Supplier Terms

Purchasing Terms and Conditions

1. INTERPRETATION
1.1 Definitions:
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Conditions the terms and conditions set out in this document as amended from time to time in accordance with clause 17.8.

Contract the contract between Nack and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.

Customer means the customer of Nack to whom Nack supplies the Goods.

Delivery Date the date of delivery of Goods in accordance with the lead times as specified by Nack in the Order or as otherwise agreed by the parties in writing.

Delivery Location the Supplier’s premises, unless otherwise agreed between the parties in writing.

Goods the goods to be supplied to Nack by the Supplier under the Contract.

Mandatory Policies any applicable Nack’s and/or Customer’s business policies and codes as made available or amended by notification to the Supplier from time to time.

Nack Nack Limited registered in England and Wales with company number 10884592 whose registered office is at 320 London Road, Hazel Grove, Stockport, SK7 4RF.

Nack Materials has the meaning given to it in clause 8.

Order Nack’s order for the Goods, as set out in Nack’s purchase order form.

Recall Notice has the meaning given to it in clause 3.14.

Services has the meaning given to it in clause 8.1.

Specification the specification for the Goods, including any related plans and drawings (if relevant), as set out in the Contract or, if not set out, the specification that is agreed in writing by Nack and the Supplier.

Supplier the person or firm from whom Nack purchases the Goods.

1.2 Interpretation:

1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.2.2 A reference to a party includes its successors and permitted assigns.

1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.2.5 A reference to writing or written includes email.

2. BASIS OF CONTRACT AND ORDERS

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 The Order constitutes an offer by Nack to purchase the Goods in accordance with these Conditions and all Orders are placed subject to these Conditions.

2.3 The Order shall be deemed to be accepted on the earlier of:

2.3.1 the Supplier issuing a written acceptance of the Order; and

2.3.2 the Supplier doing any act consistent with fulfilling the Order.

2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

3. GOODS

3.1 The Supplier shall ensure that the Goods shall:

3.1.1 correspond with their description and any applicable Specification;

3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979), correspond with any sample and fit for any purpose held out by the Supplier or made known to the Supplier by Nack expressly or by implication, and in this respect Nack relies on the Supplier’s skill and judgement;

3.1.3 where they are manufactured products, be free from defects in design, material and workmanship and remain so for the duration of any warranty period applicable to the Goods, and in any event for at least five (5) years after delivery;

3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods; and

3.1.5 shall be safe for use in compliance with all applicable statutory and regulatory requirements relating to safety, including without limitation UK Fire Safety Standards and British Standards for fire retardancy and all other applicable product safety and fire safety standards.

3.2 Without prejudice to clause 3.1.4, the Supplier will follow such other packaging and marking instructions as Nack may issue from time to time in relation to the Goods.

3.3 The Supplier shall ensure that the Goods and any raw materials meet all applicable testing standards, including without limitation any testing standards identified by the Customer and made available to the Supplier, and shall provide all required and relevant testing certification and documentation in relation to the Goods and raw materials to Nack in a timely fashion and in any case before shipment.

3.4 The Supplier shall observe any unusual or hazardous characteristics or features of the Goods and any safety precautions (whether required by or pursuant to any statute or regulations made thereunder or otherwise) in the handling and/or processing of Goods and shall ensure that any such characteristics or features are clearly indicated on all quotes, offer acceptances, all packaging containing the Goods and other relevant documentation.

3.5 The Supplier shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.

3.6 The Supplier shall on request make available to Nack a representative pre-production sample of the Goods, any raw material, packaging and up-to-date specification for reference at any time during the production process at no charge to Nack. The Supplier shall ensure that the Goods correspond with its sample.

3.7 Nack may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.

3.8 If following such inspection or testing Nack considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at Clause 3.1, Nack shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.9 Nack may conduct further inspections and tests after the Supplier has carried out its remedial actions.

3.10 The Supplier shall ensure that they fully understand the Specification supplied by Nack or the Customer, and can deliver the Goods in respect of each Order to the Specifications required.

3.11 The Supplier shall not be entitled to make changes to the Specification without Nack’s written consent.

3.12 Nack may at any time before delivery of the Goods make changes to the Specification by giving the Supplier written notice. If such changes result in a material increase in the costs of manufacturing, or the time required for delivery of the Goods by the Supplier, an equitable adjustment shall be made to the price of the Goods or the Delivery Date (or both). Any such adjustment must be approved in writing by Nack before the Supplier proceeds with the performance of any such changes.

3.13 All materials comprised in Goods shall be new and no reworked or rejected materials shall be included unless specifically highlighted and agreed in writing’ by Nack.

3.14 If Nack is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it will notify the Supplier in writing as soon as reasonably practicable. Nack shall use reasonable endeavours to provide assistance to the Supplier in relation to the Recall Notice, but the Supplier shall have sole responsibility for the recall or withdrawal of the Goods from the market and shall indemnify Nack against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Nack as a result of or in connection with such Recall Notice.

4. DELIVERY

4.1 The Supplier shall ensure that:

4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;

4.1.2 each delivery of the Goods is accompanied by a delivery note (either in physical form or by e-mail, as may be directed by Nack from time to time) which shows the Order number, the type, description and quantity of the Goods, (including the code number of the Goods, where applicable) and all other information as required in the Order or otherwise notified by Nack to the Supplier in writing; and

4.1.3 if the Supplier requires Nack to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the discretion of Nack and at the cost of the Supplier.

4.2 The Supplier shall deliver the Goods:

4.2.1 on the Delivery Date or on such date as notified to the Supplier in accordance with clause 4.3, and time of delivery is of the essence;

4.2.2 at the Delivery Location or such other location as notified to the Supplier in accordance with clause 4.3;

4.2.3 in such quantities as specified in the Order; and

4.2.4 in accordance with any delivery terms as set out in the Order.

4.3 Nack reserves the right to amend the Delivery Date and/or the Delivery Location, by giving the Supplier reasonable notice in writing prior to delivery where and to the extent such changes are required at the request of the Customer. Provided that such changes are required at the request of the Customer and Nack has notified the Supplier as soon as practicable on becoming aware of such change, Nack shall not be responsible for any additional storage costs or any other costs or fees associated with the delivery or production of the Goods due to such change.

4.4 Nack may require the Supplier to deliver the Goods in instalments details of which shall be set out in the Order, but the Supplier shall not deliver the Goods in instalments without Nack’s prior written consent. Where the Goods are to be delivered by instalments, they shall be invoiced and paid for separately for each instalment and in accordance with any payment terms set out in the Order. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle Nack to the remedies set out in clause 5.

4.5 Nack shall be entitled to appoint a third party for the collection of the Goods from the Delivery Location.

4.6 If the delivery or collection of the Goods from the Delivery Location is carried out by a third party, the Supplier shall follow any instructions of Nack in relation to confidentiality of any information relating to the Goods and/or the relevant Customer and in any event shall ensure that it complies with its obligations under clause 13.

5. NACK REMEDIES

5.1 If the Goods are not delivered in accordance with clause 4.2.1, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, Nack may exercise any one or more of the following rights and remedies:

5.1.1 to terminate the Contract;

5.1.2 to accept the Goods for a discounted price at the rate agreed between the parties in writing;

5.1.3 to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense (on the basis that Nack shall be entitled forthwith to a full refund or credit, as the case may be, if paid, or to withhold the payment of the price for such returned Goods from the relevant invoice);

5.1.4 to require the Supplier to repair or replace the rejected Goods;

5.1.5 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;

5.1.6 to recover from the Supplier any costs incurred by Nack in obtaining substitute goods from a third party; and/or

5.1.7 to claim damages for any other costs, loss or expenses incurred by Nack which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract, including without limitation any applicable storage costs.

5.2 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5.3 Nack’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.

6. TITLE AND RISK

6.1 Risk in the Goods shall pass to Nack on completion of delivery.

6.2 Title in the Goods shall pass to Nack on completion of delivery or payment of the price of the Goods (in whole or in part), whichever occurs first.

7. PRICE AND PAYMENT

7.1 The price of the Goods shall be the price set out in the Order.

7.2 Unless otherwise stated in the Order, the price of the Goods:

7.2.1 includes amounts in respect of value added tax (VAT); and

7.2.2 includes the costs of packaging, insurance and carriage of the Goods.

7.3 No extra charges shall be effective unless agreed in writing with Nack.

7.4 The Supplier may invoice Nack for the price of the Goods on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the invoice number, Nack’s order number, the Supplier’s VAT registration number, the description and quantity of the Goods and any supporting documents that Nack may reasonably require.

7.5 Unless otherwise agreed between the parties in writing, Nack shall pay correctly rendered invoices within 60 days of the end of the month when the invoice was received from the Supplier. Payment shall be made to the bank account nominated in writing by the Supplier.

7.6 Unless otherwise agreed in the Contract, Nack shall be entitled to an early payment discount of 5% of the price of the Goods under the relevant Order (excluding any charge for transport, packaging or insurance) for payment within 21 days of the date of the Supplier's invoice.

7.7 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 2% a year above the Bank of England‘s base rate from time to time, but at 2% a year for any period when the base rate is below 0%.

7.8 Nack may at any time, without notice to the Supplier, set off any liability of the Supplier to Nack against any liability of Nack to the Supplier, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract. If the liabilities to be set off are expressed in different currencies, Nack may convert either liability at a market rate of exchange for the purpose of set-off. Any exercise by Nack of its rights under this clause shall not limit or affect any other rights or remedies available to it under the Contract or otherwise.

8. SERVICES

8.1 Where and to the extent that the Supplier supplies any services to Nack which are incidental or relating to the supply of Goods (“Services"), the Supplier shall:

8.1.1 provide such services using reasonable care and skill; and

8.1.2 co-operate with Nack in all matters relating to the Services, and comply with all instructions of Nack.

8.2 The Supplier shall meet any performance dates for the Services specified in the Order or that Nack notifies to the Supplier and time is of the essence in relation to any of those performance dates.

9. NON-POACHING OF CUSTOMERS

9.1 In order to protect the legitimate business interests of Nack, the Supplier covenants with Nack that it shall not (except with the prior written consent of Nack) during the term of the Contract, and for a period of 5 years after its termination solicit or entice away (or attempt to solicit or entice away) from Nack the business or custom of any Restricted Customer.

9.2 For the purposes of this clause 9, a Restricted Customer shall mean any firm, company or person who has been at any time during the term of the Contract a Customer.

10. INTELLECTUAL PROPERTY

10.1 The Supplier acknowledges that any intellectual property rights subsisting in any materials, drawings, specifications, and data supplied by Nack to the Supplier (“Nack Materials”) are and remain the exclusive property of Nack or, where applicable, the third party licensor from whom Nack derives the right to use them.

10.2 The Supplier further acknowledges that to the extent that the Goods are to be manufactured in accordance with a Specification supplied by Nack or in accordance with a Specification prepared by utilising or incorporating Nack Materials or any part of them, any intellectual property rights created or arising from any modification or enhancement of such Goods or their Specification during the manufacturing process shall be the exclusive property of Nack.

10.3 The Supplier shall use Nack Materials exclusively for the purposes of supplying the Goods to Nack and undertakes that it shall not supply goods to the specification provided by Nack (or substantially similar) or specification developed by utilising or incorporating Nack Materials to any third party (unless authorised to do so by Nack).

11. INDEMNITY

11.1 The Supplier shall indemnify Nack against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by Nack as a result of or in connection with:

11.1.1 any claim made against Nack 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, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

11.1.2 any claim made against Nack 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

11.1.3 any claim made against Nack by a third party arising out of or in connection with the supply of the Goods, including without limitation any claim by the Customer against Nack arising out of or in connection with failure by the Supplier to deliver the Goods in accordance with clause 4.2.1, 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.

11.2 This clause 11 shall survive termination of the Contract.

12. INSURANCE

During the term of the Contract and for a period of five (5) years thereafter, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on Nack’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

13. CONFIDENTIALITY

13.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.

13.2 Each party may disclose the other party's confidential information:

13.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13; and

13.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3 The Supplier’s attention is particularly drawn to its obligations to keep information confidential when dealing with third parties, including any third-party carriers (as set out in clause 4.6) and in dealing with such third parties, the Supplier shall only disclose such information as is strictly necessary in the circumstances.

13.4 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

14. COMPLIANCE WITH RELEVANT LAWS AND POLICIES

14.1 In performing its obligations under the Contract, the Supplier shall:

14.1.1 comply with all applicable laws, statutes, regulations and codes from time to time in force; and

14.1.2 comply with the Mandatory Policies.

14.2 Breach of Clause 14.1 shall constitute an irremediable material breach of the Contract.

15. TERMINATION

15.1 Subject to clause 15.2. without affecting any other right or remedy available to it, either party may terminate the Contract on giving not less than twelve (12) months' written notice to the other party.

15.2 The Supplier’s notice under clause 15.1 may not expire before it has complied with its obligations to deliver the Goods under any Order.

15.3 Without limiting its other rights or remedies, Nack may terminate the Contract with immediate effect by giving written notice to the Supplier if:

15.3.1 the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 days of the Supplier being notified in writing to do so;

15.3.2 the Supplier takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

15.3.3 the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his assets, or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

15.3.4 the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

15.3.5 the Supplier’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

15.4 On termination or expiry of the Contract, the Supplier shall immediately return or destroy (at Nack’s option) all Nack Materials.

15.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

15.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

16. NOTICES

16.1 Any notice or other formal communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office, or by email.

16.2 Any notice or communication shall be deemed to have been received:

16.2.1 if delivered by hand, at the time the notice is left at the proper address;

16.2.2 if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or if by air-mail on the fifth Business Day after posting; and

16.2.3 if sent by email, at the time of transmission subject to satisfactory proof of despatch.

16.3 This clause 16 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.

17. GENERAL

17.1 Nack may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

17.2 The Supplier shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Nack.

17.3 The Contract, together with any documents referred to in it, constitutes the whole agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of the Contract.

17.4 Each party acknowledges that, in entering into the Contract it does not rely on any statement, representation, assurance or warranty of any person (whether a party to the Contract or not) other than as expressly set out in the Contract.

17.5 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties.

17.6 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

17.7 Failure or delay by a party in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

17.8 Except as set out in the Contract, no variation of the Contract shall be effective unless it is agreed in writing and signed by Nack.

17.9 The Contract does not give rise to any rights of a third party which is not a party to it.

17.10 The formation, existence, construction, performance, validity and all aspects of the Contract and any and all matters relating to it shall be governed by English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.