The Supplier shall ensure that all goods or services furnished (collectively, the “Goods”) shall conform to the requirements of the applicable Purchase Order, shall comply with all specifications and certificates of analysis provided by the Supplier, shall be of high quality and fit for the purposes for which they will be used by Surfachem and shall be in accordance with nationally recognised codes (if any) applicable to the Goods in question.
Without prejudice to any other right or remedy which Surfachem may have, if any of Goods are not supplied strictly in accordance with the requirements of this document then Surfachem shall be entitled in its absolute discretion to:
cancel the order in question in whole or in part and be indemnified by the Supplier as set out below;
reject the Goods (in whole or in part) and return them to the Supplier at the risk and cost of the Supplier on the basis that if the price of those Goods has already been paid by the Surfachem, a full refund of that price shall be paid immediately by the Supplier;
require the Supplier to supply replacement Goods services immediately which are in full compliance with the requirements of this document; and/or
require the Supplier to fully indemnify and keep Surfachem fully indemnified against any and all liabilities, claims, actions, demands, expenses, costs, proceedings, losses or damage incurred by Surfachem as a result of the Goods in question not being supplied strictly in accordance with the requirements of this document.
2. Delivery / Work Time
The Supplier shall ensure that each delivery of Goods is made using reasonable skill and care and in full compliance with all health and safety and other applicable legislation. The Supplier to fully indemnify and keep Surfachem fully indemnified against any and all liabilities, claims, actions, demands, expenses, costs, proceedings, losses or damage incurred by Surfachem as a result of any failure by the Supplier to deliver any Goods in accordance with this requirement.
Surfachem reserves the right to change specifications or, where the Services are being provided, to issue orders for additions to or reduction from the services. If, as a result of any such variances the Supplier’s overall cost relative to the original order is increased or decreased the price/charge shall be adjusted accordingly in an equitable manner.
4. Property & Risk
Risk in Goods sold to Surfachem shall remain with the Supplier until actual delivery thereof to the delivery/work site. In the case of any goods of Surfachem which are being supplied by Surfachem to the Supplier for servicing or processing by, or incorporation by the Supplier into the other goods purchased by Surfachem from the Supplier then the risk therein shall pass to the Supplier when those goods are delivered to it and shall remain with the Supplier until delivery of the processed or new goods to the delivery/work site of Surfachem.
Ownership in Goods sold to Surfachem shall pass from the Supplier to Surfachem upon the earlier of actual delivery of those Goods by the Supplier or payment for those Goods by Surfachem. In the case of goods of Surfachem which are being supplied by Surfachem to the Supplier for servicing or processing by, or incorporation by the Supplier into the other goods purchased by Surfachem from the Supplier, ownership of those goods shall at all times remain with Surfachem and at no point shall ownership pass to the Supplier. The Supplier shall not (whether by act or omission) do anything which is inconsistent with Surfachem’s ownership of any such goods.
The price/charge includes all taxes and duties of every kind levied on the manufacture, sale, delivery or provision of the Goods and shall be inclusive of packing, loading, carriage and insurance. If at any time Surfachem produces evidence of a bona fide offer to supply it Goods of similar quality at a lower price than specified in the relevant Purchase Order then the Supplier shall either reduce its price to that offered by the third party (such reduction to be in respect of the offered quantity) or allow Surfachem to cancel its order (or any part thereof) without liability to the Supplier.
6. Patents / Confidentiality
The Supplier warrants that Surfachem’s purchase, use and onward sale of all Goods supplied by the Supplier will not infringe any patent or other industrial property rights of any third party. The Supplier shall treat as Surfachem’s confidential property and not use or disclose to others except as necessary in performance of its obligations to Surfachem any information regarding Surfachem’s plans, programmes, plants, processes, products, costs, equipment or customers which may come within the knowledge or which may be developed by the Supplier in performance hereunder. This restriction shall not apply to information which is or has without the Supplier’s act or default become part of the public domain. The copyright and other industrial property rights in all drawings, specifications or other documents furnished by Surfachem to the Supplier and vice versa shall belong to Surfachem and shall be used by the Supplier solely for the purposes of discharging its obligations to Surfachem but for no other purpose. All such items furnished to the Supplier by Surfachem shall be re-delivered to Surfachem on request.
7. Force Majeure
Surfachem may suspend or cancel delivery of any Goods without liability to the Supplier where the Goods in question can no longer be used or consumed by Surfachem due to circumstances outside of its control occurring before delivery.
The Supplier shall not assign, novate or otherwise transfer any of its rights or obligations under this document (including, without limitation, the right to receive payment of any monies due or to become due to it hereunder) nor shall the Supplier sub-contract the performance of any of its obligations under this document without the prior written consent of Surfachem.
Surfachem may have access at all reasonable times to the Supplier’s facilities for the purpose if inspecting, testing or approving any goods or drawings to be furnished. Such inspection, testing, approval or any failure to do so shall in no way relieve the Supplier of any of his obligation under these terms and conditions.
10. Group Companies
Goods procured by Surfachem under these terms and conditions may be procured on the behalf of other companies which are part of the same corporate group as Surfachem. Accordingly, any member of the same corporate group as Surfachem who uses any Goods shall be entitled to rely upon these terms and conditions and enforce them for their own benefit. Without prejudice to the foregoing, Surfachem shall be entitled to claim against the Supplier for any loss or damage sustained by any group company as a result of the Supplier’s breach of these terms and conditions on the behalf of the relevant group company.
Save as provided for above, a person who is not a party to these terms and conditions shall have no right to enforce any of them pursuant to the Contracts (Rights of Third Parties) Act 1999.
11. Entire Agreement, Variations & Governing Law
This document sets forth the entire agreement between the Supplier and Surfachem and supersedes any discussions or negotiations relating to the subject matter of this document other than those which are set out in this document. However, neither the Supplier nor Surfachem seeks to limit or exclude its liability in any manner for fraud or fraudulent misrepresentation and no provision of this document shall be interpreted as such.
No variation to this document or to any order which the Supplier may purport to apply shall be binding on Surfachem unless accepted by Surfachem in writing.
This document and the relationship between Surfachem and the Supplier generally shall be governed by and interpreted in accordance with the laws of England and Wales and, save in respect of the enforcement of any judgment, Surfachem and the Supplier agree to submit to the exclusive jurisdiction of the courts of England and Wales.