Armaflo Standard Terms and Conditions of Purchase
“Business Day” a day (other than a Saturday, Sunday or public holiday in England) when banks in London are open for business.
“Conditions” the terms and conditions set out in this document as amended from time to time in accordance with clause 15.4.
“Contract” the contract between the Customer and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” Armaflo Ltd (registered in England and Wales with company number 09876231).
“Data Protection Legislation” all applicable 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 the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended).
“Delivery Date” the date specified in the Order.
“Delivery Location” the address for delivery of Goods as set out in the Order.
“Goods” the goods (or any part of them) set out in the Order.
“Mandatory Policies” the Customer’s business policies listed in Schedule 1, as amended by notification to the Supplier from time to time.
“Order” the Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation, or overleaf, as the case may be.
“Specification” any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
“Supplier” the person or firm from whom the Customer purchases the Goods.
“UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
1.2.1 a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
1.2.3 a reference to writing or written includes by email.
2 BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by 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.
2.3 The Order shall be deemed to be accepted on the earlier of:
2.3.1 the Supplier issuing a written acceptance of the Order; or
2.3.2 the Supplier doing any act consistent with fulfilling the Order, at which point the Contract shall come into existence.
2.4 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.
3 THE GOODS
3.1 The Supplier shall ensure that the Goods shall:
3.1.1 correspond with their description and any applicable Specification;
3.1.2 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier or made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
3.1.3 where they are manufactured products, be free from defects in design, material and workmanship and remain so for 18 months after delivery; and
3.1.4 comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
3.2 The Supplier 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.
3.3 The Customer may inspect and test the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect the Supplier’s obligations under the Contract.
3.4 If following such inspection or testing the Customer considers that the Goods do not conform or are unlikely to comply with the Supplier’s undertakings at clause 3.1, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4.1 The Supplier shall ensure that:
4.1.1 the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
4.1.2 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.3 if the Supplier requires the Customer to return any packaging material to the Supplier, that fact is clearly stated on the delivery note. Any such packaging material shall be returned to the Supplier at the cost of the Supplier.
4.2 The Supplier shall deliver the Goods:
4.2.1 on the Delivery Date;
4.2.2 at the Delivery Location; and
4.2.3 during the Customer’s normal business hours, or as instructed by the Customer.
4.3 Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
4.4 If the Supplier:
4.4.1 delivers less than 95% of the quantity of Goods ordered, the Customer may reject the Goods; or
4.4.2 delivers more than 105% of the quantity of Goods ordered, the Customer may at its discretion reject the Goods or the excess Goods and any rejected Goods shall be returnable at the Supplier’s risk and expense.
If the Supplier delivers more or less than the quantity of Goods ordered, and the Customer accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.5 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all, or any defect in an instalment shall entitle the Customer to the remedies set out in clause 5
5.1 If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3.1, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Customer may exercise any one or more of the following remedies:
5.1.1 to terminate the Contract;
5.1.2 to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
5.1.3 to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
5.1.4 to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
5.1.5 to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and
5.1.6 to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to carry out its obligations under the Contract.
5.2 If the Goods are not delivered on the Delivery Date the Customer may, at its option, claim or deduct 5% of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 30% of the total price of the Goods. If the Customer exercises its rights under this clause 5.2, it shall not be entitled to any of the remedies set out in clause 5.1 in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Goods’ quality or condition). The parties confirm that these liquidated damages are reasonable and proportionate to protect the Customer’s legitimate interest in performance.
5.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.4 The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law
6 TITLE AND RISK
Title and risk in the Goods shall pass to the Customer on completion of delivery
7 PRICE AND PAYMENT
7.1 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 the Contract came into existence.
7.2 The price of the Goods:
7.2.1 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
7.2.2 includes the costs of packaging, insurance and carriage of the Goods.
7.3 No extra charges shall be effective unless agreed in writing with the Customer.
7.4 The Supplier may invoice the Customer for price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the Customer’s order number, the Supplier’s VAT registration number and any supporting documents that the Customer may reasonably require.
7.5 The Customer shall pay correctly rendered invoices within 60 days of the end of the month following the month in which the invoice was received. Payment shall be made to the bank account nominated in writing by the Supplier.
7.6 Where the parties have agreed a Customer rebate (“Rebate”) will apply to a Contract, all Goods purchased by the Customer under that Contract shall automatically qualify for the Rebate unless expressly agreed otherwise in writing.
7.7 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.
7.8 If a party fails to make any payment due to the other party under the Contract by the due date for payment, then the defaulting party shall pay interest on the undisputed overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each date at 2% a year above the Bank of England’s base rate from time to time, but at 2% a year for any period when the base rate is below 0%
8 CUSTOMER MATERIALS
The Supplier acknowledges that all materials, equipment and tools, drawings, specifications, and data supplied by the Customer to the Supplier (Customer Materials) and all rights in the Customer material are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until returned to the Customer and not dispose or use the same other than in accordance with the Customer’s written instructions or authorisation
9.1 The Supplier shall indemnify the Customer 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) and all other reasonable professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:
9.1.1 any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the manufacture, supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;
9.1.2 any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and
9.1.3 any claim made against the Customer by a third party arising out of or in connection with the manufacture, supply or use 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 Supplier, its employees, agents or subcontractors.
9.2 This clause 9 shall survive termination of the Contract.
During the term of the Contract and for a period during which the Supplier remains liable under the Contract or applicable law, the Supplier shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on the Customer’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.
11.1 Each party undertakes that it shall not at any time during the Contract and for a period of two (2) years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 11.2.
11.2 Each party may disclose the other party’s confidential information to those of its employees, officers, representatives, agents, professional advisers, contractors and subcontractors who need to know it for the purpose of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that such employees, officers, representatives, agents, professional advisers, contractors and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. Each party may also disclose such of the other party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
11.3 This clause 11 shall survive termination of the Contract.
12 COMPLIANCE WITH RELEVANT LAWS AND POLICIES
12.1 In performing it obligations under the Contract, the Supplier shall:
12.1.1 comply with all applicable laws, statutes, regulations from time to time in force; and
12.1.2 comply with the Mandatory Policies.
12.2 The Customer may immediately terminate the Contract for any breach of clause 12
13.1 The Customer may terminate the Contract in whole or in part at any time before delivery with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods that the Supplier can evidence has been performed up to the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
13.2 Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:
13.2.1 the Supplier commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 20 Business Days of that party being notified in writing to do so;
13.2.2 the Supplier 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), obtaining a moratorium, 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;
13.2.3 the Supplier takes any step or action in connection with the Supplier being made bankrupt, entering any composition or arrangement with his creditors, having a receiver appointed to any of his 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;
13.2.4 the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
13.2.5 the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
13.3 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.
13.4 Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
13.5 On termination or expiry of the Contract, the Supplier shall immediately return all Customer Materials. If the Supplier fails to do so, then the Customer may enter the Supplier’s premises and take possession of them. Until they have been returned or delivered, the Supplier shall be solely responsible for their safe keeping and will not use them for any purpose not connected with the Contract
14 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 it if such delay or failure results from an event, circumstance or cause beyond its reasonable control. If the period of delay or non-performance continues for 2 weeks, the party not affected may terminate the Contract by giving 30 days written notice to the affected party
15.1 Assignment and other dealings.
15.1.1 The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.
15.1.2 The Supplier may not assign, transfer, mortgage, charge, delegate, 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 Customer.
15.2 Data Protection.
15.2.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. The terms Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures used in this clause 15.2 shall all have the meanings as defined in the Data Protection Legislation.
15.2.2 Without prejudice to the generality of clause 15.2.1, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the documented written instructions of the Customer;
(b) ensure that it has in place appropriate technical and organisational measures, as may be reviewed and approved by the Customer from time to time, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK or EEA unless the prior written consent of the Customer has been obtained;
(e) assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach; and
(g) at the request of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by applicable law to store the Personal Data.
15.2.3 The Customer does not consent to the Supplier appointing any third party processor of Personal Data under the Contract.
15.3 Entire agreement. The Contract constitutes the entire agreement between the parties. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.4 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing. For the purposes of this clause in writing does not include by email, but the parties may effect their signature by electronic means.
15.5 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.
15.6 Severance. 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.
15.7.1 Any notice given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
15.7.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.7.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
15.7.3 This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
15.8 Third party rights. The Contract does not, and is not intended to, give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.9 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 England and Wales.
15.10 Jurisdiction. 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 the Contract or its subject matter or formation.
CUSTOMER’S MANDATORY POLICIES