Legal / T & C
Coventry Metalcraft Limited
General Terms & Conditions of Purchase
Coventry Metalcraft Limited
56 Bayton Road
Bayton Road Industrial Estate
Tel: +44 (0) 24 7610 2012
Buyer: Coventry Metalcraft Limited registered in England and Wales with company number 08961897.
Conditions: these terms and conditions as amended from time to time in accordance with clause 2.7.
Contract: the contract between the Buyer and the Supplier for the supply of Goods and/or Services in accordance with these Conditions.
Deliverables: all documents, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Goods: the goods (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings, that is furnished, specified or agreed in writing by the Buyer.
Order: the Buyer’s order for the supply of Goods and/or Services, as set out in the Buyer’s purchase order form or in the Buyer’s written acceptance of the Supplier’s quotation as the case may be.
Order Schedule: a schedule stating the quantity and delivery date for Goods pursuant to an Order.
Services: the services, including without limitation any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description or specification for Services furnished, specified or agreed in writing by the Buyer.
Supplier: the person or firm from whom the Buyer purchases the Goods and/or Services.
Formation and Content of Contract
The Order constitutes an offer by the Buyer to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
The Order shall be deemed to be accepted on the earlier of:
the Supplier issuing written acceptance of the Order; or
any act by the Supplier consistent with fulfilling the Order, at which point, and on which date the Contract shall come into existence.
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 trade, custom, practice or course of dealing.
All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
The Contract shall consist of and the order of precedence shall be: any special conditions written or referred to on the face of the Order, the technical specification referred to in the Order and these Conditions.
The United Nations Convention on the International Sale of Goods shall not apply to the Contract.
Any variation to the Contract shall only be binding when agreed in writing by the Buyer.
The Buyer may at any time wish to alter the Order. All such changes will be handled in a formal manner and cost and timing implications agreed between the Buyer and the Supplier. Any variation will be given in writing via an official Order prior to the change taking effect.
Quality and Warranties
The Supplier warrants:-
that the Goods will be new (unless pre-used is stated in the Goods Specification), unused, of merchantable and satisfactory quality and fit for any purpose made known to the Supplier whether expressly or by implication;
that the Goods will be free from all defects whether in design, materials or workmanship and remain so for a period of 36 months or 150,000 miles after delivery to the retail customer of the vehicle into which they have been incorporated (or such longer warranty period as may be offered by the Buyer or its customer);
that the Goods and any work performed under this order will conform with the Goods Specification and other descriptions contained or referred to in the Order and with all applicable standards, codes, laws and regulations; and
that it will exercise all reasonable skill, care and due diligence and shall carry out all work in accordance with good engineering and professional practice.
The Supplier will promote continuous quality and efficiency improvements in the manufacture, production and distribution of the Goods and the provision of the Services. The Supplier will comply with the quality assurance processes, inspections and standards specified by the Buyer for suppliers providing goods or services similar in nature to the Goods.
Without prejudice to the other provisions of this clause, the Supplier must indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with a breach of any quality standard specified in the Contract and/or warranty given by the Supplier and/or any liability under the Consumer Protection Act 1987 or any similar legislation in respect of the Goods.
The Buyer is not required to inspect the Goods prior to their use. The Supplier waives any right to require the Buyer to conduct an inspection. The Buyer may conduct random checks and examine the Goods as regards visible defects. The quantity, weight and measurements determined by the Buyer shall be final.
The Buyer and /or interested third parties authorised by the Buyer shall have the right to inspect all Goods at the Supplier’s works (and at the works of authorised subcontractors) at all reasonable times and to reject goods that do not comply with the terms of the Contract. The Supplier’s subcontractors shall be notified accordingly and a copy of such notice shall be made available to the Buyer on request.
Any inspection, checking, approval or acceptance given on behalf of the Buyer shall not relieve the Supplier of any obligation under the Contract.
If the Goods fail to conform in all respects with the Contract or are defective, the Buyer shall be entitled to reject the Goods or any part of them at any time after delivery, irrespective whether the Buyer is deemed to have accepted them. Without prejudice to any other rights or remedy available to the Buyer, the Buyer shall be entitled to return any rejected Goods to the supplier at the Supplier’s risk and expense.
If the Buyer elects to retain and correct the Goods, the Supplier shall, in good faith, advise the Buyer as to the appropriate method of correction. The Supplier shall reimburse the Buyer for all expenses resulting from or associated with the Buyer’s rejection and correction of the Goods.
The Supplier shall have replacement Goods available at the Buyer’s request. The Supplier shall place the replacement Goods at the Buyer’s disposal or deliver them to the Buyer immediately upon the Buyer’s request.
The Buyer’s payment of all or any part of the purchase price prior shall not constitute a waiver of any of the Buyer’s rights hereunder.
The date of delivery of the Goods shall be that specified in the Order and or Order Schedule unless agreed otherwise in writing between the Buyer and the Supplier and time shall be of the essence. The Supplier shall furnish such programmes of manufacture and delivery as the Buyer may reasonably request and the Supplier shall give notice to the Buyer as soon as practicable if such programmes are likely to be delayed. Any reasonable request for information about progress against programmes shall be provided forthwith by the Supplier to the Buyer.
All Goods must be delivered as stated in the Order and or Order Schedule at times either specified by the Buyer in or pursuant to the Order or agreed and evidenced in writing. If Goods are delivered to the wrong destination and/or late or likely to be late if normal delivery methods are used, then (without prejudice to the Buyer’s other remedies), the Supplier will be liable for any additional expense incurred in delivering them to their correct destination and on time.
The Supplier shall ensure that 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, the outstanding balance of Goods remaining to be delivered.
Unless otherwise agreed to by the Buyer in writing, the Supplier shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet the Buyer’s delivery schedule. It is Supplier’s responsibility to comply with this schedule but not to anticipate the Buyer’s requirements. The Buyer may, but shall not be obligated to return to the Supplier, at the Supplier’s expense, any Goods shipped to the Buyer in advance of the schedule.
The Buyer may from time to time and with reasonable notice change or temporarily suspend its delivery schedule.
Without prejudice to any other remedy of the Buyer under the Contract, where the Supplier fails to deliver any Goods on the required delivery date, the Supplier shall pay to the Buyer a sum equal to 1% of the value of the Goods which are delayed for each week (or part thereof) of delay.
Volumes and Capacity
The Buyer may provide the Supplier with forecasts of requirements for the Goods or Services, but these are for information only and the Buyer shall be under no obligation to purchase any minimum quantity of the Goods or Services.
The Supplier will maintain sufficient capacity to produce the forecast volume of Goods and deliver the Services.
The Buyer will provide firm orders for the Goods or Services by sending periodic schedules or releases to the Supplier, but the Buyer may amend any such schedule or release at any time up to the week preceding production of the relevant Goods or performance of the Services.
The Supplier agrees to supply the Goods as service parts as required by the Buyer for each model of vehicle for 15 years from the date of last production of such vehicle model for which the Goods were supplied.
The warranties in clause 4 shall apply, except that the warranty period in clause 4.1.2 shall end 36 months or 150,000 miles after fitment of the service part to the relevant vehicle.
Supply of Services
The Supplier shall provide the Services to the Buyer in accordance with the terms of the Contract.
The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by the Buyer and time shall be of the essence.
In providing the Services, the Supplier shall:
ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by the Buyer;
use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to the Buyer, will be free from defects in workmanship, installation and design; and
obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations.
Price and Payment
Subject to clause 11.2, the prices stated in the Order are fixed and firm for the duration of the Contract.
Any cost reductions achieved by the Supplier under clause 4.2 will be shared equally between the Supplier and the Buyer and the price adjusted accordingly. The Supplier will allow the Buyer full access to all costings and supporting data on an open-book basis.
Unless otherwise stated in the Order, the Contract price shall be inclusive of the costs of delivery DDP (as defined in Incoterms 2000) to the delivery address stated on the face of the Order.
Unless otherwise agreed in writing, the Supplier may invoice the Buyer on completion of Services performed in accordance with the Contract or delivery of compliant Goods together with all documentation required under the Contract. All invoices must state the Supplier’s order number and shall be paid sixty days following submission of an acceptable invoice.
If the Buyer will be reliant on the Supplier for any supplies of maintenance, training, spare parts, consumables or other goods, rights or services to benefit fully from the Goods or Services (“Follow-on Deliverables”) then the Supplier will provide those Follow-on Deliverables or procure them to be provided during the Contract and for at least 36 months following full performance of the Contract, at fair and reasonable prices which take no advantage of the Buyer’s dependence on the Supplier for its supply.
The Buyer shall be entitled to set off against any sum due under the Contract the amount of any payment due from or other claim against the Supplier whether relating to the Contract or otherwise.
The Supplier shall indemnify and hold the Buyer and its affiliates fully harmless against:
all losses, damages, proceedings, claims, (including claims for injury, death, physical loss and/or damage and claims from customers of the Buyer) costs, expenses, liabilities, which the Buyer and/or its affiliates may suffer howsoever arising from any breach by the Supplier of the terms of the Contract;
all product liability claims arising in connection with the Goods at any time
any infringement of letter patents, registered design, design right, trade mark, copyright or other intellectual property rights arising out of the sale or use of the Goods supplied or from the performance of work under this order, provided always that the Supplier shall not be required to indemnify the Buyer to the extent that such infringement is caused by a specific design provided by the Buyer; and
all personal or material damage or loss occurring to the Buyer or to its affiliates as a result of performance of the Contract or, where appropriate, repair or substitute the damaged goods provided their nature and purpose make this possible.
The Supplier will insure and remain insured against all normal risks (including product liability) on terms and for amounts consistent with normal business prudence. The Supplier will demonstrate to the Buyer the terms and currency of any such insurance on request.
Assignment and Subcontracting
The Contract shall not be assigned or sub-contracted by the Supplier as a whole. The Supplier shall not assign or sub-contract any part of the work without the Buyer’s prior written approval, which shall not be unreasonably withheld, but the restriction contained in this clause shall not apply to sub-contracts for materials, minor details, or any part for which the sub-contractor is named in the Contract. The Supplier shall be responsible for all work done and goods supplied by all sub-contractors.
Title and Risk
Title to the Goods shall pass to the Buyer on delivery, or where a payment has been made in advance, on manufacture of the Goods.
Risk in compliant goods delivered in accordance with the contract shall pass to the Buyer on delivery.
Goods belonging to or provided by the Buyer which are in the Supplier’s custody for any purposes shall be clearly marked and recorded by the Supplier as belonging to the Buyer and shall be at the Supplier’s risk.
Free-issue Materials and Tooling
Where tooling (including patterns, dies, moulds, jigs and fixtures and the like) is manufactured or acquired by the Supplier specifically for the purpose of the Contract, title shall pass to the Buyer upon its creation or acquisition. The Supplier shall deliver up such tooling to the Buyer on demand.
Where the Buyer for the purpose of the Contract issues materials (including equipment, components, tooling, patterns, dies, moulds, jigs and fixtures and the like) free of charge to the Supplier, such materials shall be and remain the property of the Buyer. The Supplier shall maintain all such materials in good order and condition subject, in the case of tooling, patterns and the like, to fair wear and tear. The Supplier shall use such materials solely in connection with the Contract. Any surplus materials shall be disposed of at the Buyer’s discretion. Damage to or waste of such materials arising from bad workmanship or negligence of the Supplier shall be made good at the Supplier’s expense. Without prejudice to any other rights of the Buyer, the Supplier shall deliver up such materials, whether further processed by the Supplier or not, to the Buyer on demand.
Intellectual Property and Confidentiality
All information and know-how including drawings, specifications and other data provided by the Buyer in connection with the Contract shall remain at all times the Buyer’s property and may be used by the Supplier only for the purpose of performing the Contract. The Supplier shall keep the information and know-how confidential and shall return them to the Buyer upon request.
The Supplier shall indemnify the Buyer (except in respect of designs provided by the Buyer) against all claims arising from infringement of intellectual property rights in relation to the Goods or Services which are the subject of the Contract.
The Supplier shall neither quote nor supply parts made with the Buyer’s tools or materials, or to the Buyer’s patterns, drawings, specifications or designs, to any third party without the Buyer’s prior written consent.
Any inventions, patents, copyrights, design rights and other intellectual property rights arising from the execution of the Contract shall become the property of the Buyer and the Supplier shall not disclose the same to any third party. The Supplier shall do all things and execute such documents as may be necessary to assign such rights to the Buyer.
All designs, drawings, specifications, software and other information whether of technical or commercial nature shall be treated as confidential by the Supplier and shall not, without the Buyer’s prior consent in writing, be disclosed by the Supplier to any third party or used by the Supplier for advertisement, display or publication or for any purpose other than as necessary for the proper performance of its obligations under the Contract. When required by the Buyer, the Supplier shall enter into a separate written confidentiality or secrecy agreement.
If performance of the Contract is delayed by any act of God, act omission of government, war or similar event beyond either party’s reasonable control (“Force Majeure”), then the time for performance shall be amended accordingly subject to the delayed party promptly informing the other of the event and taking all reasonable steps to reduce the delay. Force Majeure does not include strikes or industrial disputes or failures of sub-contractors or suppliers.
Termination and Suspension
Without prejudice to its other rights or remedies, the Buyer shall be entitled to terminate the Contract immediately by notice in writing if:
The Supplier is in default of any provision of the Contract (or if, in the Buyer’s sole discretion, it appears that the Supplier will be unable to comply with any such provision), and/or
The Supplier in the opinion of the Buyer becomes unable to pay its debts as they fall due or becomes bankrupt or insolvent or (being a Company) makes arrangement with its creditors any steps are taken to wind up the Supplier or to appoint an administrator or receiver over it or any of its assets or any analogous event occurs in the Supplier’s jurisdiction, and/or
An event of Force Majeure (Clause 17) does or is likely to delay performance more than 30 days.
In addition to the foregoing, the Buyer shall be entitled, without cause at any time, to
Suspend delivery of the Goods and/or performance of the work or the Services without liability and/or,
Cancel the Contract or in whole or in part by notifying the Supplier in writing. In such event, and provided that the Supplier is in compliance with its obligations under the Contract, the Buyer shall compensate the Supplier for costs reasonably and properly incurred until then in performing the Contract which would otherwise represent an irrecoverable loss to the Supplier, subject to the Supplier taking all reasonable steps to minimise its losses and subject to reasonable proof being provided. Compensation shall not in any event exceed the Contract price. The Buyer shall not be liable for damages or claims (including, but not limited to claims for lost profits) except as expressly set out in this clause.
Supplier’s obligations on expiration or termination
Upon the expiration or termination of the Contract the Supplier will:
take all actions necessary to protect any of the Buyer’s property in the possession of the Supplier or its suppliers and sub-contractors;
co-operate with the Buyer to help avoid production disruptions while the production of the Goods is being re-sourced to another supplier;
transfer title and possession of the Goods, Supplier-owned tooling, work-in-process and raw materials that the Buyer has agreed to acquire from the Supplier and return tooling and other property of the Buyer;
terminate all orders and sub-contracts related to work to be performed after the effective date of any expiration or termination; and
cease all work under the Contract unless directed otherwise by the Buyer.
Waiver and cumulative remedies
A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
Law and Jurisdiction
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.