These Terms and Conditions apply in preference to and supersede any Terms and Conditions referred to, offered, or relied on by the Seller at any stage in the dealings between the Buyer and Seller, with reference to the Goods to which this Contract relates. Without prejudice to the generality of the aforementioned, the Buyer will not be bound by any Standard or Printed Terms referred to, or furnished by the Seller in any of its documents, unless the Seller specifically states in writing, separately from such Terms, that such Terms are required to apply, and the Buyer acknowledges this in writing. Headings to conditions shall not affect their interpretation. The validity and performance of the Contract shall be governed by and construed in accordance with Scots Law and the Seller thereby irrevocably submits to the jurisdiction of the Scottish courts.
‘Buyer’ shall mean the agent of akp Scotland Limited or any wholly owned or associated subsidiary. ‘Seller’ shall mean the person, firm or company to whom the Contract is awarded. ‘Goods’ means all matter, articles, things, which are the subject of the Contract. ‘Packaging’ includes bags, cases, cardboard boxes, cylinder, drums, pallets, tank wagons and other containers. ‘Contract’ shall mean the Buyer’s Authorised Purchase Order Form. ‘Amendment’ shall mean any authorised variation to the Contract confirmed by the Buyer by furnishing the Seller with written amendment to the Contract. ‘Authorised’ shall mean the signature of the person either named or whose status is shown on the face of the Contract. ‘Firm and Fixed Price’ shall mean no variation of price nor reconciliation of costs is permitted. ‘Delivered’ shall mean Goods have been satisfactorily received at the address for delivery stated on the Contract. ‘Premises’ shall mean any site used by the Buyer in the conduct of their business.
The Seller shall keep confidential any information data or process given to them by the Buyer in connection with the Contract. The Seller shall not advertise or make any statement relating to the existence or performance of the Contract without the Buyer’s prior written consent. The Seller undertakes not to breach any terms of the Data Protection Act 1998 with regard to the performance of the Contract.
The Seller shall not assign or contract any of its rights or duties under the Contract without prior written permission of the Buyer. Where prior written authority is given, the Seller shall remain responsible for the performance of the Contract, and ensuring that any Assignee complies with the requirements of the Contract. When requested by the Buyer, a copy of sub-contract details shall be provided at no charge.
It shall be a condition of the Contract that, except to the extent that the Goods are made up in accordance with designs furnished by the Buyer, none of the Goods will infringe any patent, trade mark, registered design, copyright, moral right or other right in the nature of intellectual property of any third party and the Seller shall indemnify the Buyer against all actions, suits, claims, demands, losses, charges, costs, legal expenses and all other expenses which the Buyer may suffer or incur as a result of or in connection with any breach of this Condition.
In the absence of a written specification or sample the Goods will be supplied with due diligence using materials of good construction and adequate strength which are free of defects in design, materials and workmanship. Notwithstanding the aforementioned, Goods supplied must comply with the express terms of the Contract and implied conditions, warranties and terms contained in the Sale of Goods Act 1979, any related statutes or statutory re-enactments or modifications, orders, regulations or bye-laws from time to time in force, as well as with any specification of the British Standards Institution (or equivalent) which is relevant to the Goods at the time of Contract.
The Seller shall not alter any of the Goods except as directed in writing by the Buyer. The Buyer shall have the right, from time to time during the execution of the Contract, by Amendment to the Contract to direct Seller to add to or omit, or otherwise vary the Goods and Seller shall carry out such variations and be bound by the same conditions, so far as applicable, as though the said variations were stated in the Contract.
All goods supplied against the Contract must be adequately protected against damage and deterioration in transit and delivered carriage paid. Any information relating to the handling of goods upon receipt is to be clearly marked on the exterior packaging and accompanying paperwork. The Seller shall free of charge and as quickly as possible either repair or replace (as the Buyer shall elect) such of the Goods as may either be damaged in transit or having been placed in transit fail to be delivered to the Buyer provided that in the case of damage to such Goods in transit the Buyer shall within 30 days of delivery give notice to the Seller that the Goods have been damaged. Unless otherwise provided in the Contract, the Seller shall be considered responsible for the collection and disposal of all returnable packaging at no cost to the Buyer. The Goods shall be delivered to the place named in the Contract. Any access to Premises and any labour and equipment that may be provided by the Buyer in connection with delivery shall be provided without acceptance by the Buyer of any liability whatsoever and the Seller shall indemnify the Buyer in respect of any actions, suits, claims, demands losses, charges, costs and expenses which the Buyer may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of delivery to the extent that any such damage or injury is attributable to any act or omission of the Seller or any of his sub-contractors. If the Goods or any part of them are not delivered by the time or times specified in the Contract then the Buyer may by written notice cancel any undelivered balance of the Goods. The Buyer may also return for full credit and at the Seller’s full expense any Goods that in the opinion of the Buyer cannot be utilised owing to this cancellation.
Property and risk in the subject matters of the Contract shall pass to the Buyer immediately after delivery has been satisfactorily effected, provided that such passing shall not prejudice either the Buyer’s right to reject for nonconformity with specification or any other rights that the Buyer may have under the Contract, provided that where advance or progress payments are made title but not risk shall pass to the Buyer as soon as items are allocated to the Contract. All items so allocated shall be adequately marked and recorded as being the property of the Buyer.
In accordance with the requirements of the Health & Safety at Work Act 1974 and any re-enactment or amendment thereof any safety precautions required for the handling of the material covered by the Contract are to be clearly indicated on each consignment. Hazardous goods must be marked in accordance with Classification, Packaging and Labelling of Dangerous Substances Regulations 1984 and subsequent amendments. Risk and Safety Phrases must be in English. Seller shall observe the requirements of U.K. and International Agreements relating to the packing, labelling and carriage of hazardous goods. Hazard data sheets must be supplied with the delivery for all hazardous materials, and the information contained in the data sheets must meet the legal requirements of the Health & Safety at Work Act, and the Health and Safety Executive Guidance Note HS/G27.
Unless specifically agreed in writing, all prices shall be Firm and Fixed for the duration of the contract, inclusive of carriage, packaging and certification (where required) but exclusive of VAT.
Provided Goods have been delivered and comply with the requirements of the Contract, unless otherwise agreed, payment shall be made within 30 days of the end of the month within which the invoice is received, or the Goods or Services are delivered, whichever is the later. Value Added Tax, where applicable, must be shown separately on all invoices. Payment may be delayed if the Seller fails to mark the Buyer’s order number on the consignment, package, packing or advice notes, invoices, monthly statements and all other correspondence. Any payment made shall be without prejudice to the Buyers rights, should the Goods or Services prove unsatisfactory or not in accordance with the Contract. Whenever under the Contract any sums of money shall be recoverable from or payable by the Seller, any such money shall be deducted from any sums then due, or which at any later time may become due to the Seller under this Contract or any other contract the Seller may have with the Buyer.
Without prejudice to any rights that the Buyer may have by Statute, Common Law or otherwise, Seller shall, where necessary, supply and fit, free of charge, within the warranty period, any spare parts. In connection with this condition, the Seller is obligated to ensure that adequate instruction is given to ensure proper use and storage requirements, and that the life expectancy of any item, in storage and in use, is notified to the Buyer. The Buyer’s rights will not be prejudiced simply by the Seller’s specification of a supposed life expectancy of any item.
The Buyer shall have the right to reject the Goods in whole or in part whether or not paid for in full or in part within a reasonable time of delivery if they do not conform to the requirements of the Contract. It is agreed that the Buyer may exercise the right of rejection notwithstanding any provision in section 15B or section 30 (subsection 2D) of the Sales of Goods Act 1979. Further, where the Buyer receives Goods as unexamined the Buyer’s rights to subsequently reject them if any latent defect is found shall not be prejudiced nor shall any right of claim for shortage be prejudiced. Where goods are rejected the Buyer will afford the Seller reasonable opportunity to replace rejected Goods with Goods which conform in all respects to the requirements specified in the Contract. If the Seller fails for whatever reason to meet the aforementioned requirement then the Buyer shall have the right to cancel the Contract and purchase the nearest equivalent Goods elsewhere without prejudice to any other rights which the Buyer may have against the Seller. The Seller must collect all rejected Goods within a reasonable time of rejection or the Buyer will be entitled to return the Goods at the Seller’s risk and expense. The guarantee period applicable to the Goods shall be 12 months from putting into service or 18 months from delivery whichever shall be the shorter (subject to any alternative guarantee arrangements agreed in writing between the Buyer and the Seller). The making of payment shall not prejudice Buyer’s right of rejection.
Any time or period for delivery despatch or completion shall be of the essence. The Buyer shall also be entitled to cancel the Contract or any part thereof and/or claim reimbursement for all losses and expenses suffered in the event that (1) The Seller fails to deliver Goods in accordance with the terms of the Contract. (2)The Seller fails to make satisfactory progress with the Contract so as to jeopardise the purpose of the Contract. (3) The Seller having been given a reasonable period to rectify the situation fails to provide an adequate or satisfactory service (4) The Seller becomes insolvent and has a trustee in bankruptcy or receiver or (if a company) liquidator or administrator appointed over all or a substantial part of their or its assets (5) The Seller is the subject of a take-over by or merger with another company. In the event of cancellation for any of the foregoing reasons the Buyer shall not be liable for any unfulfilled commitment. In addition to the rights aforementioned either party shall be entitled to terminate this Contract by giving to the other party no less than 30 (thirty) days notice in writing to that effect.
Without prejudice to any rights or remedies of the Buyer the Seller shall indemnify the Buyer against all actions, suits, claims, demands, losses, charges, costs and expenses which the Buyer may suffer or incur as a result of or in connection with any damage to the Buyer’s and third parties’ properties or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any defect in the Goods or the negligent or wrongful act or omission of the Seller. The Seller shall effect with a reputable insurance company a policy or policies of insurance covering all the matters which are the subject of indemnities under these Conditions and shall at the request of the Buyer produce the relevant policy or policies.