. SOCIAL CONDITIONS
The Seller warrants on behalf of itself and on behalf of all third party manufacturers and suppliers that all employees employed in the manufacture, design, preparation of materials, workmanship and any other activities in relation to the Goods or Services and any packaging thereto are:
13.1 not less than 15 years of age, unless the local minimum age law stipulates a higher age for work, in which case the higher age will apply;
13.2 not forced, bonded or involuntarily made to work but have chosen freely to do so;
13.3 provided with a safe hygienic working environment;
13.4 paid a wage and benefits (if any) in line with national legal standards or industry benchmark standards whichever is the higher;
13.5 only working as a maximum the hours provided by national laws and the industry benchmark standards;
13.6 not physically or mentally abused, subjected to corporate punishment, disciplined or harassed, verbally or otherwise, or subject to any other inhuman behaviour.
13.7 not discriminated against in hiring and employment practices on grounds of race, religion, national origin, political affiliation, social preferences or gender.
13.8 treated in accordance with the standards required by any relevant EU Social Conditions Directive if higher than local standards.
14. INDEMNITY
The Seller will indemnify the Buyer against all actions, suits, claims, demands costs, charges, damages, losses and expenses (including legal expenses) suffered or incurred by the Buyer and/or for which it may be liable to any third party due to, arising from or in connection with:
14.1 the negligent or wilful acts or omissions of the Seller and its servants, agents or contractors in supplying, delivering and installing the Goods or performing the Services;
14.2 the breach of any warranty or provision of the Contract and/or any warranty given by the Seller in relation to the Goods or Services;
14.3 any infringement or alleged infringement of any patent, copyright, registered design, design right, trade mark or trade name or other intellectual property right for or relating to the Specification supplied by the Buyer; and
14.4 any liability under Consumer Protection Act 1987 in respect of the Goods or any other statutes or regulations from time to time in force in the UK and relating to product Safety.
15. FORCE MAJEURE
The performance by the Buyer of any of its obligations under the Contract will be deemed suspended in so far as such performance is prevented or hindered by any circumstances beyond its reasonable control including, but not limited to, strikes, lock-outs, accidents, war, fire or unavailability of power or breakdown of plant or machinery. If the cause of such suspension will continue for more than three months either party will have the right to terminate the only liability of the Buyer on such termination will be to pay the Seller for the Goods received by the Buyer and/or Services performed prior to the date of such suspension.
16. CANCELLATION
16.1 The Buyer will have the tight to vary the quantity of Goods ordered or the nature of the Services performed and to cancel future supplies of the Goods or Services upon giving to the Seller not less than one months written notice thereof. The Buyer will have no liability other than to pay for the Price for the Goods delivered (subject to clause 8 above) or Services performed prior to the expiration of the notice and for any forward materials purchased with the Buyer’s consent. Any such forward materials will then become the property of the Buyer and should be delivered in accordance with these Conditions.
16.2 Notwithstanding the provisions of clause 16.1, if the Seller will be in default or commit any breach of its obligations hereunder then the Buyer without prejudice to any other rights or remedies may forthwith by written notice terminate each and every Contract between the Buyer and the Seller without incurring any liability by reason of such termination.
16.3 Any termination or suspension of the Contract will not prejudice any rights which may have accrued to either party under these Conditions.
17. GENERAL
17.1 if any provisions of these Conditions is held by any other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question will not be affected.
17.2 The Seller will not without prior written consent of the Buyer assign or transfer the contract or any of its rights or obligations there under to any other person, firm or company.
17.3 No waiver by either party of breach of the Contract by the other will be considered as a waiver of any subsequent breach of the same or any other provision.
17.4 The headings in these Conditions are intended for reference only and do not affect their construction.
17.5 Any notice required or permitted to be given by either party to the other under these conditions will be in writing addressed to the other party at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice.
17.6 The Contract will in all aspects be governed by and constructed in accordance with English law and will be deemed to have been made in England and the parties agree to submit to the non-exclusive jurisdiction of the courts of England. For the avoidance of doubt the High Court will have jurisdiction to hear and determine any action in request of these Conditions of the Contract.
