WEBMART LIMITED GENERAL CONDITIONS OF PURCHASE


1. DEFINITIONS
1. 'Purchaserí means WEBMART Limited a company incorporated in the United Kingdom under company number 03300270 and whose registered office is at Media Innovation Centre, 13-15 Wedgwood Road, Bicester, Oxfordshire, OX26 4UL or any subsidiary of WEBMART Limited on whose behalf an Order is placed.
1.2 'Subsidiary' and 'Holding Company' shall be construed in accordance with Section 736 and Section 736A Companies Act 1985 as amended.
1.3 'Sellerí means the person, firm or company with whom an Order is placed.
1.4 'Goods' means the articles, materials, plant equipment or things or any of them described in an Order to be supplied by the Seller.
1.5 'Order' means the Purchaserís official instructions to the Seller in writing to supply the Goods on these Conditions and where those instructions conflict with the terms of these Conditions those instructions shall prevail.
1.6 'Contract' means the Order and the Sellerís acceptance thereof.
1.7 'Associated Company' in relation to either the Purchaser or the Seller means any Subsidiary and any Holding Company (and any Subsidiary of any such Holding Company) of either the Purchaser or the Seller as the case may be.
2. OFFER AND ACCEPTANCE
An order made by the Purchaser shall constitute an offer on the part of the Purchaser which must be accepted by the prompt return of the acknowledgement of an Order form or other similar acceptance in writing or by the actual execution
of an Order and such acceptance will be deemed to bind the Seller to these Conditions and no Goods shall be supplied by the Seller except in accordance with such Conditions.
3. CONDITIONS
3.1 Subject to any variation under condition 3.3, these conditions are only conditions upon which the Purchaser is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms and conditions.
3.2 These conditions alone shall apply to an Order subject to any variations in writing signed by both the Seller and the Purchaser. Any printed or standard conditions appearing on any documents emanating from the Seller shall have no legal effect whatsoever. They appear in the documents only because they are printed thereon the Seller waives any rights he might otherwise have to rely on such Conditions.
3.3 No other agreement or understanding in any way modifying or supplementing an Order nor any promises or representations made by representatives of the Purchaser or Seller shall be binding unless confirmed in writing and signed by authorised officers of both parties.
4. DESCRIPTIONS AND QUALITY
4.1 The Goods shall be supplied in strict accordance with the description and specification contained in an Order and shall not exceed the quantity specified. The Purchaser shall not be liable for any excess costs or charges due to deviations from the specifications or stated quantity.
4.2 The Goods supplied shall be of the very best quality material and workmanship and of the highest standard in the industry and fit for their purposes. The Goods shall comply with all relevant standards and Codes of Practice and contain no deleterious materials or defective components. The Purchaser reserves the right to reject any of the Goods which are faulty or do not conform to the quality, quantity, standard or description as specified in an Order. The Purchaser may return any rejected Goods at the Seller's risk and expense. Acceptance of the Goods by the Purchaser is subject to a weight check in the receiving store of the Purchaser or on a public weight bridge and to any tests specified in the Order which tests shall be to the Seller's sole expense unless otherwise agreed.
4.3 The Purchaser shall have the right to verify at source that the Goods conform to specified requirements. Verification by the Purchaser shall not absolve the Seller of his responsibility to provide an acceptable product in accordance with the standards set out in Clause 4.2 above nor should it preclude subsequent rejection.
4.4 The Purchaserís rights under these conditions are in addition to the statutory conditions implied in favour of the Purchaser by the Sale of Goods Act 1979.
5. WARRANTY AS TO HEALTH AND SAFETY
The Seller undertakes and warrants that all action required to minimise and eliminate any risk to health and safety resulting from use of the Goods for the purpose for which they are designed has been carried out and that any information which is relevant, in any way whatsoever, to risks to health or safety will be brought to the attention of the Purchaser in writing upon acceptance of this Order. The Purchaser has the right to demand and receive proof that the above
undertakings have been carried out.
6. INDEMNITY/INTELLECTUAL PROPERTY RIGHTS
6.1 The Seller shall keep the Purchaser indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Purchaser as a result of or in connection with:
a) defective workmanship, quality or materials;
b) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Goods; and
c) any claim made against the Purchaser in respect of any liability, loss, damage, injury, cost or expense sustained by the Purchaser, the Purchaserís 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 terms of the Contract by the Seller.
6.2 The Seller warrants that the design, construction and quality of the Goods comply in all respect with all statutes, statutory rules, orders, regulations and Codes of Practice which may be enforced or which any way apply to the Goods;
any adaptation, sale or use of the Goods by the Purchaser will not infringe any Patent, trade or service mark (whether or not registered), trade name registered resign, copyright, unregistered design right or other intellectual property right
belonging to any third party the Seller undertakes to indemnify the Purchaser against all loss, damage, costs, expenses, claims and proceedings which the Purchaser may suffer or incur by reason of any breach of the said warranties.
7. FORCE MAJEURE
The Purchaser shall have the right to defer the date of delivery or to cancel any Order without liability to the Seller if the need for such deferment or cancellations results from a cause beyond the Purchaser's reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Purchaser's reasonable control: accident, civil commotions, riot, war or national emergency, act of terrorism, fire, lockouts, strikes, industrial disputes (whether involving employees of the
Purchaser, the Seller or a third party), acts of God, explosions, floods, or restrictions, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority.
8. DELIVERY
A separate invoice in respect of each Order shall be sent by the Seller to the Purchaser upon despatch of the Goods showing Inter alia the number and date of the order. All deliveries shall be made to the place or places and at the time or times specified in the Order and shall be accompanied by a delivery note showing the Order number and in the case of part delivery the outstanding balance remaining to be delivered. The Goods shall be properly marked and shall be packed and protected against damage and deterioration in transit and shall be delivered, insured and carriage paid in accordance with the Purchaser's instructions (if any). Unless otherwise agreed in writing between the Purchaser and the Seller, time shall be of the essence and the delivery date or dates specified in the Order shall be a condition of the Contract.
Unless otherwise stipulated deliveries shall only be accepted by the Purchaser in normal business hours.
If the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, the Purchaser reserves the right to:
a) cancel the Contract in whole or in part;
b) refuse to accept any subsequent delivery of the Goods which the Seller attempts to make;
c) recover from the Seller any expenditure reasonably incurred by the Purchaser in obtaining the Goods in substitution from another supplier; and
d) claim damages for any additional costs, loss or expenses incurred by the Purchaser which are in any way attributable to the Seller's failure to deliver the Goods on the due date.
Where the Purchaser agrees in writing to accept delivery by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Purchaser at its option to treat the whole Contract as repudiated.
The Purchaser shall not be deemed to have accepted the Goods until it has had 7 days to inspect them following delivery. The Purchaser shall also have the right to reject the Goods as though they had not been accepted for 30 days after any latent defect in the Goods has become apparent.
9. TITLE AND RISK
The Goods shall remain at the Seller's risk until accepted by the Purchaser. The property in the Goods shall pass to the Purchaser on delivery or when the Goods become appropriated to the Contract.
10. PRICE AND PAYMENT
10.1 The price stated in the Order is inclusive of all costs and expenses including packaging and transportation cost where specified. No variation in the price of the Goods will be accepted for any reason whatsoever unless reasonable notice thereof has been given in writing by the Seller to the Purchaser and an authorised officer of the Purchaser shall have accepted the price variation in writing.
10.2 Where the Goods are subject to Value Added Tax or any other taxes the amount legally demandable is to be rendered as a separate item of account and if required by the Purchaser, the Seller shall produce bona fide evidence of the amount paid or to be paid by it in respect thereof.
10.3 The Purchaser reserves the right to set off against any monies due or becoming due to the Seller or to any Associated Company of the Seller, any monies due from the Seller or amount equivalent to any monies due from any Associated Company of the Seller to the Purchaser or to any Associated Company of the Purchaser whether
under this Contract or pursuant to any other Contract agreement, lease, right, transaction or arrangement whatsoever with either the Purchaser or any Associated Company of the Purchase.
10.4 When invoices subject to discount are not posted on the date thereof, the discount period will be calculated from the date the invoice is received by the Purchaser. Time for payment shall not be of the essence of the Contract.
11 BREACH
11.1 Any breach of any term of an Order or of any of these Conditions by the Seller shall (whether or not the Purchaser has accepted the Goods or any part thereof and whether or not the property in those Goods has passed to the Purchaser) entitles the Purchaser at its option either to treat the Contract as repudiated or treat any such breach as a breach of warranty giving rise to claim for damages.
11.2 If at any time after acceptance by the Seller of an Order the Seller (being an individual) commits any act of bankruptcy or compounds or makes any arrangement with his creditors or the Seller (being a company) goes into liquidation either voluntary or compulsory (except a voluntary liquidation for the purpose of amalgamation or
reconstruction) or has a receiver appointed over any of its assets or has a petition for an administration order presented in relation to it, the Purchaser may cancel such Order forthwith by written notice to the Seller.
11.3 No time given or concession made on the part of the Purchaser shall be construed as a waiver of any of its rights and remedies hereunder or at common law.
12. CANCELLATION
The Purchaser shall have the right to cancel an order in whole or in part at any time for any reason whatsoever by giving the Seller notice thereof in writing. In such event, the Purchaser shall pay the Seller (except where the Order has been
cancelled due to breach by the Seller) a fair and reasonable sum for all materials used and work done up to the time of the cancellation whereupon the property in such materials shall pass to the Purchaser. The Purchaser shall not be liable for any other loss including consequential or direct loss suffered by the Seller or any third party as a result of such cancellation.
13. WARRANTY
If the Goods or any part thereof are not fit for their purposes or show any defects in design, workmanship or materials or do not otherwise comply with the Contract the Purchaser may within a period of 6 months from the date of delivery at its option either:
a) require the Seller to repair or replace such defective Goods to the satisfaction of the Purchaser (in which case the Clause shall apply to the repaired or replacement Goods)
b) reject such defective Goods (in which case the Purchaser shall return the same to the Seller at the Seller's risk and expense and the Purchaser shall be entitled to purchase equivalent goods elsewhere. Any additional expense incurred in connection therewith shall be reimbursed forthwith by the Seller).
14. ASSIGNMENT
The Seller shall not without the prior written consent of the Purchaser assign or subcontract any Contract or any part thereof (except for materials and minor details the makers or suppliers of which we specified in the Order). Any such consent shall be conditional upon the assignee or sub-contractor accepting these Conditions and shall not in the case of sub-contracting relieve the Seller of his responsibility for any of the Goods included in the Order.
15. CONFIDENTIALITY
The Seller shall treat any Order and any and all designs, drawings, specifications and information supplied therewith as confidential and shall not disclose the same to any third party without the Purchaser's prior written consent and the Seller shall not infringe any copyright, patent, trade mark, registered design or other intellectual property right vested in the Purchaser (save that the Seller may disclose for information already in the public domain).
16. PURCHASERíS PROPERTY
Materials, equipment, tools, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by the Purchaser to the Seller or not so supplied but used by the Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of the Purchaser but shall be held by the Seller in safe custody at its own risk and maintained and kept in good condition by the Seller until returned to the Purchaser and shall not be disposed of other than in accordance with the Purchaserís written instructions, nor shall such items be used otherwise than as authorised by the Purchaser in writing.
17. GOVERNING LAW AND JURISDICTION
The Contract shall be governed by and construed in accordance with English law and each party thereto hereby irrevocably submits to the exclusive jurisdiction of the English Courts.
18. MEDIATION
18.1 If any dispute arises out of the Agreement the parties will attempt to settle it by negotiation. A party may not commence mediation proceedings until 21 days after it has made a written offer to the party to negotiate a settlement to the dispute.
18.2 If the parties are unable to settle any dispute by negotiation within 21 days of the written offer to negotiate has passed, the parties will attempt to settle it by mediation in accordance with the Centre For Effective Dispute Resolutionís Model Mediation Procedure and Agreement.
18.3 To initiate mediation a party must give notice in writing to the other party to the dispute requesting mediation and acopy of the request must also be sent to CEDR.
18.4 Unless otherwise agreed between the parties, the mediator will be nominated by CEDR.
18.5 No party may commence any court proceedings/arbitration in relation to any dispute arising out of the Agreement until they have attempted to settle it by mediation and that mediation has terminated.
18.6 The law of the arbitration or mediation is English Law and all costs will be shared equally between the parties.
19. GENERAL
19.1 The parties to the Contract do not intend that any term of the contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
19.2 Any waiver by the Purchaser of any breach of, or any default under, any provisions of the contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the contract.
19.3 Failure or delay by the Purchaser in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
19.4 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.5 Each right or remedy of the Purchaser under the Contract is without prejudice to any other right or remedy of the Purchaser.

© WEBMART Limited 2007