Malvern Tubular Components

Spring Lane, Malvern, Worcestershire, WR14 1DA

Tel : 01684 892600 ~ Fax : 01684 892337

Email : ~ Web : www.mtc.uk.com

TERMS AND CONDITIONS OF PURCHASE

1.  DEFINITIONS

In these standard terms and conditions:

1.1  the following words and expressions shall have the following meanings unless the context otherwise requires:

“Applicable Law” means any: (i) statute, statutory instrument, byelaw, order, directive, treaty, decree or law (including any common law, judgment, demand, order or decision of any court, regulator or tribunal); (ii) legally binding rule, policy, guidance or recommendation issued by any governmental, statutory or regulatory body; and/or; (iii) legally binding industry code of conduct or guideline, which relates to the Contract and/or the Goods;

“Business Day” means a day other than a Saturday or Sunday or a day which is a public or bank holiday in England;

“Company” means Malvern Tubular Components Limited, Spring Lane, Malvern Link, Malvern, Worcestershire, WR14 1DA

“Confidential Information” means all information in respect of the business of the Company including know-how and other matters connected with the Goods, and information concerning the Company’s relationships with actual or potential clients, customers or suppliers and the needs and requirements of the Company and of such persons and any other information which, if disclosed, will be liable to cause harm to the Company;

“Contract” means any contract between the Company and the Supplier for the sale and purchase of the Goods formed in accordance with Condition 2;

"Control" means the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise;

“Delivery Point” means the place where delivery of the Goods is to take place under Condition 7.1;

“Force Majeure Event” means (i) act of God; (ii) war, insurrection, riot, civil commotion, act or threat of terrorism; (iii) lightning, earthquake, fire, flood, storm or extreme weather condition; (iv) a change in Applicable Law which renders the activities of a party in connection with this Agreement illegal or unlawful where no action of that party (such as obtaining a licence, authorisation or consent or amending or varying its activities or processes) can make such activities legal and lawful; or (v) any other event or circumstance to the extent it is beyond the reasonable control of the relevant party, but excluding strikes, lockouts and industrial disputes affecting its workforce and/or the workforce of its suppliers and/or sub-contractors, any failure to secure a supplier or sub-contractor or any failure or default of a supplier or sub-contractor except to the extent that failure or default is caused by an event or circumstance beyond the reasonable control of the supplier or sub-contractor; breakdown or failure of plant or machinery; and inability to obtain essential supplies or materials;

“Goods” means any goods which the Supplier supplies to the Company (including any of them or any part of them) under a Contract;

“Insolvent” – the Supplier is Insolvent where it (i) proposes or passes a resolution for its winding up or in the case of a limited liability partnership proposes or determines that it will be wound up; (ii) is subject to an application to or order or notice issued by a court or other authority of competent jurisdiction for its winding up or striking off; (iii) enters administration or is the subject of an application for administration filed at any court or a notice of intention to appoint an administrator given by any person filed at any court; (iv) proposes, makes or is subject to, a company voluntary arrangement or a composition with its creditors generally, an application to a court of competent jurisdiction for protection from its creditors generally or a scheme of arrangement under Part 26 Companies Act 2006; (v) has a receiver or a provisional liquidator appointed over any of its assets, undertaking or income; (vi) ceases to trade or appears, in the reasonable opinion of the Company, to be likely to cease to trade; (vii) is unable to pay its debts within the meaning of section 123 Insolvency Act 1986; (viii) has any distraint, execution or other process levied or enforced on any of its property; or (ix) is the subject of anything analogous to the foregoing under the laws of any applicable jurisdiction;

“Intellectual Property Rights” means all intellectual and industrial property rights including patents, know-how, registered trade marks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trade marks, rights to prevent passing off for unfair competition, copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;

"Purchase Order" means any purchase order of the Company for the Goods incorporating these Terms and Conditions;

“Supplier” means the person(s) from whom the Company orders the Goods;

“Specification” means in relation to the Goods, the technical specifications of those Goods; all preparatory, design and development materials which relate to the Goods; all information of any description which explains the structure, design and development materials which relate to the Goods; all information of any description which explains the structure, design, operation, functionality of the Goods; all information of any description which relates to the maintenance and/or support of the Goods; and

“Terms and Conditions” means the standard terms and conditions of purchase set out in this document together with any special terms agreed in writing between the Supplier and the Company as specified on the front of the Purchase Order.

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.

2.  FORMATION AND INCORPORATION

2.1  Subject to any variation under Condition 2.5, the Contract will be upon the Terms and Conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Supplier purports to apply under any acknowledgement or confirmation of order, quotation, Specification, delivery note, invoice or similar document, whether or not such document is referred to in the Contract.

2.2  Each quotation for Goods from the Supplier will be deemed to be an offer by the Supplier to sell Goods upon the Terms and Conditions. All quotations provided by the Supplier, including the price provision, will remain open for 30 days from its date. The Contract is only formed when a Purchase Order is served by the Company on the Supplier. No contract will exist prior to service of such a Purchase Order.

2.3  Delivery of the Good will be deemed conclusive evidence of the Supplier’s acceptance of the Terms and Conditions.

2.4  The Supplier may not cancel the Contract. The Company is entitled to cancel the Contract in whole or in part by giving written notice to the Supplier at any time prior to delivery of the Goods in which event the Company's sole liability will be to pay the Supplier fair and reasonable compensation for work-in-progress at the time of cancellation but such compensation will not include loss of profits (whether direct or indirect and whether actual or anticipated) or any indirect or consequential loss.

2.5  Save as otherwise expressly provided in the Contract, no variation to the Terms and Conditions shall be effective unless it is in writing and signed by a director on behalf of the Company.

3.  THE GOODS

3.1  The quantity and description of the Goods will be as set out in the Purchase Order and/or in any applicable Specification supplied or advised by the Company to the Supplier with or before the Purchase Order.

3.2  The Supplier will comply with all applicable standards, regulations, Applicable Laws and/or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.

3.3  The Company will have the right to inspect and test the Goods at any time. The Supplier will not unreasonably refuse any request by the Company to carry out such inspection and testing and will provide the Company with all facilities reasonably required to carry out such inspection and testing.

3.4  If as a result of such inspection or testing the Company is not satisfied that the Goods will comply in all respects with the Contract and the Company so informs the Supplier within 30 days of inspection or testing, the Supplier will immediately take all steps necessary to ensure compliance. Without prejudice to any other rights of the Company under the Contract, any failure of this obligation by the Supplier will be deemed a material breach which is not capable of remedy entitling the Company to terminate the Contract under Condition 11.1.1.

3.5  Notwithstanding any such inspection or testing, the Supplier will remain fully responsible for the Goods and any such inspection or testing will not diminish or otherwise affect the Supplier's obligation under the Contract.

3.6  The Supplier acknowledges that precise conformity of the Goods with the Contract is of the essence of the Contract and the Company will be entitled to reject the Goods or terminate the Contract under Condition 11.1.1 if the Goods are not in conformance with the Contract, however slight the breach may be. Any breach of this condition is deemed a material breach which is not capable of remedy under Condition 11.1.1.

3.7  The Company may at any time make changes in writing relating to the Purchase Order, including changes in the drawings or Specifications, method of shipment, quantities, packing or time or place of delivery. If such changes result in an increase in cost of, or time required for, performance of the Contract an equitable adjustment will be made to the price, delivery schedule or both. Any such claim or adjustment must be approved by the Company in writing before the Supplier proceeds with such changes.

3.8  In respect of the Goods the Supplier will maintain and observe quality control and supplier quality assurance standards in accordance with the requirements of the Company, relevant British Standards and Applicable Law.

3.9  The Supplier will maintain detailed quality control and manufacturing records for the period of at least 12 years from the date of supply of Goods.

3.10  All Goods will be supplied by the Supplier with all necessary safety guards and devices sufficient to comply with all Applicable Laws. Where Goods are to be supplied without guards and/or safety devices then the Supplier must:

3.10.1  state such to be the case in writing in its quotation, and

3.10.2  specify in writing such guards and devices as will be required to be purchased by the Company to comply with all Applicable Laws.

3.11  The Supplier will give at least twelve months written notice to the Company before discontinuing or replacing any Goods supplied to the Company. Any failure of this obligation by the Supplier will be deemed a material breach which is not capable of remedy entitling the Company to terminate the Contract under Condition 11.1.1. This clause 3.11 is without prejudice to the Supplier's obligation to fulfil any orders placed by the Company in advance of the Supplier serving notice of discontinuing or replacing any Goods supplied to the Company.

3.12  Without prejudice to Condition 10.1.1, it is the responsibility of the Supplier to acquaint itself with the purposes for which the Goods supplied are to be used.

4.  PRICE

4.1  The price for the Goods will be the price stated in the Purchase Order and, unless otherwise stated in the Purchase Order, is:

4.1.1  inclusive of all charges including packaging material, packing, shipping, loading, carriage, insurance and delivery of the Goods to the Delivery Point and any duties, imposts, levies or taxes; and

4.1.2  fixed for the duration of the Contract.

4.2  No variation to the price nor extra charges can be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior written consent of the Company.

5.  PAYMENT

5.1  The Supplier may invoice the Company for the Goods on or at any time after delivery. Each invoice must be a proper VAT invoice and quote the number of the Purchase Order. Unless otherwise set out in the Purchase Order or agreed between the parties in writing, payment is due in pounds sterling within 90 days of receipt by the Company of such invoice.

5.2  Without prejudice to any other right or remedy, the Company will be entitled but not obliged at any time or times without notice to the Supplier to set off any liability of the Supplier to the Company against any liability of the Company to the Supplier (in either case however arising and whether any such liability is present or future, liquidated or unliquidated and irrespective of currency).

5.3  If any sum payable under the Contract is not paid when due then that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 1% per annum over the Bank of England base rate from time to time. Statutory interest will not be applicable in any circumstances.

6.  INSTALMENTS

6.1  The Supplier may not deliver the Goods by separate instalments unless agreed in writing by the Company. If the Company does 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, the Company will have the right, but not the obligation to:

6.1.1  treat all the Contracts for the total Purchase Order as repudiated if the Supplier fails to deliver or perform any instalment or stage; and

6.1.2  reject any or all of the instalments for the total Purchase Order if the Company is entitled to reject any one instalment or stage.

7.  DELIVERY

7.1  Unless otherwise agreed between the parties in writing, the Goods will be delivered carriage paid to the address stated on the Purchase Order or such other address notified to the Supplier by the Company. The Supplier will off-load the Goods at its own risk as directed by the Company.

7.2  The Goods will be delivered during the Company's normal office hours on the date or within the period specified in the Purchase Order, or if no such period is specified then within 28 days of the date of the Purchase Order. Time for delivery and/or performance will be of the essence.