Terms and Conditions
INFUSENT LLC PURCHASE CONDITIONS
Note: These conditions are available in electronic format following Seller’s written request.
1. Definitions and Interpretation
1.1 ‘Buyer’ means the person named in the Order.
1.2 ‘Seller’ means the person to whom the Order is addressed.
1.3 ‘Goods’ means all goods referred to in the Order (and any part of them).
1.4 ‘Services’ means all services referred to in the Order (and any part of them).
1.5 ‘Order’ means Buyer’s order as sent
1.6 ‘The Contract’ means the contract between the Buyer and Seller which will consist of (in the following order of precedence):-
the Order;
these conditions and
any other documents (or parts thereof) specified in the Order.
No conditions of the Seller wherever set out will be incorporated into the Contract
1.7 ‘Price’ and ‘Prices’ mean the price for the Goods or Services specified in the Order
1.8 The headings in this Agreement are for ease of reference only and shall not affect its construction.
2. Quality
2.1 Seller warrants as a term of the Contract that:-
2.1.1 Seller has and will maintain all licences, authorisations and consents needed to enter into and perform its obligations under this Contract and will comply with all relevant legislation and industry best practice in performing the Contract;
2.1.2 Goods will conform to and be supplied in accordance with the Contract, Buyer’s specifications, any representations made by Seller and any samples supplied;
2.1.3 Goods will be free of defects and fit for the purpose for which they are supplied;
2.1.4 Services will be performed with best skill and care by suitably qualified and experienced personnel.
2.2 Without limiting Buyer’s other rights in respect of such breach of warranty, Seller will, if and when Buyer so requires, repair or replace any Goods or carry out anew any Services performed which are or become defective during the period of 12 months from putting into service or 18 months from delivery or performance of Services, whichever is the shorter. Without limiting any other liability which Seller may have in respect of any breach, Seller shall be liable to meet the costs of all remedial works deemed by the Buyer to be necessary or desirable to the Goods or Services provided that the Buyer shall have given prior notice to the Seller of its intention to effect such remedial work. This clause 2.2 will apply to any defects that occur under proper usage and are due to faulty design, Seller’s erroneous instructions as to use or erroneous use data, or inadequate or faulty materials or workmanship, or any other breach of Seller’s warranties, express or implied. Repairs and replacements shall themselves be subject to the foregoing obligations for a period of 12 months from the date of delivery, reinstallation, passing of tests (if any) or performance whichever is appropriate.
3. Delivery
3.1 The relevant dates for performance of Seller’s obligations (including the date of delivery of Goods, completion of Services and – where Goods are to be supplied or Services performed at intervals – the period of the Contract) will be as specified in the Order. Performance by Seller of its obligations on the due dates is of the essence
of the Contract.
3.2 Seller shall notify Buyer as soon as Seller becomes aware that it’s performance is, or is likely to be, delayed.
3.3 All deliveries must be appropriately packed and effected in the manner and to the place specified in the Order.
4. Passing of property and risk to Buyer
Property in Goods shall pass to Buyer upon their being appropriated to the Contract. Risk in Goods which comply with the Contract will pass to Buyer on delivery in accordance with the Contract.
5. Price and Payment
5.1 Prices are firm and fixed unless a variation is issued by the Buyer in accordance with the Contract.
5.2 Prices include the costs of delivery and packing and all sales taxes and duties.
5.3 Payment for Goods and Services which comply with the Contract will become due 60 days from the end of the month during which Seller’s invoice is raised. Payments will only be made against Seller’s invoice which clearly and accurately relates and refers to the relevant Order and in relation to which Seller has complied in all respects. The time for payment may be extended during February/March and August/September. Payments for invoices falling due in this period will be made in April and October.
6. Responsibility for information
Seller shall be responsible for any errors or omissions in any drawings, calculations, packing details or other particulars supplied by him, whether such information has been approved by Buyer or not, provided that such errors or omissions are not due to inaccurate information furnished in writing by Buyer. Where any data supplied by Buyer is not adequate, accurate or complete, it will be Seller’s responsibility to request the missing, accurate or complete data from Buyer.
7. Inspection
7.1 Buyer and any interested third party are entitled to inspect Goods at any reasonable time.
7.2 Seller will give to Buyer not less than 5 days’ notice of any tests to be carried out to Goods. The Buyer and any interested third party will have the right to attend. Seller will provide Buyer with such test certificates as Buyer shall require
7.3 .Inspection and testing by the Buyer will not relieve Seller of any of its obligations nor imply acceptance of any Goods or Services.
8. Variations
8.1 Seller will not alter the processes or materials used in the manufacture of Goods or method or means of providing Services without Buyer’s prior written consent. The giving of such consent will not relieve Seller from liability for defects or the failure of Goods or Services to comply with the Contract, as so amended.
8.2 Seller will carry out all reasonable variations in scope, specification, quantity or delivery of Goods or Services requested by Buyer.
8.3 No variation will be effective unless issued or expressly confirmed in writing by Buyer.
9. Intellectual property rights
9.1 Except where such claim relates to any design or instruction issued by Buyer, Seller will indemnify Buyer against any claim for infringement of patents, designs or registered designs, trade mark, service mark, copyright, moral right or other intellectual property right relating to the use or supply of any article or material supplied by
Seller to Buyer and against all costs and damages (including legal fees) which the Buyer may incur in any action for such infringement or for which Buyer may become liable in such action.
9.2 All intellectual property rights in works, goods or materials produced for Buyer by Seller or specifically commissioned by Seller from Buyer will become the property of Buyer and Seller will notify Buyer of such rights and do all things and execute all documents required to ensure such ownership
9.3 All information and know-how provided by Buyer in connection with the Contract will at all times remain Buyer’s property and Seller will use it and all intellectual property rights referred to in 10.2 only for the purposes of the Contract and will keep the same confidential and not disclose it to any third party without the Buyer’s prior written
consent to such disclosure.
10. Free-issue materials and tooling
10.1 Where tooling (including patterns, dies, mouldings, jigs and fixtures) is manufactured or acquired by Seller for the purposes of the Contract, title to it will pass to Buyer upon its creation or acquisition. Where Buyer for the purposes of the Contract issues tooling or materials free of charge to Seller such tooling and materials will remain
the property of Buyer.
10.2 Seller will use such material and toolings solely in connection with the Contract.
10.3 Seller will maintain all such tooling and materials in good order and condition subject, in the case of tooling, to fair wear and tear. Seller will insure them against all risks for their full replacement value and account to Buyer for the proceeds of any claim under such insurance.
10.4 Without prejudice to any other of the rights of the Buyer, Seller shall deliver up such materials whether further processed or not to Buyer on demand. Any surplus materials shall be disposed of at Buyer’s discretion. Waste of such materials arising from bad workmanship or negligence of Seller shall be made good at Seller’s expense.
11. Termination
11.1 Buyer may terminate the contract without prejudice to any other of its rights and without liability to Seller if:
11.1.1 an event of Force Majeure does or is likely to delay performance for an unreasonable period of time or more than 30 days, or
11.1.2 Seller is in breach of its obligations under the Contract and where, in the sole opinion of Buyer, capable of remedy does not remedy the breach upon notice to do so, or
11.1.3 Seller becomes bankrupt or insolvent or (being a Company) makes an arrangement with its creditors or has a receiver or similar officer appointed or proposes any resolution for its winding up or to approve an arrangement with its creditors or has commenced in respect of it any winding up proceedings or proceedings to appoint an administrator.
11.2 Buyer may terminate the Contract if any corresponding contract between Buyer and a third party is terminated. In such event, and provided that Seller is in compliance with its obligations under the contract, Buyer shall compensate Seller for direct costs reasonably and properly incurred until then in performing the Contract which would otherwise represent an irrecoverable loss to Seller, subject to Seller taking all reasonable steps to minimise its losses and subject to reasonable proof being provided. Compensation shall not in any event exceed the Price.
12. Liability for Accidents and Damage
12.1 Seller will at all times during and after performance of the Contract indemnify Buyer against:
12.1.1 all loss or damage and all claims costs proceedings and expenses arising in connection with the failure of Seller to comply with the Contract up to a maximum of five million pounds sterling per act or event giving rise to a claim; and
12.1.2 all loss or damage to property and all penalties, demands, liabilities, claims and expenses in connection with such loss or damage resulting from the acts or omissions of the Seller, its sub-contractors, employees and agents in connection with the Contract up to a maximum of five million pounds sterling per act or event giving rise to a claim; and
12.1.3 liability for death and personal injury and all penalties, demands, liabilities, claims and expenses resulting from the acts or omissions of Seller, its subcontractors, employees and agents.
12.2 Seller will take out and keep in force suitable public and products liability insurance against its liabilities under the Contract and shall demonstrate the same to Buyer at all reasonable times.
13. Hazardous Goods
13.1 If any of the Goods contain or Services involve the use of any hazardous substances or require any special precautions to be taken to ensure safety in handling, transport, storage or use, Seller will prior to their delivery or performance furnish to the Buyer written details of the nature of those substances and the precautions to be
taken and shall ensure that appropriate instructions and warnings are – in the case of Goods – clearly and prominently marked on the Goods or securely attached to them and on any containers into which they are packed before their despatch and – in the case of Services – are otherwise made known to Buyer in writing.
13.2 In particular (but without limitation) Seller shall provide to the Buyer in writing all such data, instructions and warnings as are required to comply with all applicable legislation and shall indemnify Buyer against any and all penalties, demands, liabilities, claims, costs and expenses which may arise as a result of Seller’s failure to do so.
14. Force majeure
Neither party shall be liable for failure to perform its obligations under the Contract if and to the extent that such failure results from circumstances which are beyond the party’s reasonable control. Force majeure does not include strikes or industrial disputes or failures of sub-contractors. The party which is unable to perform as a result of
force majeure will notify the other party in full detail of its occurrence and likely date of resolution as soon as possible and will use all reasonable endeavours to minimise its effect on the other party.
15. Assignment and sub-letting
The Contract shall not be assigned by Seller nor sub-let all or part without Buyer’s prior written consent. Seller shall be responsible for all work done and goods supplied by all sub-contractors, employees, agents and other representatives, and shall be liable for all acts, omissions and defaults of it’s sub-contractors, employees, agents
and other representatives.
16. Waiver
No delay or omission by Buyer in exercising any of its rights or remedies under this Agreement or under any provision of applicable law on any occasion shall be deemed a waiver of, or bar to, the exercise of such right or remedy or any other right or remedy upon any other occasion.
17. Severance
In the event that any provision of the Contract is void or unenforceable by reason of any provision of applicable law, it will be deleted and the remaining provisions will continue in full force and effect, amended if necessary to the extent needed to continue to give effect to the spirit of the Contract.
18. Applicable law and jurisdiction
The Contract shall be subject to English law and the parties submit to the exclusive jurisdiction of the English Courts.