Northern Rail Limited
2012 Terms and Conditions of Purchase
1. Parties and Defined Terms
1.1 In this Contract the following words should have the following meanings:
Buyer shall mean Northern Rail Limited
Conditions shall mean these Terms and Conditions of Purchase
Contract shall mean the contract between the Buyer and Seller consisting of the Purchase Order, the Conditions and any documents specified in the Purchase Order
Goods shall mean all goods specified in the Purchase Order
Purchase Order shall mean the Buyer's Purchase Order, which specifies that the Conditions apply to it
Seller shall mean the person, firm of company to whom the Purchase Order is issued Services shall mean the services specified in the Purchase Order.
1.2 If there is any inconsistency between the documents comprising the Contract, they shall have precedence in the following order:
- the Purchase Order;
- these Conditions;
- any other documents specified in the Purchase Order.
1.3 This Contract applies to all purchases of goods and services made by the Buyer and comprises the entire agreement between the Buyer and the Seller and replaces any previous agreement relating to the same subject matter. The Conditions shall apply to the Contract to the exclusion of any other terms and conditions proposed by the Seller, whether formally proposed or contained in correspondence or discussions between the Buyer and the Seller, and the acceptance of Goods and/or Services by the Buyer shall not constitute acceptance of any terms or conditions of the Seller.
1.4 A Contract shall only come into existence when the Buyer accepts the Seller's offer to provide Goods or Services by placing a Purchase Order. The Buyer does not guarantee to place a Purchase Order or to purchase minimum quantities of Goods or Services from the Seller. Any order acknowledgement sent by the Seller shall be confirmation of receipt of the Purchase Order and confirmation that the goods and/or services to be supplied under the Purchase Order shall comply with any particular requirements of the Buyer set out in that Purchase Order.
2. Quality and fitness for purpose of Goods and Services
2.1 The seller warrants and represents that all Goods delivered shall:
- be of satisfactory quality and free from defects in material, design or workmanship;
- be fit for the purpose for which the Goods are required. If the Seller has any doubts as to the purpose for which the Buyer requires the Goods, it must seek clarification from the Buyer and in the absence of such clarification, the Seller shall be deemed to be fully aware of the Buyer's requirements;
- conform with any specifications, drawings, descriptions and samples referred to in the Contract;
- comply with any applicable railway industry regulations, policies or guidelines which are generally applicable to the Buyer and confirm with all applicable British Standards;
- be free of any third party lien, claim, title or interest; and
- conform with all laws and regulations applicable to the Goods including, without limitation, the Buyer's business policies and any health and safety, environmental, sustainability guidelines of the buyer from time to time notified to the Seller.
2.2 The Seller warrants and represents that the Goods shall be new, and that each item and any component parts comprising the Goods shall be new unless otherwise agreed with the Buyer in writing in advance of delivery thereof.
2.3 The Seller warrants and represents that it shall carry out the Services promptly and with all due skill, care and diligence, and that the Services shall be performed by appropriately experienced, qualified and trained personnel.
2.4 The Seller warrants and represents that neither the performance nor the functionality of the Goods nor the provision of the Services shall be affected by dates prior to, during and after the Year 2000.
2.5 Where the Goods and/or Services delivered pursuant to a Purchase Order comprise (in whole or in part) software ("Software") and/or hardware ("Hardware") (together, the Software and the Hardware being referred to as the "Equipment"), the Seller warrants and represents that:
- the Equipment will conform:
- with the quality, description and other particulars of the Equipment stated in the Purchase Order;
- to all samples, drawings, descriptions and specifications provided to the Customer by the Supplier;
- with all standards referred to on any part of the Equipment and in any product packaging and/or documentation in, with or in relation to which the Equipment is supplied;
- with all applicable legislation for the time being in force;
- the Equipment 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 a period of 12 months from the date of delivery;
- unless the Buyer and Seller have agreed in writing additional conditions for any Software before or at the same time as this Purchase Order, the Supplier has and will continue to have the full right and title to license the Buyer and hereby grants to the Buyer without further charge the irrevocable right and licence to use the Software on the Equipment;
- where the Software is licensed directly to the Buyer by the Seller's licensor, the Seller will procure for the Buyer rights in all respects no less favourable than those it would have granted had it granted the rights directly under the express licence at clause 2.5(c) above;
- at the time of installation the Software will be free from viruses, worms, time locks or anything else that would impair performance of the Software as it might reasonably be expected to operate on the Equipment;
- the Seller will allow the Buyer, at any time within 12 months from the date of delivery of the Equipment, to enter with the Seller into a maintenance agreement for the Equipment (together with any relevant Software) in all respects on the Seller's standard conditions (including without limitation as to price and duration);
- where, at any time, the Buyer has not entered into a maintenance agreement of the kind referred to at condition 2.5(f) above, it will be entitled to maintain the Equipment and any Software itself, or by or through any third party, and in that case the definition of Use will extend to permitting such maintenance of the Software; and
- the Seller will provide to the Buyer high quality user manuals and training and other documentation for the Equipment and the Software without further charge in such form and quantities as the Buyer may reasonably stipulate at any time before 60 days after delivery.
3.1 The date for delivery of the Goods or performance of the Services shall be that specified in the Purchase Order. Where no such date is specified on the face of the Purchase Order, the date of delivery shall be deemed to fall 28 days from the date of the Purchase Order. Delivery may only be made in instalments if specified in the Purchase Order. Time of delivery of Goods and/or Services shall be of the essence of the agreement and the Seller shall be responsible for any loss the Buyer suffers because of late delivery or performance of Goods or Services.
3.2 In addition to the rights set out in clause 3.1 above, where the Seller fails to meet the delivery date specified (or deemed specified) in the Purchase Order, the Seller shall have the right to obtain equivalent Goods and/or Services from another source and shall be entitled to recharge the cost of arranging delivery alternative goods and/or services and the cost of such goods and/or services to the Seller and the Seller shall pay such charges within 28 days of the Buyer's invoice relating thereto.
3.3 Where Goods and/or Services are rejected by the Buyer (including where, without limitation, such rejection arises as a result of a failure of the Seller to comply with due delivery dates) the Seller shall have no responsibility for such rejected Goods and/or Services and all responsibility for the same, including (without limitation) the safekeeping of any such Goods, shall lie with the Seller.
3.4 The Seller shall be responsible for packaging the Goods safely so as to protect any item or part during transportation, unloading or storage. The Seller must separately number all cases, packages or items. The Seller shall submit an itemised packing list or delivery note with the Goods showing the packing numbers and the Buyer's Purchase Order Number. The Purchase Order Number and packing numbers must also be shown on the corresponding invoice and monthly statements.
3.5 Any charges for delivery and insurance must be agreed by the parties prior to placement of the Purchase Order and specified separately on the Purchase Order and the Seller's invoice. If the charges for delivery and insurance are not shown separately in the Purchase Order, the price for the Goods shall be inclusive of delivery and insurance.
3.6 The property and risk in the Goods shall remain with the Seller until they are delivered in accordance with the terms of the Contract and shall pass to the Buyer upon delivery in accordance with its terms, or shall pass to the Buyer on the date the buyer makes payment therefor (if earlier). The Seller shall be responsible for insuring the Goods during delivery and unloading.
3.7 The Seller shall test all Goods to be delivered to the Seller prior to delivery and shall confirm in writing to the Buyer that all such Goods comply with the Contract.
4. Price and Payment
4.1 The price for the Goods and/or Services shall be as specified in the Purchase Order, unless the Seller's standard charges for the Goods and/or Services are lower on the scheduled delivery date than the prices quoted in the Purchase Order. In this event, the Buyer shall be obliged to sell and the Buyer shall be entitled to purchase the Goods or Services at the lower price.
4.2 The Seller warrants that the price for the Goods and/or Services is at least as low as the price at which the Seller is currently selling the Goods and/or Services or similar Goods and/or services in the same or similar quantity and value to its most favoured customers.
4.3 VAT shall be payable by the Buyer in addition to the price for the Goods and/or Services where applicable and shall be clearly identified in the Seller's Invoice.
4.4 Any advance payments made by the Buyer shall be held by the Seller as a part payment and not as a deposit. In the event of cancellation of a Purchase Order, all and any pre-payments made by the Buyer in respect thereof shall be returned to the Buyer within 5 days of such cancellation.
4.5 The Seller shall invoice the Buyer upon delivery of the goods or performance of the Services. Payment shall be due at the end of the month following the month in which the Goods are delivered or the Services are performed, subject to receipt by the Buyer of a correctly presented invoice. The Seller shall issue the Buyer with a regular monthly statement showing amounts due or payable in respect of outstanding invoices.
4.6 Where the Seller delivers Goods and/or provides Services to the Buyer and the Buyer owes any payments to the Seller on any other account, the Buyer shall be entitled in its remittance to the Seller to set off any such sums owed to it by the Buyer against the Buyer's invoice, provided always that the Buyer will specify in sufficient detail the amount of such set off and the invoice against which such amount is to be treated as set off against.
5.1 The Seller acknowledges that a complete inspection of the Goods cannot be made on delivery and agrees that, by taking delivery of the Goods, the Buyer is not agreeing that their delivery constitutes satisfactory performance of the Contract and does not waive or relinquish any rights that it may have against the Seller for failure to discharge its obligations under the Contract.
5.2 Where Goods delivered or Services performed by the Seller are defective for any reason, the Buyer shall give notice to the Seller of its rejection of the goods or Services or part of them within a reasonable time of delivery or performance and, unless otherwise stated in writing by the Buyer, a notice of rejection shall relate to all Goods and/or Services stated in the relevant Purchase Order.
5.3 Without prejudice to any other remedies available to the Buyer, the Buyer shall have the option to require the Seller to replace defective Goods or re-perform defective Services promptly and at no expense to the Buyer, or to refund to the Buyer and price for the defective Goods or Services. Repaired and replaced Goods, and re-performed Services, shall be subject to the terms of the Contract.
5.4 During any warranty period specified in the Contract, software updates and corrections shall be provided by the Seller free of charge.
5.5 Without prejudice to any other remedies available to the Buyer in the event that the Goods or Services or any part of them fail at any time to meet the Year 2000 compliance warranty in clause 2.4, the Seller shall use its best endeavours to resolve such problems immediately, including providing replacement Goods or Services that are Year 2000 compliant if required by the Buyer.
6.1 Any variation to the Contract must be agreed in writing by both parties using the Buyer's order amendment form and must refer to the original Purchase Order Number.
7. Order Cancellation
7.1 The Buyer shall have the right at any time to cancel any Purchase Order for standard stocked Goods or standard Services at any time prior to delivery without incurring any charge. If the Buyer cancels a Purchase Order for non-standard stocked Goods or Services, the Buyer shall reimburse the Seller's reasonable costs incurred as a result of cancellation.
7.2 In addition, the Buyer may terminate the Contract immediately by giving notice in writing to the Seller if:
- the Seller fails to supply the Goods or Services within the delivery times specified in the Purchase Order; or
- the Buyer reasonably believes at any time that the Seller will not supply the Goods or Services within the delivery time; or
- the Seller undergoes any change of Control (where “Control” shall mean a person who was not, at the time of the Purchase Order, able to control the greater part of the voting rights in relation to the shares or other voting stock of a company becoming able to exert that control or where a person who was not, at the time of the Purchase Order, able to control the greater part of the voting rights in relation to a company's board of directors becoming able to exert that control over such company),
and the Buyer shall have no further liability to the Seller following cancellation of the Contract for these reasons. Any such termination shall be without prejudice the accrued rights of the Buyer and the Seller at the time of cancellation.
8 Intellectual Property Rights
8.1 The Seller warrants that it is the sole owner of the Goods and has full and unrestricted right and authority to supply the Goods and/or Services to the Buyer on the terms of this Contract.
8.2 The Seller will indemnify and keep indemnified the Buyer against any claim of infringement of third party intellectual property rights by the Seller's supply of or the Buyer's use of the Goods or Services.
9 Assignment, Sub-Contracting and TUPE
9.1 The Seller shall not without the Buyer's prior written consent assign, transfer or sub-contract the Contract or any of its rights or obligations under the Contract to any third party.
9.2 The Buyer may, by serving notice in writing on the Seller, assign any Contract to any company which is either a subsidiary of the Buyer, a holding company of the buyer or any other subsidiary of any such holding company of the Buyer and in this clause 9.2 “subsidiary” and “holding company” shall bear the meanings set out in s.1159 of the Companies Act 2006.
9.3 Unless specifically agreed otherwise in writing, the Seller shall indemnify and hold harmless the Buyer from and against any claim (including legal and other professional fees and expenses and any court or tribunal awards) received or other liability suffered or incurred by the Buyer from a person who may claim that his or her employment has transferred to the Buyer as a result of any Contract or series of Contracts under the operation of the Transfer of Undertakings (Protection of Employment) Regulations 2006. The indemnity given in this clause 9.3 shall remain enforceable as between the Buyer and the Seller notwithstanding termination of any Contract.
10 Hazardous Goods and Regulatory Requirements
10.1 Any Goods having a toxic hazard or other hazard to the safety of persons or property must be marked by the Seller with appropriate internationally recognised danger symbols clearly identifying the name of the material in English, and the Seller should give the Buyer as much prior written notice as possible of such Goods. Transport and other documents must include a declaration of the hazard and name of the material in English. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings giving full details of precautions to be taken on the delivery of such Goods and their handling or storage. The Seller shall observe the requirements of the UK and International law relating to the packaging, labelling and carriage of all Goods.
10.2 The Seller shall procure that, where any of its employees, agents and other servants are required to be physically present on the Buyer's premises in order to make delivery or installation of any Goods or Services or otherwise, all such employees, agents and other servants will be covered by a valid policy of insurance (a copy of which shall be made available to the Buyer upon request) for public and employer's liability purposes. Whist on the Buyer's premises, the Seller will procure that its servants shall comply with all health and safety regulations adopted by the Buyer.
10.3 The Seller warrants that it is aware that the Buyer operates in a regulated industry and understands that the Buyer has a number of policies in place with regards to, inter alia, business conduct, welfare policies and policies relating to sustainability. The Seller shall also comply with all such policies and applicable railway industry standards available as updated from time to time at: http://www.rssb.co.uk/RGS/Pages/STANDARDSRELATEDINFORMATION.aspx. Where the Seller does not have copies of such applicable policies of the Buyer, the Buyer will, upon request and within a reasonable time, supply to the Seller copies of such policies. The Seller acknowledges that the Buyer may changes its policies from time to time and without notice and that it is the Seller's responsibility to ensure it has up-to-date copies of such policies.
11.1 The Seller shall:
- comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”);
- not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
- comply with the Buyer's Anti-bribery and Anti-corruption Policies (as provided to the Seller from time to time or as uploaded to the Buyer’s website) (“Relevant Policies”);
- have and shall maintain in place throughout the term of this agreement its own policies and procedures, including (as a minimum standard) adequate procedures under the Bribery Act 2010 to ensure compliance with the Relevant Requirements, the Relevant Policies and clause 11.1.b. above, and will enforce them where appropriate;
- promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of the Contract;
- immediately notify the Buyer (in writing) if a foreign public official becomes an officer or employee of the Supplier or acquires a direct or indirect interest in the Seller (and the Seller warrants that it has no foreign public officials as officers or employees or direct or indirect owners of its undertaking at the date of the Contract);
- within 3 months of the date of the Contract, and annually thereafter, certify to the Buyer in writing signed by an officer of the Seller, compliance with this clause 11 by the Seller and all persons associated with it under clause 11.2 below. The Seller shall provide such supporting evidence of compliance as the Buyer may reasonably request.
11.2 The Seller shall ensure that any person associated with the Seller who is performing Services or providing Goods in connection with a Contract does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Seller in this clause 11 (“Relevant Terms”). The Seller shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms.
11.3 Breach of this clause 11 shall be deemed a material breach of the Contract.
11.4 For the purpose of this clause 11 the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this clause 11 a person associated with the Seller includes but is not limited to any subcontractor of the Seller.
11.5 The Buyer and the Seller each undertakes that it (and shall procure that no person acting on its behalf) shall not at any time after the date of a Contract use, divulge or communicate to any person (except to his professional representatives or advisers or as may be required by law or any legal or regulatory authority) any confidential information concerning the terms of this agreement, the business or affairs of the other party which may have (or may in future) come to his knowledge, and each of the Buyer and Seller shall use their reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
11.6 Neither the Buyer nor the Seller shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under a Contract if such delay or failure results from events, circumstances or causes beyond that party’s reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for 4 weeks, the party not affected may terminate this agreement by giving 5 days' written notice to other party of such decision.
11.7 A Contract and the documents comprised therein are made for the benefit of the parties to them and their successors and permitted assigns, and are not intended to benefit, or be enforceable by, anyone else.
11.8 This Contract shall be governed by and construed in accordance with English law and shall be subject to the jurisdiction of the English Courts.
11.9 Failure or delay by the Buyer to exercise any of its rights shall not be a waiver or forfeiture of such rights. Any waiver by the Buyer of any term or condition of this Contract or of any breach by the Seller may be terminated by the Buyer at any time and shall not prevent the Buyer from enforcing any term of this Contract or from acting on that or any subsequent breach.
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