Business Day: a day (other than a Saturday, Sunday or public holiday in Scotland when banks in Edinburgh are open for business.
Commencement Date: the date the Contract commences, as set out in the Contract Details.
Conditions: these terms and conditions set out in this agreement.
Contract: any contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with the Contract Details and these Conditions.
Delivery Date: the date specified for delivery of an Order.
Delivery Location: the address for delivery of the Goods as agreed by the Seller and the Buyer.
Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control.
Goods: the goods (or any part of them), as set out in the Contract Details.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: an order for the Goods submitted by the Buyer
Price: the price for the Goods, as set out in the Order
Specification: the specification for the Goods.
Writing or written: includes fax, emails and instant messages
2.COMMENCEMENT AND TERM
This Contract shall commence on the Commencement Date and shall continue, unless terminated earlier in accordance with its terms, until the first anniversary of the Commencement Date, when it shall terminate automatically without notice.
- Orders shall be given in writing. The Seller shall use its best endeavours to supply the Goods in accordance with the Buyer’s Orders. The Seller may, at its discretion, accept an amendment to an Order by the Buyer.
- The Seller shall assign an order number to each Order it accepts and notify the order number to the Buyer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.
- After confirming an Order, the Seller shall as soon as is practicable inform the Buyer of the Seller’s estimated delivery date for the Order (Delivery Date).
- The Buyer is responsible for ensuring that Orders and any applicable Specification are complete and accurate. The Buyer shall give the Seller all necessary information that the Seller reasonably requires in order to fulfil each Order.
- The Seller acknowledges that all materials, equipment and tools, drawings, Specifications, and data supplied by the Buyer to the Seller (Buyer Materials) and all rights in the Buyer Materials are and shall remain the exclusive property of the Buyer.
4. THE GOODS
- The Seller shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Contract.
- The Buyer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required, those licences and consents shall be made available to the other party prior to relevant shipment.
- The Seller shall ensure that each delivery of Goods is accompanied by a delivery note which shows the order number, the type and quantity of Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
- Delivery notes, information sheets and all other documents accompanying a delivery shall be in English or a language specified by the Customer.
- The Seller shall endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date.
- The time of delivery is of the essence.
- If the Seller fails to deliver Goods by the relevant Delivery Date, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the Price of the Goods. The Seller shall have no liability for any failure to deliver Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- The Seller shall not deliver Orders in instalments without the Buyer’s prior written consent which shall then be invoiced and paid for separately. The Buyer may not cancel an instalment because of any delay in delivery or defect in another instalment.
- The Seller warrants that, for a period of 12 months from the date of delivery (warranty period), the Goods shall:
- be fit for the purposes for which goods of the kind in question are commonly supplied;
- be fit for any purpose held out by the Seller.
- If the Buyer gives notice in writing to the Seller during the warranty period, discovery that some or all of the Goods do not comply with the warranties; the Seller is given a reasonable opportunity of examining such Goods; and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost, the Seller shall, at its option, repair or replace any Goods that are found to be defective, or refund the price of such defective Goods in full. The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Seller.
7. TITLE AND RISK
- Risk in the Goods shall pass to the Buyer on completion of unloading of the Goods at the Delivery Location.
- Title to the Goods shall only pass to the Buyer once the Seller receives payment in full in cleared funds for them.
- Until title to the Goods has passed to the Buyer, the Buyer shall:
- store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;
- not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;
- give the Seller such information relating to the Goods as the Seller may require from time to time.
- The Seller may recover any Goods in which title has not passed to the Buyer. The Buyer irrevocably licenses the Seller, its officers, employees and agents, to enter any premises of the Buyer (including with vehicles), in order to satisfy itself that the Buyer is complying with the obligations in this agreement and to recover any Goods in which property has not passed to the Buyer.
8. PRODUCT RECALL
If the Buyer 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 Seller in writing enclosing a copy of the Recall Notice.
9. PRICE AND PAYMENT
- Unless otherwise agreed prior to order, the Buyer shall pay invoices in full in cleared funds within 7 Business Days of the invoice date. Payment shall be made to the bank account nominated in writing by the Seller.
- If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then
- the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
- the Seller may suspend all further deliveries of Goods until payment has been made in full.
- The Buyer shall pay all amounts due under the contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Seller to the Buyer.
- The Seller shall indemnify the Buyer against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis, where applicable in the relevant jurisdiction) and all and other [reasonable professional costs and expenses) suffered or incurred by the Buyer arising out of or in connection with:
- any claim made against the Buyer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors[; and
- any claim made against the Buyer by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Seller, its employees, agents or subcontractors.
- If any third party makes a claim, or notifies an intention to make a claim, against the Buyer that may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Buyer shall:
- as soon as reasonably practicable, give written notice of the Claim to the Seller, specifying the nature of the Claim in reasonable detail;
- not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Seller;
- give the Seller and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Buyer, to enable the Seller and its professional advisers to examine them and to take copies (at the Seller’s expense to assess the Claim); and
- take such action as the Seller may reasonably request to avoid, dispute, compromise or defend the Claim.
- Nothing in this clause shall restrict or limit a Buyer’s general obligation under any applicable law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
During the term of the Contract and for a period of 1 year thereafter, the Seller shall maintain product liability insurance and public liability insurance in force, with a reputable insurance company, to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Buyer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
12. LIMITATION OF LIABILITY
- Nothing in this Contract shall limit or exclude the Seller’s liability for:
- death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- fraud or fraudulent misrepresentation;
- breach of the terms as to title in the Goods, insofar as they are implied by law;
- defective products under product liability laws.
13. COMPLIANCE WITH RELEVANT LAWS AND POLICIES
In performing its obligations under the Contract, the Seller shall comply with all applicable laws, statutes, regulations from time to time in force.
- Without limiting its other rights or remedies and to the extent permitted under the applicable laws, either party may terminate this Contract with immediate effect by giving written notice to the other party if:
- the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 7 days of that party being notified in writing to do so;
- the other party 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;
- the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
- the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- Without limiting its other rights or remedies and to the extent permitted under the applicable laws, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment.
- Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract which existed at or before the date of termination.
- Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
15. FORCE MAJEURE
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for 1 month, the party not affected may terminate this Contract by giving 7 days written notice to the affected party.
16. Assignment and other dealings
Any party that subcontracts any of its obligations under this agreement shall implement an appropriate system of due diligence to ensure compliance with all applicable anti-slavery and human trafficking legislation.
- Each party undertakes that it shall not at any time, and for a period of two years after termination of this agreement, disclose to any person, any confidential information concerning the business, affairs, buyers, clients or sellers of the other party or of any member of the group to which the other party belongs. For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party.
- Each party may disclose the other party’s confidential information: 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 or in connection with this agreement. 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; and as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
18. Entire agreement
- 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.
- 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 [or negligent misstatement] based on any statement in this agreement.
- No variation of this Contract shall be effective unless it is in writing and signed by the parties or their authorised representatives.
- A waiver of any right or remedy is only effective if given in writing. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
- Any notice or other communication given to a party under or in connection with the Contract shall be:
- in writing;
- addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause;
- delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax, email or instant messaging application.
- A notice or other communication shall be deemed to have been received:
- if delivered personally, when left at the address referred to in clause; or
- if delivered by international commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or,
- if sent by fax, email or instant messaging application, at the time of transmission.
- The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
22. No partnership or agency
- Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
- Each party confirms that it is acting on its own behalf and not for the benefit of any other person.
23. Third party rights
- No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
- No party shall make, or permit any person to make, any public announcement concerning the existence, subject matter or terms of this agreement, the wider transactions contemplated by it, or the relationship between the parties, without the prior written consent of the other parties, except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
- This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
- Transmission of the executed signature page of a counterpart of this agreement] by (a) fax or (b) email shall take effect as delivery of an executed counterpart of this agreement. If either method of delivery is adopted, without prejudice to the validity of the agreement made, each party shall provide the others with the original of such counterpart as soon as reasonably possible thereafter.
- Subject as may be provided elsewhere in this agreement, all disputes, differences or questions arising in relation to this agreement shall be referred in the first instance to the Seller and the Buyer, who shall meet together and attempt to settle the dispute between themselves (acting in good faith) within one calendar month.
- If the Seller and the Buyer fail to resolve the matter within one calendar month, the parties will attempt to settle it by mediation and the mediation will start, unless otherwise agreed between the parties, within 28 days of one party issuing a request to mediate to the other.
- Unless otherwise agreed between the parties, the mediator will be nominated by CEDR. The mediation will take place in London and the language of the mediation will be English. Any Mediation Agreement shall be governed by, and construed and take effect in accordance with, the substantive laws of England and Wales If the dispute is not settled by mediation within 14 days of commencement of the mediation or within such further period as the parties may agree in writing, either party may issue court proceedings.
26. GOVERNING LAW
- This agreement 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 England and Wales
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
This agreement is drafted in the English language. If this agreement is translated into any other language, the English language version shall prevail.