Conditions of Purchase of Goods - Sept 2016

1.Definitions

The definitions in this clause apply in these terms and conditions (Conditions).

• Code of Conduct: PRM’s policies and codes of conduct as set out on PRM’s website, as may be amended from time to time by PRM.
• Contract: the Purchase Order and the Supplier's acceptance of it in accordance with condition 3.3 and which incorporate these Conditions.
• PRM: Dennis & Robinson Limited, trading as Paula Rosa Manhattan.
• Goods: the products and/or materials as agreed in the Contract to be purchased by PRM from the Supplier.
• Purchase Order: PRM's written instruction on its standard purchase order form to supply the Goods, incorporating these Conditions.
• Supplier: the person, firm or company who accepts the Purchase Order in accordance with condition 3.3.

2.Application of these Conditions

1. These Conditions shall apply and be incorporated in the Contract and shall prevail over any inconsistent terms or conditions contained in or referred to in the Supplier’s quotation, acceptance, correspondence or elsewhere or implied by law, trade custom, practice, course of dealing and including the Supplier’s own terms and conditions of sale.
2. All the terms of the Contract between PRM and the Supplier are contained in these Conditions and the Purchase Order. No addition to, variation of, exclusion or attempted exclusion of any terms in the Purchase Order or the Contract or these Conditions or any of them shall be binding on PRM unless in writing and signed by a duly authorised representative of PRM. Nothing said by any employee or representative of PRM shall be taken as a variation of these Conditions by the Supplier.
3. Where the Purchase Order is for more than one item, it shall (following acceptance by the Supplier) be regarded as a single Contract for all Goods supplied pursuant to that Purchase Order.

3.Effect of Purchase Order

1. PRM shall only be bound by an order if it is issued on a Purchase Order and signed by a duly authorised representative of PRM.
2. The Purchase Order constitutes an offer by PRM to purchase the Goods subject to these Conditions. Accordingly, any acceptance of the Purchase Order by the Supplier shall establish a contract for the sale and purchase of those Goods on these Conditions. Any counter-offer made by the Supplier to supply the Goods on other conditions shall only be validly accepted if such acceptance is in writing and signed by a duly authorised representative of PRM.
3. The execution and return of the acknowledgement copy of the Purchase Order form by the Supplier, or the Supplier's execution, commencement of work or commencement of delivery pursuant to the Purchase Order constitutes acceptance of the Purchase Order on these Conditions by the Supplier.

4.Supplier's warranty

1. The Supplier will supply the Goods described in the Purchase Order for the price (Price) stated in the Purchase Order.
2. The Supplier warrants to PRM that:
3. the Goods will conform with the quality, description and other particulars of the Goods stated in the Purchase Order;
4. the Goods will conform to all samples, drawings, descriptions and specifications provided to PRM by the Supplier;
5. the Goods will conform with all standards referred to in any documentation supplied with the Goods ;
6. the Goods will be of satisfactory quality and fit for any intended uses expressly or impliedly made known to the Supplier, and will be free from all defects in materials, workmanship and installation for the period stated in the Purchase Order or for 24 months from the date of delivery whichever is the longer;
7. the Goods will comply with all performance and other specifications stated in the Purchase Order, and with all applicable legislation and European Standards for the time being in force;
8. the sale of the Goods and PRM’s use of them will not infringe any intellectual property rights of a third party.
9. PRM's rights under the Contract are in addition to the statutory terms implied in favour of PRM by the Sale of Goods Act 1979 and any other statute.
10. The provisions in this clause 4 shall survive any delivery, inspection, acceptance, payment or performance pursuant to the Contract and shall extend to any replacement, repaired, substitute or remedial Goods provided by the Supplier.
11. In performing its obligations under the Contract, the Supplier shall comply with PRM’s Code of Conduct.

5.Quantities

Unless PRM has agreed otherwise in writing, the Supplier shall deliver the exact specified quantities of items comprised in the Goods in accordance with the Purchase Order. Without affecting its other rights and remedies, PRM reserves the right to reject incomplete deliveries and to return excess quantities at the Supplier's risk and expense.

6.Delivery, installation and acceptance of Goods

1. The Supplier shall deliver the Goods on the date specified in the Purchase Order or, if no such date is specified then on such date as shall have been agreed between PRM and the Supplier. Time is of the essence as to the delivery of the Goods under the Contract and if the Supplier does not comply with its delivery obligations, PRM may:
2. cancel the Contract in whole or in part without incurring any liability to the Supplier;
3. refuse to accept any subsequent delivery of items comprised in the Goods which the Supplier attempts to make;
4. purchase substitute items elsewhere; and
5. hold the Supplier accountable for any loss and additional costs incurred
6. The Goods shall be properly packed and secured in such manner as to enable them to reach their destination in good condition. No charge shall be made for wrapping, packing, cartons, boxes, crating or containers unless specified in the Purchase Order, and PRM shall not be responsible for returning any such materials.
7. The Goods shall be delivered by the Supplier carriage free to the place of delivery specified in the Purchase Order, or as otherwise specified by PRM. The Supplier shall off load the Goods at its own risk as directed by PRM. The Goods shall be received at the place of delivery, subject to PRM's inspection and approval. Any Goods which PRM rejects as not conforming with the Purchase Order shall be returned at the Supplier's risk and expense.
8. Unless PRM and the Supplier have, before or at the same time as the Purchase Order, agreed in writing (signed on behalf of PRM) additional conditions regarding preparation requirements at the site at which the Goods are to be installed, the Supplier acknowledges and agrees that the Goods are suitable to be installed and used at the premises at which PRM intends to use them and that there are no additional conditions regarding site preparation.
9. PRM shall have the right to inspect and test the Goods at any time before delivery. If following such inspection or testing PRM considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings in clause 4.2. then PRM shall inform the Supplier who shall immediately take such remedial action as is necessary to ensure compliance. The Supplier shall also reimburse PRM for all reasonable costs and expenses incurred by PRM in carrying out the inspection.
10. 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. PRM shall have the right to carry out further inspections and tests after the Supplier has carried out its remedial actions.
11. Upon completion of the offloading of the Goods and upon PRM being reasonably satisfied that the Goods comply with the requirements of the Contract and these Conditions, PRM shall sign the Supplier’s standard form acknowledging receipt of the Goods. PRM shall be under no obligation to sign an acknowledgment of receipt for any Goods not specified in the Contract.
12. The acknowledgment of delivery does not in any way limit or exclude the liability of the Supplier under the Contract.

7.Risk and title

1. The Goods shall be at the risk of the Supplier until delivery to PRM at the place of delivery specified in the Purchase Order, or as otherwise specified by PRM in accordance with condition 6.3.
2. Full and unencumbered title to the Goods shall pass to PRM on completion of delivery (including off-loading) in accordance with the Purchase Order, except that if the Goods are paid for before delivery ownership shall pass to PRM once payment has been made. The passing of ownership in the Goods is without prejudice to any right of rejection to which PRM may be entitled under the Contract or otherwise.

8.Prices

1. All prices shall be as stated in the Purchase Order.
2. All prices are fixed and inclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and dues, and are not subject to adjustment save as specifically provided in these Conditions or the Purchase Order.

9.Payment

1. Unless otherwise stated in the Purchase Order or agreed between PRM and the Supplier, payment of invoices shall be made 90 after delivery of the Goods.
2. PRM shall be under no obligation to make payment to the Supplier for any Goods if delivery of such Goods has not been acknowledged or if the Goods supplied do not conform to the Purchase Order.
3. Without prejudice to any other right or remedy, PRM reserves the right to set off any amount at any time owing to it by the Supplier against any amount payable by it to the Supplier under the Contract or any other contract.

10.Indemnity

The Supplier shall indemnify and hold PRM harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, PRM as a result or in connection with:

• any alleged or actual infringement, whether or not under English law, of any third party's intellectual property rights or other rights arising out of the use, manufacture or supply of the Goods; or
• defective workmanship, quality or materials in or in relation to the Goods; or
• any claim made against PRM in respect of any liability, loss, damage, injury, cost or expense sustained by PRM's employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier howsoever arising.

11.Insurance

During the term of the Contract and for a period of six years thereafter, the Supplier shall maintain in force with a reputable insurance company, professional indemnity, product liability and public liability insurance to cover any such liability as may arise under the Contract, and shall, if requested by PRM produce both the insurance certificate giving details of cover and receipt for the current year’s premium.

12.Confidentiality and PRM’s property

1. The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions or processes which are of a confidential nature and which have been disclosed to the Supplier by PRM or its agents, and any other confidential information concerning PRM's business or its products which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging the Supplier's obligations to PRM and shall ensure that such employees are subject to obligations of confidentiality corresponding to those which bind the Supplier.
2. All materials, tools, copyright, rights in designs and any other intellectual property rights in all drawings, specifications and data supplied by PRM to the Supplier shall at all times be and remain the exclusive property of PRM, and shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to PRM, and shall not be disposed or used other than in accordance with PRM's written instructions or authorisation. The Supplier shall return all copies of any such material to PRM immediately on PRM's first written request.
3. This clause 12 shall survive the termination of the Contract, however arising.

13.Termination

1. PRM may cancel the Contract (for all or part only of the Goods) by giving written notice to the Supplier at any time before delivery, in which case the Supplier shall immediately discontinue all work on the Contract. PRM shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
2. Without prejudice to any other rights or remedies to which PRM may be entitled, PRM may terminate the Contract without liability to the Supplier if:
3. the ability of PRM to accept delivery of the Goods is delayed, hindered or prevented by Force Majeure ( as defined in clause 15 below); or
4. the Supplier commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 10 days after being notified in writing to do so;
5. 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;
6. the Supplier is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 ;
7. a petition is filed, or a resolution is passed, or an order is made for the winding up of the Supplier;
8. an application is made to court, or an order is made for the appointment of an administrator or if an administrator is appointed over the Supplier;
9. any event occurs, or proceedings are 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 sub clauses 13.2(b) to 13.2(f) (inclusive);or
10. the Supplier suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
11. Without affecting any other right or remedy available to it, PRM may terminate the Contract with immediate effect by giving written notice to the Supplier if the Supplier commits a breach of its obligations with regard to PRM’s Code of Conduct.
12. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
13. Termination of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

14.Remedies

If any Goods are not supplied in accordance with, or if the Supplier fails to comply with, any terms of the Contract, PRM may (without prejudice to any other right or remedy) exercise any one or more of the following rights or remedies, whether or not any part of the Goods has been accepted by PRM:

• rescind the Contract; or
• 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 a full refund for the Goods so returned shall be paid immediately by the Supplier; or
• require the Supplier, at the Supplier's expense, either (at PRM's option) to remedy any defect in the Goods and carry out such other work as is necessary to ensure that the Goods are in all respects in accordance with the Purchase Order or to supply replacement Goods, provided that if the Supplier refuses to remedy the defect in the Goods or to supply replacement Goods within 10 days of receiving such a request, PRM may purchase replacement Goods from another source and the Supplier shall reimburse PRM for all costs and expenses reasonably incurred in doing so; or
• refuse to accept any further deliveries of the Goods, without liability to the Supplier; and in any case to claim such losses, costs, damages and expenses as it may have sustained in connection with the Supplier's breach or breaches of the Contract not otherwise covered by this clause 14.

15.Force majeure

PRM may defer the date of delivery or payment, or cancel the Contract or reduce the amount of Goods ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of PRM or any other party), failure of a utility service or transport or telecommunication network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

16.Anti-bribery

1. The Supplier shall:
2. comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
3. comply with PRM's Code of Conduct with regards to ethics, anti-bribery and anti-corruption (Relevant Policies).
4. have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and the Relevant Policies , and will enforce them where appropriate; and
5. promptly report to PRM any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the Contract.
6. Breach of this clause 16 shall be deemed a breach which is not capable of remedy under clause 13.2(b).

17.Miscellaneous

1. No failure or delay by a party to exercise any right or remedy provided under this 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.
2. Except as expressly provided in these Conditions, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
3. If any provision or part-provision of these Conditions or 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.
4. The Supplier shall not, without the prior written consent of PRM, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
5. PRM may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
6. No one other than a party to this Contract, their successors and permitted assignees, shall have any right to enforce any of its terms.

18.Disputes

In the event that any dispute, difference or claim arises of the Contract the authorised representatives of PRM and the Supplier shall first try to settle the disagreement. Should they fail to settle any matter within 28 days of it being referred to them, either party may then refer the dispute or claim to adjudication. The adjudication process will be as set out in the Model Adjudication Procedure published by the Construction Industry Council. This right to refer the dispute to adjudication is without prejudice to either party’s right to commence legal proceedings.

19.Governing law

All Contracts are subject to and will construed in accordance with the laws of England and PRM and the Supplier submit to the non-exclusive jurisdiction of the English courts.