Terms and Conditions of Purchase

1. Definitions

The following words shall have the meaning so assigned to them:-

“The Company” means Tyco Fire Products Manufacturing T/A J W Singer, Handlemaker Road, Frome, Somerset, BA11 4RW.

“Supplier” means the person, firm or company on whom the Order is placed

“Order” means this Purchase Order and any amendment thereto placed on the Company’s behalf by a duly authorised officer.

“Force Majeure Event” means an event beyond the reasonable control of either party, their employees, agents or contractors including but not limited to public calamity or act of God. For the avoidance of doubt industrial relations difficulties are not a Force Majeure Event.

“Losses” means all losses, liabilities, claims, actions, damages, proceedings, demands, costs, charges and expenses.

“Articles” means all goods, materials or services to be supplied in accordance with the Order.

2. The Agreement

2.1 These conditions shall represent the entire agreement between the parties and shall take precedence over any terms and conditions issued by the supplier at any time. No additions or qualifications to these conditions shall be valid unless they have been issued by the Company as a formal Order amendment signed by the Company’s relevant authorised staff.

2.2 The Order number given on the Order must be quoted on all documents and on all correspondence related to the Order.

2.3 The Supplier shall not supply any goods, materials or services without an Order signed by an authorised official of the Company, unless other arrangements for ordering have been specifically agreed in writing in advance.

2.4 The Order including these conditions and any appended documentation shall be deemed to be a contract when the earlier of the following occurs:
a. the Supplier issues an acknowledgement to the Company accepting the Order
or
b. performance is commenced by the Supplier

2.5 Nothing in these conditions shall prejudice any condition or warranty expressed or implied, or any legal remedy to which The Company may be entitled, in relation to the goods and/or the work subject of this Order, by virtue of any stature or custom or any general law or local law or regulation.

3. Quality

3.1 The Articles shall conform and shall continue to conform to the quantity, quality and specification stated in the Order and any relevant British Standard (or agreed equivalent) and shall be fit for the purpose intended as indicated on the Order.

3.2 The authorised representative of the Company shall be entitled, subject to reasonable notice being given, to inspect the Articles at the Supplier’s premises.

4. Delivery and Title

4.1 The Articles shall be delivered by the Supplier at its own expense in accordance with the Order to the address specified by the Company.

4.2 Times stated in the Order for delivery of the Articles shall be of the essence.

4.3 In the event that the Article(s) are not delivered by the time stated in the Order the Supplier shall be liable to pay liquidated damages to the Company at the rate of 0.5% per week or part thereof that delivery is delayed for a maximum of ten (10) weeks.

4.4 Title in the Articles shall vest unconditionally in the Company upon delivery thereof in accordance with this Clause 4.

5. Machinery Relocation

5.1 In the event that any machinery relocation / removal is not completed by the date on the Order the Supplier shall be liable to pay liquidated damages to the Company at the rate of £100 per hour for every hour the machine is unable to be used within the production environment.

6. Prices

5.1 6.1 All prices quoted by the Supplier shall be fixed and deemed to include all costs of packaging and delivery, regardless of mode of transport required or special equipment needed for, or in, the carriage of goods and materials

6.2 The responsibility for payment of any goods, materials or services so ordered shall rest solely with the Company placing the Order.

7. Rejection and Defects

7.1 Any Articles found not to be in accordance with the Order may be rejected by the Company and returned to the Supplier at the Supplier’s risk and expense. Upon rejection, title in the rejected Articles shall immediately revert to the Supplier. The Supplier shall promptly repay to the Company any moneys paid by the Company in respect of the rejected Articles and shall deliver to the Company replacement Articles without undue delay. The Supplier shall invoice the Company for the replacement Articles in accordance with the Order.

7.2 Unless otherwise agreed and in the absence of any other period agreed between the parties the Company may, within a period of twelve (12) months following acceptance of the Article(s), return the Article(s) to the Supplier, in the event of the discovery of a defect which arises from defective workmanship, design or material or which represents a non-conformity with the Company’s Order. The Company shall return the Article(s) as soon as reasonably practical and at the risk and expense of the Supplier. The Supplier shall repair or replace the Article(s) free of charge without delay and the balance of the above-mentioned period at the time of defect shall recommence upon acceptance of the replacement Article(s).

7.3 Our signature, given on any delivery note, or other documentation, presented for signature in connection with delivery of the Goods, is evidence only of the number of packages received, it is not evidence that the correct quantity or number of Goods has been delivered or that the Goods delivered are in good condition or of the correct quality.

8. Termination

8.1 The Company may terminate or suspend this Order at any time in whole or in part by issuing a notice to the Supplier. The Supplier shall conform with the requirements of the said notice but shall be entitled upon provision of full details and supporting evidence within thirty (30) days of receipt of the said notice to submit a claim to the Company for reasonable unavoidable loss directly suffered by the Supplier by reason of such termination or suspension

8.2 The Company may at any time without prejudice to any other remedy and without notice terminate this Order if the Supplier is in breach of any of its obligations hereunder. In the event of such termination the Supplier shall not be entitled to submit a claim for any loss.

8.3 The Company shall be entitled without prejudice to any other remedy to terminate the Order if the Supplier fails to deliver the Article(s) or any part of them on the date(s) specified in the Order, and (a) return at the Supplier’s risk and expense any Article(s) previously delivered which cannot be used as a result of the subsequent failure to deliver and to recover from the Supplier all moneys paid by the Company in respect of the Article(s), and (b) recover from the Supplier any additional costs reasonably incurred by the Company in procuring replacement Article(s) from an alternative Supplier.

8.4 Either party shall be entitled to terminate this Order forthwith by notice in writing if the other party shall be adjudged insolvent or bankrupt or shall be unable to pay its debts as they fall due or shall make an assignment for the benefit of its creditors generally or have a receiver appointed for it or any of its property or assets or if it shall discontinue or abandon or dispose of the whole or a substantial part of its business or shall have a petition presented or a resolution passed for its winding up other than for the purposes of amalgamation or reconstruction, or a notice is issued convening a meeting for the purpose of passing any such resolution.

8.5 If the Supplier has submitted a claim under Clause 21 (Force Majeure), of which the period from the date of notification exceeds three (3) months then the Company may, without prejudice, to any other remedy, terminate the Order at no liability for costs or expense.

8.6 Any termination or suspension pursuant to this Clause 7 shall not affect the accrued rights of either party.

9. Changes

9.1 The Company may at any time by Order amendment make reasonable changes to any of the requirements of this Order provided this is communicated with the Supplier in writing which is both faxed or posted. Within thirty (30) days of the issue of any Order amendment, the supplier shall notify the Company and provide supporting details of any change in price or the time for delivery occasioned by the Order amendment. If no such notification is received by the Company within the stated period then no changes in price or time for delivery shall take place.

10.Documentation and Invoices

10.1 All Advice Notes and Certificates of Conformity shall be submitted in duplicate by the Supplier. The original shall be sent first class post to the Company’s Procurement Department and the copy shall accompany the Article(s).

10.2 Valid invoices shall be sent by first class post to the Company’s Accounts Department and shall be payable within the period agreed following date of receipt subject to satisfactory discharge of the Supplier’s obligations hereunder.

10.3 All documents, including Advice Notes, Certificates of Conformity and invoices must state the Order number; any documents which fail to do so shall be invalid and returned to the Supplier

10.4 It is essential that any invoice from the Supplier must relate only to one Order. Failure to observe this requirement will result in the invoice being rejected and returned to the Supplier.

11. Confidentiality

11.1 The Order and any related information shall be considered confidential and shall not be disclosed by the Supplier to any third party for any purpose without the prior written consent of the Company.

12. Indemnities

12.1 The Supplier shall indemnify the Company against all loss or damage occasioned by any act or omission of the Supplier, its servants or agents whilst on the Company’s premises or by failure of the Supplier to comply with its obligations under the Order or occasioned by the use of the Article(s) except where such loss and / or damage is caused solely by misuse of the Article(s) by the Company.

12.2 Except where the Article(s) are manufactured to drawings provided by the Company, the Supplier shall indemnify the Company against liability, loss, damage and /or expense which may be incurred by the Company as a result of any infringement by the Article(s) of any registered design, patent, trademark or copyright of any third party.

13 Title

13.1 The Supplier warrants that it has the unfettered right to supply the Article(s) which to the best of its knowledge infringe no third parties’ rights. Unless otherwise stated the Company shall have a royalty-free license to use, re-sell, or let the Article(s) for any purpose.

14. Hazardous Goods

14.1 The Supplier shall mark all hazardous goods with international danger symbols where they exist, and display the name of the material in English. Transport and other documents must include 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 instruction, labels or markings. The Supplier shall observe the requirements of UK legislation and any relevant international agreements relating to the packing, labelling and carriage of hazardous goods. All information held by or reasonably available to the Supplier regarding any potential hazards known or believed to exist in the transport, handling or use of the Goods shall be promptly communicated to the Company prior to delivery.

15. Items on Loan

15.1All material issued free to the Supplier by the Company or by any third party on the Company’s behalf shall remain the property of the Company or the third party as the case may be and any material remaining unused on completion shall be returned in good condition to the Company together with any scrap materials. The Supplier shall be responsible for the condition and safe custody of free issue material whilst they are in possession and shall adequately insure against such risk. The Supplier shall use such materials solely in connection with the Order. Waste of such material arising from bad workmanship or negligence of the Supplier shall be made good at the expense of the Supplier. Any free issue materials found by the Supplier on receipt thereof to be defective shall not be used but shall be returned immediately to the Company for replacement. Any drawings or such documents supplied with the Order shall be returned to the Company upon completion of the work. The Company shall have the right of reasonable access to the Suppliers premises to inspect such items while they are there.

16. Accounts

16.1 Following despatch of goods or materials or the provision of services, a priced invoice bearing the Order number for the goods, materials or services must be rendered by the Supplier to the addressee designated in the Order. Any invoice not so prepared may be returned to the Supplier for correction.

16.2 Payment for goods, materials or services will not be made by the Company on delivery of goods or materials or provision of services but only after the invoices have been checked and passed for payment. Unless otherwise determined, payment shall be made by the Company within 60 days of receipt of the invoice.

17. Incoterms

17.1 All international delivery terminology used by the Company relates to the abbreviations according to Incoterms 2000

18. Health and Safety

18.1 The Supplier shall at all times have regard for the health and safety of all persons employee or engaged by him and shall comply with all health and safety legislation, guidance and any health and safety policies or codes of practice adopted by the Company and notified to the Supplier.

19. Assignment

19.1 The Supplier acknowledges that Tyco International Ltd. (the parent of the Company) is proposing to restructure its business operations into a number of separate unrelated organizational groups (collectively, the “Transaction”), and that implementation of the Transaction or any steps relating to or required in connection with the implementation of the Transaction may include, without limitation, an assignment or transfer of this Order to an affiliate of the Company and a change of the direct or indirect ownership of the Company. It is accordingly agreed that, notwithstanding anything contained in this Order to the contrary but subject to Clause 19.2, such assignment or transfer will not:

(a) require the consent of the Supplier or, to the extent that such a consent is required under applicable law, the Supplier hereby consents to such assignment or transfer, or

(b) result in a breach or default by the Company under this Order or a right of termination or other right in favour of the Supplier. The Supplier acknowledges that on such assignment or transfer the Company will automatically be released from its obligations under this Order and the affiliate of Company to which this Order will be assigned or transferred will automatically become the contracting party in place of the Company, and will take over all existing liabilities and will alone be responsible for all pending transactions and for the performance of this Order in each case as from the date of the assignment or transfer. This acknowledgement is only valid when the assignee is of the same solvency as the assigning company.

19.2 The Supplier shall, at the cost and expense of the Company, execute and do (or procure to be executed and done by any other necessary party) all such acts or things (if any) as the Company may reasonably require in order to give effect to such assignment or transfer.

20. Variations

20.1 No variations of any of the terms or conditions of this Order shall be effective and valid unless in writing by or on behalf of the Company and the Supplier.

21. Force Majeure

21.1 Neither party shall be liable to the other for any delays in performance or failure to perform any of its obligations hereunder due to any event outside of their reasonable control (including, without limitation, war, floods, terrorism) which delays or prevents them from performing any of their obligations under this Order. They shall inform the other party immediately in writing when such an event occurs. If this event continues to delay or prevent performance for more than three (3) months from the date of notification, either party can terminate this Order with immediate effect by giving written notice to the other party.

22. No Agency or Partnership

22.1 Nothing in this Order shall constitute or establish any relationship of agency or partnership between the Company and the Supplier.

23. Waiver

23.1 No failure, delay, relaxation or indulgence on the part of either party in exercising or partially exercising any right hereunder shall operate as a waiver of such rights.

24. Statutory Requirements

24.1 The Supplier shall observe and ensure that the Article(s) to be supplied comply with all statutory regulations, orders, directives or other laws in force at the time of delivery

25. Law

25.1The Order shall be deemed to have been placed in England and the construction, validity and performance thereof shall be governed by English law with the English Courts having exclusive jurisdiction.

25.2 The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to this Order.