TERMS AND CONDITIONS OF PURCHASE
1. Interpretation
1.1 – In these Conditions:
BUYER means Tama U.K. LTD (registered in England under number 3039642);
CONDITIONS means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller;
CONTRACT means the contract for the sale and purchase of the Goods;
DELIVERY means the address stated On the Order;
GOODS means the goods (including any instalment of the goods or any part of them) described in the Order;
ORDER means the Buyer’s purchase order to which these Conditions are annexed;
PRICE means the price of the Goods;
SELLER means the person so described in the Order;
SPECIFICATION includes any plans, drawings, data or other information relating to the Goods;
WRITING includes telex, cable, facsimile transmission and comparable means of communication.
1.2 – Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re–enacted or extended at the relevant time.
1.3 – The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of purchase
2.1 The Order constitutes an offer by the Buyer to purchase the Goods subject to these Conditions.
2.2 These Conditions shall apply to the Contract to the exclusion of any other terms and conditions on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller.
2.3 The Order will lapse unless unconditionally accepted by the Seller in Writing within 7 days of its date.
2.3.1 No variation to the Order or these Conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and the Seller.
3. Specifications
3.1 The quantity, quality and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in Writing by the Buyer.
3.2 Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.
3.3 The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.
3.4 The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage (if feasible) at the premises of the Seller or any third party prior to dispatch, and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing.
3.5 If so requested by the Buyer, the Seller shall provide to the Buyer, a copy of the test reports (containing information specified by the Buyer) prior to shipment of the Goods.
3.6 The Goods shall be marked in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
3.7 The Seller shall notify the Buyer immediately on receipt of an Order of any limitation on the ’shelf–life’ of any Goods ordered and the Buyer reserves the right to cancel the Order (or part of the Order) if the Seller cannot offer Goods with a ‘shelf-life’ acceptable to the Buyer.
4. Price of the goods and services
4.1 The Price of the Goods shall be as stated in the Order and, unless otherwise so stated, shall be:
4.1.1 exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and
4.1.2 inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imports or levies other than value added tax.
4.2 No increase in the Price may be made (whether on account of increased material, labor or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in Writing.
4.3 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.
5. Terms of payment
5.1 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods, and each invoice shall quote the number of the Order.
5.2 Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods within 90 days of receipt by the Buyer of a proper invoice or, if later, after receipt of the Goods in question by the Buyer.
5.3 The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.
6. LATE PAYMENT
6.1 The Goods shall be delivered to the Delivery Address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours.
6.2 Where the date of delivery of the Goods is to be specified after the placing of Order, the Seller shall give the Buyer reasonable notice of the specified date.
6.3 The time of delivery of the Goods is of the essence of the Contract.
6.4 A packing note quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently.
6.5 If the Goods are to be delivered by instalments, the Contract will be treated as a single contract and not severally.
6.6 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect in the Goods has become apparent.
6.7 The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods.
6.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.
6.9 If the Goods are not delivered then without prejudice to any other remedy, the Buyer shall be entitled to claim from the Seller all costs and expenses incurred by the Buyer as a result of the delay.
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.
7.2 The property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods is made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.
8. Warranties and liability
8.1 The Seller warrants to the Buyer that the Goods:
8.1.1 will 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 Seller or made known to the Seller in writing at the time the Order is placed;
8.1.2 will be free from defects in design, material and workmanship;
8.1.3 will correspond with any relevant Specification or sample; and
8.1.4 will comply with all statutory requirements and regulations relating to the sale of the Goods.
8.2 Without prejudice to any other remedy, if any Goods are not supplied in accordance with the Contract, then the Buyer shall be entitled:
8.2.1 to require the Seller to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within 7 days or a period to be agreed by the Buyer; or
8.2.2 at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods to treat the Contract as discharged by the Seller’s breach and require the repayment of any part of the Price which has been paid.
8.3 The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:
8.3.1 breach of any warranty given by the Seller in relation to the Goods;
8.3.2 any claim that the Goods infringe, or their importation, use or resale, infringes, the patent, copyright, design right, trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
8.3.3 any liability under the Consumer Protection Act 1987 in respect of the Goods;
8.3.4 any act default or omission of the Seller or its employees, agents or sub–contractors in supplying or delivering the Goods.
8.4 The Seller warrants to the Buyer that it has in force and will maintain in force a suitable policy of insurance in respect of any liability it may have (including consequential loss resulting from a failure of the Goods) to the Buyer or any third party and will if so requested by the Buyer, produce a copy of the policy of insurance (and, if applicable certificate of insurance) to the Buyer. The Seller further warrants that in the event that there are any material changes to the policy of insurance then it shall inform the Buyer thereof as soon as is reasonably practicable.
8.5 Neither the Seller nor the Buyer shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods, if the delay or failure is beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:
8.5.1 Act of God, explosion, flood, tempest, fire or accident;
8.5.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.5.3 acts, restrictions, regulations, bye–laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.5.4 import or export regulations or embargoes;
8.5.5 strikes, walk-outs or other industrial actions or trade disputes (whether involving employees of either the Seller or the Buyer or of a third party);
8.5.6 difficulties in obtaining raw materials, labor, fuel, parts or machinery;
9. Technical Support and Information
9.1 Without prejudice to Clause 8 above, the Seller shall provide, without charge, full technical support to the Buyer in the event of a complaint by a customer of the Buyer.
9.2 The Seller shall arrange with the Buyer for a technical representative to visit the Buyer’s customer within 14 days of notification of a complaint by the Buyer to the Seller and the Seller shall on acceptance of the Order provide the Buyer with the names of the technical representatives who shall provide the assistance in the event of complaint.
9.3 The Seller shall within 48 hours of being notified by the Buyer of a complaint and the quality control number of the Goods or any relevant reference of the Seller, pass to the Buyer copies of all quality control papers relating to the Goods being complained of.
10. Termination
10.1 The Buyer shall be entitled to cancel the Order in respect of all or part of the Goods and by giving notice to the Seller at any time prior to delivery or performance, in which event the Buyer’s sole liability shall be to pay to the Seller the Price for the goods in respect of which the Buyer has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation
10.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:
10.2.1 the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
10.2.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
10.2.3 the Seller ceases, or threatens to cease, to carry on business; or
10.2.4 the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
11. General
11.1 The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub–contract any of its obligations under the Contract
11.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
11.3 No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision In question shall not be affected thereby.
11.5 Except in accordance with 9.1 and 9.2 above the Seller agrees not to contact the Buyer’s customers without the express authority of the Buyer and in particular shall not during the period of Contract give any quotation or sell Goods directly to the Buyer’s customers
11.6 The Contract shall be governed by the laws of England, and the Seller agrees to submit to the nonexclusive jurisdiction of the English courts.
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