Terms and Conditions of Purchase

Terms and Conditions of Purchase

November 2022.Version 1.2

BBI GROUP STANDARD TERMS AND CONDITIONS OF SALE

  1. Interpretation

                        In these conditions of sale:-

“Affiliate”: any entity that directly or indirectly controls, is controlled by or is under common control with another entity where control means direct or indirect ownership of at least 50% of the voting stock of any body corporate, or any comparable equity or ownership interest or the legal power to direct or cause the direction of the general management of any organisation.

"BBI" means BBI Solutions OEM Limited or where otherwise identified in an Order or similar, an Affiliate;

"Conditions" means these terms and conditions;

“Contract” means a contract between BBI and the Customer for the sale and purchase of the Goods in accordance with the Conditions;

"Customer" means the party placing the Order;

"Goods" means the goods which are the subject of the Order;

“Force Majeure Event” means an event, circumstance or cause beyond BBI’s reasonable control, as described further in Clause 22.1;

"Intellectual Property" means all patents, design rights (whether registered or unregistered), trade marks, service marks, utility marks, domain names, trade and business names, publicly available and registered applications for any of the foregoing, copyrights, inventions, confidential information, trade secrets, know-how and registered database rights including all applications for the same, all extensions and renewals to any of them and publicly available and registered applications for any of them and any right or form of protection of a similar nature and having equivalent or similar effect to any of them which may subsist anywhere in the world;

"Order" means the order from the Customer  to purchase the Goods from BBI;

"Price " means the price payable in accordance with Clause 4 hereof;

"Site" means the site to which the Goods are delivered to.

“Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and BBI.

  1. Preliminaries
    1. Unless expressly stated to the contrary by BBI in writing, these Conditions shall be deemed to be incorporated into the Contract between BBI and the Customer for the purchase of the Goods and shall be deemed to override any terms or conditions which are inconsistent with them.
    2. Unless otherwise agreed in writing by BBI these Conditions, as amended from time to time by BBI, supersede any earlier sets of conditions of sale appearing on BBI’s price list, quotation forms, order forms, invoices or on any other document whatsoever.
    3. Notwithstanding clause 2.2, if BBI and the Customer have executed a formal written contract which is in full force and effect, the terms and conditions of that contract will apply and govern, to the exclusion of any inconsistent Conditions.
    4. BBI shall not be obliged to question the authority of any signature stated to be made by or on behalf of the Customer that is affixed to any credit application, order, acceptance of delivery or other document whatsoever.
    5. Without prejudice to Clause 2.2, neither the Customer nor BBI shall be bound by any variation, waiver of or addition to these Conditions in respect of the Contract, except as agreed by both parties in writing. 
    6. If any of the provisions of these Conditions are held by any court or other competent authority to be void or unenforceable in whole or in part, the other provisions of the Conditions and the remainder of the affected provisions shall continue to be valid.
  2. Basis of Contract
    1. The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
    2. The Order shall be deemed to be accepted, and a contract formed, when BBI has issued a written acceptance of the Order. BBI’s confirmation of receipt of a request or Order or acknowledgement of an Order is not to be taken as acceptance of that request or Order.
    3. Any samples, drawings, descriptive matter or advertising produced by BBI and any descriptions or illustrations contained on BBI’s website or in any promotional material or literature are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force
  3. Goods
    1. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify BBI against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by BBI in connection with any claim made against BBI for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with BBI's use of the Specification. This Clause 4.1 shall survive termination of the Order.
    2. BBI reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and BBI shall notify the Customer in any such event.
  4. Price
    1. The Price payable for the Goods shall be the Price indicated on the Order as accepted by BBI.
    2. The Price set out in the Order is based on the cost of labour materials delivery and overhead charges which apply at the date of the Order.  BBI may, by giving notice to the Customer at any time before delivery, increase the Price of the Goods to reflect any increase in the cost of the Goods that is due to:
      1. any factor beyond BBI's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      2. any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
      3. any delay caused by any instructions of the Customer or failure of the Customer to give BBI adequate or accurate information or instructions.
    3. The Price set out in the Order shall be Ex Works and specifically excludes packaging, delivery insurance and VAT unless stated to the contrary.
  5. Terms of Payment
    1. BBI shall be entitled to invoice the Customer on or at any time after delivery of the Goods as the case may be, and each invoice shall quote the number of the Order.
    2. Unless otherwise stated in the Order, the Customer shall pay the Price of the Goods within 30 days of the date of the invoice in full and cleared funds to a bank account nominated in writing by BBI.
  6. Overdue Payments
    1. Time for payment of all sums under the Order shall be of the essence.  If payment is not made in full within the time specified in Clause 6.2 whether the same be demanded or not BBI shall be entitled (without prejudice to any other rights it may have):
      1. to charge interest at the rate of 4% per annum above the current base rate of Barclays Bank plc on all outstanding payments from the date due and up to and including the date on which final settlement is made in full;
      2. to require payment in advance of delivery of undelivered Goods;
      3. to refuse to make any delivery of any undelivered Goods whether ordered under the Order or not and without incurring any liability whatsoever to the Customer for non‑delivery or any delay in delivery; and
      4. to terminate the Order.
    2. For the avoidance of doubt the Customer shall not be entitled to set off any claim for payment it may have against BBI, unless such claim has been upheld by a court.
  7. Additional Costs

Should additional costs be incurred by BBI for any reason outside of BBI's control such additional costs as well as the costs incurred of keeping any of BBI's employees or contractors on Site after completion of the provision of the Goods shall be added to the Price of the Order and paid for accordingly at the next payment instalment.

  1. Access

The Customer shall be responsible for ensuring that BBI, its employees and contractors have access to the Site to deliver the Goods.

  1. Delivery
    1. All Goods are delivered by Ex Works (Crumlin (Incoterms 2020). BBI shall arrange delivery only if requested to do so by the Customer and the cost of such delivery and insurance of the goods during transportation shall be reimbursed to BBI by the Customer.
    2. For the avoidance of doubt, the Customer acknowledges and understands that they are solely responsible for payment of any and all taxes, charges, levies, duties, excises, assessments and any other fees in respect of the purchase, sale, importation, exportation or distribution of the Goods, sold to them by BBI under this Contract
    3. BBI shall not be liable for any damage or loss to the Goods during transit unless BBI and the carriers concerned are notified within 3days of delivery or in the case of non delivery within 7 days from the date of receipt of an invoice from BBI in respect of the Goods concerned.
    4. Any dates stated by BBI for the delivery of the Goods are approximate only and do not form part of the Order and the Customer agrees that the time of delivery shall not be of the essence of the Order. The Goods may be delivered in advance of any quoted delivery date upon giving reasonable notice to the Customer.
    5. Delivery is completed on the completion of the loading of the Goods onto the transit vehicle.
    6. BBI shall not be liable to any extent for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide BBI with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    7. If the Customer fails to accept delivery of the Goods, then, except where such failure or delay is caused by a Force Majeure Event or BBI’s failure to comply with its obligations under the Contract in respect of the Goods, then delivery of the Goods shall be deemed to have been completed at 9.00 am on the following day.
    8. If BBI delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them.
    9. BBI may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  2. Quality
    1. BBI assumes that all Goods ordered from it are suitable for the purpose for which they are required.  BBI is not required to enquire further from the Customer as to the use to which the Customer wishes to put the Goods.
    2. The Customer acknowledges that the Goods will be used only in accordance with the specific instructions included with the packaging of the Goods and BBI will not be liable for any fault or defect caused as a result of:
      1.  the Customer not following BBI’s specific instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same; or
      2. fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
    3. The Customer accepts and acknowledges that they have not relied on any representation, warranty or other provision made by BBI or its agents where such representation, warranty or other provision relates to:
      1. the correspondence of the Goods to any description;
      2. the quality of the Goods; or
      3. the fitness of the Goods for any purpose whatsoever;

and BBI shall have no liability whatsoever in respect of the same.

    1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
  2. Onwards sale and marketing of the Goods
    1. The Customer shall be responsible for ensuring that at all times during the Contract, it shall not sell or market the Goods to any regions marked as ‘very high’ risk on the Global Corruption Index and/or to any person(s), regime, organisation or entity appearing on the UK Sanctions List or any other official sanctions list issued by the UK Government.
    2. The Customer agrees that it shall indemnify BBI against all liabilities, costs, expenses, damages, fines, penalties and losses (including but not limited to any direct losses, interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by BBI arising out of or in connection with the breach of the Customer’s obligations under Clause 12.1 above and that without affecting any other right or remedy available to BBI, BBI may terminate any Orders with immediate effect by giving notice to the Customer if the Customer breaches any of its obligations under Clause 12.1 above.
  3. Risk
    1. Notwithstanding any provision which may suggest the contrary in these Conditions, the Goods are at the risk of the Customer from the moment they are despatched, collected or due to be collected from BBI’s premises and from such date until the Date of Payment, as defined in Clause 15, the Customer shall be in a fiduciary relationship with and be the agent of BBI in relation to the Goods. In no circumstances shall the carriers of the Goods be or be deemed to be the employees, agents or representatives of BBI.
    2. Without prejudice to any other Clauses in these Conditions the Customer hereby agrees:-
      1. to inform BBI in writing within 14 days of despatch or posting by BBI to the Customer of an invoice or an advice note that the Goods to which they relate have not been delivered; and
      2. to inform BBI in writing immediately if any Goods despatched by BBI to the Customer appear to have been damaged in transit.
  4. Title

Title to the Goods will be transferred to the Customer upon receipt by BBI of all sums owed to BBI by the Customer in respect of the Goods and (if any) in respect of other items and (if any) in respect of amounts owing under Clause 4, Clause 6 and\or Clause 16 hereof (hereinafter referred to as “the Date of Payment”).

  1. Property
    1. Until the Date of Payment of all the said    sums:-
      1. title in the Goods shall remain with BBI;
      2. BBI may retake possession of and permanently retain the Goods;
      3. the Customer will, if so required by BBI store the Goods in such a way that indicates the Goods are clearly the property of BBI; and
      4. if the Goods become constituents of or converted into other products (“the New Goods”) in such a way that the Goods are not rapidly identifiable and removable, the Customer shall store such New Goods separately and shall notify BBI of the precise location and position thereof and the ownership of such New Goods and the property therein shall vest in BBI.
    2. Upon any sale of any New Goods falling within the scope of the foregoing provision by BBI, then if the proceeds of the sale exceed the Price or the balance of the Price of the Goods due to BBI from the Customer BBI shall apply the Balance of the proceeds of sale as follows:-
      1. first reimbursing BBI the cost and expenses of the taking of possession and the sale of the New Goods and any damage which BBI has suffered as a result of any repudiation of the Contract by the Customer.
      2. secondly, paying any sums due and owing to other creditors of the Customer in respect of other items and materials used in connection with  the manufacture of the New Goods where the property in such items and materials has remained vested in such other creditors by reason of effective reservation of title clauses and the claim of such other creditors pursuant to such reservation of title clauses have been notified to BBI by the Customer or its liquidator, administrator or receiver or by such other creditors.
  2. Storage

If the Goods are ready for delivery but are held back in accordance with the Customer’s instructions or if the Customer shall fail to accept delivery BBI may require the Customer to pay its additional delivery charges, to pay a reasonable storage fee to be determined by BBI which shall apply at the expiry of three days from the date the Customer is told that the Goods are ready for despatch or immediately if the Customer fails to accept delivery.

  1. Return of Goods
    1. Goods may only be returned to BBI if the prior written consent of BBI has first been obtained.
    2. Goods shall be deemed to be in accordance with the Order unless the Customer notifies BBI in writing within 7 days of the delivery date.
  2. Cancellation

BBI may in its absolute discretion accept the cancellation of an Order in writing providing it is indemnified by the Customer in respect of all costs and expenses incurred and for loss of profits prior to the cancellation being accepted but in no circumstances is BBI obliged to accept any cancellation.

  1. Limitation of Liability
    1. Nothing in these Conditions limits any liability which cannot legally be limited, including liability for:
      1. death or personal injury caused by negligence;
      2. fraud or fraudulent misrepresentation;
      3. breach of the terms implied by section 12 of the Sale of Goods Act 1979.
    2. BBI shall not be liable for any indirect or consequential loss, loss of profits, loss of sale or business, loss of agreements or contracts, loss of anticipated savings, loss of use or corruption of software, data or information, loss of or damage to goodwill or special loss arising out of any breach of condition, warranty or contract on the part of BBI in respect of the Goods.
    3. Without prejudice to clause 19.1, BBI’s total liability to the Customer  in respect of the Goods shall be limited to the fees paid by the Customer to BBI for the Goods under which the liability arose. .
  2. Exclusions
    1. All implied terms and conditions or warranties whether statutory or otherwise as to:
      1. the correspondence of the Goods to any description;
      2. the satisfactory  quality of goods provided as part of the Goods; and
      3. the fitness of the Goods and for any purpose whatsoever (whether made known to BBI or not);

are hereby excluded from the Order (other than as may be expressly set out in these Conditions).

  1. Intellectual Property Rights
    1. Nothing in these Conditions shall give the Customer any rights in respect of any Intellectual Property used by BBI in relation to the Goods or of the goodwill associated therewith, and the Customer hereby acknowledges that, except as expressly provided in these Conditions it shall not acquire any rights in respect thereof and that all such rights and goodwill are, and shall remain, vested in BBI.
    2. The Customer acknowledges and agrees that they will not disassemble, de-compile, reverse engineer or otherwise seek to determine the structure or sequence  of the Goods without BBI’s prior written consent.
  2. Force Majeure
    1. A Force Majeure Event, includes, without limitation; any war invasion, acts of foreign enemy hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, strikes, lock outs, break downs of plant or equipment or any cause (whether or not of a like nature) which are outside of BBI's direct control.
    2. BBI shall not be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from a Force Majeure Event. In such circumstances, BBI shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for more than 6 weeks, the BBI shall be released from all its liabilities incurred in respect of the Order whatsoever and to the extent to which fulfilment of such obligation is prevented, frustrated or impeded as a consequence of any Force Majeure Event and the Customer may terminate the Order giving 30 days’ notice to BBI.
  3. Confidentiality
    1. The Customer undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of BBI, except as permitted by Clause 23.2.
    2. The Customer may disclose BBI’s confidential information:
      1. 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 these Conditions. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 23; and
      2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
    3. The Customer shall not use BBI’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with these Conditions.
  4. Notices
    1. Any notice or other communication given by the Customer to BBI under or in connection with the Order shall be in writing and shall be:
      1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office or its principal place of business; or
      2. sent by email to contracts@bbisolutions.com and BBInotices@berrysmith.com.
    2. Any notice or communication from the Customer shall be deemed to have been received:
      1. if delivered by hand, at the time the notice is left at the proper address;
      2. if sent by pre-paid first-class post or next working day delivery service, at 9.00 am on the second Business Day after posting; or
      3. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Clause 24.2.3, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
    3. This Clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  5. Compliance with Law 

The parties shall comply with all laws and regulations applicable to their respective performance of these Conditions, including but not limited to the U.S. Foreign Corruption Practices Act and the UK Bribery Act 2010.  The parties shall also comply with all applicable restrictions respecting the export or re-export of technical information or products which are now or hereafter imposed by applicable governments.

  1. Governing Law and Jurisdiction

The Contract formed by these Conditions and its acceptance shall be governed by and construed in accordance with English and Welsh Law.  Any disputes arising out of the Conditions shall be submitted to the exclusive jurisdiction of the English and Welsh Courts.

 

 

 

 

 

 

 

 

 

 

 

 

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