Terms and conditions - Macphie

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1 Definition and interpretation
1.1 Definitions:
“Bespoke Goods” means those goods which are manufactured or customised exclusively for the Customer by the Supplier or any goods packed into Customer branded packaging.
“Business Day” means a day, other than a Saturday or Sunday, when banks in Scotland are open for business.
“Cancellation Charge” means a fee to be paid by the Customer to the Supplier to cover the expenses and costs incurred by the Supplier in fulfilling the Order until such time as the cancellation request was received by it, as notified in writing by the Supplier to the Customer.
“Conditions” means the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6.
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Core Range” means the Supplier’s published list of core products as amended and updated from time to time and which may be made available to the Customer on request.
“Credit Limit” means the maximum amount of money that is permitted to be outstanding on the Customer’s account at any one time calculated in line with the results of any credit reference check conducted by the Supplier as notified to the Customer from time to time.
“Customer” means the person or firm who purchases the Goods from the Supplier.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
“Delivery Location” has the meaning given in clause 4.2.
“Force Majeure Event” means an event, circumstance or cause beyond a party’s reasonable control.
“Goods” means the Supplier Goods and/or the Bespoke Goods (or any part of them) as set out in the Order.
“Group” means in relation to a company, that company, any subsidiary or any holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
“Order” the Customer’s order for the Goods: (i) as set out in the Customer’s purchase order form, the Customer’s written acceptance of the Supplier’s quotation, or (ii) as otherwise set out in any written contract agreed between the parties, as the case may be.
“Specification” means any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier, and which may be subject to amendment on notification to the Customer in accordance with clause 3.3.
“Supplier” means Macphie Limited (registered in Scotland having its registered address as Glenbervie, Stonehaven, AB39 3YG and company number SC031780) or any Group company as the case may be and as set out in the Order.
“Supplier Goods” means those non-customised goods from the Supplier’s Core Range in Supplier branded packaging.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

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 assignees.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes fax and email.

2 Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer 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 the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence. The Supplier may accept or decline Orders at its discretion.
2.4 It shall be the Customer’s responsibility to check that the details of the Order are correctly set out in the Supplier’s written acceptance of the Order. Any errors or omissions in the Supplier’s written acceptance shall be brought the Supplier’s attention immediately by the Customer in order that the Supplier may issue a correct written acceptance of the Order.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
2.7 If after submitting an Order, the Customer cancels that order in whole or in part then the Customer shall pay the Supplier the Cancellation Charge.
2.8 The Supplier may at its sole discretion refuse to accept any Order from the Customer where the Price of the Goods under the Order combined with the total value of sums payable by the Customer under any outstanding invoices in accordance with this Agreement exceeds the Customer’s Credit Limit. Where the Customer’s Order would exceed this value combined with any sums payable under any outstanding invoices it may be a condition of accepting the Order that all sums due under such outstanding invoices are settled in full in advance.

3 Goods
3.1 The Goods are described in the Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier 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 the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights or any other rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements or to reflect increases in cost outside of the Supplier’s control resulting in the specification no longer being commercially viable.
3.4 The Supplier reserves the right to impose a minimum purchase obligation on the Customer in relation to the Goods as set out from time to time in the Order.

4 Delivery
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note that shows the quantity of the Goods (including the name and product code of the Goods, where applicable), and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense. If the Customer fails to return any packaging materials as requested by the Supplier, the Supplier shall be entitled to charge the Customer for the cost of replacing such packaging materials.
4.2 Where the Customer has requested delivery of the Goods, the Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Where the Customer has agreed to collect the Goods, the Customer shall collect the Goods from the Supplier’s premises at [Glenbervie, Stonehaven, AB39 3YG] or such other location as may be advised by the Supplier prior to delivery (Collection Location) within [three] Business Days of the Supplier notifying the Customer that the Goods are ready.
4.4 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.5 If, upon receiving and inspecting the Goods at the Delivery Location or Collection Location, the Customer considers that the Goods do not conform to the Order, it shall notify the Supplier of the same as soon as possible and in any event within twenty-four hours of delivery or collection. If the non-conformity relates to quantity, the Supplier shall have a reasonable opportunity to make up any shortfall or correct any surplus in the Goods.
4.6 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.8 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract, the Supplier may at its discretion:
4.8.1 store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance); or
4.8.2 treat the Order as having been cancelled by the Customer and may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
4.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5 Quality
5.1 In relation to the Supplier Goods only, the Supplier warrants that on delivery the Supplier Goods shall:
5.1.1 conform with their description and any applicable Specification; and
5.1.2 be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Supplier Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Customer (if asked to do so by the Supplier) returns such Supplier Goods to the Supplier’s place of business at the Supplier’s cost; and
5.2.3 the Supplier is given a reasonable opportunity of examining such Supplier Goods and following such inspection agrees (acting reasonably) that the Goods in question do not comply with the warranty,
the Supplier shall, at its option, repair or replace the defective Supplier Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Supplier Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.4 the Goods differ from their description in the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 In relation to the Bespoke Goods, the Supplier makes no warranty or representation of any kind as to the quality or fitness of the Bespoke Goods for any particular purpose, it being the Customer’s responsibility to ensure the description provided by the Customer for the Bespoke Goods is suitable for the purpose for which the Bespoke Goods are to be used.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

6 Product recall

6.1 If the Customer 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 shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.
6.2 Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal.
6.3 The Customer shall:
6.3.1 take such action, institute such proceedings and give such information and assistance as the Supplier may reasonably request to dispute, resist, appeal, compromise, defend, remedy or mitigate the matter; and
6.3.2 in connection with any proceedings related to the matter (other than against the Supplier), use professional advisers nominated by the Supplier and, if the Supplier so requests, allow the Supplier the exclusive conduct of the proceedings,
in each case on the basis that the Supplier shall reimburse the Customer for all reasonable costs incurred as a result of any request or nomination by the Supplier.
6.4 The Customer shall indemnify and hold harmless the Supplier from and 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 the Supplier in connection with a Recall Notice affecting the Bespoke Goods.

7 Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery [or collection as the case may be].
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for all balances outstanding on all the Goods delivered.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 where reasonably practicable, store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.1.2 to clause 10.1.4; and
7.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.

8 Price and payment
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 of delivery (if any).
8.2 The Supplier may, by giving notice to the Customer at any time increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
8.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods:
8.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
8.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which may be invoiced to the Customer.
8.4 Unless otherwise set out in writing by the Supplier, the Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.5 Unless otherwise set out in writing by the Supplier, the Customer shall ensure that the Supplier is in receipt of the sums due under each invoice submitted by the Supplier:
8.5.1 within 30 days of the date of the invoice; and
8.5.2 in full and in cleared funds, to a bank account nominated in writing by the Supplier.
8.6 Time for payment shall be of the essence of the Contract.
8.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 10 (Termination), the Customer shall, on demand from the Supplier, pay interest at the rate of 4% above the base rate of the Bank of Scotland from time to time on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment.
8.8 Subject to clause 8.9, all amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.9 If the Customer disputes any invoice or other statement of monies due, the Customer shall immediately, and in any event within 7 days from the date of the invoice, notify the Supplier in writing. The parties shall negotiate in good faith to attempt to resolve the dispute promptly. Both parties shall provide all such evidence as may be reasonably necessary to verify the disputed invoice or request for payment. If the parties have not resolved the dispute within 14 days of the Customer giving notice to the Supplier, the dispute shall be resolved in accordance with 12.2. Where only part of an invoice is disputed, the undisputed amount shall be paid on the due date as set out in this clause 8.

9 Limitation of liability
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, delict, under statute or otherwise (including liability arising from negligence).
9.2 Nothing in the Contract limits any liability of the Supplier which cannot legally be limited, including liability for:
9.2.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
9.2.2 fraud or fraudulent misrepresentation; or
9.2.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979.
9.3 Subject to clause 9.2, the Supplier’s total liability to the Customer shall not exceed the price of the Goods as set out in the relevant Order or any contract agreed between the parties.
9.4 Subject to clause 9.2, the following types of loss are wholly excluded:
9.4.1 loss of profits;
9.4.2 loss of sales or business;
9.4.3 loss of agreements or contracts;
9.4.4 loss of anticipated savings;
9.4.5 loss of use or corruption of software, data or information;
9.4.6 loss of or damage to goodwill; and
9.4.7 indirect or consequential loss.
9.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Supplier shall be subject to correction without liability on the part of the Supplier.
9.6 This clause 9 shall survive termination of the Contract.

10 Termination
10.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
10.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within fourteen (14) days of that party being notified in writing to do so;
10.1.2 the Customer 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), 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;
10.1.3 the Customer 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 or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 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 IA 1986 or (being a partnership) has any partner to whom any of the foregoing apply;
10.1.4 the Customer (being an individual) is the subject of a bankruptcy petition, application or order;
10.1.5 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
10.1.6 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
10.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 10.1.2 to clause 10.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
10.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.5 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.
10.6 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.

11 Force Majeure
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for thirty (30) days, the party not affected may terminate this agreement by giving seven (7) days’ written notice to the affected party.

12 General
12.1 Assignation and other dealings.
12.1.1 The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
12.1.2 The Customer may not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Dispute Resolution Procedure
12.2.1 If any dispute arises between the parties out of, or in connection with, this Contract, the matter shall be referred to senior representatives of each party who shall use their reasonable endeavours to resolve it.
12.2.2 If the dispute is not resolved within 14 days of the referral being made under clause 12.2.1 the parties may resolve the matter through mediation in accordance with the London Court of International Arbitration Mediation Rules.
12.2.3 Either party may issue formal legal proceedings or commence arbitration at any time whether or not the steps referred to in clauses 12.2.1 and 12.2.2 have been completed.
12.3 Confidentiality.
12.3.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.3.2.
12.3.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives 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 or advisers to whom it discloses the other party’s confidential information comply with this clause 12.3; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3.3 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.
12.4 Data Protection
Each party shall comply with its respective obligations under Data Protection Legislation in carrying out its obligations under this Contract.
12.5 Entire agreement.
12.5.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
12.5.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
12.6 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.7 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.8 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. If any provision of the Contract is deemed deleted under this clause 12.8 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.9 Notices.
12.9.1 Any notice or other 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 (if a company) or its principal place of business (in any other case).
12.9.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the Business Day after posting or at the time recorded by the delivery service.
12.9.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
12.10 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contract (Third Party Rights) (Scotland) Act 2017 for any third party to enforce or otherwise invoke any term of the Contract.
12.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.
12.12 Jurisdiction. Each party irrevocably agrees that the Scottish courts shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.



We, the Company, only purchase goods, rights and services(“Deliverables”) on these terms and conditions (“the Terms”). If you accept our order it will be on these Terms and no other standard terms. If you act in a manner calculated to appear as an acceptance of our order, that will act as an acceptance and you will be bound by our Terms, regardless of any inconsistency in your own small print. If you wish to reject our order and make a counter-offer you MUST therefore reply to our order in words explicitly and clearly indicating rejection. Equally, If you make a counter-offer which is not clearly labelled as such (or as a rejection of our order) no subsequent behaviour of ours, in accepting Performance, can be taken to imply any acceptance by us of that counter-offer. These Terms can only be changed, or other terms agreed, in written correspondence signed by a director or other senior officer of the Company. These Terms are important and should be studied carefully.
1. The Contract
1.1 Our contract with you, our supplier, will comprise our express written order, these Terms, anything else we expressly agree under section 1.2, any content imposed by law, but nothing else.
1.2 If you want us to accept a term of yours, or accept a particular responsibility, or if you wish to rely on a representation we have made, you must therefore obtain our express agreement to that. That means express written agreement, signed by a director or other senior officer of the Company and referring expressly to these Terms. We will deal with you in reliance on these Terms, so be aware that our acceptance of contractual performance by you does not imply acceptance of any terms that are different to our Terms. You must indemnify us against any consequence of your seeking to rely on any contractual terms, or any statement, understanding or representation which is not contractually agreed as set out in this section 1. For purposes of this section, written agreement can be communicated by pre-paid post, fax or email, save that we never accept small print terms communicated by fax, on grounds of uncertain legibility.
1.3 If any of the terms of the contract conflict with or contradict each other those terms will over-ride each other in the following order of priority: (1) any express written agreement from us; (2) our order; (3) these Terms
1.4 We are not contractually bound until we place a formal order and then only to the extent of the issues specifically covered by that order or in writing signed by a director. We will only be contractually bound to you when you accept our order with a formal order acknowledgement in writing or (if later) when we accept Performance by you (see below).

2 Price
2.1 The price of the Deliverables will be as stated in our order and, unless otherwise stated, will be:
2.1.1 exclusive of any applicable VAT (which will be payable by us subject to receipt of a valid VAT invoice);
2.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery, commissioning or performance of Deliverables to or at the delivery address, and of any duties or levies other than VAT;
2.1.3 payable in pounds sterling; and
2.1.4 fixed for the duration of the Contract.
2.2 We will be entitled to any discount for prompt payment, bulk purchase or the like normally granted by you in comparable circumstances.
2.3 If we will be reliant on you for any supplies of maintenance, training, spare parts, consumables or other goods, rights or services to benefit fully from the Deliverables (“Follow-on Deliverables”) then you will provide those Follow-on Deliverables or procure them to be provided, for at least 36 months following full Performance, at fair and reasonable prices which take no advantage of our dependence on you for their supply.

3 Payment
3.1 Invoices for the Deliverables may be sent to us on, or after, completion of Performance (as defined in section 4.1). Each invoice must quote the number of our Purchase order. No sum may be invoiced more than six months late.
3.2 Unless otherwise stated in the order, we will pay the contract price within 60 days of the end of the month in which we receive the invoice.
3.3 We will be entitled to set off against the price any money owed to us by you.

4 Specifications
4.1 if we order goods, then unless otherwise stated the order is deemed to include the supply of all relevant documentation and certification, and of any commissioning of those goods, necessary to enable the Company to use them for their intended purposes. If we order services then, unless otherwise stated, our order includes the complete performance of those services including any employee instruction, manuals, explanations or certifications necessary to enable the Company to benefit from them for their intended purposes. If we order goods or services then, unless otherwise4.2 stated, our order includes any legal rights necessary to use those goods or services for their intended purposes. As for those intended purposes, see section 6.3. References in these Terms to “Performance” are to complete performance of all your contract obligations as described in these Terms.
4.3 The Quantity, quality and description of Deliverables will be as specified in our order and these Terms or as agreed by us in writing, subject to which then in full accordance with your representations (see section 6.1)
4.4 You have sole responsibility for complying with all applicable regulations and other legal and regulatory requirements concerning performance of the contract, and for ensuring that we can, in compliance likewise, fully utilise the Deliverables for their intended purposes.
4.5 We will be allowed to inspect any contract goods during (and your premises for) manufacture and storage so long as we request an inspection by reasonable notice. If, as a result of the inspection, we are not satisfied that the quality of the goods or the standards of their manufacture, storage or handling conforms with the contract, you will take such steps as are necessary to ensure compliance, if, after that, we are still not satisfied we can cancel the contract without penalty
4.6 If, before Performance has occurred in the relevant respect, we notify you in writing of any change in desired specification (including as to quality and time frame) you will respond as follows. We appreciate that a change may affect the contract price, or may even be unachievable. If the change would reduce your costs, the contract price will reduce to fairly reflect that saving. If the change would increase your costs you may notify us promptly, in writing, of a proposed revision of the contract price fairly and proportionately reflecting any unavoidable such increased cost: you and we will then use our reasonable efforts to agree the revised terms in full, including as to price, pending which the contract variation will not take effect. If the change would for any reason be unachievable you may notify us of that promptly and in writing, with reasons: again, both parties will then use reasonable efforts to reach a mutually acceptable contract variation.
4.7 Failing notice under one of the two preceding sentences our proposed change will be deemed to have been accepted, and the contract will be deemed to have been varied with immediate effect to reflect the requested specification change with no price increase. What amounts to “prompt” notice for this purpose will depend on feasibility for you and urgency for us, but not in any case later than 48 hours (excluding hours of days which are Saturdays, Sundays or are recognised bank holidays in England) from our notice of proposed change. In no event, agreed or not, will we be liable to you in respect of any contract variation for more than a reasonable and proportionate reflection of such increased costs as you could not reasonably have been expected to avoid. The contract price will not in any circumstance increase except with our express written agreement under, or referring explicitly to, this sub-section.
4.8 To protect our business, we may need, sometime urgently, information as to precisely how Deliverables were performed, and as to all relevant activities of any suppliers or sub-contractors of yours. You will meet any reasonable such request as soon as reasonably possible, and will keep records adequate for that purpose for at least two years after completion of Performance. Without limitation, these records must provide full traceability for all goods comprised in, or used in making, any contract goods which are in any respect safety-critical. They must also demonstrate compliance of the contract work with all legal or regulatory requirements and with all contractually binding quality and Performance standards.
4.9 You will comply with any reasonable requirements we may have as regards the packaging and packing of any contract goods, and as to information to be displayed on packaging or included on dispatch documentation and bills of lading. Subject to that, you will ensure that all packaging, packing labelling and documentation is such as to ensure full compliance with legal requirements throughout the scheduled delivery process

5 Delivery and risk
5.1 Any goods will be delivered to, and any services performed at, the address and on the date stated in the order, or else under section 5.2, during usual business hours.
5.2 If we specify the date or delivery address after ordering, we will give you reasonable notice of the details. Failing a date, supply will be as soon as reasonably possible.
5.3 The date of delivery of any goods or rights, and the performance of any services, will be of the essence of this contract.
5.4 A packing note quoting the number of the purchase order must accompany each delivery or consignment of goods and must be displayed prominently.
5.5 Where Deliverables are to be supplied in instalments, the contract is still to be treated as a single contract. If you fail to deliver or perform any instalment we may treat the whole contract as repudiated.
5.6 We may reject any Deliverables which are not fully in accordance with the contract. Acceptance does not occur until we have had a reasonable time to inspect or consider the relevant Deliverables following supply and, in the case of latent defect, a reasonable time after the defect becomes apparent.5.7 We will not be bound to return to you any packaging or packing material, but if any relevant requirement for packaging recycling applies, you will take materials back free of charge on request.
5.8 If any Deliverables are not supplied on or by the agreed date then, in addition to any other remedies available to us, we will be entitled to deduct 1% of the overall contract price for those Deliverables, for every week’s delay.
5.9 Risk of damage to or loss of any goods passes to us on delivery.
5.10 Property and ownership of any goods will pass to us on delivery unless we have paid in whole or in part for the goods in advance. In that case it will pass to us as soon as the goods have (or, if goods are being assembled for us, each successive component of the goods has) been appropriated to the contract.
5.11 If we supply any articles to you, e.g. for modification or copying, they stay our property at all times. Those articles must be kept confidential and secure and we can enter your premises at any time on reasonable notice to ensure that this is so. While those articles are in your custody you must not use them, copy them or disseminate them, electronically or otherwise, except in the performance of our contract. We retain copyright and any other available intellectual property rights in any plans, design drawings, computer programs, compilations of data, specifications or the like which we supply to you. You must indemnify us against any loss caused to us and account to us for any profit which you make, through breach of this provision.
5.12 If any Performance occurs on our premises this sub-section will apply. You will ensure that best industry standards are adopted for the health and safety both of your personnel and of any other individuals affected by your actions. We may refuse or terminate access to any individual whom we reasonably consider undesirable to have on our premises. Your personnel must, while on our premises, comply with our reasonable requirements as to security, health and safety routines, times and areas of access, and otherwise. You will be responsible to us on a full indemnity basis for all damage and injury caused by your staff.
5.13 If the contract terms refer to terms such as F.O.B and C. & F. which bear defined meanings in the current edition of Incoterms, those defined meanings will apply unless expressly stated otherwise.
5.14 Any goods provided by us to you on a free issue basis will remain our absolute property throughout, and will be at your risk while the goods are, or are supposed to be, in your possession. You are not to part with possession (save to us) unless with our express prior consent.

6 Warranties and Liability
6.1 You promise that:
6.1.1 the quantity, quality, description and specification for the Deliverables will be those set out in our order, apart from which then of the best standards reasonably to be expected in the market for that kind of Deliverable: and
6.1.2 any goods will be free from defects in material and workmanship; and
6.1.3 any Deliverables will comply with all statutory requirements and regulations, and with all normally applicable quality standards, relating to their sale or supply; and
6.1.4 all claims made by you about any Deliverables, and all apparently serious claims in your advertising and promotional material are correct and can be relied upon; and
6.1.5 any services will be performed by appropriately qualified and trained personnel; and
6.1.6 neither the sale and supply of any Deliverable, nor its proper use by us for an intended purpose, will breach any property rights in or about that Deliverable, including intellectual property rights, of any other person.
6.2 All warranties, conditions and other terms implied by statute or common law in our favour will apply to any Deliverables bought from you.
6.3 It is your responsibility to find out from us the purposes that we intend the Deliverables to be put to (including any applicable deadline affecting us). You promise that they will be suitable for those intended purposes, save only for any unsuitability which you have, as soon as might reasonably have been expected of you (and in any case before starting Performance) expressly notified to us.
6.4 You will indemnify us and keep us indemnified immediately upon our written demand against any cost, claim, expense or liability arising from any risk for which you are responsible under this contract.
6.5 If you fail to comply with any obligation under the contract we will be entitled, at our discretion, to reject any Deliverable and you will not be entitled to receive payment for that Deliverable.
6.6 If any contract goods do not comply with all contact requirements we can demand that you repair them or supply replacement goods within seven days or, at our sole discretion, we can reject the goods and demand the repayment of any sum already paid for them.
6.7 We will not be liable to you for any delay or failure to perform any of our obligations under this contact if the delay or failure was due to a cause beyond our reasonable control.
6.8 If any contract goods or rights were bought or obtained by you from a third party then any benefits or indemnities that you hold from that other party, in respect of those items, will be held on trust for us.
6.9 You will insure yourselves, and keep insured until Performance is complete, against all normal insurance risks relevant to your work for or with us, on terms and for amounts consistent with normal business prudence. You will demonstrate to us the terms and currency of any such insurance on request.

7 Rights
7.1 Any rights which you are contracted to supply must be provided to us in accordance with sections 7.2 or 7.3 as applicable.
7.2 This sub-section will apply to the following types of contract right: where the contract expressly identifies particular rights as covered by it; where the rights in question are evidently not unique to our Deliverable (for instance you evidently supply the same thing, in the relevant respect, to others); or if those rights evidently derive from a third party of whom the same would be true (for instance you supply software on what you have told us is a proprietary third party platform). In those cases we are not to expect full ownership of those rights. You will however validly licence those rights to us, or procure them to be validly licensed to us, on the following terms: assignable; royalty-free; covering usage for any likely intended purpose; and free of any obligation on us save such as we expressly agree in the contract or as are the minimum reasonably necessary for the maintenance of the right in question.
7.3 This sub-section will apply to all contract rights to which section 7.2 does not. In that case you will transfer to us, or procure to be transferred to us, with full title guarantee the ownership of those rights to the full extent (including as to territory) that we reasonably need them for our intended purposes, and to the full extent of any wider rights available to you. You will execute any documents and make any declarations reasonably required by us, now or in future, to transfer those rights, you will not exploit those rights save for us or with our written consent, and you will (to the extent not yet legally transferred) hold all such rights on trust for us absolutely for the maximum permitted period of eighty years. We have your irrevocable power of attorney to execute any such documents and make any such declarations on your behalf if you fail to do so promptly on request.
7.4 If you carry out any development work at our request and wholly or primarily at our expense we will own all intellectual property rights generated by that work, and section 7.3 will apply to those rights.
7.5 You will do anything reasonably required by us, during or after performance, to perfect any transfer or licence of rights to us under this section or to assist us in registering or authenticating (but not at your cost enforcing or defending) those rights.

8 Termination
8.1 If goods have been offered by you as, or if they are, standard or stock items we can, by notice to you, at any time up to delivery cancel our commitment to buy them. Any other commitment of ours to receive and pay for Deliverables may be cancelled by us as follows. We will be bound to reimburse you for all irrecoverable costs incurred, or unavoidably committed, by you up to the point of cancellation. By “costs” is meant for this purpose the direct costs to you of Performance, to an aggregate amount not exceeding 80% of the purchase price for the cancelled commitment. We will be entitled, if we wish it, to the benefit of the part-finished Deliverables in question.

8.2 We may suspend performance of, or cancel, or suspend and then at any subsequent time cancel, the contract without any liability to you if you breach its terms, or if your business fails.
8.3 Your business will be treated for this purpose as having failed if:
8.3.1 You make any voluntary arrangement with your creditors;
8.3.2 (being an individual or firm) you become bankrupt;
8.3.3 (being a company) you become subject to an administration order or go into liquidation;
8.3.4 Any third party takes possession of, or enforces rights over, any of your property or assets under any form of security;
8.3.5 You stop or threaten to stop carrying on business;
8.3.6 You suffer any process equivalent to any of these, in any jurisdiction; or
8.3.7 We reasonably believe that any of the events mentioned above is about to occur and we notify you accordingly.
8.4 Any right of cancellation or suspension under this section is additional to any rights available to us under the law of any relevant jurisdiction.

9 Hardship
9.1 If, after the issuance of an Order or the signature of this Contract, owing to economic, politic or technical circumstances beyond the control of the Parties or beyond their normal forecasts, the contractual balance of the respective obligations of the Parties is modified to such an extent that the forecasted execution of the contract would become obviously disadvantageous for one of the Parties, both Parties shall negotiate in order to determine, by mutual agreement, ways and means to restore a fair balance of obligations, including a more appropriate Incoterm or tax treatment, such as was created by the Contract signed in good faith.
9.2 If, with sixty (60) days of written notification of those circumstances by one of the Parties, the negotiation fails, either party may terminate the Contract, provided it gives fifteen (15) days prior notice.

10 Enforcement
10.1 You will keep strictly confidential all information which you learn about us or our customers, and use that information only for the performance, in good faith, of your contractual obligations to us. By way of illustration only, you may not use such information to help our competitors, poach our staff or disparage our reputation. This restriction will apply until the fifth anniversary of the contract date, and does not apply to information which was demonstrably public knowledge at the time of usage by you.10.2 Our relationship is as independent contractors only, not as partners or as principal and agent. The contract is non-assignable by you. It is assignable by us only to a group company that is a company in the same ultimate beneficial ownership. You may sub-contract or delegate Performance in particular respects but not generally and not as regards your responsibility to us, nor our direct contact with us, in any respect.
10.3 You will procure that none of your associates behaves in a way which, had the behaviour been yours, would have breached the contract. We hold the contract on trust for ourselves and all associates of ours, and the contact is made for the benefit of all of them so that you will be liable for damage caused to our associates as well as ourselves. Our respective associates for this purpose are any parent company or ultimate controlling shareholder and any company owned by either.
10.4 No wavier by us of any breach of contract by you will be considered as a wavier of any subsequent breach of the same or any other provision, or as a release of the provision which you breached. No delay by us in enforcement, and no toleration shown by us, is to imply any waiver or compromise of our rights.
10.5 If any provision of these Terms is held by competent authority to be invalid or unenforceable in whole or in part the validity of the other Terms and of the remainder of the provision in question will not be affected. Every provision is severable from every other.
10.6 Any written notice under these Terms will be deemed to have been sufficiently served if posted by pre-paid official postal service, or if sent by fax then on receipt of successful answerback, or if sent by e-mail (but in this case only on evidence of successful transmission and only if the parties have regularly communicated on contract matters by that email route).
10.7 The contract will be governed by the law of Scotland, and you submit to the non-exclusive jurisdiction of the Scottish courts.

11 Data privacy legislation
11.1 For the purposes of this contract, both Macphie and the supplier are considered to be controllers of data. Macphie and the supplier both agree to comply with our obligations under current data privacy legislation.
(i) on or after 25 May 2018, and unless and until the General Data Protection Regulation ((EU) 2016/679) (“GDPR”) is no longer directly applicable in the UK, the GDPR Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
11.2 Macphie’s privacy notice can be viewed here.