Oneseat Limited t/a Frovi - Purchase Conditions January 2019
1. INTRODUCTION & INTERPRETATION
The following purchase conditions (“Conditions”) shall apply to the purchase of goods by Oneseat Ltd, hereinafter called “the Company”. These Conditions supersede any earlier conditions of purchase issued by the Company to you (“the Supplier”). These Conditions shall apply to the sale of the Goods by the Supplier to the Company. The word “Goods” shall include all products purchased from the Supplier by the Company including all furniture, components, materials and goods purchased and shall also include equipment supplied for use in connection with the sale, distribution, storage, processing and handling of such products.
“Contract” shall mean the contract between the Company and the Supplier for the sale and purchase of Goods in accordance with these Conditions and the Contract constitutes the entire agreement between the Company and the Supplier and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Any other provisions, including those of the Supplier which the Supplier applies or purports to apply, shall not be the terms and concerning the sale of the Goods by the Supplier to the Company, no matter how such provisions are introduced (including but not limited to provisions included on quotations, estimates, conformations of order, delivery notes or similar documents) (“Supplier’s provisions”). For the avoidance of doubt, the Supplier acknowledges and agrees that the Company shall not be bound by any of the Supplier’s Provisions.
The word “Party” shall mean either the Company or the Supplier and the word “Parties” shall mean the Company and the Supplier together.
“Delivery Date” shall mean the date specified in the Order, or, if none is specified, within 30 days of the date of the Order.
"Delivery Location" shall mean the address for delivery of Goods as set out in the Order.
2. FORMATION OF CONTRACT
a) An “Order” shall mean the Company’s order for the Goods, whether oral or in writing as set out in the Company's purchase order form or in the Company's written acceptance of the Supplier's quotation or otherwise. “Specification” shall mean any specification for the Goods, including any related plans and drawings, that is agreed by the Supplier and the Company.
b) 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.
c) The Order constitutes an offer by the Company to purchase the Goods in accordance with these Conditions.
d) The Order shall be deemed to be accepted on the earlier of:
(i) the Supplier issuing a written acceptance of the Order; and
(ii) the Supplier doing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence.
3. THE GOODS
(a) The Supplier shall ensure that the Goods shall:
(i) correspond with their description and any applicable Specification;
(ii) 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 Company expressly or by implication, and in this respect the Company relies on the Supplier's skill and judgement;
(iii) where they are manufactured products, be free from defects in design, material and workmanship and remain so for 36 months after delivery; and
(iv) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
(b) 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.
(c) The Company 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.
(d) If following such inspection or testing the Company considers that the Goods do not conform or are unlikely to comply with the Supplier's undertakings at clause 3(a), the Company shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.
(e) The Company may conduct further inspections and tests after the Supplier has carried out its remedial actions.
4. PRICE AND PAYMENT
(a) 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 agreed Frovi price list or quotation in force as at the date the Contract came into existence.
(b) The price of the Goods:
(i) excludes amounts in respect of value added tax (VAT), which the Company shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(ii) includes the costs of packaging, insurance and carriage of the Goods.
(c) No extra charges shall be effective unless agreed in writing with the Company.
(d) The Supplier may invoice the Company for the 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 Company's Order number, the Supplier's VAT registration number and any supporting documents that the Company may reasonably require.
(e) The Company shall pay correctly rendered invoices at the end of the month following the date of receipt of the Supplier’s invoice, unless other settlement terms have been agreed between the Parties. Payment shall be made to the bank account nominated in writing by the Supplier.
(f) If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 2% 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 defaulting party shall pay the interest together with the overdue amount. This clause shall not apply to payments the defaulting party disputes in good faith.
(g) The Company may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Company against any liability of the Company to the Supplier.
(a) The Supplier shall ensure that:
(i) the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
(ii) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Company’s Order number, 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;
(iii) if the Supplier requires the Company 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; and
(iv) any Delivery Date shall be agreed and confirmed with the Company in writing at least 24 hours prior to delivery.
(b) The Supplier shall deliver the Goods:
(i) on the Delivery Date;
(ii) at the Delivery Location; and
(iii) during the Company's normal business hours, or as instructed by the Company.
(c) Delivery of the Goods shall be completed on the completion of unloading the Goods at the Delivery Location.
(d) The Supplier shall not deliver the Goods in instalments without the Company'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 Company to the remedies set out in clause 6.
(a) If the Goods are not delivered on the Delivery Date, or do not comply with the undertakings set out in clause 3(a), then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Company may exercise any one or more of the following remedies:
(i) to terminate the Contract;
(ii) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier's own risk and expense;
(iii) 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);
(iv) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(v) to recover from the Supplier any costs incurred by the Company in obtaining substitute goods from a third party; and
(vi) to claim damages for any other costs, loss or expenses incurred by the Company which are in any way attributable to the Supplier's failure to carry out its obligations under the Contract.
(b) These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
(c) The Company's rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.
7. TITLE AND RISK
Title and risk in the Goods shall pass to the Company on completion of delivery.
During the term of the Contract and for a period of 5 years thereafter, 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 Company'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.
(a) The Supplier shall keep the Company indemnified 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 Company as a result of or in connection with:
(i) any claim made against the Company 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 Supplier, its employees, agents or subcontractors;
(ii) any claim made against the Company 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
(iii) any claim made against the Company 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 Supplier, its employees, agents or subcontractors.
(b) This clause 9 shall survive termination of the Contract.
(a) The Supplier shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Supplier by the Company, its employees, agents or subcontractors and any other confidential information concerning the Company’s business, its products and services which the Supplier may obtain. The Supplier shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Supplier’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The Supplier may also disclose such of the Company’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
(b) This clause 10 shall survive termination of the Contract.
11. ASSIGNMENT AND SUBCONTRACTING
(a) The Supplier shall not assign, transfer, charge or otherwise deal with its obligations under these Conditions without the prior written consent of the Company. Without prejudice to the generality of the foregoing, the Supplier shall not subcontract the design, manufacture, production or supply of the Goods or any rights, liability or obligation without the prior written consent of the Company.
(b) The Company 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.
(a) The Company 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 Company shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.
(b) Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Supplier if:
(i) 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 10 days of it being notified in writing to do so;
(ii) 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), 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;
(iii) 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;
(iv) 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
(v) the Supplier's financial position deteriorates to such an extent that in the Company's opinion the Supplier's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
(c) Termination of the Contract, however arising, shall not affect any of the Parties' rights and remedies that have accrued as at termination.
(d) Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
13. FORCE MAJEURE
Neither Party shall have any liability under or be deemed to be in breach of Contract for any delays or failures in performance of Contract that result from circumstances beyond the reasonable control of that Party including Cyber Fraud. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate the Contract by written notice to the other Party.
14. DATA PROTECTION
15. ENTIRE AGREEMENT
The 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.
16. VARIATION & WAIVER
(a) 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 and signed by the Company.
(b) No failure or delay by the Company in exercising any right, power or privilege under these Conditions shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in these Conditions are cumulative and not exclusive of any rights and remedies provided by law.
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.
18. AGENCY, PARTNERSHIP ETC
The Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in these Conditions. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
19. THIRD PARTIES
No one other than a party to the Contract and their permitted assignees shall have any right to enforce any of its terms.
(a) 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 (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, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 19(a); 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 fax, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21. GOVERNING LAW & 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.