DMU terms and conditions of contract
1.1 In these Conditions unless the context otherwise requires:-
“Address” means the delivery address stated in the Order or such other address as the Purchaser may subsequently notify in writing.
“Conditions” means the standard conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Purchaser and the Supplier;
“Contract” means the agreement between the Purchaser and the Supplier consisting of the Order, these Conditions and any other documents, or parts thereof, specified in the Order for the sale and purchase of the Goods or supply of the Services;
“Correct Invoice” means a separate detailed invoice quoting the Purchaser's Order number, expenditure and project codes (if any) and setting out full particulars of the Goods or Services supplied and any discounts given;
“Delivery” means the receipt by the Purchaser of the Goods or performance of the Services at the Address;
“Goods” means all products, articles or materials specified in the Order to be supplied in accordance with the Contract;
“Order” means the Purchaser's officially numbered purchase order together with all the documents attached or referred to therein;
“Purchaser” means De Montfort University;
“Services” means the services or work specified in the Order to be supplied in accordance with the Contract;
“Supplier” means the supplier named in the Order.
2. Basis of Purchase
2.1 These Conditions are the only conditions upon which the Purchaser is prepared to deal with the Supplier and they shall govern the Contract to the entire exclusion of any other terms and conditions on which any quotation has been provided to the Purchaser or subject to which the Order is accepted or purported to be accepted by the Supplier, unless the Purchaser agrees otherwise in writing.
2.2 An Order constitutes an offer by the Purchaser to purchase the Goods and/or Services at the price stated in the Order and subject to these Conditions. No Contract shall be concluded until the Supplier, either expressly by giving notice of acceptance to the Purchaser or impliedly by fulfilling the Order in whole or in part accepts the offer.
2.3 No variation or addition to these Conditions or an Order or the Contract shall be binding upon the Purchaser unless agreed in writing between an authorised representative of the Purchaser and an authorised representative of the Supplier.
2.4 Subject to any amendment in accordance with Condition 2.3, these Conditions embody the entire understanding of the parties and override any prior promises, undertakings or representations.
3. Cancellation of Order
3.1 The Purchaser may cancel a Contract without liability to the Supplier at any time prior to the receipt of express or implied acceptance by the Supplier by giving written notice to the Supplier.
3.2 At any time after express or implied acceptance of an Order by the Supplier, the Purchaser shall be entitled to cancel a Contract in respect of all or part only of the Goods and/or the Services by giving written notice to the Supplier at any time prior to Delivery, in which event the Purchaser's sole liability shall be to pay to 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.
3.3 The Supplier may not cancel the Contract.
4.1 The price payable for the Goods or the Services shall be that stated on the Order and, unless otherwise so stated, shall be:
4.1.1 exclusive of any applicable Value Added Tax (which shall be payable by the Purchaser subject to receipt of a VAT invoice);
4.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance, delivery and installation of the Goods to the Address and any taxes, duties or levies other than Value Added Tax (details of which must be stated on the face of the invoice by the Supplier.)
4.2 No increase in the price may 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 Purchaser.
4.3 The Purchaser shall be entitled to any discount for prompt payment, bulk purchase, volume of purchase or otherwise granted by the Supplier to any third party or offered by the Supplier to the Purchaser, whether or not shown on the Order.
5. Terms of Payment
5.1 Unless otherwise agreed in writing the Purchaser will pay for the Goods or Services within thirty (30) days of the date of receipt of a Correct Invoice.
5.2 The Purchaser reserves the right to deduct from or offset against any monies due or becoming due to the Supplier in respect of the Contract any monies due from the Supplier on any account in respect of materials supplied services rendered or otherwise.
5.3 No invoice is to be dated or submitted by the Supplier prior to the Delivery of the Goods or Services.
6.1 The quantity, quality and description of the Goods or Services shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable specification supplied or advised by the Purchaser to the Supplier.
6.2 The Supplier shall comply with all applicable standards, regulations and/or other legal requirements concerning the manufacture, packaging, packing and Delivery of the Goods or Services.
6.3 The Purchaser shall have the right to inspect and test the Goods at all times and the Supplier shall not unreasonably refuse any request by the Purchaser to inspect and test the Goods during manufacture, processing or storage at the premises of the Supplier or any third party prior to despatch and in the event of any such request the Supplier shall provide the Purchaser with all facilities reasonably required for inspection and testing.
6.4 If as a result of such inspection or testing the Purchaser is not satisfied that the Goods will comply, in all respects with the Order and the Purchaser so informs the Supplier within a reasonable time of inspection or testing, the Supplier shall take all steps prior to Delivery necessary to ensure compliance.
6.5 Notwithstanding any such inspection or testing, the Supplier shall remain responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Supplier's obligations under the Contract.
7.1 The Goods shall be delivered to, or the Services shall be performed at, the Address on or before the date or within the period specified in the Order during the Purchaser’s usual business hours. The Purchaser reserves the right to make alternative delivery arrangements by written notice to the Supplier.
7.2 Time for Delivery shall be of the essence without prejudice to any other rights which the Purchaser may have, the Purchaser shall be entitled, in the event that Delivery is not made in accordance with the time limits specified in the Order:
7.2.1 to cancel the Order;
7.2.2 to refuse to accept any subsequent delivery of the Goods or performance of the Services which the Supplier attempts to make; and
7.2.3 claim damages for any loss incurred in obtaining the Goods or Services from another Supplier.
7.3 All Goods and Services must be delivered or performed at the Address. If Goods or Services are incorrectly delivered or performed, the Supplier shall be responsible for remedying the situation and effecting redelivery or re-performance at the correct Address and for any additional expense occurred in delivery or performance at the correct Address.
7.4 The Purchaser shall not be deemed to have accepted the Goods until the Purchaser has had a reasonable time to inspect them following Delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
7.5 The Purchaser reserves the right to mark the Goods immediately on Delivery for the purposes of security. The Purchaser will not be deemed to have accepted the Goods if it marks them nor shall the Supplier be entitled to raise an objection on this ground to any subsequent rejection of the Goods.
7.6 The Supplier shall supply the Purchaser on Delivery of the Goods or Services with all operating, maintenance, repair and safety instructions and other information as are necessary for safe operation and which are required to enable the Purchaser to accept Delivery of the Goods or Services.
7.7 Each Delivery of Goods must be accompanied by a delivery note setting out full particulars of the Goods, delivery Address and quoting the Purchaser's Order number. The outside of each package will be clearly marked with the Purchaser's Order number, quantity, batch number and expiry date of contents (where applicable) and any other information appropriate to the Goods.
7.8 The Purchaser shall not be obliged to return to the Supplier any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Purchaser.
7.9 If the Goods are to be delivered or the Services are to be performed by instalments, a Contract shall be treated as a single contract and not severable.
8. Documentation and Marking
8.1 Any Goods supplied or installed under an Order shall be designed, constructed, finished, packaged and marked in a proper manner and in accordance with the Purchaser's instructions, any statutory requirements and any requirements of the carriers. All necessary warning notices clearly displayed so as to be safe and without risk to health and to reach the Address in an undamaged condition.
8.2 The Supplier shall provide the Purchaser with such advice notes, delivery notes, statements and other documentation as the Purchaser may from time to time specify including without limitation specifying on each delivery note full particulars of the Goods, the Purchaser’s Order number, expenditure and project codes (if any).
9. Risk and Property
9.1 Risk of damage to or loss of the Goods shall pass to the Purchaser upon Delivery to the Purchaser in accordance with these Conditions.
9.2 The property in the Goods shall pass to the Purchaser upon Delivery, unless payment or part payment for the Goods is made prior to Delivery, in which case the property in any materials purchased or allocated by the Supplier for the purpose of an Order and the property in any completed Goods appropriated to an Order shall immediately vest in the Purchaser.
10.1 The Supplier warrants to the Purchaser that the Goods:
10.1.1 will be of satisfactory quality and fit for the purpose which the Purchaser has made known to the Supplier or, where the Purchaser does not make any purpose known to the Supplier, for the purpose for which the Goods are normally used;
10.1.2 will be of the very best quality and free from defects in design, material and workmanship;
10.1.3 will comply in every respect with any specifications, drawings, samples or descriptions provided by the Purchaser; and
10.1.4 will comply with any statute, statutory order, directive of regulation or relevant International, European or British Standard (or equivalent required by the Purchaser) and any voluntary codes of conduct relating to the Goods and their sale in force at the time of Delivery.
10.2 The Supplier warrants that he has free and unencumbered title and right to sell the Goods to the Purchaser and that the sale or use of the Goods for any purpose whatsoever by the Purchaser shall not infringe any patent, copyright, trade name, trade mark, design right or any other intellectual property right whatsoever of any third party.
10.3 The Supplier warrants to the Purchaser that the Services will be performed by appropriately qualified and trained personnel with competence, due care and diligence and in accordance with the Purchaser’s instructions for the provision of such Services and will comply in every respect with all relevant specifications.
11.1 The Supplier shall indemnify the Purchaser fully and shall keep the Purchaser fully indemnified against all liability, loss, damages, injury, costs, claims and expenses (including legal expenses) suffered or incurred by the Purchaser in connection with:
11.1.1 breach of any warranty given by the Supplier in relation to the Goods or the Services;
11.1.2 any claim that the Goods infringe or their use or resale infringes the patent, copyright, design right, trademark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any specifications, drawings, samples or descriptions provided by the Purchaser;
11.1.3 any liability under the Consumer Protection Act 1987 in respect of the Goods;
11.1.4 any act or omission of the Supplier or its employees, agents or sub-contractors in supplying, delivering and installing the Goods;
11.1.5 any act or omission of any of the Supplier's personnel in connection with the performance of the Services;
11.1.6 any injury or other loss caused to an employee of the Purchaser or any other person on the Purchaser's premises, caused by any default or negligence on the Supplier's part, including without prejudice to the generality of the foregoing, any failure by the Supplier or the Supplier's agents, employees or sub-contractors to comply with any provisions of the Health and Safety at Work Act 1984 (and any amendments or modifications thereof) or any regulations or code of practice there under; and
11.1.7 any investigation or proceedings or financial redress which arises out of a breach of Condition 15, Equal Opportunities and the Race Relations Amendment Act 2000.
12.1 The Purchaser shall have the right at any time by giving notice in writing to the Supplier to terminate the Contract forthwith without liability in any of the following events:
12.1.1 if the Supplier commits a breach of any of the terms of the Contract; or
12.1.2 if the Supplier (being an individual) becomes bankrupt or (being a company) holds a meeting of creditors or enters into or proposes any arrangement or composition with or for the benefit of creditors or has a supervisor, receiver, administrator, administrative receiver appointed over or has any distress execution or other process levied or enforced on the whole or a substantial part of its assets or presents or has presented in respect of it a petition or convenes a meeting for the purposes of considering a resolution for the making of an administration order or its winding up or liquidation;
12.1.3 if the Supplier ceases or threatens to cease to carry on its business or trade.
12.2 Without prejudice to the rights of the Purchaser under Conditions 3 and 12.1 the Purchaser may for any other reason whatsoever terminate the Contract and/or Orders at any time by giving reasonable notice to the Supplier and specifying the date from which termination shall be effective
12.3 The termination of the Contract howsoever arising will be without prejudice to the rights, duties and liabilities of either party accrued prior to termination. The Conditions which impliedly or expressly have effect after termination will continue to be enforceable notwithstanding termination.
13.1 If the Supplier fails to comply with any of the terms of the Contract the Purchaser shall be entitled (whether or not any part of the Goods or Services have been accepted by the Purchaser) to avail itself of any one or more of the following remedies at its discretion:
13.1.1 to rescind the Contract;
13.1.2 to return the Goods to the Supplier at the cost and risk of the Supplier on the basis that a full refund for Goods so returned shall be paid forthwith by the Supplier;
13.1.3 to require the Supplier at the Supplier's expense to remedy defects in the Goods or Services and carry out any other necessary work to ensure that the terms of the Contract are fulfilled within 7 days or any other period agreed in writing by the Purchaser;
13.1.4 to refuse to accept any further deliveries of the Goods or the provision of any further Services with the Purchaser having no further liability to the Supplier;
13.1.5 to carry out at the Supplier's expense any work necessary to make the Goods or Services comply with the Contract; and
13.1.6 to claim such damages as may have been sustained in consequence of the Supplier's breaches of the Contract.
13.2 These rights shall be in addition to and without prejudice to any other rights which the Purchaser may have.
14. Health and Safety and Environmental Protection
14.1 The Supplier agrees before Delivery to provide the Purchaser with written details of any harmful or potentially harmful properties or ingredients in the Goods supplied whether in use or otherwise and thereafter any information concerning any changes that may take place in such properties or ingredients. The Purchaser will rely on the supply of such information from the Supplier in order to satisfy its own obligations under legislation relating to health and safety at work and the control of substances hazardous to health.
14.2 The Supplier shall bring to the attention of all employees, agents, sub-contractors and representatives of the Supplier involved in any way in the provision of the Goods or performance of the Services, the Purchaser's health and safety requirements and contractors on site requirements and the Supplier shall be responsible for ensuring that such requirements are duly observed by all such employees, agents, sub-contractors and representatives of the Supplier.
14.3 The Supplier shall:
14.3.1 in relation to all persons likely to be affected by the execution of an Order and coming into contact with the Goods, take all such steps as may be reasonably practicable to ensure their health and safety; and
14.3.2 during the execution of an Order take such steps as are reasonably practicable to avoid harm to the environment.
15. Equal Opportunities and the Race Relations Amendment Act 2000 (“the Act”)
15.1 All personnel employed by the Supplier for the purpose of performing the Contract shall be suitably trained, qualified and experienced, and shall fulfil their duties in a professional, ethical manner, consistent with the Purchaser’s commitment to equal opportunities and race equality.
15.2 The Supplier shall accept its legal obligation to comply with legislation for the prevention of discrimination on the grounds of disability, race, sex, sexual orientation, religion and belief and the promotion of race equality. The Supplier shall when required answer queries raised by the Purchaser on matters referred to in this Condition and breach of statutory obligations will entitle the Purchaser to terminate the Contract.
15.3 The Supplier shall not discriminate directly or indirectly against any person on grounds of colour, race, nationality or ethnic or national origins contrary to Part II of the Race Relations Act 1976 (Discrimination in the Field of Employment) and/or contrary to Part III of the Act (Discrimination in Other Fields) either in employment or in service and/or contravene Part IV of the Act (Other Unlawful Acts).
15.4 The Supplier shall comply with the provisions of Section 7 of the Act in all dealings with sub-contractors.
15.5 The Supplier shall in performing the Contract comply with the provisions of Section 71 (1) of the Race Relations Act 1976 as amended by the Act and the Race Relations Act 1976 (Amendment) Regulations 2003 as if the Supplier were a body within the meaning of Schedule 1A to the Act.
15.6 Where in connection with the Contract, the Supplier, its agents or sub-contractors, or the Supplier’s staff are required to carry out work on the Purchaser’s premises or alongside the Purchaser’s employees or students on any other premises, the Supplier shall comply with the Purchaser’s own employment policy and codes of practice relating to racial discrimination and equal opportunities, copies of which have been supplied and henceforth form annexes to the Contract.
15.7 The Supplier shall monitor its employees by reference to the racial groups to which they belong, in accordance with the Purchaser’s procedures for monitoring its own employees. Further information can be obtained by contacting the Purchaser’s Purchasing Department.
15.8 The Supplier shall provide such information as the Purchaser requires about the Supplier’s policies and practices concerning the prevention of unlawful discrimination and the promotion of equal opportunities and race equality both in terms of employment and customer service. The Supplier shall have regard to the promotion of race equality and shall consider the promotion of race equality and good race relations as key objectives of the Contract.
15.9 The Purchaser and the Supplier shall monitor the performance and objectives of the Contract throughout its duration and make amendments or changes necessary to the Contract, or its performance or objectives in order further to promote race equality.
15.10 The Supplier shall notify the Purchaser forthwith in writing as soon as it becomes aware of any investigation or proceedings brought against the Supplier under the Race Relations Act 1976, the Act or the Race Relations Act 1976 (Amendment) Regulations 2003 as amended.
15.11 Where any investigation is undertaken by a person or body empowered to conduct such investigation and/or proceedings are instituted following such investigation against the Supplier or against the Purchaser either in connection with matters referred to in the Contract or generally, the Supplier shall, free of charge:
15.11.1 provide any information requested in the timescale allotted;
15.11.2 attend any meetings as required and permit Supplier staff to attend;
15.11.3 promptly allow access to and investigation of any documents or data deemed to be relevant;
15.11.4 allow itself and any Supplier staff to appear as witness in any ensuing proceedings; and
15.11.5 co-operate fully and promptly in every way required by the person or body conducting such investigation during the course of that investigation.
15.12 Where any investigation is conducted, or proceedings are brought which arise directly or indirectly out of any act or omission of the Supplier, its staff, employees, agents or sub-contractors and where there is a finding against the Supplier in such investigation or proceedings, the Supplier shall indemnify the Purchaser with respect to all costs, charges and expenses (including legal and administrative expenses) incurred by the Purchaser arising out of or in connection with any such investigation or proceedings and further indemnify the Purchaser for any compensation, damages, costs and such other financial redress to cover any payment the Purchaser may have been ordered or required to pay to a third party.
15.13 In the event that the Supplier enters into any sub-contract (only if and where permitted elsewhere in these Conditions) in connection with the Contract, it shall impose obligations on its sub-contractors in terms substantially similar to those imposed on it pursuant to this Condition 15.
15.14 If a finding of unlawful discrimination or breach of equal opportunities legislation is made against the Supplier or against the Purchaser arising from the conduct of the Supplier, the Purchaser will require the Supplier to take immediate remedial steps to prevent further recurrences.
15.15 Without prejudice to any of its other rights or remedies available to it, the Purchaser may terminate the Contract if notice has been given to the Supplier of a substantial or persistent breach of the provisions of this Condition 15.
16. Protection of the Purchaser’s Site
The Supplier shall, in delivering the Goods or carrying out the Services, abide at all times with the Purchaser's work place regulations.
The Supplier shall effect and maintain and shall require its sub-contractors or agents to effect and maintain throughout the continuance of the Contract insurance policies with insurers under forms of policies satisfactory to the Purchaser.
Any Order placed by the Purchaser shall be treated as confidential and in particular the Supplier shall not make use of the Purchaser's name or the name of any of the Purchaser's customers for publicity purposes without the prior written consent of the Purchaser.
The Supplier shall not assign the Contract nor sub-contract any of its rights or duties here under, without the Purchaser's prior written consent.
20. Force Majeure
The Purchaser reserves the right to cancel or reduce the volume of the Goods ordered or the Services contracted for if it is prevented from or hindered in the carrying on of its business through any circumstances beyond its control including (but not limited to) any Act of God, act of Government or State, insurrection or industrial action, civil commotion, war, fire or prohibition or enactment of any kind, without incurring any liability for any loss or damage whatsoever resulting therefrom.
21.1 No extension of time or other concessions granted by the Purchaser shall in any way affect the Purchaser's rights or the Supplier's obligations under the Contract.
21.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
21.3 No waiver by the Purchaser of any breach of the Contract by the Supplier shall be considered as a waiver of any subsequent breach of the same or any other provision.
21.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
21.5 The Purchaser and the Supplier do not intend that any of the terms of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to the Contract.
The Contract is governed by the law of England and the English Courts (to the jurisdiction of which the Supplier hereby irrevocably submits) shall have the exclusive jurisdiction to resolve any disputes arising out of it.