Standard Terms and Conditions for Procurement of Goods and Services
1. Definitions and Interpretation
- a) In these Conditions, the following definitions apply:
- ‘GearbyBear’ means GearbyBear Ltd, a company registered in England and Wales under number 10872067 whose registered office is at Bridge House, Pattenden Lane, Marden, Kent, TN12 9QJ.
- ‘Supplier’ means the individual, individuals, firm or company providing Goods or Services to GearbyBear. ‘Customer’ means the individual, individuals, firm or company purchasing Goods or Services from or otherwise dealing with GearbyBear.
- ‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
- ‘Conditions’ means the terms and conditions set out in this document, as amended from time to time in accordance with clause 11.
- ‘Contract’ means the contract between GearbyBear and the Supplier for the purchase of the Goods or Services in accordance with these Conditions. ‘Force Majeure Event’ has the meaning given in clause 10. viii. ‘Goods’ means any and all items supplied by the Supplier to GearbyBear.
- ‘Services’ means the services, works and/or tasks to be provided by the Supplier to GearbyBear, as specified in accordance with these Conditions.
- ‘Order’ means the GearbyBear Purchase Order for Goods or Services made by GearbyBear and sent via post, telephone, fax, email or the internet.
- A reference to a particular law is a reference to it as it is in force for the time being, taking account of any amendment, extension, application or re-enactment, and includes any subordinate legislation for the time being in force made under it.
- Words imparting the singular number include the plural and vice-versa.
- A reference to one gender includes a reference to the other gender.
- The headings in these Terms and Conditions are for convenience only and will not affect their interpretation.
2. Basis of Contract and Application of Terms
- These Conditions shall be incorporated in the Order and in any Contract for the purchase of Goods and/or Services made between GearbyBear and the Supplier to the entire exclusion of all others. No other terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or acceptance of Order specification or similar document shall form part of the Contract, and the Supplier waives any right that it might otherwise have to rely on such terms and conditions.
- The Order constitutes an offer by GearbyBear to purchase the Goods or Services in accordance with these Conditions.
- An Order shall be deemed accepted in full either expressly when the Supplier gives notice of acceptance in writing, or impliedly when the Supplier commences the supply of Goods or Services in whole or in part, and such acceptance shall form a Contract.
- The Contract constitutes the entire agreement between the parties. All Orders hereafter made by GearbyBear shall be deemed to be made subject to these Conditions.
3. The Goods and/or Services
- The Goods and/or Services must meet the description supplied by the Supplier, including any description in the Supplier’s trade catalogues or product lists published at the time of the placing of the Order or entry into the Contract, and be entirely safe for use and operation by GearbyBear or its Customers. In addition, the Goods and Services must conform to any product or services specification (including any required variation to the Supplier's description) notified by GearbyBear to the Supplier at the time of or prior to the placing of the Order or entry into the Contract (“Specification”).
- The Goods and Services and any components and packaging must as a minimum requirement be made and provided in accordance with good industry standards and practices and where appropriate comply with all relevant quality standards, including current standards and codes of practice issued by the British Standards Institute (BSI), International Standards Organisation (ISO) and/or other appropriate European standards organisations (all the “Standards”). In addition, the Supplier must comply with the requirements of any applicable law, statute, regulation, directive, and/or code of practice which may be in force at the time of delivery of the Goods and Services (“Statutory Requirements”).
- The date for delivery of Goods, performance and completion of Services shall be specified in the Order. Time for delivery shall be of the essence.
- All Goods set out in the Contract shall be delivered by the Supplier in the quantities, numbers or units of Goods to the delivery address specified therein. The Supplier shall ensure that each delivery is accompanied by a delivery note which shows, among other things, the Order or Contract number, date of Order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered. Where delivery is by instalments, the Contract shall be construed as a single contract in respect of each instalment. Goods shall remain at the sole risk of the Supplier until receipt is acknowledged by GearbyBear. Signature by or on behalf of GearbyBear on any delivery note for Goods will be an acknowledgement of delivery but will not constitute acceptance of the quality and quantity of Goods delivered.
- Risk in the Goods and Services shall remain with the Supplier until delivery is completed (including off-loading and stacking of Goods and acknowledgement by GearbyBear), following which ownership shall pass to GearbyBear.
- GearbyBear shall not be deemed to have accepted the Goods and/or Services until it has had 14 days to inspect them following delivery. GearbyBear shall also have the right to reject the Goods as though they had not been accepted for 14 days after any latent defect in the Goods and/or Services has become apparent.
- The Supplier warrants and undertakes that at the time of delivery and for a period of 12 months thereafter the Goods and Services and their corresponding design, manufacture, construction and supply: (a) comply in all respects with the Specification, Standards and Statutory Requirements; (b) are free from defects in material and workmanship; and (c) are of suitable quality and fit for purpose and intended use by GearbyBear or its Customers.
- At any time during the warranty period, including during GearbyBear’s inspection period before acceptance of the Goods and/or Services, if any defect, failure or non-compliance is found in relation to the Goods, GearbyBear shall have the following options: (a) to reject the Goods and be compensated for the loss and/or to receive suitable replacements promptly free of charge; or (b) to require the Supplier to fully and promptly rectify the defect, failure or non-compliance. The Supplier shall replace and remove such rejected Goods, or rectify such defect, failure or non-compliance in full at its own expense. If a remedy or replacement is not provided to the satisfaction of GearbyBear within the time period, GearbyBear may reject all the goods (or part thereof at GearbyBear's discretion) delivered under the Order or Contract (as appropriate). GearbyBear shall also be entitled to claim compensation for any loss or damage caused.
- This warranty is given without prejudice to and does not affect any other rights and remedies of GearbyBear for breach of the Contract.
6. Prices and Payment
- a) The price of the Goods and Services shall be stated in the Order and unless otherwise agreed in writing by GearbyBear shall be exclusive of VAT but inclusive of all other charges including carriage and packaging.
- All invoices must show the Order or Contract number where applicable, the place of delivery, the address for payment and be valid VAT invoices (where VAT is applicable). Any invoices that are not consistent with terms of the Order or Contract will not be accepted. All invoices shall be subject to the approval of GearbyBear.
- GearbyBear shall pay approved invoices within 30 (thirty) days from the end of the month of whichever is the later of: (a) receipt of invoice; or (b) final completion of the Services or final delivery of Goods.
7. Cancellation and Termination
- a) GearbyBear is entitled to cancel the Order or terminate the Contract without any liability to GearbyBear:
- if the Goods or Services or an instalment of them are not delivered on the due date, in which case without prejudice to any other rights that it may have, GearbyBear shall be entitled to refuse to accept any subsequent delivery of Goods or Services from the Supplier, to recover from it any expenditure reasonably incurred by GearbyBear in obtaining replacement goods, and where delivery was by instalments, to treat the whole Contract as repudiated; ii. for convenience at any time by giving the Supplier written notice, in which case GearbyBear agrees to pay a fair and reasonable amount of any charges due to the Supplier for Services already performed and Goods delivered in accordance with the Contract up to the date of the notice of cancellation or termination; iii. at any time in the event of material irremediable breach of Contract by the Supplier, or in the event of a material breach by the Supplier which has not been remedied within a reasonable period, which shall not be more than 30 days, at any time following expiry of such reasonable period; and/or iv. immediately by notice in writing to the Supplier in the event that an administrative receiver is appointed of any of the Supplier’s assets, or if a resolution is passed for the winding up of the Supplier (otherwise than for the purpose of amalgamation or reconstruction), or if the Supplier is not a company and any analogous action is taken to bankrupt the Supplier.
- b) GearbyBear’s rights to cancel or terminate shall be without prejudice to any other remedies available to GearbyBear. Any Conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.
The Supplier shall indemnify GearbyBear against all claims, demands, actions and proceedings, and all damages, losses (including loss of profits, loss of business or economic loss), injury, costs and expenses of any nature, whether direct or indirect (all referred to as “Loss”) made or awarded against GearbyBear or incurred or paid by GearbyBear as a result of or in connection with: (a) the Supplier’s negligence including any act or omission of the Supplier, its employees, agents or sub-contractors in providing the Goods and/or Services, (b) breach of warranty and/or breach of Condition; (c) defective or faulty workmanship and/or poor quality of materials; (d) failure of the Goods or Services to comply with the Specification and any applicable Standards or Statutory Requirements; and/or (e) any claim made by a third party (including any employee or agent) against GearbyBear to the extent that such liability relates to or arises from the Goods or Services provided by the Supplier or failure by the Supplier to comply with the Order or Contract requirements.
9. Data Protection
In performing the Order and the Contract the Supplier agrees and undertakes to comply with any requirements of the Data
Protection Act 1998 (“DPA”) which may be applicable to the Supplier’s performance. The Supplier agrees to indemnify GearbyBear in the event of any loss or damage (of any nature) incurred by GearbyBear as a result of the Supplier’s failure to comply with its duties under the DPA.
10. Force Majeure
If GearbyBear is prevented or hindered in the carrying on of its business by reason of any cause beyond GearbyBear’s reasonable control (which shall include acts of God, governmental action, war or national emergency, acts of terrorism, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, currency restrictions, strikes or other labour dispute, or restraints or delays affecting shipping or carriers), GearbyBear may defer the date of delivery or cancel the Agreement by notice in writing to the Supplier so far as it relates to the Goods and/or Services not then supplied or work not then done and such cancellation shall not give rise to any claims by the Supplier provided that GearbyBear shall remain liable to pay for the Goods and/or Services supplied prior to the date of such cancellation.
Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by GearbyBear and Supplier.
- If any provisions of the Contract shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of the Contract, which shall remain in full force and effect.
- For the purposes of the Contracts (Rights of Third Parties) Act 1999, the parties do not intend any person other than a party to the Contract to be able to enforce any term of the Contract.
- Any failure by GearbyBear to enforce any or all of these conditions shall not be construed as a waiver of any of GearbyBear’s rights hereunder.
- The Supplier shall not be entitled to assign, transfer or subcontract all or any part of the Order or Contract without the prior written consent of GearbyBear.
- Should there be any conflict between the terms of the Contract and these Conditions, then the Contract shall take priority
- The Supplier performs the Services as an independent contractor and nothing contained in this Agreement shall be construed or have effect as constituting any relationship of employer and employee, principal and agent or partners between GearbyBear and the Supplier.
- All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
- Notices will be deemed to have been duly given:
- when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
- when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; on the fifth business day following mailing, if mailed by national ordinary mail; or iv. on the tenth business day following mailing, if mailed by airmail.
- c) All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
14. Governing Law and Jurisdiction
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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
GearbyBear Ltd, Bridge House, Pattenden Lane, Marden, Kent, TN12 9QJ E firstname.lastname@example.org W gearbybear.com
Issue 1:- 02 Jan 2020