IMS EURO LIMITED – TERMS AND CONDITIONS OF PURCHASE
1. INTERPRETATION
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are normally open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.5.
Contract: the contract between IMS Euro and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Date: the date specified in the Order or, if no date is specified in the Order, as otherwise agreed in writing between the parties.
Delivery Location: the address for delivery of Goods as set out in the Order or, if no address is specified in the Order, the delivery location provided by IMS Euro to the Supplier at any time prior to delivery.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control including but not limited to acts of God, flood, drought, earthquake, natural disaster, epidemic or pandemic, terrorism, civil war, civil commotion or riots, war, threat or preparation of war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear or chemical or biological contamination or sonic boom, law or action taken by a government or public authority, fire, explosion, building collapse, labour or trade dispute or strikes or industrial action or lockouts (other than in each case by the party seeking to rely on it, or companies in the same group as that party), interruption or failure of utility service and any other similar or comparable events.
Goods: the goods (or any part of them) set out in the Order.
IMS Euro: IMS Euro Limited, registered in England and Wales with company number 04247118 and whose registered office address is at Europa Business Park, Bird Hall Lane, Cheadle Heath, Stockport, United Kingdom, SK3 0XA.
IMS Euro Materials has the meaning set out in clause 8.
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, database rights, topography rights, moral rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Mandatory Policies: the IMS Euro’s business policies and codes listed in the Schedule 1, as amended by notification to the Supplier from time to time.
Order: IMS Euro’s order for the Goods as set out in an email from IMS Euro to the Supplier (subject to such order being clearly marked as an order).
Specification: any specification for the Goods, including any related drawings, descriptions or diagrams, that is agreed by IMS Euro and the Supplier.
Supplier: the person or firm from whom IMS Euro purchases the Goods.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by IMS Euro to purchase the Goods in accordance with these Conditions. All Orders must be made by email.
2.3 The Order shall be deemed to be accepted on the earlier of:
2.3.1 the Supplier issuing a written acceptance of the Order; and
2.3.2 the Supplier doing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions (including without limitation, for the avoidance of doubt, any documents delivered or provided with the Supplier’s written acceptance of an Order under clause 2.3.1).
3. THE GOODS
3.1 Subject to the provisions of this clause 3, IMS Euro may purchase Goods, and the Supplier agrees to supply any such Goods pursuant to an Order.
3.2 The Supplier shall ensure that the Goods and any packaging of the Goods (where applicable) shall:
3.2.1 correspond in all respects with their description and any applicable Specification.
3.2.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by IMS Euro expressly or by implication, and in this respect IMS Euro relies on the Supplier's skill and judgement.
3.2.3 where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after delivery; and
3.2.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods (which, for the avoidance of doubt, includes but is not limited to any statutory or regulatory requirements which are applicable to a particular Good as may be set out in an Order or as is notified to the Supplier by IMS Euro in an Order or prior to submitting an Order).
3.3 The Supplier shall always ensure that it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
3.4 The Supplier warrants that the Goods, the supply of the Goods and IMS Euro’s use or resale of the Goods will not infringe the Intellectual Property Rights of any third party.
3.5 IMS Euro may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier's obligations under the Contract.
3.6 If following such inspection or testing IMS Euro considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3.1, IMS Euro shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.7 IMS Euro may conduct further inspections and tests after the Supplier has carried out its remedial actions.
3.8 The Supplier Shall upon request have readily available to IMS Euro Limited or an approved third-party essential data (including product data sheets) and policies deemed necessary to fully conduct an audit on its suppliers either remotely or physically (on supplier’s premises).
3.9 Any suppliers Failure to comply with clause 3.8 IMS Euro Limited reserves the right to withdraw any product(s) from its website for purchase.
4. DELIVERY
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition.
4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments (subject to clause 4.6), the outstanding balance of Goods remaining to be delivered; and
4.1.3 if the Supplier requires IMS Euro to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
4.2.1 by the Delivery Date (save that the Supplier shall not deliver an Order more than 3 Business Days in advance of the Delivery Date without the prior written consent of IMS Euro);
4.2.2 at the Delivery Location; and
4.2.3 during IMS Euro’s normal business hours, or as instructed by IMS Euro.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 The Supplier shall be solely responsible for arranging delivery to the Delivery Location, including all costs and expenses incurred in delivery (including, where applicable, obtaining at its own cost such import and export licences and any other licences, consents, approvals or permissions in relation to the Goods as are required from time to time). Where applicable, the Supplier shall make available to IMS Euro any licences or other documentation obtained in accordance with this clause 4.4 for the Goods on request.
4.5 If the Supplier:
4.5.1 delivers less than 95% of the quantity of Goods ordered, IMS Euro may reject the Goods; or
4.5.2 delivers more than 105% of the quantity of Goods ordered, IMS Euro may at its discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Supplier's risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and IMS Euro accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.6 The Supplier shall not deliver the Goods in instalments without IMS Euro’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle IMS Euro to the remedies set out in clause 5.
4.7 IMS Euro may at any time prior to despatch of the Goods amend or cancel an Order by written notice to the Supplier (which may for the avoidance of doubt be by email). If IMS Euro amends or cancels an Order or the Contract, the Supplier shall immediately discontinue all work on the Order.
4.8 Where IMS Euro amends or cancels an Order in accordance with this clause 4.7, IMS Euro’s total liability to the Supplier shall be limited to payment to the Supplier of costs reasonably incurred and appropriately evidenced by the Supplier in fulfilling the Order up until the date of receipt of the notice of amendment or cancellation (excluding any loss of anticipated profits or any indirect or consequential loss), except that where the amendment or cancellation results from the Supplier’s failure to comply with its obligations under the Contract, IMS Euro shall have no liability to the Supplier in respect of it.
5. IMS EURO REMEDIES
5.1 If the Goods are not delivered by the Delivery Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods or made payment for them, IMS Euro may exercise any one or more of the following rights and remedies:
5.1.1 to terminate the Contract.
5.1.2 to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense.
5.1.3 to require the Supplier to repair or replace the rejected Goods within 5 days of a notice from IMS Euro to do so, or to provide a full refund of the price of the rejected Goods (if paid);
5.1.4 where IMS Euro is of the view that a defect in the Goods can be rectified, to at its option require the Supplier to rectify the defect within 5 days of notice from IMS Euro to do so, or, elect to rectify the defect itself in which case the Supplier shall reimburse IMS Euro for the costs it incurs in doing so (and IMS Euro may claim damages for any other costs, expenses or losses resulting from the Supplier’s delivery of Goods that do not conform with clause 3.1);
5.1.5 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make.
5.1.6 to obtain substitute goods from a third party and recover from the Supplier any costs incurred by IMS Euro in obtaining substitute goods; and/or
5.1.7 to claim damages for any other costs, loss or expenses incurred by IMS Euro which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
5.2 These Conditions shall apply to any repaired, rectified or replacement Goods supplied by the Supplier.
5.3 IMS Euro’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
6. TITLE AND RISK
Title and risk in the Goods shall pass to IMS Euro on completion of delivery.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date the Contract came into existence.
7.2 The price of the Goods:
7.2.1 excludes amounts in respect of value added tax (VAT), which IMS Euro shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.2.2 includes the costs of packaging, insurance and carriage of the Goods (including, where applicable, any costs associated with the export or import of the Goods).
7.3 No extra charges shall be effective unless agreed in writing with IMS Euro.
7.4 The Supplier may invoice IMS Euro for price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, IMS Euro’s purchase order number, the agreed payment terms, details of the bank account nominated by the Supplier in accordance with clause 7.5 below, the relevant Incoterms® (if applicable) and any supporting documents that IMS Euro may reasonably require.
7.5 IMS Euro shall pay correctly rendered invoices by the end of the month following the month of receipt of the invoice unless otherwise agreed in writing. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 IMS Euro shall be entitled to the Supplier’s standard discount for prompt payment (where applicable).
7.7 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when the base rate is below 0%. Where a payment is disputed in good faith, interest is only payable after the dispute is resolved on sums found or agreed to be due, from 7 days after the dispute is resolved until payment. The parties shall co-operate in good faith to resolve a dispute over an invoice as amicably and promptly as possible.
7.8 IMS Euro may at any time set off any liability of the Supplier to IMS Euro against any liability of IMS Euro to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. If the liabilities to be set off are expressed in different currencies, IMS Euro may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by IMS Euro of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
8. IMS EURO MATERIALS
The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by IMS Euro to the Supplier (IMS Euro Materials) and all rights in IMS Euro Materials are and shall remain the exclusive property of IMS Euro. The Supplier shall keep IMS Euro Materials in safe custody at its own risk, maintain them in good condition until returned to IMS Euro and not dispose or use the same other than in accordance with IMS Euro's written instructions or authorisation.
9. INDEMNITY
9.1 The Supplier shall indemnify IMS Euro against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by IMS Euro as a result of or in connection with:
9.1.1 any claim made against IMS Euro for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the manufacture, supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
9.1.2 any claim made against IMS Euro by a third party for death, personal injury or damage to property arising out of or in connection with defects in the Goods or packaging of the Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
9.1.3 any claim made against IMS Euro by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors; and
9.1.4 a product recall of Goods supplied to IMS Euro under a Contract in accordance with clause 10 including (without limitation) any claim made against IMS Euro by a third party arising out of such recall.
9.2 This clause 9 shall survive termination of the Contract.
10. PRODUCT RECALL
10.1 The Supplier undertakes to notify IMS Euro immediately where it becomes aware of a requirement or direction to recall any Goods that are provided to IMS Euro under a Contract.
10.2 Where a recall of Goods provided by the Supplier to IMS Euro under a Contract is required, the Supplier shall provide IMS Euro with all necessary assistance as a matter of urgency to effectively and promptly recall Goods from the retail or wholesale market (and at the cost of the Supplier).
11. INSURANCE
11.1 During the term of the Contract and for a period of 6 years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on IMS Euros’ request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium in respect of each insurance.
11.2 The Supplier’s liabilities under the Contract shall not be deemed to be released or limited by the Supplier taking out any insurance policy referred to in clause 11.1.
12. COMPLIANCE WITH RELEVANT LAWS AND POLICIES
12.1 In performing its obligations under the Contract, the Supplier shall:
12.1.1 comply with all applicable laws, statutes, regulations and codes from time to time in force; and
12.1.2 comply with the Mandatory Policies.
12.2 IMS Euro may immediately terminate the Contract for any breach of this clause 12.
13. TERMINATION
13.1 Without limiting its other rights or remedies, IMS Euro may terminate the Contract with immediate effect by giving written notice to the Supplier if:
13.1.1 the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so.
13.1.2 the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
13.1.3 the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with its creditors, having a receiver appointed to any of its assets, or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
13.1.4 the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.5 the Supplier's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy.
13.2 On termination or expiry of the Contract, the Supplier shall immediately return all IMS Euro Materials. If the Supplier fails to do so, then IMS Euro may enter the Supplier's premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract.
13.3 Termination or expiry of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
13.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
14. FORCE MAJEURE
14.1 Subject to the remaining provisions of this clause 14, neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform any of its obligations under the Contract if such delay or failure results from a Force Majeure Event.
14.2 The Supplier shall ensure that it has in place during the term of the Contract, and is able to implement the provisions of, a business continuity plan to mitigate the effect of any unplanned interruption or event that would significantly impact on the ability of the Supplier to perform its obligations under the Contract. The Supplier shall provide a copy of its business continuity plan to IMS Euro on request.
14.3 Where a Force Majeure Event occurs which affects the Supplier, any relief or rights of the Supplier under this clause 14 will be conditional on:
14.3.1 the Supplier having a business continuity plan in place in accordance with clause 14.2; and
14.3.2 the Supplier implementing its business continuity plan where appropriate in response to the Force Majeure Event.
14.4 Subject to clause 14.3, provided it has complied with clause 14.5, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
14.5 The Affected Party shall:
14.5.1 as soon as reasonably practicable after the start of the Force Majeure Event but no later than 7 days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Contract: and
14.5.2 use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
14.6 If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of 8 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 2 weeks’ written notice to the Affected Party.
15. GENERAL
15.1 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of IMS Euro. If IMS Euro consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.
15.2 Confidentiality. The parties agree that the terms of the Contract and any written or oral information exchanged between the parties relating to or concerning the business, affairs, customers, clients or suppliers of the other party is confidential information. Neither party shall at any time disclose to any person such confidential information without the prior consent of the other party unless disclosure is required by law, a court of competent jurisdiction or any governmental or regulatory authority or disclosure is required on a confidential basis to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract.
15.3 Assignment and other dealings. IMS Euro may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Supplier may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of IMS Euro.
15.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.5 Variation. No variation of this Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by IMS Euro.
15.6 Waiver. Except as set out in clause 2.4, no failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 15.7 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
15.8 Compliance. Nothing in these Conditions shall be deemed to limit or exclude any liability which cannot legally be limited including but not limited to either party’s liability for death or personal injury caused by negligence or fraud or fraudulent misrepresentation.
15.9 Notices. Any notice given to a party under or in connection with the Contract shall be in writing and addressed to its registered office address (or such other address that may be nominated by a party from time to time) and shall be deemed to have been delivered on delivery if by hand or within 48 hours of posting if sent by prepaid first class registered post. A notice given under the Contract is not valid if sent by email.
15.10 Third Party Rights. All third-party rights are excluded, and no third parties shall have any rights to enforce the Contract.
15.11 Governing Law and Jurisdiction. The Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts in relation to any matter or dispute arising out of or in connection with it (whether of a contractual or tortious nature or otherwise).
Schedule 1
IMS EURO’s MANDATORY POLICIES
The Mandatory Policies are:
· Modern Slavery and Human Trafficking Policy.
· Anti-Bribery and Anti-Corruption Policy.
· Money Laundering.
· Ethics Policy.