Conditions of purchase
1. Definitions
For the purpose of these Conditions: an Order means the purchase order on which these Conditions are printed together with these Conditions; Purchaser means Sony Music Entertainment UK Limited and unless the context otherwise requires its licensees and successors in title; Supplier means the supplier with whom an Order is placed; Conditions shall mean the conditions as set forth below.
2. Application of conditions
(a) The Order and these Conditions contain the entire agreement and understanding between the Supplier and the Purchaser in respect of the supply of the materials, goods or services referred to herein and merges all prior discussions and negotiations between them save where varied specifically by a written contract signed by both the Purchaser and Supplier. Any terms or conditions stated in the Suppliers quotation, or in the Supplier s acknowledgement of receipt of this Order shall not be binding on the Purchaser if in conflict with or in addition to any of the provisions of this Order (including but not limited to delivery schedule, price, quantity, specifications and terms and conditions) unless expressly agreed to in writing by a duly authorised officer of the Purchaser. This Order may not be changed orally.
(b) All materials, goods and services and all products thereof delivered or to be delivered by or on behalf of the Supplier pursuant to this or any other Order after the Purchaser has placed this Order shall be the subject of these Conditions and shall be provided by the Supplier subject to and in accordance with all the provisions herein contained save only where a duly authorised officer of the Purchaser hereafter confirms in writing to the Supplier any alteration to these Conditions in respect of any specific materials, goods or services or the Purchaser makes any such alteration in respect of any or all material, goods or services to be so supplied generally.
3. Deliveries
(a) The Supplier agrees that time is of the essence of this Order. If the Suppliers fails to make deliveries or perform the services at the time agreed upon, or performs the work hereunder in such a fashion as endangers its ability to make timely deliveries or to render timely performance or services, the Purchaser reserves the right to cancel this Order and / or, purchase elsewhere, and hold the Supplier accountable for any additional costs or damages reasonably incurred by the Purchaser.
(b) For avoidance of doubt the Purchaser's right to cancel as set forth above may be exercised prior to, on or within a reasonable time after delivery.
(c) The cost of carriage and delivery to the Purchaser or its designee as the Purchaser may elect of all material and goods and the product of all services and workmanship the subject of these Conditions shall be paid by the Supplier who shall arrange such delivery promptly and securely at all material times and places.
(d) For avoidance of doubt delivery shall not be deemed to have taken place unless and until a duly authorised officer of the Purchaser acknowledges the same in writing and the provisions of Clauses 14 and 15 as applicable have been fulfiled by the Supplier.
4. Prices
(a) The Supplier s price shall not be higher than as set forth on the applicable Order or (if lower) as last quoted or charged to the Purchaser unless otherwise agreed in writing.
(b) In the event of any dispute arising prior to delivery between the parties relating to or affecting the price for any materials, goods or services to be so delivered the Supplier shall not be entitled to withhold or delay the delivery thereof.
(c) Where tax or similar authorities or statutory or like provisions so require, the Purchaser may deduct from payments to the Supplier hereunder any tax or other fiscal or governmental imposition or levy which the Purchaser is obliged to deduct or which is imposed upon the Purchaser. In the event of any such deduction being so made, the Purchaser shall on request notify the Supplier and provide the Supplier with particulars requested which may be in the Purchaser's possession to enable the Supplier to recover the same or receive an appropriate tax credit.
5. Quantities
Shipments must equal amounts Ordered unless otherwise agreed by the Purchaser.
6. Warranties
(a) The supplier warrants that all materials, goods or services to be delivered or rendered hereunder are and will be free from defect of materials or workmanship and conform strictly to any requirements, specifications, drawings or sample specified or furnished by or on behalf of the purchaser. The provisions of Sections 11 and 35 of the Sale of Goods Act 1979 (as superseded and amended) are hereby excluded to the extent permitted by law between the parties hereto.
(b) Without limiting sub-clause6(a) above subject as provided in Clause 7(c) below the Supplier warrants that all materials, goods or services to be delivered hereunder shall remain free after delivery from any latent defects.
(c) The Supplier warrants that all materials, goods or services to be delivered hereunder are the unencumbered property of the Supplier free of all third party claims, charges, liens or other limitations on use what so ever and that the Supplier is free to enter into this Agreement and fully to observe, perform and execute all of the Supplier's agreements, obligations, representations and warranties contained herein.
(d) The Supplier is not acting in respect of this Order as agent disclosed or otherwise for any other person.
(e) The Supplier shall upon demand indemnify and save harmless the Purchaser, its licensees and successors in title against any claim, loss expense or liability whatsoever arising from any breach or non-observance by the Supplier of any of its agreements, undertakings, representations or warranties herein.
7. Inspection
(a) All material, workmanship, goods or services the subject of or relating to the performance of this Order shall be subject to the Purchaser's inspection test and approval at all times before, during, or after manufacture or supply as the case may be. The Supplier shall furnish without additional charge, all reasonable facilities and assistance for the safe and convenient inspections and tests required by the Purchaser's staff or nominated inspectors. Final inspection and acceptance shall be on the Purchasers premises during working hours unless otherwise agreed in writing by the Purchaser. The Purchaser shall have the right to reject and return at the Supplier's expense or, in its discretion, to require the correction or replacement of, materials, workmanship, goods or services which are defective or do not conform to the requirements of this Order. All rejects shall be held at the Supplier's risk and expense, including all transportation and handling cost, until return to the Supplier or corrected by the Supplier to the Purchaser's satisfaction.
(b) The price specified on this Order shall, unless otherwise stated, be payable within thirty (30) days of the end of the month following inspection and approval in accordance with the foregoing sub-clause (a), delivery in accordance with Clause 3 and submission of a correct invoice valid (where applicable) for VAT purposes (whichever is the later).
8. The purchaser's property
All materials including tools, furnished or specifically paid for by the Purchaser shall be the property of the Purchaser, shall be subject to removal at any time without additional cost upon demand by the Purchaser, shall be used only in filling Orders from the Purchaser, shall be kept separate from other materials or tools and shall be clearly identified as the property of the Purchaser. The Supplier assumes all liability for loss or damage with exception of normal wear and tear, and agrees to supply detailed statements of inventory upon request by the Purchaser.
9. Patents
The Supplier agrees to defend, at its own expense, the Purchaser, its distributors and dealers in and users of the products of the Purchaser, and to hold them harmless, with respect to any and all claims that the products or materials furnished by the Supplier under this order infringe any patents or other intellectual property rights of any third party and with respect to any and all suits, controversies, demands and liabilities arising out of any such claim.
10. Assignment
The Supplier shall not delegate any duties, nor assign any rights or claims under this Order or these Conditions or for breach thereof, without prior written consent of the Purchaser and any such attempt delegation or assignment shall be void. All claims for monies due or to become due from the Purchaser shall be subject to deduction by the Purchaser of any set-off or counter-claim arising out of this or any other of the Purchaser s order from the Supplier, whether such set-off or counter-claim arose before or after such assignment by the supplier.
11. Changes
(a) The Purchaser may at any time, by written order and without notice to any sureties, make changes within the general scope of this Order in respect of any one or more of the following:
(i) drawings, designs or specifications;
(ii) method of shipment or packing
(iii) quantities of articles to be furnished;
(iv) place of delivery;
(v) delivery schedules.
The Supplier shall be deemed to have received notice of any such changes from the Purchaser immediately in the case where the same is delivered by email, hand or by fax and within one (1) business day after posting in the case where such order is sent by the Purchaser by registered or recorded delivery post.
(b) The Purchasers personnel may from time to time render assistance or give technical advice to, or exchange information with, the Supplier's personnel concerning this Order or the materials, goods or services to be furnished hereunder. However, such assistance, advice, statements or exchange of information shall not constitute a waiver with respect to any of the Supplier's obligations or the Purchaser's rights hereunder or be authority for any change in the materials, goods or services called for hereunder. Any such waiver or change to be binding upon the Purchaser must be in writing and signed by a duly authorised representative of the Purchaser.
12. Supplementary information
Any specifications, drawings, notes, instructions, engineering notices, or technical data referred to in this Order shall be deemed to be incorporated herein by reference as if fully set forth.
13. Bankruptcy
In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against the Supplier, or in the event of the appointment, with or without the Supplier's consent, of any representative for the benefit of the Supplier's creditors or of a receiver or administrator over any of the Supplier's assets or if the Supplier shall cease to trade or if there shall take place any of the other events mentioned in Clause 19 below, then the Purchaser shall be entitled to elect to cancel any unfulfilled part of this Order without liability whatsoever.
14. Proof of shipment
The Supplier shall forward to the Purchaser, with the invoice, the express receipt or bill of loading, signed by the carrier, and any other documentation the Purchaser may reasonable require from the Supplier evidencing the fact that shipment has been made and that title to any materials and goods and to the product of any services and workmanship the subject of these Conditions has duly passed to the purchaser.
15. Title to drawings and specifications
(a) The Purchaser shall at all times have title to all drawings, specifications and materials furnished by the Purchaser to the Supplier intended for use in connection with this Order. The Supplier shall use such drawings specifications and materials only in connection with this Order and shall not disclose such drawings specifications and materials to any person, firm or corporation other than the Purchaser's or the Supplier's employees and subcontractors the Supplier having first imposed upon them effective duties of confidence in respect thereof. The Supplier shall, upon the Purchaser's request or upon completion of this Order, promptly return all drawings specifications and materials to the Purchaser.
(b) The Supplier agrees for avoidance of doubt that all drawings and specifications and any materials, goods and workmanship or products of any services created in order to fulfil the obligations of the Supplier pursuant to this Order or any other Order placed on the Supplier by the Purchaser shall at all times belong to the Purchaser. The Supplier shall use the the same only in connection with the applicable Order and shall not disclose any of the same save as in the foregoing sub-clause (a). The Supplier shall, upon completion of this Order, promptly deliver all such drawings, specifications, materials and other products of services to the Purchaser in accordance with Clause 3(d) above.
(c) The Supplier hereby authorises the Purchaser and any persons authorised by the Purchaser to enter with or without notice any premises or other place where any materials or goods or the product of any services or workmanship the subject of these Conditions, or any drawings, specifications or other matter referred to in the previous sub-clauses (a) or (b) may be or may reasonably be expected to be by any means including the use of physical force causing damage to premises and property which such damage shall be the sole liability of the Supplier.
(d) Without limiting the foregoing the Supplier agrees to idemnify and hold harmless the Purchaser from and against any cost, claim, expense or liability incurred by the Purchaser and those authorised in good faith by the Purchaser in seeking to recover and/or dispose of any part of the items mentioned above.
16. Publicity, promotion or advertising
(a) The Supplier shall not, without the Purchaser's prior written consent, issue any news release, advertising, publicity or promotional material regarding this Order (including denial or confirmation thereof).
(b) Without limiting the foregoing sub-clause (a) the Supplier agrees to keep completely private and confidential and shall not disclose to any third party and shall procure that its employees, servants, officers and agents shall not disclose to any third party any matter contained in this Order or these Conditions not then being in the public domain or subject to an Order of Court to be disclosed and any other information concerning the business and affairs of the Purchaser.
17. Governing law
These Conditions shall be governed by and constued in accordance with English Law and the parties agree to submit any claim, matter or dispute to the exclusive juristiction of the English Courts.
18. Title and risk
(a) Property in and title to all materials and goods the subject of these Conditions shall pass to the Purchaser on shipment from the premises of the Supplier or in the case where such materials and goods do not originate from the Supplier's own premises then on shipment from the premises of such party as the Supplier engages to furnish the same to the Purchaser.
(b) Property in and all right title and interest in and to the products of any services or workmanship to be rendered pursuant to these Conditions shall unless otherwise specifically agreed in writing with the Purchaser pass to the Purchaser when such services or workmanship are rendered or in the event that such products are agreed to be delivered in the form of finished materials or goods then on shipment of the same as in the provisions of sub-clause (a).
(c) For avoidance of doubt once property and title have passed to the Purchaser as set forth above the Purchaser may deal with, exploit and dispose of all materials and goods and the product of all services and workmanship hereunder as it sees fit and without further payment to the Supplier save as may otherwise be specified in this Order.
(d) All risk in the materials and goods and in all physical products of services and workmanship the subject of these Conditions shall remain with the Supplier until delivery in accordance with all relevant provisions hereof shall duly have taken place.
(e) The Supplier shall take out and maintain for the benefit of the Purchaser full insurance against any loss, damage, injury to or theft of any materials, goods and products of services hereunder (until delivered to the Purchaser) in the possession or control of the Supplier pursuant to this Order and shall name the Purchaser as beneficiary thereof and upon demand shall assist as the Purchaser may require in securing payment under any such insurance policy.
19. Termination
In the event of breach or non-observance by the Supplier of all or any of these Conditions or if the Supplier (being an individual) shall commit and act of bankruptcy or a receiving order be made against him or if the Supplier (being a company) shall enter into an arrangement or composition with its creditors or go into administration, receivership or liquidation whether voluntary or otherwise except for the purpose of amalgamation or reconstruction, the Purchaser shall have the right to give the Supplier written notice forthwith determining this Order always without prejudice to existing rights of and remedies available to the Purchaser.
20. Suppliers modifications
In the event that the Supplier intends to introduce modifications or alterations to any materials, goods or services to be supplied to the Purchaser hereunder the Supplier undertakes before any such modifications or alterations are put in hand to give the Purchaser thirty days prior notice in writing thereof. Such notice shall incorporate full particulars of the proposed modification or alteration with specific reference to the effect on weight, performance, interchangeability, delivery, price and means of application together with additional details outlining the reason for the proposed modification or amendment and a list of any items or parts to be called up or made redundant thereby. The Purchaser may without limiting the generality of Clause 11(a) at its election require any such materials, goods or services covered by the notice to be furnished by the Seller in the pre-modified state at no additional charge or at such cost as the Purchaser may deem reasonable in its discretion, and and/or may at its election cancel this Order or such part thereof as is affected by such notice from the Supplier without redress if such modification or alteration is unacceptable.
21. Acceptance
Commencement of performance by or on behalf of the Supplier pursuant to this Order constitutes acceptance hereof by the Supplier. The foregoing does not limit or exclude any other valid acceptance hereof by the Supplier. The Supplier shall notify the Purchaser of the commencement of performance by or on behalf of the Supplier as soon as the same takes place and/or upon being requested to confirm the same by or onbehalf of the Purchaser. For avoidance of doubt acceptance hereof by the Supplier is separate and distinct from acceptance of the subject matter of this Order by the Purchaser and the latter is for avoidance of doubt subject to all other applicable provisions of these Conditions including without limitation those provisions applicable to delivery. If delivery dates cannot be met the Supplier shall forthwith inform the Purchaser in writing by return mail of the Suppliers best possible delivery for the Purchaserës acceptance. the Purchaser may at its election cancel this Order without redress if such amended delivery date is unacceptable.
22. General
(a) The clause headings herein are for information only and do not form part of these Conditions.
(b) No waiver of any of these Conditions or of any default thereof shall affect either party's right thereafter to enforce such Condition or exercise any right or remedy in respect of any future default.
(c) If any of these Conditions shall be determined by the Court to be invalid or unenforcable this shall not affect the validity or enforceability of the remainder of these Conditions which shall remain in full force and effect.
(d) For avoidance of doubt the Purchaser hereby reserves and remains entitled to the benefit of all rights and remedies to which it may be entitled by statute or by way of implied rights at law.