1.1 Definitions In these Conditions, the following definitions apply:
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Contract: the contract between BSL and the Supplier for the supply of Goods and/or Services in accordance with and subject to these Conditions.
BSL: means Benbow Steels Limited registered in England with company number 06007894 and whose registered office is at Units 5-6 Ashmore Industrial Park, Great Bridge Street, West Bromwich, West Midlands, B70 0BW.
Deliverables: all documents, content, photographs, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including any drafts).
Goods: the goods / products (or any part of them) set out in the Order.
Goods Specification: any specification for the Goods, including any related plans and drawings that is agreed in writing by BSL and the Supplier.
Intellectual Property Rights: patents, copyright and related rights, trade marks, rights in designs, database rights and all other intellectual property rights.
Order: BSL’s order for the supply of Goods and/or Services.
Services: where applicable the services (including without limitation any Deliverables created or produced pursuant to those services), to be provided by the Supplier under the Contract as set out in the Service Specification.
Service Specification: the description of or specification for the Services agreed in writing by BSL and the Supplier.
Supplier: the person or firm from whom BSL purchases the Goods and/or Services (as the case maybe).
1.2 Construction. In these Conditions (a) references to a party includes its successors or permitted assigns; (b) a reference to any law is a reference to such law as amended or re-enacted (including any subordinate legislation); and (c) a person includes a natural person, corporate or unincorporated body.
2 Basis of contract
2.1 The Order constitutes an offer by BSL to purchase Goods and/or Services (as the case maybe) from the Supplier in accordance with these Conditions. The Order shall be deemed to be accepted on the earlier of (a) the Supplier issuing written acceptance of the Order; or (b) any act by the Supplier consistent with fulfilling the Order; at which point and on which date the Contract shall come into existence (“Commencement Date”). All of these Conditions shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
2.2 These Conditions shall apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate (such as the Supplier’s conditions of sale), or which are implied by law, trade, custom, practice or course of dealing. By supplying Goods and/or Services to BSL, the Supplier irrevocably agrees to these conditions notwithstanding any references to the contrary or other terms (such as conditions of sale) in any document or acknowledgement of order from emanating from the Supplier.
2.3 BSL will only be bound by any additional special terms that BSL has expressly agreed to in writing; such special terms varying and/or supplementing these Conditions as the case maybe.
3 Supply of Goods
3.1 The Supplier shall ensure that the Goods shall: (a) correspond with their description and any applicable Goods Specification; (b) be of satisfactory quality (as per the Sale of Goods Act 1979) and fit for any purpose held out by the Supplier or made known to the Supplier by BSL, expressly or by implication; (c) be free from defects in design, materials and workmanship and remain so for 24 months after delivery (unless a longer period is agreed); and (d) comply with all applicable statutory and regulatory requirements in the United Kingdom including those relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 BSL shall have the right if it chooses to inspect and test the Goods at any time before delivery. If following such inspection or testing BSL considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, BSL shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance. Notwithstanding any such inspection or testing (or lack of), 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, and BSL shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
4 Delivery of Goods
4.1 The Supplier shall ensure that: (a) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition; and (b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods (where applicable)), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 In respect of domestic contracts the Supplier shall deliver the Goods (a) on the date specified in the Order; (b) to BSL’s premises at the address set out in the Order or such other location as instructed by BSL before delivery (“Delivery Location”); and (c) during BSL’s normal hours of business on a Business Day, or as instructed by BSL.
4.3 Where the Goods are being supplied from overseas then unless otherwise agreed in writing by BSL, the Goods shall be delivered in accordance with INCOTERMS 2020 DDP, to the place defined in the Contract or, if no such place has been defined, to BSL’s place of business. In the event of any conflict between INCOTERMS 2020 DDP and these Conditions, then these conditions shall prevail.
4.4 Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.5 If the Supplier (a) delivers less than 95% of the quantity of Goods ordered, BSL may reject the Goods; or (b) delivers more than 105% of the quantity of Goods ordered, BSL may at its sole discretion reject the Goods or the excess Goods, and any rejected Goods shall be returnable at the Supplier’s risk and expense. If the Supplier delivers more or less than the quantity of Goods ordered, and BSL accepts the delivery, the Supplier shall make a pro rata adjustment to the invoice as regards the price of the Goods delivered.
4.6 The Supplier shall not deliver the Goods in instalments without BSL’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle BSL to the remedies set out in clause 6.1.
4.7 Title and risk in the Goods shall pass to BSL on completion of delivery.
5 Supply of Services
5.1 The Supplier shall from the Commencement Date or such other date as agreed by the parties and for the duration of this Contract provide the Services to BSL in accordance with the terms of the Contract.
5.2 The Supplier shall meet any performance dates for the Services specified in the Order or notified to the Supplier by BSL. In providing the Services, the Supplier shall:
5.2.1 perform the Services with the best care, skill and diligence in accordance with best practice in the Supplier’s industry, profession or trade;
5.2.2 use personnel who are suitably skilled and experienced and in sufficient number to ensure that the Supplier’s obligations are fulfilled in accordance with this Contract;
5.2.3 ensure that the Services and Deliverables will conform with all descriptions and specifications set out in the Service Specification, and that the Deliverables shall be fit for any purpose expressly or impliedly made known to the Supplier by BSL;
5.2.4 provide all equipment, tools and vehicles and such other items as are required to provide the Services;
5.2.5 use the best quality goods, materials, standards and techniques, and ensure that the Deliverables, and all goods and materials supplied and used in the Services or transferred to BSL, will be free from defects in workmanship, installation and design; and
5.2.6 hold all materials, equipment and tools, drawings, specifications and data supplied by BSL to the Supplier (“BSL Materials”) in safe custody at its own risk, until returned to BSL, and not dispose or use BSL Materials other than in accordance with BSL’s written instructions or authorisation.
5.3 All Intellectual Property Rights in the Deliverables shall be owned by BSL.
6 BSL Remedies
6.1 If the Supplier fails to deliver the Goods and/or perform the Services by the applicable date, BSL shall, without limiting its other rights or remedies, have the right to terminate the Contract with immediate effect by giving written notice to the Supplier.
6.2 If the Supplier has delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, BSL may exercise any or all of the following rights:
6.2.1 to reject the Goods (in whole or in part) whether or not title has passed and to return them to the Supplier at the Supplier’s own risk and expense;
6.2.2 to terminate the Contract with immediate effect by giving written notice to the Supplier;
6.2.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
6.2.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
6.2.5 to recover from the Supplier any expenditure incurred by BSL in obtaining substitute goods from a third party; and
6.2.6 to claim damages for any additional costs, loss or expenses incurred by BSL arising from the Supplier’s failure to supply Goods in accordance with clause 3.1.
6.3 These Conditions shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by the Supplier. BSL’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
7 Charges and payment
7.1 The price for the Goods: (a) shall be the price set out in the Order, or if no price is quoted, the price set out in the Supplier’s published price list in force at the Commencement Date; and (b) shall be inclusive of the costs of packaging, carriage and insurance of the Goods, unless otherwise agreed in writing by BSL. No extra charges shall be effective unless agreed in writing and signed by BSL.
7.2 The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of the Supplier in respect of the performance of the Services. Unless otherwise agreed in writing by BSL, the charges shall include every cost and expense of the Supplier directly or indirectly incurred in connection with the performance of the Services.
7.3 In respect of Goods, the Supplier shall invoice BSL on or at any time after completion of delivery. In respect of Services, the Supplier shall invoice BSL on completion of the Services. Each invoice shall include such supporting information required by BSL to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
7.4 In consideration of the supply of Goods and/or Services by the Supplier, BSL shall pay the Supplier’s invoices in accordance with the payment terms and timescales expressly agreed by the Supplier and BSL in writing. In the event that payment terms are not expressly agreed then the default position shall be payment by the BSL within 60 days of the end of the month in which the invoice was received.
7.5 All amounts payable by BSL under the Contract are exclusive of valued added tax (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to BSL, BSL shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
7.6 BSL may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to BSL against any liability of BSL to the Supplier whether or not either liability arises under the Contract.
8.1 The Supplier shall keep BSL indemnified against all liabilities, costs, expenses, damages and losses (including professional costs and expenses) suffered incurred by BSL as a result of or in connection with any or one or more of the following:
8.1.1 any claim made against BSL for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, and/or receipt, use or supply of the Services;
8.1.2 any claim made against BSL by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
8.1.3 any claim made against BSL by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.
9.1 BSL may terminate the Contract for convenience in whole or in part by giving Supplier 14 calendar days written notice.
9.2 Without limiting its other rights or remedies, BSL may terminate the Contract with immediate effect by giving written notice to the Supplier if one or more of the following occurs:
9.2.1 the Supplier commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of receipt of notice in writing to do so;
9.2.2 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;
9.2.3 BSL has genuine concerns as to the financial position of the Supplier; and
9.2.4 the Supplier (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
9.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.4 On termination of the Contract for any reason, the Supplier shall immediately return all BSL Materials and promptly upon request deliver to BSL all Deliverables whether or not then complete.
10.1 Assignment and other dealings: BSL may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of BSL.
10.2 Confidentiality: The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by BSL its employees, agents or subcontractors, and any other confidential information concerning BSL’s business, its products and services which the Supplier may obtain.
10.3 Severance: If any provision or part-provision of 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 and this shall not affect the validity and enforceability of the rest of the Contract.
10.4 Waiver: A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the 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.
10.5 Third parties: A person who is not a party to the Contract shall not have any rights to enforce its terms.
10.6 Variation: Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by BSL.
10.7 Compliance: in performing its obligations under the Contract the Supplier shall comply with all applicable laws and regulations from time to time in force including the Modern Slavery Act 2015, the Bribery Act 2010 and the Data Protection Act 1998. Further the Supplier shall not engage in any activity, practice or conduct outside of the UK (or encourage or procure the same) that would constitute an offence under any such legislation if such activity, practice or conduct were carried out in the UK.
10.8 Force Majeure: BSL shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from an event, circumstances or cause beyond its reasonable control.
10.9 Law: The Contract and any dispute arising or matter relating to it shall be governed by and construed in accordance with the laws of England. Each party irrevocably agrees to the jurisdiction of the courts of England.