1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) 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 Condition 16.8.
Contract: the contract between Crux and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Date: the date specified in the Order (or if no date is specified within 28 days of the date of the Order.
Delivery Location: has the meaning set out in Condition 5.2(a)
Disclosing Party: has the meaning set out in Condition 11.1.
Due Date: is the contractual date for payment set out in the Order.
Goods: the goods (or any part of them) set out in the Order.
Order: Crux’s order for the Goods, as set out in Crux’s purchase order form, Crux’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
Receiving Party: has the meaning set out in Condition 11.1.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed by Crux and the Supplier.
Crux: Crux Product Design Limited registered in England and Wales with company number 48932244.
Crux Materials: has the meaning set out in Condition 9.1.
Supplier: the person or firm from whom Crux purchases the Goods.
1.2 Construction. In these Conditions, unless the context requires otherwise, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
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 trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by Crux to purchase the Goods in accordance with these Conditions.
2.3 The Order shall be deemed to be accepted on the earlier of:
(a) the Supplier issuing a written acceptance of the Order; and
(b) any act by the Supplier consistent with fulfilling the Order, at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any terms endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3.1 In the event of conflict between these Conditions and a specific Order the terms of that Order shall prevail.
4.1 The Supplier shall ensure that the Goods shall:
(a) correspond with their description and any applicable Specification;
(b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by Crux expressly or by implication, and in this respect Crux relies on the Supplier’s skill and judgement;
(c) the Supplier shall not deliver any nonconforming product or service without obtaining Crux’s prior written authority;
(d) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 12 months after Delivery; and
(e) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
4.2 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.
4.3 Crux shall have the right to inspect and test the Goods at any time before delivery.
4.4 If following such inspection or testing Crux considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at Condition 4.1, Crux shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
4.5 Notwithstanding any such inspection or testing, 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 Crux shall have the right to conduct further inspections and tests after the Supplier has carried out its remedial actions.
4.6 Records relating to the design, production, manufacture, test, inspection and delivery of goods shall be retained for a period of seven [7] years.
4.7 Under no circumstances shall the Supplier manufacture Goods if the supplied 3D data or supporting drawings and/or documents are named with a ‘DRAFT’ suffix and/or contain a watermark noting it as ‘DRAFT’.
5.1 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;
(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; and
(c) if the Supplier requires Crux 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 cost of the Supplier.
5.2 The Supplier shall deliver the Goods:
(a) on the Delivery Date;
(b) to Crux’s premises at Flatiron Building, 332-336 Paintworks, Bristol, BS4 3AR or such other location as is set out in the Order, or as instructed by Crux prior to delivery (Delivery Location); and
(c) during Crux’s normal business hours, or as instructed by Crux.
5.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
5.4 If the Supplier:
(a) delivers less than 95% of the quantity of Goods ordered, Crux may reject the Goods; or
(b) delivers more than 105% of the quantity of Goods ordered, Crux may at its 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 Crux accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
5.5 The Supplier shall not deliver the Goods in instalments without Crux’s prior written consent. Where it is agreed that the Goods are to be 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 Crux to the remedies set out in Condition 6.
6.1 If the Goods are not delivered on the Delivery Date or do not comply with the undertakings set out in Condition 4.1, then, without limiting any of its other rights or remedies, Crux shall have the right to any one or more of the following remedies, whether or not it has accepted the Goods:
(a) to terminate the Contract;
(b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
(c) 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);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by Crux in obtaining substitute goods from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by Crux which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
6.2 If the Goods are not delivered on the Delivery Date Crux may at its option claim or deduct 2% per cent of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 10% per cent of the total price of the Goods. If Crux exercises it rights under this Condition 6.2, it shall not be entitled to any of the remedies set out in Condition 6.1 in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Goods’ condition).
6.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6.4 The Supplier shall indemnify Crux against all liabilities, costs, expenses, damages and losses (including but not limited to 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 professional costs and expenses) suffered or incurred by Crux arising out of or in connection with:
(a) any claim made against Crux for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the 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;
(b) any claim made against Crux by a third party arising out of, or in connection with, the supply of the Goods, 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; and
(c) any claim made against Crux 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 defect in the Goods is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors.
6.5 Clause 6.4 shall survive termination of the Contract.
6.6 Crux’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
7.1 Title to and risk in the Goods shall pass to Crux on completion of delivery.
8.1 The price of the Goods 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 as at the date the Contract came into existence.
8.2 The price of the Goods is exclusive of amounts in respect of value added tax (VAT), but includes the costs of packaging, insurance and carriage of the Goods. No extra charges shall be effective unless agreed in writing and signed by Crux.
8.3 Crux 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.
8.4 The Supplier may invoice Crux for the Goods on or at any time after the completion of delivery.
8.5 Crux shall pay correctly rendered invoices within 30 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.
8.6 If Crux fails to make a payment due to the Supplier under the Contract by the due date, then Crux 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 8.5 will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0 %
8.7 Crux may, without limiting any other rights or remedies it may have, set off any amount owed to it by the Supplier against any amounts payable by it to the Supplier under the Contract.
9.1 The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by Crux to the Supplier (Crux Materials) and all rights in Crux Materials are and shall remain the exclusive property of Crux. The Supplier shall keep Crux Materials in safe custody at its own risk, maintain them in good condition until returned to Crux, and not dispose or use the same other than in accordance with Crux’s written instructions or authorisation.
10.1 During the term of the Contract and for a period of 6 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 Crux’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. Indemnity levels shall be a minimum of three times contract value or £1M, whichever is greater.
11.1 A party (Receiving Party) 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, or otherwise obtained by, the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Condition 11 shall survive termination of the Contract.
12.1 In performing it obligations under the Contract, the Supplier shall comply with all applicable laws, statutes, regulations [and codes] from time to time in force.
12.2 Crux may immediately terminate the Contract for any breach of Clause 12.
13.1 Crux may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. Crux shall pay the Supplier fair and reasonable compensation for work-in-progress at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 Without limiting its other rights or remedies, Crux may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(a) the Supplier commits a material or persistent breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of receipt of notice in writing of the breach;
(b) the Supplier suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
(c) the Supplier commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Supplier other than for the sole purpose of a scheme for a solvent amalgamation of the Supplier with one or more other companies or the solvent reconstruction of the Supplier;
(e) a creditor or encumbrancer of the Supplier attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Supplier;
(g) a floating charge holder over the assets of the Supplier has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the assets of the Supplier or a receiver is appointed over the assets of the Supplier;
(i) any event occurs, or proceeding is taken, with respect to the Supplier in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in Condition 13.2(b) to Condition 13.2(h) (inclusive); or
(j) the Supplier suspends or threatens to suspend, or ceases or threatens to cease to carry on, all or a substantial part of its business.
14.1 On termination of the Contract for any reason:
(a) the Supplier shall immediately deliver to Crux all Deliverables whether or not then complete, and return all Crux Materials. If the Supplier fails to do so, then Crux may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination; and
(c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
15.1 Neither party shall be liable to the other for any delay or failure in performing its obligations under the Contract to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable, provided that the Supplier shall use all reasonable endeavours to cure any such events or circumstances and resume performance under the Contract. If any events or circumstances prevent the Supplier from carrying out its obligations under the Contract for a continuous period of more than twenty [20] Business Days, Crux may terminate this Contract immediately by giving written notice to the Supplier.
16.1 Rights of access: Crux’s representatives, its customers and regulatory authorities shall be afforded rights of access to the Supplier’s premises and those of any sub-contractor engaged in furtherance of the Order at any reasonable time to attend tests, carry out inspections or check the progress or Quality arrangements in place for the Goods covered by the Order. Inspection will not constitute acceptance of any Goods by Crux.
16.2 The Supplier shall notify Crux in advance of any planned change in location of the facility undertaking the contract or at any change in process employed in the production or manufacture of the goods.
16.3 Assignment and subcontracting:
(a) Crux may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Supplier shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Crux.
16.4 Notices:
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this Condition, and shall be delivered personally, or sent by pre paid first class post, recorded delivery, commercial courier, fax or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Condition 16.4(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this Condition shall not apply to the service of any proceedings or other documents in any legal action. For the purposes of this Condition, “writing” shall not include e-mails and for the avoidance of doubt notice given under this Contract shall not be validly served if sent by e-mail.
16.5 Severance:
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
16.6 Waiver and cumulative remedies:
(a) A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise.
No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(b) Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
16.7 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
16.8 Variation: Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by Crux.
16.9 Entire agreement: The Order and these Conditions shall together represent the entire understanding and constitute the whole agreement between the parties and supersede any previous discussions, correspondence, representations or agreement between the parties with respect thereto. The Supplier shall not rely upon any statement or representation made by Crux in agreeing to enter this contract.
Governing law and jurisdiction: The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.