Terms and Conditions of Purchase

The following constitute GDS's standard terms and conditions of purchase and apply to all purchase orders placed by GDS.

No terms or conditions submitted at any time by the supplier shall form any part of the Contract

1. Definitions

1.1 In these conditions

“Contract” means the contract between the Purchaser and the Supplier consisting of the Purchase Order, these Conditions and any other documents (and parts thereof) specified in the Purchase Order
“Delivery Date” means the date on which the Goods are to be delivered to the Purchaser, as specified in the Purchase Order
“Goods” means any such goods supplied to the Purchaser by the Supplier pursuant to or in connection with the Purchase Order
“Price” means the price of the Goods as specified in the Purchase Order
“Purchaser” means GDS
“Purchase Order” means the document setting out the Purchaser’s requirements for the contract
“Supplier” means the person, firm or company who is the supplier of the Goods named in the Purchase Order

1.2    The headings in these Conditions are for convenience only and shall not affect its construction or interpretation.

2. These Conditions

2.1 Subject to clause 2.3 below unless otherwise agreed in writing these Conditions shall override any conditions or terms stipulated or referred to by the Supplier in his order or through negotiations with Purchaser. The submission of a set of alternative conditions, sales contract or other conditions will not override these conditions. Any written amendments must be agreed in writing by an authorised representative of the Purchaser.
2.2 The acceptance of an order and/or delivery of goods/provision of services is deemed to be acceptance of these Conditions.
2.3 For the avoidance of doubt where the Purchaser enters into a formal written contract with the supplier for the supply of goods and or services, and where there is a conflict between the terms of that formal written contract and these Conditions, the terms of the formal written contract shall apply.

3. Variation

3.1 These Conditions may only be varied with the written agreement of the Purchaser
3.2 The Purchaser reserves the right by reasonable notice to the Supplier to vary the Goods detailed in the Purchase Order and any alteration to the Price or Delivery Date arising by reason of such modification shall be agreed between the parties and evidenced in writing
3.3 The contract shall become binding and these Conditions shall be deemed to have been accepted by the Supplier on the acceptance of the Purchase Order by the Supplier (either verbally or in writing) or on delivery of the Goods, whichever is the earlier.

4. Goods

4.1 The Supplier warrants and represents to the Purchaser that the Goods shall:
4.1.1 conform in all respects with any particulars or specification specified in the Purchase    Order including any variations;
4.1.2 conform in all respects with the requirements of any statutes, orders, regulations or bye-laws from time to time in force;
4.1.3 be of satisfactory quality and free from defects in materials and workmanship; and
4.1.4 be fit and sufficient for the purpose for which such goods are ordinarily used and for any particular purpose made known to the Supplier by the Purchaser and the Purchaser relies on the skill and judgement of the Supplier in the supply of Goods/Services and the execution of the Purchase Order

5. Price

5.1    The Supplier shall not increase the Price unless it is validly accepted by the Purchaser and    agreed in writing before the execution of the Purchase Order
5.2  Unless expressly agreed otherwise between the parties in writing, the Price shall be inclusive of all delivery and insurance costs, VAT and any other applicable sales taxes, duties or levies.
5.3 Unless otherwise agreed in writing by the Purchaser, the Supplier shall render a separate invoice in respect of each consignment of the Goods delivered under the Purchase Order. The Purchaser undertakes to pay correctly submitted invoices by BACS (transfers between bank accounts) at the end of the month following the month of receipt of the invoice. A remittance advice will be sent by e-mail. 
5.4 A valid invoice is one that is:
5.4.1 delivered in timing in accordance with the contract
5.4.2 that is for the correct sum
5.4.3 in respect of goods/ services supplied or delivered to the required quality (or are      expected to be at the required quality)
5.4.4 which quote the relevant purchase order / contract reference (where used), and
5.4.5 which has been delivered to the nominated address
5.5 The Purchaser shall not be liable for any orders or amendments to orders other than those issued or confirmed on the Purchase Order and shall not be responsible for the payment of the Price for Goods supplied in excess of those required by the Purchase Order.
5.6 No payment of or on account of the Price shall constitute any admission by the Purchaser as to proper performance by the Supplier of its obligations under the Contract.

6. Delivery

6.1 The Goods shall be delivered to the place named on, and in accordance with, the Purchase Order. Delivery shall be completed when the Goods have been unloaded at the point of delivery specified in the Purchase Order and delivery has been accepted by the Purchaser or its authorised representative. 
6.2 Delivery notes must be forwarded with every delivery against this Purchase Order. Every delivery note must quote the Purchaser’s Purchase Order number and must provide the full contact name, address and telephone number of the Supplier.
6.3 Where assistance of any kind is required by the Supplier in offloading materials this must be notified in writing to the Purchaser in advance. Any access to premises and any labour and equipment that may be provided by the Purchaser in connection with delivery shall be provided without acceptance by the Purchaser of any liability whatsoever or howsoever arising and the Supplier shall indemnify and keep indemnified the Purchaser in respect of any actions, claims, demands losses, charges, cost and expenses (including legal expenses and disbursements) which the Purchaser may suffer or incur as a result of or in connection with any damage or injury (including death) occurring in the course of delivery or installation to the extent that any such damage or injury is attributable to any act, omission or negligence of the supplier or any of its sub-contractors..
6.4 Where any access to the premises is necessary in connection with delivery or installation, the Supplier and its sub-contractors shall at all times comply with the reasonable requirements of the Purchaser’s and other authorised representatives.
6.5 The time of delivery shall be of the essence for the purpose of the Contract and failure to deliver by the Delivery Date shall enable the Purchaser (at its option) to release itself from any obligation to accept and pay for the Goods and/or cancel all or part of the Goods under the Purchase Order, in either case without prejudice to its other rights and remedies.
6.6 The Suppliers failure to effect delivery on the Delivery Date specified shall entitle the Purchaser to purchase substitute Goods and to hold the Supplier accountable for any and all loss and/or additional costs incurred as a result of such failure.
6.7 Failure by the Purchaser to exercise its options under Conditions 6.5 and/or 6.6 in respect of any part of the Purchase Order shall not be deemed to constitute a waiver with respect to any subsequent part of the Purchase Order.
6.8 If Goods are delivered before the specified Delivery Date, the Purchaser shall be entitled to its sole discretion to refuse to take delivery or to charge for insurance and storage of the Goods until the Delivery Date.
6.9 Unless otherwise stated in the Purchase Order, the supplier is responsible for obtaining the cost of all export and import licenses for the Goods and in the case of the Goods supplied from outside the UK, the Supplier shall ensure that accurate information is provided to the Purchaser as to the country of origin and the Supplier shall be liable for additional duties or taxes should the country of origin prove to be different to the one stated.

7. Ownership and Risk

7.1 Ownership and risk in the Goods shall without prejudice to any of the rights or remedies of the Purchaser (including the Purchaser’s rights and remedies under Condition 9 below) shall pass to the Purchaser on delivery.

8. Damage in transit
8.1 The Supplier shall, free of charge and as quickly as possible, either repair or replace (as the Purchaser shall elect in its sole discretion), any goods either damaged in transit or having been placed in transit fail to be delivered to the Purchaser provided that:
8.1.1 in the case of damage to such Goods in transit the Purchaser shall within two (2) days of delivery give notice to the Supplier that the Goods have been damaged; and
8.1.2 in the case of non-delivery the Purchaser shall (provided that the Purchaser has been advised of the despatch of the Goods) within ten (10) days of the notified date of delivery give notice of the Supplier that the Goods have not been delivered.

9. Inspection, rejection

9.1 Nothing contained in these Conditions shall in any way detract from the Supplier’s obligations under common law or statue or any express warranty or condition contained in the Purchase Order.

9.2 The Purchaser may by written notice to the Supplier reject any of the Goods which fail to meet the requirements in the Contract. Such notice shall be given within a reasonable time after delivery to the Purchaser of the relevant Goods. If the Purchaser rejects any of the Goods pursuant to this Condition 9.2, the Supplier shall at the Purchaser’s sole option and discretion (without prejudice to its other rights and remedies) either:
9.2.1 repair the defective Goods as quickly as possible 
9.2.2    replace the defective Goods with Goods which comply in all respects with the requirements under the Contract, or
9.2.3    refund to the Purchaser the Price in respect of the defective Goods

9.3 Any Goods rejected or returned by the Purchaser pursuant to this Condition 9 shall be returned to the Supplier at the Supplier’s risk and expense. Where no action is taken by the Supplier within 5 working days a reminder notice will be forwarded giving notice of a final date by which the goods must be removed. Following that date, the Purchaser reserve the right to dispose of the Goods as they see fit.

10. Assignment and Sub-contracting

10.1 The Supplier shall not without the prior written consent of the Purchaser assign or transfer the benefit or burden of the Contract
10.2 No sub-contracting by the Supplier shall in any way relieve the Supplier of any of its responsibilities under the Contract.
10.3 If the Purchaser consents to the use of a Subcontractor, the Supplier will: 
10.3.1 guarantee and will remain liable for the performance of all subcontracted obligations; 
10.3.2 indemnify the Purchaser for all damages and costs of any kind incurred by the Purchaser caused by the acts and omissions of Supplier’s Subcontractors’ , and 
10.3.3 make all payments to its Subcontractors. If the Supplier fails to pay a Subcontractor for work performed, the Purchaser will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. 

11. Intellectual Property
11.1 Drawings, specifications, materials, equipment, tools, dies, moulds, computer disks, digital files and other materials supplied by the Purchaser to the Supplier, or not so supplied but used by the Supplier specifically in the manufacture of the Goods, will at all times be and remain the exclusive property of the Purchaser. They must be held by the Supplier in safe custody at its own risk, and maintained and kept in good condition by the Supplier, until returned to the Purchaser, and will not be disposed of other than in accordance with the Purchaser’s instructions; nor will such items be used otherwise than as authorised by the Purchaser.
11.2 The Seller does not acquire under these Conditions any copyright, design rights or any other forms of intellectual property rights in any drawings, specifications and data supplied by the Purchaser to the Supplier.
11.3 The Supplier shall not (except to the extent necessary for the implementation of the Purchase Order) without prior written consent of the Purchaser use or disclose any such Intellectual Property or any information (whether or not relevant to the contract) which the Supplier may obtain pursuant to the Contract and in particular ( but without prejudice to the generality of the foregoing) the Supplier shall not refer to the Purchaser or the Contract in any advertisement without the Purchaser’s prior written agreement.

12. Health and Safety
12.1 Suppliers are reminded that they must comply with all appropriate requirements of the health and safety legislation (Health & Safety at work Act 1974 and any subsequent amendments). In addition to complying with all relevant legislation, the Supplier must, whilst on the Purchaser’s premises or carrying out work for and on behalf of the Purchaser, comply with the Purchaser’s health and safety policy and the relevant codes of practice and procedures made under it. The policy and codes/procedures are available for inspection from an authorised employee of the Purchaser - However, the Supplier will be deemed to be aware of them when they start the work irrespective of whether they have inspected the same.
12.2 The Supplier shall indemnify and keep indemnified the Purchaser against any and all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which the Purchaser may suffer or incur as a result of or in connection with any breach of this condition12

13. Indemnity and Insurance
13.1 Without prejudice to any rights or remedies of the Purchaser (including the Purchaser’s rights and remedies under Condition 9 above) the Supplier shall indemnify and keep indemnified the Purchaser against any and all actions, suits, claims, demands, losses, charges, costs and expenses (including legal expenses and disbursements) which the Purchaser may suffer or incur as a result of or in connection with any damage to property or in respect of any injury (including death) to any person which may result directly or indirectly from any defect in the Goods or the negligence, acts or omissions of the Supplier or any of its employees, agents or sub-contractors
13.2 The Supplier shall take out and maintain with a reputable insurance company a policy or policies of insurance covering all the matters which are subject of indemnities under these Conditions.
13.3 The Supplier shall at the request of the Purchaser produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium
13.4 The Supplier shall be liable under the provision of Contract (including Condition 13.1) whether or not it complies with the insurance provisions in this Condition 13
13.5 Nothing in these Conditions or the Contract shall exclude or limit the liability of either party for death or personal injury caused by its negligence or for fraudulent misrepresentation

14. Bankruptcy
14.1 In the event of the Supplier being unable to complete the Purchase Order through bankruptcy, liquidation or receivership then the Contract created by the Purchase Order shall automatically determine that the Purchaser shall be treated by the Supplier as a preferential creditor.

15. Confidentiality
15.1 The Supplier shall ensure that its directors, employees and representatives shall keep confidential and shall not disclose any information of a confidential nature obtained by reason of the Contract except information which is in the public domain (otherwise than as required to be by reason of a breach of this Condition 15) or disclosed by law.
15.2 The provisions of this Condition 15 shall apply during the continuance of the Contract and after its termination howsoever arising without limitation in time.

16. Termination
16.1 In the event of a material breach of the Contract by either party, the non-breaching party may terminate the Contract with immediate effect by notice in writing.
16.2 The Purchaser may terminate the Contract with immediate effect by notice in writing to the Supplier if at any time:
16.2.1 the Supplier passes a resolution that it be wound-up or that an application be made for an administration order or the Supplier applies to enter into a voluntary arrangement with its creditors;
16.2.2 a receiver, liquidator, administrator, supervisor, administrative receiver be appointed in respect of the Supplier’s property, assets or any part thereof
16.2.3 the court orders that the Supplier be wound-up or a receiver of all or any part of the Supplier’s assets be appointed
16.2.4 the supplier is unable to pay its debts in accordance with Section 123 of the Insolvency Act 1986;
16.2.5 the Supplier (being an individual or partnership) is declared or adjudicated bankrupt or enters into any arrangement or composition with its creditors
16.3 Nothing in this Condition 16 shall affect the coming into, or continuance in force of any provision of the Contract which is expressly or by implication intended to come into force or continue in force upon termination of the Contract.

17. Third Party Rights
The Contract is not intended to create any rights of any kind whatsoever enforceable by any person who is not a party to the Contract, including any rights enforceable under the Contracts (Rights of Third Parties) Act 1999.

18. Severability
If any provision under this Contract is or becomes unenforceable, such provision shall not take effect and shall be deemed to be severed from the remainder of the Contract to the extent that the remainder of the Contract and the unaffected part of the provision shall continue to be fully enforceable.

19. Waiver
No delay or omission by the Purchaser in exercising any of its rights under the contract shall constitute a waiver of that right and any partial exercise of any such right shall not prevent any future exercise of the right.

20. Law and Jurisdiction
The Contract and any dispute arising under or in any way connected with the subject matter of the Contract (whether of a contractual or tortious nature or otherwise) shall be governed by and interpreted in accordance with English Law and the parties submit to the jurisdiction of the English Courts only except that the Purchaser may seek injunctive relief outside such jurisdiction.

GDS is registered for VAT (reg. No. 335593441) and tax invoices are required from all VAT registered suppliers.