Volution Ventilation UK Limited (trading as Diffusion)
Terms and Conditions of Purchase (Conditions)
1.1 The definitions and rules of interpretation in this clause apply in these conditions.
Contract: the Purchase Order and the Supplier’s acceptance of it in accordance with condition 3.3.
Goods: the Goods agreed in the Contract to be purchased by the Customer from the Supplier (including any part of it).
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Purchase Order: the Customer’s written instruction to supply the Goods, incorporating these conditions.
Supplier: the person, firm or company who accepts the Purchase Order in accordance with condition 3.3.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.5 A reference to writing or written includes faxes and e-mail.
2. APPLICATION OF CONDITIONS
2.1 These conditions shall:
(a) apply to and be incorporated in the Contract; and
(b) prevail over any inconsistent terms or conditions contained in or referred to in the Supplier’s quotation, acceptance, correspondence or elsewhere or implied by law, trade custom, practice or course of dealing.
2.2 No addition to, variation of, exclusion or attempted exclusion of the Purchase Order or these conditions or any of them shall be binding on the Customer unless in writing and signed by a duly authorised representative of the Customer.
2.3 Where the Purchase Order is for more than one item, it shall (following acceptance by the Supplier) be regarded as a single Contract for all Goods supplied pursuant to that Purchase Order.
3. EFFECT OF PURCHASE ORDER
3.1 The Customer shall only be bound by an order if it is issued on the Customer’s standard Purchase Order form and signed by a duly authorised representative of the Customer.
3.2 The Purchase Order constitutes an offer by the Customer to purchase the Goods subject to these conditions. Accordingly, any acceptance of the Purchase Order by the Supplier shall establish a contract for the sale and purchase of those Goods on these conditions. Any counter-offer made by the Supplier to supply the Goods on other conditions shall only be validly accepted if such acceptance is in writing and signed by a duly authorised representative of the Customer.
3.3 The execution and return of the acknowledgement copy of the Purchase Order form by the Supplier, or the Supplier’s execution, commencement of work or commencement of delivery pursuant to the Purchase Order constitutes acceptance of the Purchase Order on these conditions by the Supplier.
4. SUPPLIER’S WARRANTY
4.1 The Supplier warrants to the Customer that:
(a) the Goods will conform with the quality, description and other particulars of the Goods stated in the Purchase Order;
(b) the Goods will conform to all samples, drawings, descriptions and specifications provided to the Customer by the Supplier;
(c) the Goods will conform with all standards referred to on any part of the Goods and in any product packaging and/or documentation in, with or in relation to which the Goods is supplied;
(d) the Goods will be of satisfactory quality and fit for any intended uses expressly or impliedly made known to the Supplier, and will be free from all defects in materials, workmanship and installation for a period of 12 months from the date of delivery;
(e) the Goods will comply with all performance and other specifications stated in the Purchase Order, and all applicable legislation for the time being in force;
4.2 The Customer’s rights under the Contract are in addition to the statutory terms implied in favour of the Customer by the Sale of Goods Act 1979 and any other statute.
4.3 The provisions in this condition 4 shall survive any delivery, inspection, acceptance, payment or performance pursuant to the Contract and shall extend to any replacement, repaired, substitute or remedial Goods provided by the Supplier.
Unless the Customer has agreed otherwise in writing, the Supplier shall deliver the exact specified quantities of items comprised in the Goods in accordance with the Purchase Order. Without affecting its other rights and remedies, the Customer reserves the right to reject incomplete deliveries and to return excess quantities at the Supplier’s risk and expense.
6. INSPECTION AND TESTING OF GOODS
6.1 The Supplier shall:
(a) carefully test and inspect the Goods before delivery to ensure that they comply with the requirements of the Purchase Order; and
(b) if so requested by the Customer, give the Customer reasonable advance notice of such tests (which the Customer shall be entitled to attend).
6.2 The Customer reserves the right to call for certificates or test certificates for the Goods at any stage of manufacture or assembly. Such certificates shall clearly state the Customer’s order numbers and any item or Goods numbers. If, as a result of any inspection or test, the Customer finds that the Goods or any items comprised within it do not comply with the Purchase Order, or are unlikely to comply with it on completion of manufacture, processing or performance, the Customer may inform the Supplier, and the Supplier shall take such steps as are necessary to ensure compliance.
7. DELIVERY, INSTALLATION AND ACCEPTANCE OF GOODS
7.1 The Supplier shall deliver the Goods on the date specified in the Purchase Order or, if no such date is specified, within 28 days of the date of the Purchase Order. Time is of the essence as to the delivery of the Goods under the Contract and if the Supplier does not comply with its obligations in the preceding sentence, the Customer may:
(a) cancel the Contract in whole or in part without incurring any liability to the Supplier;
(b) refuse to accept any subsequent delivery of items comprised in the Goods which the Supplier attempts to make;
(c) purchase substitute items elsewhere; and
(d) hold the Supplier accountable for any loss and additional costs incurred.
7.2 The Goods shall be properly packed and secured in such manner as to enable it to reach their destination in good condition. No charge shall be made for wrapping, packing, cartons, boxes, crating or containers unless specified in the Purchase Order, and the Customer shall not be responsible for returning any such materials.
7.3 The Goods shall be delivered by the Supplier carriage free to the place of delivery specified in the Purchase Order, or as otherwise specified by the Customer by means of advice notes quoting the Customer’s Purchase order number. The Goods shall be received at the place of delivery, subject to the Customer’s inspection and approval. Any Goods which the Customer rejects as not conforming with the Purchase Order shall be returned at the Supplier’s risk and expense.
7.4 Unless the Customer and the Supplier have, before or at the same time as the Purchase Order, agreed in writing (signed on behalf of the Customer) additional conditions regarding preparation of or environmental requirements at the site at which the Goods is to be installed, the Supplier acknowledges and warrants that the Goods are suitable to be installed and used at the premises at which the Customer intends to use it and that there are no additional conditions regarding site preparation or environmental requirements.
7.5 Notwithstanding condition, the Customer shall not be deemed to have accepted the Goods until it has had 3 days to inspect them after delivery. The Customer may also during the period of for 3 months after any latent defect in the Goods has become apparent reject the Goods as though it had not been accepted.
8. RISK AND PROPERTY
8.1 The Goods shall be at the risk of the Supplier until delivery to the Customer at the place of delivery specified in the Purchase Order, or as otherwise specified by the Customer in accordance with condition 7.3. The Supplier shall off-load the Goods at its own risk as directed by the Customer.
8.2 Ownership of the Goods shall pass to the Customer on completion of delivery (including off-loading) in accordance with the Purchase Order, except that if the Goods are paid for before delivery ownership shall pass to the Customer once payment has been made. The passing of ownership in the Goods is without prejudice to any right of rejection to which the Customer may be entitled under the Contract or otherwise.
All prices shall be as stated in the Purchase Order, except that if the Supplier quotes or offers to a third party lower prices or better terms for Goods of similar quality, quantity or description to the Goods (or the items comprised in it), the Customer shall be entitled to purchase the Goods (or the relevant items comprised in it) on the same terms and shall be entitled to a refund of the amount of the difference in respect of all such Goods supplied after whichever is the earlier of the first quotation or the first supply at the lower price or better terms (as the case may be). All prices are fixed and inclusive of delivery, packaging, packing, shipping, carriage, insurance and other charges and dues, and are not subject to adjustment save as specifically provided in these conditions or the Purchase Order.
10.1 Unless otherwise stated in the Purchase Order, payment of invoices shall be made by the end of the second month following the month in which the Goods are received by the Customer in accordance with the Purchase Order.
10.2 Without prejudice to any other right or remedy, the Customer reserves the right to set off any amount at any time owing to it by the Supplier against any amount payable by it to the Supplier under the Contract.
The Supplier shall indemnify and hold the Customer harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses), costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred or paid by, the Customer as a result or in connection with:
(a) any alleged or actual infringement, whether or not under English law, of any third party’s Intellectual Property Rights or other rights arising out of the use, manufacture or supply of the Goods; or
(b) defective workmanship, quality or materials in or in relation to the Goods; or
(c) any claim made against the Customer in respect of any liability, loss, damage, injury, cost or expense sustained by the Customer’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the Contract by the Supplier howsoever arising
12. CONFIDENTIALITY AND THE CUSTOMER’S PROPERTY
12.1 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 Customer or its agents, and any other confidential information concerning the Customer’s business or its products which the Supplier may obtain. The Supplier shall restrict disclosure of such confidential material to such of its employees as need to know the same for the purpose of discharging the Supplier’s obligations to the Customer and shall ensure that such employees are subject to obligations of confidentiality corresponding to those which bind the Supplier.
12.2 All materials, equipment and tools (if any) and all copyright, rights in designs and any other Intellectual Property Rights in all drawings, specifications and data supplied by the Customer to the Supplier shall at all times be and remain the exclusive property of the Customer, and shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to the Customer, and shall not be disposed or used other than in accordance with the Customer’s written instructions or authorisation. The Supplier shall return all copies of any such material to the Customer immediately on the Customer’s first written request.
12.3 This condition 12 shall survive the termination of the Contract, however arising.
13.1 The Customer may cancel the Contract (for all or part only of the Goods) by giving written notice to the Supplier at any time before delivery, in which case whereupon the Supplier shall discontinue all work on the Contract and the Customer shall pay the Supplier fair and reasonable compensation for work in progress on the cancelled Goods at the time of termination, (less any cost savings accruing to the Supplier by reason of the cancellation) but such compensation shall not include any amount for loss of anticipated profits nor any consequential loss.
13.2 Without prejudice to any other rights or remedies to which the Customer may be entitled, the Customer may terminate the Contract without liability to the Supplier if:
(a) the ability of the Customer to accept delivery of the Goods is delayed, hindered or prevented by circumstances beyond its reasonable control; or
(b) the Supplier commits any breach of its obligations under the Contract and fails to remedy that breach within 14 days of receiving written notice from the Customer requiring its remedy; or
(c) an order is made or a resolution is passed for the winding up of the Supplier, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the Supplier; or
(d) an order is made for the appointment of an administrator to manage the affairs, business and property of the Supplier, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the Supplier, or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(e) a receiver is appointed of any of the Supplier’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the Supplier, or if any other person takes possession of or sells the Supplier’s assets; or
(f) the Supplier makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or
(g) the Supplier ceases, or threatens to cease, to trade; or
(h) there is a change of control of the Supplier within the meaning of section 1124 of the Corporation Tax Act 2010; or
(i) the Supplier takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
13.3 Termination of the Contract, however arising, shall not affect or prejudice the accrued rights of the parties as at termination or the continuation of any provision expressly or implicitly stated to survive termination
If any Goods are not supplied in accordance with, or the Supplier fails to comply with, any terms of the Contract, the Customer may (without prejudice to any other right or remedy) exercise any one or more of the following rights or remedies, whether or not any part of the Goods has been accepted by the Customer:
(a) rescind the Contract; or
(b) reject the Goods (in whole or in part) and return it to the Supplier at the risk and cost of the Supplier on the basis that a full refund for the Goods so returned shall be paid immediately by the Supplier; or
(c) require the Supplier, at the Supplier’s expense, either (at the Customer’s option) to remedy any defect in the Goods and carry out such other work as is necessary to ensure that the Goods is in all respects in accordance with the Purchase Order or to supply replacement Goods, provided that if the Supplier refuses to remedy the defect in the Goods or to supply replacement Goods within 15 days of receiving such a request, the Customer may purchase replacement Goods from another source and the Supplier shall reimburse the Customer for all costs and expenses reasonably incurred in doing so; or
(d) refuse to accept any further deliveries of the Goods, without liability to the Supplier; and
(e) in any case, to claim such damages as it may have sustained in connection with the Supplier’s breach of the Contract not otherwise covered by this condition.
15. FORCE MAJEURE
The Customer may defer the date of delivery or payment, or cancel the Contract or reduce the amount of Goods ordered, if it is prevented from or delayed in carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including without limitation strikes, lock-outs or other industrial disputes (whether involving the workforce of the Customer or any other party), failure of a utility service or transport or telecommunication network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors
16.1 The Supplier shall:
(a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) comply with the Customer’s Ethics, Anti-bribery and Anti-corruption Policies available on request, in each case as the Customer may update them from time to time (Relevant Policies).
(d) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements, the Relevant Policies and condition
16.1(b), and will enforce them where appropriate;
(e) promptly report to the Customer any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of this agreement;
(f) immediately notify the Customer (in writing) if a foreign public official becomes an officer or employee of the Supplier AND/OR acquires a direct or indirect interest in the Supplier and the Supplier warrants that it has no foreign public officials as officers or employees AND/OR direct or indirect owners at the date of this agreement;
(g) upon request, within 3 months of the date of the Contract, and annually thereafter, certify to the Customer in writing signed by an officer of the Supplier, compliance with this condition 16 by the Supplier and all persons associated with it and all other persons for whom the Supplier is responsible and the Supplier shall provide such supporting evidence of compliance as the Customer may reasonably request.
16.2 Without prejudice to condition 18.1, the Supplier shall ensure that any person associated with the Supplier who is performing services or providing goods in connection with this agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Supplier in this condition 16 (Relevant Terms). The Supplier shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Customer for any breach by such persons of any of the Relevant Terms howsoever arising.
16.3 Breach of this condition 16 shall be deemed a breach, which is not capable of being redeemed within the specified period, under condition 13.2(b).
17.1 A waiver of any right under the Contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
17.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
18.1 The Supplier shall not, without the prior written consent of the Customer, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.2 The Customer may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
19. THIRD PARTY RIGHTS
The Contract is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
20.1 Any notice required to be given under the Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract (or such other address as may have been notified by that party for such purposes), or sent by fax to the other party’s fax number as set out in the Contract.
20.2 A notice delivered by hand shall be deemed to have been received when delivered (or, if delivery is not in business hours, at 9.00 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
21. GOVERNING LAW AND JURISDICTION
21.1 The Contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England.
21.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contractor its subject matter or formation (including non-contractual disputes or claims).