In these conditions the following expressions will have the following meanings unless inconsistent with the context:
“Authorised Signatory” a person designated as such by BwD from time to time;
“Contract” the contract between BwD and the Seller consisting (in order of precedence) of the Purchase Order subject to any variation under Condition 3 (i.e. to any Purchase Order Amendment) or Letter of Tender Acceptance, these Conditions, and any other documents (or parts thereof) specified in the Purchase Order (and any Purchase Order Amendment) or in the Letter of Tender Acceptance;
“Goods” any goods which the Seller supplies to BwD (including any part of them) under a Contract;
“Letter of Tender Acceptance” any authorised letter of tender acceptance given by BwD to the Seller in response to the Seller’s tender bid submission;
“BwD” Blackburn with Darwen Borough Council, Town Hall ,King William Street ,Blackburn,BB1 7DY;
“Packaging” any type of packaging including without limitation bags, cases, cylinders, drums, pallets, tank wagons and any other containers;
“Price” the price as defined in Condition 4;
“Purchase Order” any authorised purchase order of BwD (incorporating these Conditions) for Goods and/or Services;
“Purchase Order Amendment” any authorised Purchase Order amendment form or series of Purchase Order amendment forms, each Purchase Order amendment form having precedence over any earlier Purchase Order amendment form;
“Seller” the person, firm or company to whom the Purchase Order or Purchase Order Amendment or Letter of Tender Acceptance (as appropriate) is addressed;
“Services” any services which BwD receives from the Seller (including any part of them) under a Contract;
“Specifications” the technical description (if any) of the Goods and/or Services contained or referred to in either the Purchase Order, Purchase Order Amendment or Letter of Tender Acceptance(as appropriate); The headings in these Conditions are intended for reference only and do not affect their construction.
2.1 These Conditions shall 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 acknowledgment of the Purchase Order or Purchase Order Amendment or Letter of Tender Acceptance, the letter or form of contract sent by the Seller to BwD or any other communication between the Seller and BwD whatever may be their respective dates the provisions of these Conditions shall prevail unless expressly varied in writing and signed by BwD’s Authorised Signatory. If in any particular case any of these Conditions shall be held to be invalid or shall not apply to the Contract such provision will to the extent required be severed from these Conditions and the remainder of these Conditions shall continue in full force and effect.
2.2 Each quotation for Goods and/or Services from the Seller will be deemed to be an offer by the Seller to sell the Goods and/or Services upon these Conditions. The Contract is only formed when either:
2.2.1 an official Purchase Order signed by BwD’s Authorised Signatory; or
2.2.2 a Letter of Tender Acceptance signed by BwD’s Authorised Signatory; is served by BwD on the Seller. Delivery of the Goods and/or performance of the Services in response to a Purchase Order or Purchase Order Amendment (if any) or Letter of Tender Acceptance shall be taken to imply that you have accepted the terms and conditions of this Contract.
3. Purchase order amendment
3.1 BwD shall have the right to send the Seller a Purchase Order Amendment adding to, deleting or modifying the Goods and/or Services. If the Purchase Order Amendment causes a change to the price or delivery date then the Seller shall promptly notify BwD of such change, calculating the new price and delivery date at the same level of cost and profitability as the original price. The Seller will allow BwD a minimum of 10 working days to consider any new price and/or delivery date.
The Purchase Order Amendment shall only take effect if BwD accepts in writing any new price and/or delivery date failing which the performance of the Contract will immediately resume as though the said Purchase Order Amendment had not been issued except BwD may still exercise its right of cancellation in accordance with clause 14.1.
4. Price and payment
4.1 The Price for the Goods and/or Services will be the fixed price stated in the Contract. If no price is stated in Contract then the Price shall be a fair price, taking into account prevailing market conditions. The Price shall include all charges including, without limitation, Packaging, packing, shipping, loading, carriage, insurance, delivery, installation and commissioning (as applicable) but shall exclude VAT which shall be shown separately.
4.2 No variation to the Price or extra charges can be made without the prior written consent of BwD.
4.3 Unless otherwise stated in the Contract, BwD shall pay the Seller within 30 days of receipt of a correctly rendered invoice addressed to the department indicated on the Purchase Order or Letter of Tender Acceptance and stating the Purchase Order or Letter of Tender Acceptance number. BwD shall not be responsible for any delays in payment caused by the Seller failing to comply with BwD’s invoicing instructions as specified in this Condition
4.3.Payment shall at all times comply with requirements of Regulation 113 of the Public Contracts Regulations 2015.
4.4 Without prejudice to any other right or remedy, BwD reserves the right to set off any liability of the Seller to BwD against any liability of BwD to the Seller (in either case howsoever arising and whether any liability is present or future, liquidated or unliquidated and irrespective of the currency).
5. Quality and description
5.1 The Seller warrants to BwD that the Goods and/or the Services:
5.1.1 conform in every respect with the provisions of the Contract;
5.1.2 comply with all applicable standards, regulations and current legislation in force in the United Kingdom at the time when the same are supplied;
5.1.3 are new (unless otherwise specified on the Purchase Order (or any Purchase Order Amendment) or Letter of Tender Acceptance) and are of sound materials and skilled and careful workmanship;
5.1.4 equal in all respects the Specifications and the samples or patterns provided by either party and accepted by the other;
5.1.5 are capable of any standard of performance specified in the Contract and are of satisfactory quality;
5.1.6 are free from defects in design, material and workmanship; and
5.1.7 if the purpose for which they are required as indicated in the Contract either expressly or by implication, are fit for that purpose.
6. Inspection, testing and samples
6.1 If so required by BwD the Seller shall submit samples of the Goods for BwD’s approval before the bulk of the relevant Contract is delivered or before the bulk of the Services are performed (as the case may be). Such samples should be marked for identification by the Seller and will be retained by BwD until the Services are completed or the Goods have been delivered.
6.2 BwD shall be entitled to inspect and test the Goods during manufacture, processing or storage or check the progress of the Services. If BwD exercises this right, the Seller shall provide or shall procure the provision of all such facilities as may reasonably be required by BwD therefore.
6.3 If as a result of any inspection or test (pursuant to Condition 6.2) BwD’s representative is of the reasonable opinion that the Goods and/or Services do not comply with the Contract or are unlikely on completion of manufacture or processing so to comply BwD may inform the Seller accordingly and the Seller shall promptly take such steps as may be necessary to ensure such compliance.
7.1 The Goods shall be properly packed, secured and despatched at the Seller’s expense to arrive in good condition at the time or times and the place or places specified in the Contract unless otherwise prior agreed in writing by the parties.
7.2 The Seller will off-load the Goods at its own risk as directed by BwD. If the Seller delivers any Goods at the wrong time or to the wrong place then BwD may deduct from the Price any resulting costs of storage or transport. The Services will be provided at the address stated in the Contract. The Goods and/or Services will be delivered and/or performed during BwD’s normal office hours on the date or within the period specified in the Purchase Order (or any Purchase Order Amendment) or Letter of Tender Acceptance, or if no such period is specified then within 28 days of the date of the Contract. Time for delivery and/or performance will be of the essence and if BwD terminates the Contract pursuant to this Condition 7.2, then without prejudice to any other of its rights, BwD shall have the power to purchase elsewhere and charge the Seller with any extra expense incurred by BwD.
7.3 Unless otherwise prior agreed by BwD in writing, BwD shall have no obligation to pay for or return Goods whether or not re-usable. If the Contract states that Goods are returnable, the Seller must provide full disposal instructions prior to delivery and the Goods must be marked clearly to show to whom they belong. BwD shall not be liable for any Goods lost or damaged in transit.
7.4 All Goods should be accompanied by a detailed advice note stating the Purchase Order or Letter of Tender Acceptance number and giving full particulars of the Goods supplied. A copy of the advice note must be sent to BwD on the day upon which the Goods are delivered together with an invoice stating the Purchase Order or Letter of Tender Acceptance number must be promptly delivered to BwD.
7.5 If for any reason BwD is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery, the Seller shall (if his/their storage facilities permit) store the Goods, safeguard them and take all reasonable steps to prevent their deterioration until their actual delivery and BwD shall be responsible for any reasonable and properly incurred costs of the Seller associated with such storage pursuant to this Condition 7.5.
7.6 The Seller may not deliver the Goods by separate instalments or perform the Services in stages unless prior agreed in writing by BwD’s Authorised Signatory. If BwD does not agree, the Contract will be construed as a separate Contract in respect of each instalment or stage, and without prejudice to any other right or remedy, BwD will have the right to:
7.6.1 treat all the Contracts for the total Purchase Order or Letter of Tender Acceptance (as appropriate) as repudiated if the Seller fails to deliver or perform any instalment at any stage; and
7.6.2 reject any or all of the instalments for the total Purchase Order or Letter of Tender Acceptance (as appropriate) if BwD is entitled to reject any one instalment.
7.7 BwD will not be deemed to have accepted the Goods until it has had 14 days to inspect them following delivery. BwD will also have the right to reject the Goods as though they had not been accepted for 14 days after any latent defect in the Goods has become apparent.
8.1 The Seller shall bear all risk of loss or damage to the Goods until they have been delivered and shall insure accordingly.
8.2 Ownership of the Goods shall pass to BwD when the Goods have been delivered but without prejudice to BwD’s right of rejection under this Contract.
9. Work on BwD’s premises
9.1 If the Contract involves any Services which the Seller is to perform on BwD’s premises then the Seller, its employees, sub-contractors and their employees and any other person associated with the Seller shall:
9.1.1 adhere in every respect to the obligations imposed on them by current legislation; and
9.1.2 comply with any regulations and/or codes of practice that BwD may notify to the Seller in writing.
10.1 The Seller shall observe all legal requirements of the United Kingdom and the European Union and all relevant agreements and guidance in relation to health, safety and environment, and in particular to the making of hazardous Goods, the provision of data sheets for hazardous materials, and all provisions relating to food.
11. BWD’s Equipment and material
11.1 All drawings, specification (including the Specifications), information (“Material”) supplied by BwD to the Seller in connection with the Contract are confidential and, without BwD’s prior written consent, shall not at any time be published or disclosed or made use of except for the purpose of implementing the Contract.
11.2 All jigs, tools, moulds, patterns and other equipment (the “Equipment”) supplied to the Seller or purchased by BwD from the Seller for the performance of the Contract shall be maintained in good condition by the Seller and the Seller shall indemnify BwD against all loss thereof or damage thereto whilst the same are in the Seller’s possession or control.
Any Materials and/or Equipment shall only be used for the purpose of manufacturing and supplying the Goods to or performing the Services for BwD and shall remain BwD’s property at all times.
11.3 All Packaging supplied by BwD to the Seller shall be maintained in good condition and shall remain BwD’s property at all times. At BwD’s request, the Seller shall promptly return any Material, Equipment and/or Packaging to BwD.
11.4 Without prejudice to the Seller’s liability under this Condition 11, the Seller shall maintain such insurance as BWD may stipulate in respect of the Material and the Equipment and as shall be necessary to cover the said liability of the Seller and the Seller shall produce to BwD on demand a current certificate of insurance from the insurers under such policies.
12. Intellectual property
12.1 All intellectual property rights, including (without limitation) patents, copyright, database rights, domain names, trade or business names inventions, trade marks, service marks, logos, design rights (whether registrable or otherwise), registered designs, know-how and the rights to apply for any of the foregoing, moral rights and other similar rights or obligations whether registrable or not in any country (including but not limited to the United Kingdom) and the right to sue for passing off (“the Intellectual Property Rights”) in any specifications, instructions, plans, data, drawings, databases, patents, patterns, models, designs or other material:
12.1.1 provided to the Seller by BwD shall remain the property of BwD; or
12.1.2 prepared by or for the Seller specifically for the use, or intended use, in relation to the performance of the Contract shall belong to BwD subject to any exceptions agreed in writing between the parties.
12.2 The Seller shall obtain approval before using any material, in relation to performance of the Contract which is or may be subject to any third party Intellectual Property Rights. The Seller shall procure that the owner of the rights grants to BwD a non-exclusive licence, or if itself a licensee of those rights, shall grant to BwD an authorised sub-licence, to use, reproduce and maintain the material. Such licence or sub-licence shall be non-exclusive, perpetual and irrevocable, shall include the right to sub-licence, transfer, novate or assign to other local authorities or to any other third party providing services to BwD, and shall be granted at no cost to BwD.
12.3 It is a condition of the Contract that performance by the Seller will not infringe any Intellectual Property Rights of any third party and the Seller shall during and following expiry of the Contract on written demand indemnify BwD and keep BwD indemnified without limitation against all liabilities which BwD may suffer or incur as a result of or in connection with any breach of this clause, except where any such claim relates to the act or omission of BwD.
12.4 At the termination of the Contract the Seller shall at the request of the BwD immediately return to BwD all materials, work or records held in relation to the Contract, including any back-up media.
13.1 Without prejudice to any other of its rights BwD may by notice in writing to the Seller reject any or all of the Goods if the Seller fails to comply with any of its/his obligations under the Contract.
13.2 BwD shall when giving notice of rejection specify the reason therefore and the Seller shall remove such Goods at its risk and expense. In such case the Seller shall:
13.2.1 at BwD’s option replace such rejected Goods with goods which
are in all respects in accordance with the Contract or credit BwD with the invoice price thereof and reimburse BwD all freight and handling costs reasonably incurred by BwD and/or for which it may be liable in respect of such Goods; or
13.2.2 reimburse BwD all freight and handling costs reasonably incurred by BwD in the implementation of a stock recovery, recall or market withdrawal of the Goods in any part of the world.
14. Cancellation and termination
14.1 BwD shall acting reasonably be entitled to cancel any Purchase Order or any Purchase Order Amendment or Letter of Tender Acceptance in whole or in part by giving to the Seller a minimum of seven days’ written notice prior to delivery or performance of the Goods and/or Services in which event BwD’s sole liability shall be to pay to the Seller fair and reasonable compensation for work-in-progress at the time of cancellation but for the avoidance of doubt such compensation shall not include loss of anticipated profits or any consequential loss.
14.2 BwD shall have the right at any time by giving notice in writing to the Seller to terminate the Contract with immediate effect if:
14.2.1 the Seller is in continuing or material breach of any of the terms of the Contract and the breach is incapable of remedy;
14.2.2 the Seller is in continuing or material breach of any of the terms of the Contract and, the breach is capable of remedy, but the Seller fails to remedy such breach within 14 days of service of a written notice from BwD, specifying the breach and requiring it to be remedied;
14.2.3 any distress, execution or other legal process is levied upon any of the assets of the Seller;
14.2.4 the Seller becomes bankrupt, insolvent, makes any composition with its creditors, has a receiver appointed under the Mental Health Act 1983 or dies;
14.2.5 the Seller ceases to trade or appears in the reasonable opinion of BwD likely or is threatening to cease to trade;
14.2.6 the Seller has a change in Control which the BwD believes will have a substantial impact on the performance of the Contract;
14.2.7 the equivalent of any of the above occurs to the Seller in another jurisdiction to which the Seller is subject or BwD reasonably anticipates that one of the above set of circumstances is about to occur.
14.3 The termination of the Contract, howsoever arising, will be without prejudice to the rights and duties of either party prior to termination. Any provision of these Conditions which expressly or impliedly has effect after termination will continue to be enforceable notwithstanding termination.
15. Warranty and indemnity
15.1 Without prejudice to any other remedies of BwD, the Seller shall promptly (at BwD’s option) repair or replace all Goods which are or become defective during the period of twelve months from the date of delivery where such defect occurs under proper usage and is due to faulty design, the Seller’s erroneous instructions as to use or erroneous data or inadequate or faulty materials or workmanship, or any breach by the Seller of any provision of the Contract. Repairs and replacements shall themselves be subject to the foregoing obligations for a period of twelve months from the date of delivery, re-installation or passing of tests (if any) whichever is appropriate after repair or replacement. If any Services are found to have been performed defectively within twelve months of the date of their performance the Seller shall forthwith upon notice thereof re-perform the same. 15.2 The Seller will indemnify and keep indemnified BWD from and against all costs, expenses, liabilities (including any tax liability) injuries, direct loss, damages claims, demands, proceedings or legal costs (on a full indemnity basis) and judgements which BWD incurs or suffers as a consequence of a direct breach or negligent performance by the Seller (its employees, agents or contractors) or failure or delay in performance of the terms of the Contract or for any infringement or alleged infringement of any patent, copyright, registered design, design right, trade mark, trade name or other intellectual property right for or relating to the Goods and/or Services unless such infringement has occurred directly as a result of any Specification supplied by BWD.
15.3 Neither party shall be liable to the other party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, cost or expenses of any nature whatsoever incurred or suffered by that other party of an indirect or consequential nature including without limitation any economic loss or other loss of turnover, profits, business or goodwill.
15.4 Neither party excludes or limits liability to the other party for death or personal injury caused by its negligence or for any breach of any obligations implied by section 2 of the Supply of Goods and Services Act 1982 or for fraudulent misrepresentation.
16.1 The Contract is personal to the Seller who may not assign, delegate, licence, hold on trust or sub-contract all or any of its rights or obligations hereunder without the prior written consent of BwD’s Authorised Signatory and such consent shall be conditional upon the Seller remaining liable at all times for its obligations arising under the Contract.
16.2 BwD may assign, delegate, licence, hold on trust or sub-contract all or any part of its rights or obligations under the Contract.
16.3 The Seller (and any sub contractor) shall not unlawfully discriminate either directly or indirectly within the meaning and scope of any law (whether on such grounds as maternity age, ethnicity, marital status, gender, transgender, religion and belief, disability, sexual orientation or otherwise in employment) including but not limited to the Equality Act 2010.
16.4 The Seller notes BwD's obligations under the General Data Protection Regulation ((EU)2016/679), Freedom of Information Act 2000, Human Rights Act 1998 and any codes of practice and best guidance notes issued by the government and appropriate enforcement agencies. The Seller will comply with this legislation in so far as it places obligations on it as well as facilitating BwD's compliance. In particular, the Seller notes that BwD may be required to provide information relating to this Contract or the Seller to a person in order to comply with BwD’s obligations under such legislation.
16.5 In connection with this or any other contract between the parties, the Seller shall not give, provide, or offer to BwD’s staff and agents any loan, fee, reward, gift or any emolument or advantage whatsoever which is an offence under the Bribery Act 2010 and/or section 117(2) of the Local Government Act 1972. In the event of any breach of this Condition 16.5, BwD shall, without prejudice to its other rights, be at liberty forthwith to terminate this Contract and any other contract and to recover from the Seller any loss or damage resulting from such termination.
16.6 If either party is delayed in carrying out an obligation under the Contract by reason of a circumstance beyond the party’s control and it gives written notice to the other party within five (5) working days of the circumstance and the anticipated delay the time for performing the obligation will be extended for such period as is reasonable If the circumstance continues for more than 2 months either party may give written notice to terminate the Contract immediately or on an agreed termination date. If the Contract is terminated under this Condition 16.6 neither party will have any liability to the other except that any rights and liabilities which accrued prior to termination will continue to exist.
16.7 A failure at any time to enforce any provision of the Contract shall in no way affect the right at a later date to require complete performance of the Contract; nor shall the waiver of the breach of any provision be taken or held to be a waiver of any subsequent breach of the provision or be a waiver of the provision itself or any other provision.
16.8 No variation to these Conditions shall bind BwD unless approved in writing by BwD’s Authorised Signatory.
16.9 The parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
16.10 The Contract shall be subject to English Law and the exclusive jurisdiction of the English courts.
16.11 This Contract shall not create the relationship of partnership or principal and agent or employer and employee.