1.1 In these Standard Terms and Conditions of Purchase (“Conditions”) the following words shall have the following meanings:

Word Meaning

“Affiliate” means an entity that controls, or is controlled by, or is under the common control of a party;

“Buyer” means the entity named on the Order, being an Affiliate of Milliken & Company (a corporation organised and existing in the United States under the laws of the State of Delaware;

“the Contract” the Order and Seller’s acceptance of the Order;

“Goods” any goods and/or services agreed in the Contract to be purchased by Buyer from Seller (including any part or parts of them) and described more fully in the Contract or in any attachment of specifications to these Conditions;

“Order” Buyer’s instruction to Seller to supply the Goods, on terms incorporating these Conditions;

“Seller” the person, firm or company identified on the face hereof or in any attachment hereto who accepts Buyer’s Order.

1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be a reference to that statute or provision as amended, consolidated, and/or modified.

1.3 In these Conditions references to a gender include all the genders and words denoting the singular include the plural and vice versa.

1.4 In these Conditions the headings will not affect the construction of these Conditions.

2. APPLICATION OF TERMS

2.1 These Conditions are the only conditions upon which Buyer is prepared to deal with Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions unless individual terms and conditions have been negotiated independently, such individual terms and conditions agreed in writing and duly signed by Buyer and Seller.

2.2 Each Order for Goods made by Buyer to Seller shall be deemed to be an offer by Buyer to purchase Goods subject to these Conditions and no Order shall be accepted in whole or in part and no Contract will arise until Seller accepts the Order in its entirety either expressly by giving notice of acceptance or by deemed acceptance by fulfilling the Order or by taking action to commence performance to fulfil the Order.

2.3 No terms or conditions endorsed upon, delivered with or contained in Seller’s quotation, acknowledgement or acceptance of the Order, specification or similar document will form part of the Contract and Seller waives any right which it otherwise might have to rely on such terms and conditions.

2.4 These Conditions apply to all Buyer’s purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by a duly authorised representative of Buyer.

3. QUALITY AND DEFECTS

3.1 The Goods shall be new and of the highest quality, be without fault and conform in all respects with the Order and any specification and/or patterns and/or samples supplied or advised to Seller. Seller agrees that, notwithstanding any drawings, samples, specifications or other express descriptions of the Goods set forth herein or attached hereto, Buyer is relying on Seller’s skill and judgement to furnish suitable Goods which are fit for their intended purposes.

3.2 Buyer shall have the right but not the duty to inspect and test the Goods at all times prior to delivery of the Goods to Buyer.

3.3 If the results of such inspection or testing cause Buyer to be of the opinion that the Goods do not conform or are unlikely to conform with the Order or to any specifications and/or patterns supplied or advised by Buyer to Seller, Buyer shall inform Seller and Seller shall immediately take such action as is necessary to ensure conformity and in addition Buyer shall have the right to require and witness further testing and inspection. Buyer shall have the final option to terminate the Contract if Buyer continues to be of the opinion that the Goods shall not conform.

3.4 Notwithstanding any such inspection or testing, Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect Seller’s obligations under the Contract.

3.5 If any of the Goods fail to comply with the provisions set out in Condition 3 Buyer shall be entitled to avail itself of any one or more remedies listed in Condition 13.

4. INDEMNITY

Seller shall keep Buyer indemnified in full against all direct, indirect or consequential liability, loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Buyer as a result of or in connection with:

4.1 defective workmanship, quality or materials in relation to the Goods;

4.2 an infringement or alleged infringement of any intellectual property rights caused by the possession, use (including in any manufacturing process), processing, sale or supply of the Goods;

4.3 any claim made against Buyer in respect of any liability, loss, damage, injury, cost or expense sustained by Buyer’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods.

4.4 any act or omission of Seller, its servants or agents whilst on Buyer’s premises or due to the failure of Seller, its servants or agents to observe and comply with Buyer’s safety rules and regulations and any statutes, notes, orders, directives or regulations in force at the time of delivery.

5. DELIVERY

5.1 The Goods shall be supplied and delivered, carriage paid unless otherwise stated in the Order, to the Buyer premises specified in the Order or to such other places of delivery as specified by Buyer prior to delivery of the Goods. Seller shall off-load the Goods as directed by Buyer.

5.2 The date or dates for delivery shall be specified in the Order.

5.3 Seller shall invoice Buyer upon, but separately from, despatch of the Goods to Buyer.

5.4 Seller 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.

5.5 Time for delivery shall be of the essence.

5.6 Unless otherwise stipulated by Buyer in the Order, deliveries shall only be accepted by Buyer between the hours of 8am and 4pm Monday to Friday (inclusive) unless otherwise agreed.

5.7 If the Goods are not delivered on the due date then, without prejudice to any other rights which it may have, Buyer reserves the right to:

5.7.1 cancel the Contract in whole or in part;

5.7.2 refuse to accept any subsequent delivery of the Goods which Seller attempts to make;

5.7.3 recover from Seller any expenditure reasonably incurred by Buyer in obtaining the Goods in substitution from another supplier; and

5.7.4 claim damages for any additional costs, loss or expenses incurred by Buyer which are in any way attributable to Seller's failure to deliver the Goods on the due date.

5.8 If Seller requires Buyer to return any packaging material to Seller that fact must be clearly stated on any delivery note delivered to Buyer and any such packaging material will only be returned to Seller at the cost of Seller.

5.9 Where Buyer agrees in writing to accept delivery by instalments the Contract will be construed as a single contract in respect of each instalment. Nevertheless failure by Seller to deliver any one instalment shall entitle Buyer at its option to treat the whole Contract as repudiated.

5.10 If the Goods are delivered to Buyer in excess of the quantities ordered Buyer shall not be bound to pay for the excess and any excess will be and will remain at Seller’s risk and will be returnable at Seller’s expense.
5.11 Seller agrees that it shall maintain for sale to Buyer from time to time a supply of repair and/or replacement parts where appropriate; and that in the event Seller discontinues its business or intends to do so, it shall give the Buyer the opportunity to purchase the plans, drawings and any and all specifications required for the manufacture of such repair and/or replacement parts. If the Goods use a source code, Seller agrees to keep, and maintain current, a copy of such source code. At Buyer’s option and cost, any such plans, drawings and specifications and / or source code shall be filed with a Notary Public who shall be authorised to release them to Buyer following Seller’s cessation, for any reason, to do business.
6. RISK/PROPERTY

The Goods shall remain at the risk of Seller until delivery to Buyer is complete (including off-loading and stacking where applicable) when ownership of the Goods shall pass to Buyer.

7. PRICE

7.1 The price of the Goods shall be stated in the Order and unless otherwise agreed in writing by Buyer shall be exclusive of value added tax but inclusive of all other charges including but not limited to costs of carriage, packing, packaging and insurance.

7.2 No increase in the price nor extra charges will be accepted by Buyer without its prior written consent (to be withheld for any reason).

7.3 The price and other additional payments stated in the Order shall be paid in the currency stated in the Order.

8. PAYMENT

8.1 Buyer shall pay the price of the Goods within 60 days net end of month upon receipt by Buyer of the invoice from Seller but conditional upon the Goods to which each invoice relates having been delivered and accepted by Buyer, but time for payment shall not be of the essence of the Contract.
8.2 Notwithstanding the above, Buyer shall be entitled to deduct 2% discount of invoice value prior to payment of invoice if paid 30 days net end of month and 4% discount of invoice value prior to payment of invoice if paid 10 days net end of month.
8.3 Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing at any time from Seller to Buyer against any amount payable by Buyer to Seller under the Contract.

9. CONFIDENTIALITY

Seller shall at all times 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 Seller by Buyer or its agents and any other confidential information concerning Buyer's business or its products which Seller may obtain and Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging Seller's obligations to Buyer and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind Seller.

10. BUYER'S PROPERTY

Materials, equipment, tools, dies, moulds, copyright, design rights or any other forms of intellectual property rights in all drawings, specifications and data supplied by Buyer to Seller or not so supplied but used by Seller specifically in the manufacture of the Goods shall at all times be and remain the exclusive property of Buyer but shall be held by Seller in safe custody at its own risk and maintained and kept in good condition by Seller until returned to Buyer and shall not be disposed of other than in accordance with Buyer's written instructions, nor shall such items be used otherwise than as authorised by Buyer in writing.

11. CHANGE AND CANCELLATION

11.1 Buyer shall have the right at any time and for any reason to cancel the Contract in whole or in part by giving Seller 30 days written notice whereupon all work on the Contract shall be discontinued and Buyer shall pay to Seller 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.
11.2 Buyer shall have the right to make changes to the Contract at any time for its convenience upon written notice to Seller prior to delivery of the Goods. Such changes shall be subject to an equitable adjustment in the delivery schedule and/or purchase price based on reasonable and unavoidable costs incurred by Seller prior to notice of the change. Any claim of Seller for an adjustment must be submitted in writing to Buyer within thirty (30) days of receipt of the Buyer’s change notice.
12. TERMINATION

12.1 Buyer shall have the right at any time by giving notice in writing to Seller to terminate the Contract forthwith if:

12.1.1 Seller commits a breach of any of the terms and conditions of the Contract;

12.1.2 any distress, execution or other process is levied upon any of the assets of Seller;

12.1.3 Seller enters into any compromise or arrangement with its creditors, commits any act of bankruptcy or if an order is made or an effective resolution is passed for its winding up (except for the purposes of amalgamation or reconstruction as a solvent company) or if a petition is presented to court, or if a receiver and/or manager, receiver, administrative receiver or administrator is appointed in respect of the whole or any part of Seller's undertaking or assets;

12.1.4 Seller ceases or threatens to cease to carry on its business; or

12.1.5 the financial position of Seller deteriorates to such an extent that in the opinion of Buyer the capability of Seller adequately to fulfil its obligations under the Contract has been placed in jeopardy.

12.2 Buyer may require a financial statement from Seller at any time during the term of the Contract for the purpose of determining Seller’s financial responsibility and Seller will deliver such a statement to Buyer within a reasonable time of such a request.
12.3 The termination of the Contract, however arising, will be without prejudice to the rights and duties of Buyer accrued prior to termination. The Conditions which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.
13. REMEDIES

13.1 Without prejudice to any other right or remedy which Buyer may have, if any Goods are not supplied in accordance with, or Seller fails to comply with, any of the terms of the Contract Buyer 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 Goods have been accepted by Buyer:

13.1.1 to rescind the Order;

13.1.2 to reject the Goods (in whole or in part) and return them to Seller at the risk and cost of Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by Seller;

13.1.3 at Buyer’s option to give Seller the opportunity at Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;

13.1.4 to refuse to accept any further deliveries of the Goods but without any liability to Seller;

13.1.5 to carry out at Seller’s expense any work necessary to make the Goods comply with the Contract; and

13.1.6 to claim any damages available to it as may have been sustained in consequence of any mis-representation, or any breach of implied warranty, condition or any duty at common law or any other breach by Seller of the Contract including any consequential loss or damage (including any claim for damages or an indemnity in respect of any sum paid or payable to any third party) and any claim in respect of loss of revenue, profits or of any contract arising out of the supply of the Goods or their use or resale by Buyer.

13.1.7 to produce, purchase or otherwise acquire the Goods or parts thereof on such terms or in such a manner as Buyer may deem appropriate and Seller shall be liable to Buyer for any such cost or other expenses incurred by Buyer in connection therewith.

14. ASSIGNMENT

Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Buyer.

15. FORCE MAJEURE

No liability shall result to either party from delay in performance or from non-performance caused by circumstances beyond the control of the party who has delayed performance or not performed. The non-performing party shall be diligent in attempting to remove any such cause and shall promptly notify the other party of its extent and probable duration. In the event said delay should last longer than thirty (30) days, Buyer may in its sole discretion terminate the Contract.

16. INTERNATIONAL PURCHASES

16.1 In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provision of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between any provision of Incoterms and these Conditions, the latter shall prevail.

16.2 Seller shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

16.3 Unless otherwise agreed in writing between Seller and Buyer, the Goods shall be delivered CIP the named place of destination.
17.1 LIMITATION OF LIABILITY
17.1 Notwithstanding any contrary provision in any contract, purchase order, invoice or other document of Seller, or in any agreement of whatever nature, whether written or oral, Buyer shall not and does not accept, assume or undertake any responsibility or liability to indemnify, defend, save or hold harmless any other person, firm or party from or against any loss, damage or injury (regardless of any language by which such acceptance, assumption or undertaking purports to be expressed or implied), in connection with these Conditions or any Contract (save for in the case of fraud, fraudulent misrepresentation or death or personal injury caused by the negligence of Buyer).
18. GENERAL

18.1 Each right or remedy of Buyer under the Contract is without prejudice to any other right or remedy of Buyer whether under the Contract or not.
18.2 Seller warrants that Seller as well as any Goods or other products, services or the like supplied by Seller under the Contract shall comply with all applicable laws, regulations, and standards.

18.3 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.

18.4 Failure or delay by Buyer in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.

18.5 Any waiver by Buyer of any breach of, or any default under, any provision of the Contract by Seller will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
18.6 Any notice required to be given by either party shall be in writing addressed to the other party (being a company) at its registered office or (being an individual or firm) at its principal place of business and shall be sent by pre-paid first class post or by facsimile transmission or by electronic mail during the normal business hours of the recipient. Any notice so sent by post shall be deemed to have been received 48 hours after despatch and if sent by facsimile transmission or electronic mail it will be deemed to have been received 24 hours after being sent to the correct facsimile number or electronic mail address of the recipient.

18.7 If a dispute or claim arises out of or relates to the Contract or breach thereof, the parties shall attempt to settle their differences through direct negotiations.

18.8 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of the country where Buyer entering into the relevant Contract is located and the parties submit to the non-exclusive jurisdiction of the courts of said country. [The United Nations Convention on Contracts for the International Sale of Goods, the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods shall not apply to these Conditions and/or any Contract and are hereby specifically excluded.]