ProGARM Limited – Terms & Conditions of Purchase (2020 Edition)
- Basis of Contract
1.1 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.
1. 2 The Order constitutes an offer by ProGARM to purchase the Goods and/or Services in accordance with these Conditions.
1.3 The Order shall be deemed to be accepted on the earlier of: (a) the Supplier issuing a written acceptance of the Order; and (b) the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
1.4 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.
1.5 All of these Conditions shall apply to both Goods and Services except where the application to one or the other is specified.
- The Goods
2.1 The Supplier warrants that the Goods shall:
2.1.1 comply with their description and any applicable Goods Specification, whether contained in the Order or otherwise;
2.1.2 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 ProGARM expressly or by implication for a period of [INSERT NUMBER] of months, irrespective of whether the Goods have been cut by ProGARM or not, and in this respect ProGARM relies on the Supplier’s skill and judgement;
2.1.3 where they are manufactured products, be free from defects in design, material and workmanship; and
2.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods, together the “Warranty”.
2.2 Where in the opinion of ProGARM the Goods fail to comply with the Warranty, ProGARM shall inform the Supplier and the Supplier shall take such actions as ProGARM shall reasonably require at the Supplier’s expense to ensure compliance.
2.3 ProGARM and any third parties nominated by ProGARM may inspect and test the Goods at any time before delivery.
2.4 If, following such inspection or testing, ProGARM considers that the Goods do not conform or are unlikely to conform with the Warranty, ProGARM shall inform the Supplier and the Supplier shall immediately take such remedial action at its cost as is necessary to ensure compliance.
2.5 Notwithstanding any such inspection or testing, 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 and ProGARM shall have the right to conduct further inspects and tests after the Supplier has carried out its remedial actions.
2.6 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract in respect of the Goods.
2.7 Where the Goods Supplied to ProGARM are textile, thread or components the Supplier warrants that it is an OEKO-TEX supplier and shall notify ProGARM should the Supplier no longer be approved by OEKO-TEX in relation to the Goods.
- Delivery of Goods
3.1 The Supplier shall ensure that:
3.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
3.1.2 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, the outstanding balance of Goods remaining to be delivered;
3.1.3 each item of Goods delivered within delivery are clearly labelled by the Supplier with the relevant batch reference, item code and quantity of those Goods;
3.1.4 each delivery of the Goods is accompanied by a Certificate of Conformity of the manufacturer indicating that the requirements of the applicable Order have been met, together with any other documentation reasonably required by ProGARM;
3.1.5 it monitors quality of the Goods and it retains all records of test reports and Certificates of Conformity which it has provided to ProGARM in relation to the Goods and any products purchased by the Supplier from third parties for use within the Deliverables,
3.1.6 it maintains the records in clause 3.1.5 for a period of 11 years after the last Order to be delivered to ProGARM and provide copies to ProGARM upon request; and
3.1.7 if the Supplier requires ProGARM 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.
3.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) on the date specified in the Order or, other such time as may be agreed between the parties, during ProGARM’s normal business hours, or as instructed by ProGARM (“Delivery Date”). Time for delivery shall be of the essence.
3.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
3.4 ProGARM may inspect the Goods upon delivery. If the Supplier:
3.4.1 delivers less than 95% of the quantity of Goods ordered, ProGARM may reject the Goods; or
3.4.2 delivers more than 105% of the quantity of Goods ordered, ProGARM 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 ProGARM accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods as set out in clause 6.5.
3.4.3 Prior to the dispatch of any Goods of quantities as described in clauses 3.4.1 and 3.4.2 the Supplier must notify ProGARM of this and obtain ProGARM’s approval for such a delivery.
3.5 The Supplier shall not deliver the Goods in instalments without ProGARM’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 ProGARM to the remedies set out in clause 5.
3.6 Title and risk in the Goods shall pass to ProGARM on completion of delivery.
- The Services
4.1 The Supplier shall supply the Services to ProGARM in accordance with the terms of the Contract and any Service Specification.
4.2 The Supplier shall meet any performance dates for the Services that ProGARM notifies to the Supplier and time is of the essence in relation to any of those performance dates.
4.3 In providing the Services, the Supplier undertakes that it shall:
4.3.1 perform the Services in accordance with the Contract, including any Service Specification and ensure that the Deliverables are fit for any purpose ProGARM expressly or impliedly makes known to the Supplier;
4.3.2 if Service Levels have been agreed by the Parties the Supplier is to perform the Services in accordance with the Service Levels and ensure that the Service levels are met;
4.3.3 co-operate with ProGARM in all matters relating to the Services, and comply with all of ProGARM’s instructions;
4.3.4 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
4.3.5 use personnel who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with the Contract;
4.3.6 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
4.3.7 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 ProGARM, will be free from defects in workmanship, installation and design;
4.3.8 obtain and at all times maintain all licences and consents which may be required for the provision of the Services;
4.3.9 comply with all health and safety rules and regulatory policies, guidelines or industry codes which may apply to the provision of the Services;
4.3.10 observe all health and safety rules and regulations and any other security requirements that apply at any of ProGARM’s premises or such other premises that the Services may be performed from;
4.3.11 hold all materials, equipment and tools, drawings, specifications and data supplied by ProGARM to the Supplier (“ProGARM Materials”) in safe custody at its own risk, maintain the ProGARM Materials in good condition until returned to ProGARM, and not dispose or use the ProGARM Materials other than in accordance with ProGARM’s written instructions or authorisation; and
4.3.12 not do or omit to do anything which may cause ProGARM to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that ProGARM may rely or act on the Services.
5.1 If the Goods are not delivered on the Delivery Date or the Services are not carried out to the standard required by the Services Levels, or do not comply with the Warranty and/or the Supplier fails to perform the Services by the applicable date, then, without limiting or affecting other rights or remedies available to it, and whether or not it has accepted and/or paid for the Goods and/or Services, ProGARM may:
5.1.1 terminate the Contract with immediate effect;
5.1.2 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 require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods and/or for sums paid in advance for the Services that the Supplier has not provided;
5.1.4 refuse to accept any subsequent delivery of the Goods and/or subsequent performance of the Services which the Supplier attempts to make;
5.1.5 recover from the Supplier any costs incurred by ProGARM in obtaining substitute goods and/or services from a third party; and
5.1.6 claim damages for any other costs, loss or expenses by ProGARM which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.2 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement Goods supplied by the Supplier.
5.3 ProGARM’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
- Price and Payment
6.1 Unless otherwise agreed in writing, the price of the Goods and/or Services shall be as 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. The price shall be fixed for the duration of the Order. Unless otherwise agreed, the price of the Goods is exclusive of VAT but inclusive of all other taxes and duties, costs of packaging, insurance and carriage of the Goods.
6.2 Should there be any change to the price set out in the Order for any Goods and/ or Services to be delivered to ProGARM over a period of time, the Supplier shall provide ProGARM with at least 3 months’ written notice of such change.
6.3 The Supplier may invoice ProGARM for the price of the Goods and/or Services 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, ProGARM’s order number if applicable, the Supplier’s VAT registration number, the Supplier’s commodity code of the Goods and for Services to be delivered and any supporting documents that ProGARM may reasonably require. If the invoice does not include this information, the invoice may be rejected.
6.4 ProGARM shall pay the Supplier’s correctly rendered invoices within the timescales agreed with the Supplier. Payment shall be made to the bank account nominated in writing by the Supplier.
6.5 Subject to clause 3.4 the Supplier shall automatically credit ProGARM with the applicable Service Credits. Service Credits shall either be shown as a deduction from the amount due from ProGARM to the Supplier in the next invoice then due to be issued under the Contract, or the Supplier shall issue a credit note against a previous invoice and the amount for the Service Credits shall be repayable by the Supplier as a debt within 30 Business Days of issue of the credit note.
6.6 If ProGARM fails to make any payment due to the Supplier under the Contract by the due date for payment, then ProGARM 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 day at 2% a year above the Bank of England’s base rate from time to time. 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 the due date.
6.7 ProGARM may withhold payment of all or part of any disputed invoice or other statement of monies due (the “Disputed Sum”). ProGARM shall notify the Supplier in writing of any Disputed Sum as soon as reasonably practicable upon receipt of the invoice. The Supplier shall provide all such evidence as may be requested by ProGARM to verify the Disputed Sum. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date. The Supplier’s obligations to supply the Goods and/or Services shall not be affected by any payment dispute.
6.8 ProGARM may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to ProGARM against any liability of ProGARM to the Supplier.
- Intellectual Property Rights
7.1 In respect of the Goods transferred to ProGARM under this Contract, the Supplier warrants that it has full, clear and unencumbered title to all such items and that, as at the Delivery Date, it will have full and unrestricted rights to transfer all such items to ProGARM.
7.2 The Supplier assigns to ProGARM, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the Goods.
7.3 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any ProGARM Materials) shall be owned by the Supplier.
7.4 The Supplier grants to ProGARM or shall procure the direct grant to ProGARM of, a fully paid-up, worldwide, non-exclusive, royalty-free perpetual and irrevocable licence to copy and modify the Deliverables (excluding ProGARM Materials) for the purpose of receiving and using the Services and the Deliverables.
7.5 ProGARM grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by ProGARM to the Supplier for the term of the Contract for the purpose of providing the Services to ProGARM.
7.6 All ProGARM Materials are the exclusive property of ProGARM.
- Insurance and Indemnification
8.1 During the term of the Contract, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover liabilities that may arise under or in connection with the Contract, and shall, on ProGARM’s request, produce both the insurance certificate giving details of cover and receipt for the current year’s premium in respect of each insurance.
8.2 The Supplier shall keep ProGARM indemnified 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 costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by ProGARM as a result of or in connection with:
8.2.1 any claim brought by ProGARM against the Supplier arising out of or in connection with the Contract;
8.2.2 any claim made against ProGARM 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, use or supply of the Services or Deliverables (excluding the ProGARM Materials);
8.2.3 any claim made against ProGARM by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, or the Deliverables, to the extent that the defects in the Goods and/or Services and/or Deliverables are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
8.2.4 any claim made against ProGARM by a third party arising out of or in connection with the supply of the Goods and/or the Services and/or the Deliverables.
9.1 The Supplier undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of ProGARM, except as permitted by clause 9.2.
9.2 The Supplier may disclose ProGARM’s confidential information:
9.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising its rights or carrying out its obligations under the Contract. The Supplier shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 The Supplier shall not use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
10.1 ProGARM may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, upon receipt of which the Supplier shall discontinue all work on the Contract. ProGARM shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods and/or Services at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
10.2 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
10.2.1 the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so; and/or
10.2.2 one or more of the following applies to the other party: (a) it is unable to pay its debts; (b) it ceases to trade; or (c) it suffers an Insolvency Event.
10.3 On termination of the Contract, the Supplier shall immediately deliver to ProGARM all Deliverables whether or not then complete, and return all ProGARM Materials. If the Supplier fails to do so, then ProGARM 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.
10.4 On termination of the Contract for any reason, ProGARM shall only be liable to pay the Supplier the price of the Goods and/or Services delivered to/performed and accepted by ProGARM.
10.5 Termination 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.
10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
11.1 Compliance with relevant laws. In performing its obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations and codes from time to time in force.
11.2 Assignment. The Supplier may not assign, delegate, transfer, charge or otherwise dispose of all or any of its rights and responsibilities under this Contract without the prior written consent of ProGARM.
11.3 Anti-Bribery and Modern Slavery. Each party shall comply with the Bribery Act 2010 and the Modern Slavery Act 2015 and not do, or omit to do, any act that will cause the other to be in breach of the Bribery Act 2010 or the Modern Slavery Act 2015.
11.4 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.
11.5 Waiver. Except as set out in clause 1.4, 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.
11.6 Further Assurance. At any time, each party shall sign all documents and do or cause to be done all further acts and things as that party so requiring may reasonably require to give full effect to the terms of this agreement.
11.7 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 this agreement. If any provision of the Contract is deemed deleted under this clause 11.7 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.
11.8 Notices. Notices required to be given under this Contract shall not be sent by email. Notices shall be deemed to have been duly received:
11.8.1 if delivered personally, when left at the registered address of the relevant party or otherwise the address notified by the recipient to the other party in writing; or
11.8.2 if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second day (excluding weekends and public holidays) after posting; or
11.8.3 if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
11.9 Third party rights. A person who is not a party to this Contract shall not have any rights to enforce its terms.
11.10 Governing law and jurisdiction. This Contract shall be governed by English Law. The parties agree to submit to the exclusive jurisdiction of the English courts.
- Definitions and Interpretation
12.1 The following words shall have the corresponding meanings in these Conditions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business;
Certificate of Conformity: a certificate which is signed by the Supplier’s quality representative and which identifies, specified, or is traceable to (a) ProGARM’s Order; (b) the description, drawing , and Goods Specification with issue states: (c) and deviations ProGARM has agreed to; and (d) batch numbers;
Conditions: the terms and conditions set out in this document as amended from time to time;
Contract: the contract between ProGARM and the Supplier for the sale and purchase of the 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 drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);
Delivery Date: has the meaning given to it in clause 3.2;
Delivery Location: has the meaning given to it in clause 3.2;
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 agreed by ProGARM and the Supplier;
Insolvency Event: the Supplier: (a) enters liquidation or a winding up petition is presented against the company; (b) has a receiver, liquidator, administrator, trustee or an individual with a similar role appointed over any of its assets; (c) proposes to make any arrangements with its creditors or passes a resolution to place the company into liquidation; or (d) suffers an event which, under the law of a different country, is equivalent to any of the previously specified acts or events;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Order: ProGARM’s order for the Goods, as set out in ProGARM’s purchase order, ProGARM’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be;
ProGARM: ProGARM Limited (registered in England and Wales with company number 08552746 whose registered offices are Unicorn House Broad Lane, Gilberdyke, Brough, East Yorkshire, HU15 2TS);
ProGARM Materials: has the meaning given to it in clause 4.3.11;
Services: the services, including any Deliverables, to be provided by the Supplier under the Contract as set out in the Service Specification;
Service Levels: as defined within the Order;
Service Credit: the sums attributed to a variation in the quantity of the Order as set out in clause 3.4;
Service Specification: the description or specification for Services agreed in writing between ProGARM and the Supplier;
Supplier: the person or firm from whom ProGARM purchases the Goods and/or Services; and
Warranty: has the meaning given to it in clause 2.1.
12.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
12.3 Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.