Terms & Conditions of Purchase
1 Definitions
“Confidential Information” means the Order and all information obtained by one party from the other pursuant to the Order which is expressly marked as confidential or which is manifestly confidential or which is confirmed in writing to be confidential on its disclosure.
“End User Customer” means a third party to whom Ricoh may resell the Products, in accordance with clause 2(2).
“End User Licence” means the licence agreement accompanying each of the Software Products expressed to be made between the Supplier and the end-user of such product.
“Hardware Products” means those of the Products, if any, which are hardware.
“Intellectual Property Rights” means patents, trade marks, Internet domain names, service marks, registered designs, applications for any of the foregoing, copyright, design rights, trade and business names and any other similar protected rights in any country.
"Order" means an order placed by Ricoh to purchase Products and/or Services which incorporates these terms and conditions by reference.
"Price” means, in relation to the purchase of any of the Products and/or Services, the amount to be charged by the Supplier to Ricoh excluding Value Added Tax but including any other taxes, duties or levies and any transport and insurance charges as stated in the Order.
“Products” means the products described in the Order.
“Product Documentation” means the operating manuals and other literature accompanying the Products for use by End User Customers including the Specification.
“Services” means the services described in the Order.
“Software Products” means those of the Products, if any, which are computer software.
"Specification" means the description of the functionality, compatibility and performance criteria of the Products as notified by the Supplier.
Supplier” means the person, firm or company to whom the Order is addressed.
“Territory” means the United Kingdom of Great Britain and Northern Ireland.
2 Products & Services
(1) The Supplier shall sell the Products and supply the Services to Ricoh in accordance with Ricoh's Order. Acceptance by the Supplier of any Order shall result in a contract for the sale of the Products and Services which are the subject of such Order.
(2) Ricoh may resell the Products to an End User Customer.
(3) The Supplier shall deliver the Products and Services to Ricoh in accordance with the date of delivery specified in the Order, with time for delivery being of the essence.
(4) The initial term for provision of the Services shall be specified in the Order, subject to the provisions of clause 10.
(5) The Supplier will provide all equipment and materials necessary for the provision of the Services unless otherwise stated in the Order.
3 Delivery
(1) The Products shall be delivered, carriage paid, to Ricoh’s place of business or to such other place of delivery as is agreed by Ricoh in writing prior to delivery of the Products. The Supplier shall off-load the Products as directed by Ricoh. The Services will be provided at the Ricoh address specified in the Order.
(2) The Supplier shall ensure that each delivery is accompanied by a delivery note which shows, inter alia, the order number, date of order, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.
(3) Unless otherwise stipulated by Ricoh in the Order, deliveries shall only be accepted by Ricoh in normal business hours.
(4) If the Products and/or Services are not delivered on the due date then, without prejudice to any other rights which it may have, Ricoh reserves the right to:
(i) cancel the Order in whole or in part;
(ii) refuse to accept any subsequent delivery of the Products and/or Services which the Supplier attempts to make;
(iii) recover from the Supplier any expenditure reasonably incurred by Ricoh in obtaining the Products and/or Services in substitution from another supplier; and
(iv) claim damages for any additional costs, loss or expenses incurred by Ricoh which are in any way attributable to the Supplier's failure to deliver the Products and/or Services on the due date.
(5) If the Supplier requires Ricoh to return any packaging material to the Supplier that fact must be clearly stated on any delivery note delivered to Ricoh and any such packaging material will only be returned to the Supplier at the cost of the Supplier.
(6) Where Ricoh agrees in writing to accept delivery by instalments the Order will be construed as a single contract in respect of each instalment. Nevertheless fail¬ure by the Supplier to deliver any one instalment shall entitle Ricoh at its option to treat the whole Order as repudiated.
(7) If the Products are delivered to Ricoh in excess of the quantities ordered Ricoh shall not be bound to pay for the excess and any excess will be and will remain at the Supplier’s risk and will be returnable at the Supplier’s expense.
4 Risk/Property
The Products shall remain at the risk of the Supplier until delivery to Ricoh is complete (including off-loading and stacking) when ownership of the Products shall pass to Ricoh.
5 Price
(1) The Price of the Products and/or Services shall be stated in the Order and unless otherwise agreed in writing by Ricoh shall be exclusive of value added tax but inclusive of all other charges.
(2) No variation in the Price nor extra charges will be accepted by Ricoh.
6 Invoicing and Payment
(1) The Supplier shall invoice Ricoh the price of the Products and/or Services following delivery which Ricoh shall pay within 30 days of receipt.
(2) Without prejudice to any other right or remedy, Ricoh reserves the right to set off any amount owing at any time from Ricoh to the Supplier against any amount payable by the Supplier to Ricoh.
7 Intellectual Property Rights
(1) All Intellectual Property Rights in or relating to the Products and the Product Documentation are and shall remain the property of the Supplier.
(2) The Supplier hereby assigns to Ricoh all Intellectual Property Rights owned by the Supplier in any material which is generated by the Supplier and delivered to Ricoh in the performance of the Services and shall waive all rights relating to such material. The Supplier shall not reproduce, publish or supply any such material to any person other than Ricoh without prior written consent.
(3) The provisions of this Clause shall survive the termination of the Order.
8 Software Products
(1) If the Supplier notifies Ricoh in writing that it may only sell the Software Products to an End User Customer if accompanied by an End User Licence then Ricoh shall ensure that all copies of the Software Products which are sold to its End User Customers shall be accompanied by the End User Licence which accompanies the Software Product.
(2) If any of End User Customers (as permitted by clause 2.2) shall return any Software Product to Ricoh within the time period permitted by its accompanying End User Licence on the ground that it does not agree to the terms of such licence, Ricoh shall promptly refund the purchase price to that End User Customer and return the relevant Software Product to the Supplier (whereupon the Supplier will refund Ricoh the Price).
9 Confidentiality
Each party shall treat as confidential all Confidential Information obtained form the other pursuant to the Order and shall not divulge any such Confidential Information to any person (except to such party’s own employees and then only to those employees who need to know the same) without the other party’s prior written consent provided that this Clause 9 shall not extend to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading to the Order, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this Clause 9) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the provisions of this Clause 9. The foregoing obligations as to confidentiality shall survive any termination of the Order.
10 Remedies & Termination
(1) Without prejudice to any other right or remedy which Ricoh may have, if any Products and/or Services are not supplied in accordance with, or the Supplier fails to comply with, any of the terms of the Order Ricoh shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Products and/or Services have been accepted by Ricoh:
(i) to rescind the Order;
(ii) to reject the Services (for a full refund by the Supplier) and/or the Products (in whole or in part) and return the Products to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Products so returned shall be paid forthwith by the Supplier;
(iii) at Ricoh’s option to give the Supplier the opportunity at the Supplier’s expense either to remedy any defect in the Services and/or the Products or to supply replacement Products and carry out any other necessary work to ensure that the terms of the Order are fulfilled;
(iv) to refuse to accept any further deliveries of the Products but without any liability to the Supplier;
(v) to carry out at the Supplier’s expense any work necessary to make the Products and/or Services comply with the Order; and
(vi) to claim such damages as may have been sustained in consequence of the Supplier’s breach or breaches of the Order.
(2) Notwithstanding anything else contained herein, Ricoh reserves the right to terminate an Order for Services, for convenience, at any time upon three months' prior written notice to the Supplier.
(3) Notwithstanding anything else contained herein, the Order may be terminated:
(a) by either party forthwith on giving notice in writing to the other if:
(i) the other party commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing from the other party so to do, to remedy the breach; or
(ii) the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the other party shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order.
11 Effect of termination
On the termination of the Order:
(1) all the rights and obligations of the parties under the Order shall automatically terminate except for such rights of action as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination;
(2) each party shall at its own expense forthwith return to the other party or otherwise dispose of as instructed all Confidential Information belonging to the other party and all technical and promotional materials and other documents and papers whatsoever sent to the other party and relating to the Products or the business of the other party (other than correspondence between the parties) and all property being in each case in their possession or under their control;
(3) each party shall forthwith pay to the other party any amount standing to the credit of the other party’s account less any moneys then owed to each party.
12 Liability
(1) The Supplier warrants to Ricoh that:
(i) the Products sold and Services provided to Ricoh hereunder shall conform to the relevant Specification and other Product Documentation or any other relevant specifications published by the Supplier, and will be fit for purpose and of satisfactory quality;
(ii) the Products and Services shall comply with local laws and regulations relating to their manufacture, sale, maintenance and use in the Territory, and
(iii) Services shall be performed in a professional and workmanlike manner and in accordance with the requirements of the Order and Ricoh’s instructions.
(2) Ricoh’s rights under these conditions are in addition to the statutory conditions implied in favour of Ricoh by the Sale of Goods Act 1979.
(3) At any time prior to delivery of the Products to Ricoh, Ricoh shall have the right to inspect and test the Products at all times.
(4) If the results of such inspection or testing cause Ricoh to be of the opinion that the Products do not conform or are unlikely to conform with the Order or to any Specifications and/or patterns supplied or advised by Ricoh to the Supplier, Ricoh shall inform the Supplier and the Supplier shall immediately take such action as is necessary to ensure conformity and in addition Ricoh shall have the right to require and witness further testing and inspection.
(5) Notwithstanding any such inspection or testing, the Supplier shall remain fully responsible for the Products and any such inspection or testing shall not diminish or otherwise affect the Supplier’s obligations under the Order.
(6) If any of the Products and/or Services fail to comply with the provisions set out in this clause 12 Ricoh shall be entitled to avail itself of any one or more remedies listed in clauses 3 and 10.
(7) Notwithstanding any other rights or remedies Ricoh may have, if the Supplier shall be in breach of the said warranty in clause 12(1) above it shall replace the Products and/or Services concerned (at the Supplier’s risk and expense) or, at Ricoh’s option, refund the price paid by Ricoh (subject to Ricoh returning the defective Products to the Supplier at the Supplier’s risk and expense).
(8) The Supplier shall have no liability to Ricoh under sub-clauses (1) and (7) above for any damage to or defects in any of the Products caused by fair wear and tear, improper use, maintenance or repair, negligent handling, failure to observe the instructions accompanying the Products or any alterations thereto.
(9) The Supplier shall keep Ricoh indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Ricoh as a result of or in connection with:
(i) defective workmanship, quality or materials
(ii) an infringement or alleged infringement of any intellectual property rights caused by the use, manufacture or supply of the Products and Services;
(iii) any claim made against Ricoh in respect of any liability, loss, damage, injury, cost or expense sustained by Ricoh’s employees or agents or by any Ricoh or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Products and/or Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Order by the Supplier.
(10) Neither party excludes liability for death or personal injury caused by that party’s breach of contract or negligence.
13 General
The Order and these terms and conditions constitute the entire understanding between the parties concerning the subject matter of the Order and the Order and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with English law and the parties submit to the exclusive jurisdiction of the courts of England. No terms or conditions endorsed upon, delivered with or contained in the Supplier’s quotation, acknowledgement or acceptance of order, specification or similar docu¬ment will form part of the Order and the Supplier waives any right which it otherwise might have to rely on such terms and conditions.
All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Order or such other address in England as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may be delivered personally or by first class pre-paid letter or facsimile transmission and shall be deemed to have been served if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when despatched.
The parties confirm their intent not to confer any rights on any third parties by virtue of the Order and accordingly the Contracts (Rights of Third parties) Act 1999 shall not apply to the Order.
No forbearance, delay or indulgence by either party in enforcing the provisions of the Order shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative.
No waiver or amendment of any provision of the Order shall be effective unless made by a written instrument signed by both parties. Each provision of the Order shall be construed separately and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable the other provisions of the Order and the remainder of the provision in question shall continue in full force and effect.
