Purchasing Terms and Conditions
The following terms and conditions shall apply to all contracts between Elantra Procurement Ltd and the Supplier in relation to the purchase by Elantra of any and all Goods and Services. Definitions used in these Conditions are set out in clause 10.
1. Supply of Goods
1.1 The Supplier shall ensure that the Goods shall:
1.1.1 correspond with their description and any applicable Goods Specification;
1.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by Elantra, expressly or by implication, and in this respect Elantra relies on the Supplier’s skill and judgment;
1.1.3 where samples have been approved or provided by Elantra, at least equal in all respects to such samples;
1.1.4 were applicable, be free from defects in design, materials and workmanship for a minimum of 12 months after delivery; and
1.1.5 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storing, handling and delivery of the Goods.
1.2 Where the Supplier is not the manufacturer of the Goods, the Supplier shall transfer to Elantra the benefit of any warranty or guarantee given to the Supplier.
1.3 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.
1.4 The Supplier shall ensure that at all times it shall comply with Elantra’s Code of Conduct for Suppliers and Business Partners.
1.5 Elantra shall have the right to inspect and test the Goods at any time before delivery.
1.6 If following such inspection or testing Elantra considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 1.1, Elantra shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
1.7 Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Goods and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract, and Elantra shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
2. Delivery of Goods
2.1 The Supplier shall ensure that:
2.1.1 the Goods are properly and safely packed and secured in such manner as to enable them to reach their destination in good condition.
2.1.2 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; and
2.1.3 if the Supplier requires Elantra to return any packaging material for the Goods to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to the Supplier at the cost of the Supplier.
2.2 The Supplier shall deliver the Goods:
2.2.1 on the date specified in the Order or, if no such date is specified, then within five days of the date of the Order;
2.2.2 to Elantra’s premises at Elantra Procurement Ltd, Elantra House, 2 Yates Street, Oldham. OL1 4AP or other such location as is set out in the Order or as instructed by Elantra before delivery (“Delivery Location”);
2.2.3 during Elantra’s normal hours of business, or as instructed by Elantra.
2.3 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location. The Supplier shall ensure that Goods are unloaded safely and so as not to cause a hazard.
2.4 If the Supplier:
2.4.1 delivers less than 95 per cent of the quantity of Goods ordered, Elantra may reject the Goods, or
2.4.2 delivers more than 105 per cent of the quantity of Goods ordered, Elantra may at its sole discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier’s expense. If the Supplier delivers more or less than the quantity of Goods ordered, and Elantra accepts the delivery, a pro rate adjustment shall be made to the invoice for the Goods.
2.5 The Supplier shall not deliver the Goods in instalments without Elantra’s prior written consent. Where it is agreed that the Goods are 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 Elantra to the remedies set out in clause 4.1.
2.6 Title and risk in the Goods shall pass to Elantra on completion of delivery.
2.7 The Supplier shall ensure that Elantra are not liable for the cost of any import or export tariffs, taxes and duties and that all, laws, regulations and codes relating to import and export controls are complied with.
3. Delivery of Goods
3.1 The Supplier shall from the date set out in the Order and for the duration of this Contract provide the Services to Elantra in accordance with the terms of the Contract.
3.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by Elantra.
3.3 In providing the Services, the Supplier shall:
3.3.1 co-operate with Elantra in all matters relating to the Services, and comply with all instructions of Elantra;
3.3.2 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
3.3.3 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 this Contract;
3.3.4 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 Elantra;
3.3.5 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
3.3.6 u se 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 Elantra, will be free from defects in workmanship, installation and design;
3.3.7 obtain and at all times maintain all necessary licences and consents, and comply with all applicable laws and regulations;
3.3.8 observe all health and safety rules and regulations and any other security requirements that apply at any of Elantra’s premises or the sites of Elantra’s customers where the Supplier may be required to work;
3.3.9 hold all materials, equipment and tools, drawings, specifications and data supplied by Elantra to the Supplier (“Elantra Materials”) in safe custody at its own risk, maintain Elantra Materials in good condition until returned to Elantra, and not dispose or use Elantra Materials other than in accordance with Elantra’s written instructions or authorisation;
3.3.10 not to do or omit to do anything which may cause Elantra to lose any licence, authority consent or permission upon which it relies for the purposes of conducting its business, and the Supplier acknowledges that Elantra may rely or act on the Services; and
3.3.11 not act in a manner which will bring or is likely to bring Elantra into disrepute or is adverse to the interests of Elantra.
4. Elantra Remedies
4.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, Elantra shall, without limiting its other rights or remedies, have one or more of the following rights:
4.1.1 to terminate the Contract with immediate effect by giving written notice to the Supplier;
4.1.2 refuse to accept any subsequent performance of the Services and/or delivery of the Goods which the Supplier attempts to make;
4.1.3 to recover from the Supplier any costs incurred by Elantra in obtaining substitute goods and/or services from a third party;
4.1.4 where Elantra has paid in advance for Services that have not been provided by the Supplier and/or Goods which have not been delivered by the Supplier, to have such sums refunded by the Supplier, and;
4.1.5 to claim damages for any additional costs, loss or expenses incurred by Elantra which are in an way attributable to the Supplier’s failure to meet such dates.
4.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 1.1, then, without limiting its other rights or remedies, Elantra shall have one or more of the following rights, whether or not it has accepted the Goods:
4.2.1 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
4.2.2 to terminate the Contract with immediate effect by giving written notice to the Supplier;
4.2.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
4.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
4.2.5 to recover from the Supplier any expenditure incurred by Elantra in obtaining substitute goods from a third party; and
4.2.6 to claim damages for any additional costs, loss or expenses incurred by Elantra arising from the Supplier’s failure to supply Goods in accordance with clause 1.1.
4.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier.
4.4 Elantra’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
5. Elantra’s Obligations
5.1 Elantra shall provide such information as the Supplier may reasonably request for the provision of the Services and Elantra considers reasonably necessary for the purpose of providing the Services.
5.2 Where Elantra have agreed in writing that they will be under an obligation to take responsibility for customs procedures and there are additional costs, beyond what was agreed when Elantra took on the obligation, due to the UK leaving the European Union, the Supplier will be liable for and additional costs.
6. Charges and Payment
6.1 The price for the Goods:
6.1.1 shall be set out in the Order, or if no price is quoted, the price per unit for the Goods in Elantra’s most recent order for identical goods; and
6.1.2 shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by Elantra. No extra charges shall be effective unless agreed in writing and signed by Elantra.
6.2 The charges for the Services shall be set out in the Order and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by Elantra, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
6.3 In respect of Goods, the Supplier shall invoice Elantra on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice Elantra on completion of the Services. Each invoice shall include such supporting information required by Elantra to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
6.4 In consideration of the supply of Goods and/or Services by the Supplier, Elantra shall pay the invoiced amounts within 65 days of the end of the month in which a correctly rendered invoice is received, to a bank account nominated in writing by the Supplier.
6.5 All amounts payable by Elantra under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to Elantra, Elantra shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services. In line with Clause 2.7 all other import and export tariffs, taxes and duties will be paid by the Supplier.
6.6 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount.
6.7 The Supplier shall maintain complete and accurate records of the time spent and materials used by the Supplier in providing the Services, and the Supplier shall allow Elantra to inspect such records at all reasonable times on request.
6.8 Elantra may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to Elantra against any liability of Elantra to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
7. Intellectual Property Rights
7.1 In respect of the Goods and any goods that are transferred to Elantra as part of the Services under this Contract, including without limitation the Deliverables or any part of them, the Supplier warrants that it has full clear and unencumbered title to all such items, and that at the date of delivery of such items to Elantra, it will have full and unrestricted rights to sell and transfer all such items to Elantra.
7.2 The Supplier assigns to Elantra, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables.
7.3 The Supplier shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
7.4 The Supplier shall, promptly at Elantra’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as Elantra may from time to time require for the purpose of securing for Elantra the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to Elantra in accordance with clause 7.2.
7.5 All Elantra materials are the exclusive property of Elantra.
8. Idemnity
8.1 The Supplier shall keep Elantra indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered incurred by Elantra as a result of or in connection with:
8.1.1 any claim made against Elantra 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, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
8.1.2 any claim made against Elantra by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors, and
8.1.3 any claim made against Elantra by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
8.2 This Clause 8 shall survive termination of the Contract.
9. Insurance
9.1 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 the liabilities that may arise under or in connection with the Contract, and shall, on Elantra’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
10. Interpretation
10.1 Definitions. In these Conditions, the following definitions apply:
Anti-Slavery Policy: Elantra’s policy on anti-slavery and human trafficking, a copy of which is available on request.
Business Day: a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning set out in clause 11.2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 17.7.
Contract: the contract between Elantra and the Supplier for the supply of Goods and/or services in accordance with these Conditions.
Elantra Materials: has the meaning set out in clause 3.3.9.
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).
Elantra: Elantra Procurement Ltd, 10604802 whose registered office is at Elantra Procurement, Elantra House, 2 Yates Street, Oldham, OL1 4AP.
Free Issue Materials: materials including data, tools, patterns and other equipment issued by Elantra to the Supplier solely for use in relation to the Contract and where ownership is retained by Elantra.
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 in writing by Elantra and the Supplier.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including knowhow), 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: Elantra’s order for the supply of Goods and/or Services, as set out in Elantra’s purchase order form or in Elantra’s written acceptance of the Supplier’s quotation as the case may be.
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 the Services agreed in writing by Elantra and the Supplier.
Supplier: the person or firm from whom Elantra purchases the Goods and/or the Services.
10.2 Construction. In these Conditions, the following rules apply:
10.2.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
10.2.2 a reference to a party includes its successors or permitted assigns;
10.2.3 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
10.2.4 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
10.2.5 a reference to writing or written includes faxes and e-mails.
11. Basis of Contract
11.1 The Order constitutes an offer by Elantra to purchase Goods and/or Services from the Supplier in accordance with these Conditions.
11.2 The Order shall be deemed to be accepted on the earlier of:
11.2.1 the Supplier issuing written acceptance of the Order; or
11.2.2 any act by the Supplier consistent with fulfilling the Order,
11.2.3 at which point and on which date the Contract shall come into existence (“Commencement Date“).
11.2 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.
11.3 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.
12. Free Issue Material
12.1 The Supplier shall keep all Free Issue Materials in good order and condition and shall use Free Issue Materials solely in connection with the Contract.
Any surplus Free Issue Materials shall be returned to Elantra and/or be disposed of at Elantra’s discretion and the proceeds of any such disposal must be immediately credited to Elantra.
12.2 All Free Issue Materials shall be at the risk of the Supplier and insured by the Supplier at its own expense. Any Free Issue Materials damaged due to bad workmanship or the fault of the Supplier, shall be repaired at the Supplier’s expense.
13. Confidentiality
13.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
13.2 This clause 13 shall survive termination of the Contract.
14. Termination
14.1 Without limiting its other rights or remedies, Elantra may terminate the Contract:
14.1.1 in respect of the supply of Services in whole or in part at any time prior to completion of performance with immediate effect by giving written notice to the Supplier; and
14.1.2 in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to the Supplier;
whereupon the Supplier shall discontinue all work on the Contract. Elantra shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods and in respect of any Services performed up to the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss and shall only be payable in respect of any sub-contracts necessarily terminated where those subcontracts contain a termination for convenience clause substantially in the same terms as this clause 15.1.
14.2 In any of the circumstances in these Conditions in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
14.3 Without limiting its other rights or remedies, Elantra may terminate the Contract with immediate effect by giving written notice to the Supplier if:
14.3.1 the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of receipt of notice in writing to do so; he Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
14.3.2 the Supplier repeatedly breaches any of the terms of the Contract in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of the Contract;
14.3.3 the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
14.3.4the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
14.3.5a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier (being a company);
14.3.6the Supplier (being an individual) is the subject of a bankruptcy petition or order;
14.3.7a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
14.3.8an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier (being a company);
14.3.9the holder of a floating charge over the assets of the Supplier (being a company) has become entitled to appoint or has appointed an administrative receiver;
14.3.10a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
14.3.11any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 15.3.3 to clause 15.3.10 (inclusive);
14.3.12the Supplier suspends or ceases, or threatens to suspend, or cease, to carry on all or a substantial part of its business;
14.3.13the Supplier’s financial position deteriorates to such an extent that in the opinion of Elantra its capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
14.3.14the Supplier is prevented from supplying the Goods or Services due to the UK leaving the European Union.
14.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
14.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
15. Consequences of Termination
On termination of the Contract for any reason, the Supplier shall immediately deliver to Elantra all Deliverables whether or not then complete, and return all Free Issue Materials and Elantra Materials. If the Supplier fails to do so, then Elantra 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 safekeeping and will not use them for any purpose not connected with this Contract.
16. General
16.1 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
16.2 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
16.3 Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
16.4 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Elantra.
16.5 Governing law. 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 the law of England and Wales.
16.6 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
