THIS AGREEMENT is made on 09 May 2024
Between
(1) PARTY_1_NAME whose registered office is at PARTY_1_ADDRESS_SINGLE_LINE (the Seller)
(2) PARTY_2_NAME whose registered office is at PARTY_2_ADDRESS_SINGLE_LINE (the Buyer)
Whereas
The Buyer desires to purchase Goods from the Seller, and Seller desires to sell Goods to the Buyer pursuant to the terms and conditions set forth in this Agreement. These terms and conditions shall apply to all orders or requests for Goods issued by the Buyer in response to which the Seller provides the Goods to the Buyer to the exclusion of any other terms and conditions. Any reference overleaf to the Seller’s quotation, specification, price list or like document shall be solely for the purpose of describing the Goods to be supplied and no terms and conditions endorsed upon, delivered with or referred to in such application to the Agreement.
1. Definitions
In this Agreement:-
"Business Day" means any day other than a Saturday, Sunday or bank holiday in JURISDICTION_COUNTRY;
“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 constituted by the Seller’s acceptance of the Order in accordance with this Agreement;
“Delivery Address” means the address stated on the Order for delivery of the Goods;
“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 this Agreement is annexed;
“Price” means the price of the Goods;
“Specification” includes any plans, drawings, data or other information relating to the Goods; and
5.4 The Seller shall at all times supply the Goods to the Buyer at competitive prices and conditions. Should a third party offer similar products under comparable circumstances on more favourable terms and conditions than those provided by the Seller under this Agreement, the Buyer shall be entitled to notify the Seller that it wishes to amend the terms and conditions of this Agreement to the extent that they shall be as favourable as those offered by the third party.
5.5 Should consultation between the parties with respect of such amendments fail to result in a mutually agreed amendment of this Agreement within a period of 3 months, the Buyer shall at its sole discretion be entitled to cancel this Agreement or reduce the quantity ordered for the Goods.
6. Payment
6.1 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods, as the case may be, and each invoice shall quote the number of the Order.
6.2 Unless otherwise stated in the Order, the Buyer shall pay the Price of the Goods within PAYMENT_DAYS days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods in question by the Buyer, but time for payment shall not be of the essence of the contract.
6.3 The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.
7. Delivery
7.1 The Seller agrees to deliver all goods in accordance with the Order, at the prices stated on the face thereof, or at lower prices and at any terms and discounts more favourable to the Buyer prevailing at the time of shipment.
7.2 The Goods shall be delivered to the Delivery Address on the date or within the period stated in the Order on a INCOTERMS basis (unless otherwise stated in the Order), in either case during the Buyer’s usual business hours.
7.3 Where it is agreed in writing that the date of delivery of the Goods is to be specified by the Seller after the placing of the Order, the Seller shall give the Buyer reasonable notice in writing of the specified date.
7.4 The time of delivery of the Goods is of the essence of the Contract. The Seller agrees to reimburse Buyer for any costs resulting from late delivery of goods on the Order. In addition, the Buyer may, at its sole discretion, reject, or cancel any shipment of goods which will not be delivered by the agreed-upon date of delivery.
7.5 A packing note clearly quoting the number of the Order must accompany each delivery or consignment of the goods.
7.6 If the goods are to be delivered by instalments, the Contract will be treated as a single contract and not severable.
7.7 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract.
7.8 The Seller shall supply the Buyer in good time with any instructions or other information to enable the Buyer to accept delivery of the Goods.
7.9 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.
7.10 If the Goods are not delivered on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to deduct from the Price or (if the Buyer has agreed to pay any part of the price in advance of delivery) to claim from the Seller by way of liquidated damages for delay 5 per cent of the Price for every week’s delay, up to a maximum of 20 per cent of the price.
8. Quality
8.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
8.2 The Seller shall maintain main quality, specification control, testing and inspection procedures ("Procedures") to enable the Seller to consistently comply with its obligations under each Order and this Agreement and at the request of the Buyer, the Seller shall supply the Buyer with full details in connection with such Procedures or with any planned changes in such Procedures.
8.3 If the Seller is required by the Buyer to submit samples of Goods for approval, the Seller shall not proceed to carry out any further production until the Buyer has approved such samples in writing.
8.4 No inspection, testing or approval of samples by the Buyer shall be construed as acceptance by the Buyer of the conformity of the Goods with the Order, these conditions or to any specifications supplied or agreed to by the Buyer and the Seller shall remain fully responsible for such conformity.
8.5 The Buyer reserves the right to reject any and all goods shipped, or withhold payment of specific invoices for goods which Buyer determines, at its sole discretion, are of inferior quality or otherwise unfit for their intended use.
9. Returned Goods
9.1 All goods shipped to Buyer by Seller are to be new and first quality. Seller agrees to reimburse Buyer for any return of the goods, whether by Buyer or Buyer’s customers, for any reason or no reason. The returned goods are billed back at Buyer’s store level or Buyer’s warranty centre. Seller agrees to accept Buyer’s account of how much credit is due. Seller agrees that the Buyer does not need to have any customer return documents to verify its account. Seller agrees not to require that the returns be brought back in its original package. If Seller wishes to have the returns shipped back to Seller, it must notify the Buyer in writing. The Buyer shall not be responsible for notifying the Seller of the receipt or retention of returned goods. Seller waives any right to inspect the goods prior to their disposition by Buyer. Buyer does not guarantee the condition of the returns that are shipped back. If Seller is concerned about the manner or condition of how the returns are shipped back, Seller shall, at Seller’s sole expense, make whatever arrangement it deems necessary for the shipment of the returns. The buyer does not provide the disposition of any product containing hazardous waste. It is the Seller’s responsibility to take the product back and properly recycle. Otherwise, with the exception of products containing hazardous waste, the Buyer will liquidate the return in whatever way it deems most appropriate. If Buyer receives any money from the liquidation of the returns, the Buyer shall keep the money for its handling and administrative expenses and no offset will be provided to Seller. No return authorization number will be required for returning the goods or for any reimbursement to the Buyer. If Buyer believes, in its sole discretion, that Seller may fail to fulfil its obligations, or that there have been or will be excessive returns, Buyer may establish setoff in an amount equal to the amount that Buyer believes will cover Seller’s obligations or the excessive returns, and withhold that amount from the amounts due to the Seller under the Order or any subsequent Order. Seller agrees that its obligations for returns will last until all of the goods purchased are sold, plus a period of twelve (12) months, or for the length of Seller’s warranty, whichever is longer.
9.2 The Seller agrees to compensate Buyer in full for all goods returned by customers, per the above, including any goods supplied by previous vendors for the line(s) of goods listed on the Order. Seller shall be responsible for all shipping, storage, and handling charges incurred by the Buyer for any returned Goods.
9.3 Without limiting the general obligations of the Seller under this Agreement, the Seller agrees to participate, at its own expense, in the process where the Buyer decides to carry out a recall due to defective Goods in whole or in part. This process shall include but not be limited to:
(a) If requested by the Buyer, the Seller shall provide a technical solution for the Goods which have caused the recall or relate to the cause thereof.
(b) The parties establishing a process to correct or replace all the existing stock of Goods concerned whether in the factory, warehouses or distribution networks.
9.4 The Buyer shall not be deemed to have accepted the Goods until it has a reasonable time to inspect them following delivery or collection as the case may be. The Buyer shall also have the right to reject the Goods as though they had not been accepted for a reasonable time after any latent defect in the Goods has become apparent.
9.5 Where the Goods are rejected, the Buyer will return the Goods to the Seller after identifying the breach and where the Buyer has paid for the Goods, the Seller will within 7 days of receipt of the Goods refund to the Buyer the amount paid by:
(a) crediting the amount paid against any amount owing by the Buyer to the Seller; or
(b) refunding the balance of the amount paid if the credit for the returned Goods exceeds the amount owed by the Buyer to the Seller; or
(c) refunding the amount in full if there are no amounts owing by the Buyer to the Seller:
If the Seller fails to refund the amount paid pursuant to this clause, then the Buyer may at any time offset the refund due.
9.6 Unless otherwise agreed all rejected Goods will be returned by the Buyer to the Seller at the Seller's risk and cost (including, but not limited to, all transport costs).
9.7 Where the Goods are required to be delivered by instalments, the Buyer may reject all or any of the Goods so delivered without affecting the validity of the contract formed by the acceptance of the relevant Order and applying to any instalments accepted by the Buyer.
9.8 Without prejudice to any other remedy, if any Goods are supplied in breach of any warranty or representation given by the Seller or are otherwise not in accordance with an Order, the Buyer may require the Seller io dispatch replacement Goods within twenty-four (24) hours of notification by the Buyer.
10. Risk and Property
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon the Buyer takes physical possession of the Goods in accordance with the Contract.
10.2 The property in the Goods shall pass to the Buyer upon delivery unless payment for the Goods has been agreed to be 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.
10.3 The Buyer’s rights herein reserved may be exercised at any time as long as the breach of the condition continues and shall not be deemed waived by delay or by the presence of the condition in previous transactions between the parties. Buyer reserves the right, in addition to any and all other legal remedies provided by law, to: (a) deduct any excess transportation charges accrued by reason of the shipment moving over a route or mode of transit other than designated, or due to the goods on any one Order being forwarded in more than one shipment; or (b) cancel the Order in whole or in part in case of strike, fire, or other casualties which materially affects Buyer’s operations.
11. Assignment and Subcontracting
11.1 The Buyer may assign the Agreement or any part of it to any person, firm or company.
11.2 The Seller shall not be entitled to assign the Agreement or subcontract any part of it without the prior written consent of the Buyer.
12. Warranty
12.1 The Seller warrants and represents that (subject to the other provisions of these conditions) upon delivery, and for a period of WARRANTY months from the date of delivery, the Goods shall:
a) be of satisfactory quality;
b) be reasonably fit for purpose;
c) be reasonably fit for any particular purpose for which the Goods are being bought or intended use;
d) be safe, free from defects or faults in design, material and workmanship and of merchantable quality;
e) comply with the specifications and any technical standards (including quality assurance specifications and description particulars) and other requirements provided by the Buyer;
f) correspond with any relevant Specification or sample provided where the Goods are supplied by reference to a sample, (including the way the Goods are labelled, marked, ticketed and packaged);
g) comply with all laws and generally accepted industry standards In the country in which they were manufactured and in which they are to be located or sold, including all taws and standards relating to care, safety, manufacture, packaging, labelling, ticketing, loading, transportation and country of origin, and delivered in full compliance with all national, state, and local laws, rules, regulations, and/or ordinance of any kind, which includes slavery, human trafficking, child and involuntary labour;
h) both at the time of delivery and for a reasonable period of time thereafter, be of the best available design, quality, material and workmanship and conform in all respects with the Order and Specification supplied or advised by the Buyer to the Seller;
i) not infringe any person’s Intellectual Property Rights or other rights and will not be in contravention of any applicable laws and also warrant that:
(i) where the Seller Is also the manufacturer of the Goods, the Seller has made all relevant enquiries and carried out all relevant searches (including, without limitation, searches of registers of trademarks, patents and designs) to verify, and now warrants to the Buyer, that all intellectual property that has been exploited or exercised in respect of the Goods (including their labelling, packaging or promotion) have been lawfully and validly so exploited, exercised or applied with the consent of the owner of the relevant Intellectual Property Rights;
(iii) where the Seller is not the manufacturer of the Goods, the Seller has made all the enquiries with the manufacturer.
12.2 The Seller warrants and represents to the Buyer on acceptance of each Order and at all material times that:
a) it has the capacity to enter into this Agreement and each Order on its own behalf and on behalf of its affiliates (as applicable under these this Agreement) and has the right and authority to sell the Goods to the Buyer in JURISDICTION_STATE;
b) it has complied with all applicable regulations or other legal, ethical requirements concerning the manufacture, packaging and delivery of the Goods including, but not limited to, all the applicable safety, environments, humanitarian and export regulations of and ; and
c) it has the right to sell the Goods free from all encumbrances and that the Buyer will enjoy quiet possession of the Goods.
13. Indemnity
13.1 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:-
a) breach of any warranty given by the Seller in relation to the Goods;
b) any claim that the Goods infringe, or that their importation, use or resale, infringes, the patent, copyright trademark or other intellectual property rights of any other person, including but not limited to any patent, trade secret, copyright, trademark, or trade dress violation or infringement arising from Buyer’s use, sale or offering for sale of any goods covered by the Order, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;
c) any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering or installing the Goods;
d) all claims by the customers of the Buyer (and their sub-buyers) arising out of any breach whatever by the Seller under this Agreement;
e) all claims, damages, and/or expense(s) on account of goods shipped on the Order and/or services provided by Seller, including but not limited to claims made against the Buyer involving product liability, property damage, personal injury, and/or defect related to the delivered Goods; and
f) the Buyer’s reliance upon any term, condition, warranty or guaranty herein or in the Order which proves to be false.
14. Remedies
14.1 Without prejudice to any other right or remedy which the Buyer may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Buyer:
a) to rescind the Order;
b) to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;
c) at the Buyer’s option to give the Seller the opportunity at the Seller's expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;
d) to refuse to accept any further deliveries of the Goods but without any liability to the Seller;
e) to carry out at the Seller's expense any work necessary to make the Goods comply with the Contract; and
f) to claim such damages as may have been sustained in consequence of the Seller's breach or breaches of the Contract.
14.2 If the Buyer, in its sole discretion determines that it will run out of stock due to the Seller’s inability to deliver goods by the due date, the Buyer may mitigate its damages as provided by law. Seller agrees to reimburse the Buyer, in full, for any other expenses that were caused by Seller non-compliance with either the terms herein or the terms of the Order, or the terms of any letter of credit regarding the goods of the Order, including but not limited to, failure to properly provide custom bar codes and failure to property palletize and shrink-wrap the goods to work within Buyer’s distribution system, or the rules and regulations of customs, or any requirements of any customs broker regarding the transaction.
14.3 Seller agrees to reimburse Buyer for all legal fees and/or expenses, whether incurred through in-house or outside lawyers, for Seller’s failure to indemnify and hold Buyer harmless as provided in these terms and conditions, and/or for Seller’s failure to comply with any term or condition hereunder or of the Order. In the event of a lawsuit, arbitration, administrative investigation, or proceeding or other action filed against Buyer arising out of any claim of damages, defect, personal injury, or property damage, environmental injury, breach of warranty, and/or non-compliance with any statute or administrative code, regulation or ordinance, Buyer shall have the right to withhold payment to Seller under any invoice or Order in the amount of any funds which Buyer determines are at risk. Seller agrees that any fees, costs, or expenses owed to Buyer under this paragraph may be reimbursed to Buyer from any funds withheld or owed to Seller under any invoice or Order.
15. Termination
15.1 The Buyer shall be entitled to cancel the Contract in respect of all or part only of the Goods by giving notice in writing 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 Buyer’s reasonable estimate of the Seller’s net saving of cost arising from the cancellation.
15.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:-
a) the Seller makes any voluntary arrangement with its creditors, 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
b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Seller; or
c) the Seller ceases or threatens to cease, to carry on business; or
d) 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.
16. Force Majeure
16.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (subject to Sub-clause 16.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.
16.2 Sub-clause 16.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated.
16.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.
16.4 If and when the period of such incapacity exceeds 3 months then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.
17. Notices
17.1 Any notice or other formal communication to be given under this Agreement shall be in writing and signed by or on behalf of the party giving it. It shall be:
(a) sent by e-mail with receipt set out in clause 17.2; or
(b) delivered by hand or sent by prepaid recorded delivery, special delivery or registered post to the relevant address in clause 17.2
In each case, it shall be marked for the attention of the relevant party set out in clause 17.2 (or as otherwise notified from time to time under this Agreement). Any notice so served by hand, e-mail, fax or post shall be deemed to have been duly given:
provided that in each case where delivery by hand or by fax occurs after 5pm on a Business Day or on a day which is not a Business Day, service shall be deemed to occur at 9am on the next following Business Day. References to time in this clause are to local time in the country of the addressee.
Address of notices
17.2 The addresses of the parties for the purpose of clause 17.1 are:
(a) Seller:
Address: PARTY_1_NAME
e-mail address: PARTY_1_ADDRESS_MULTI_LINE
For the attention of: PARTY_1_CONTACT
(b) Buyer:
Address: PARTY_2_NAME
e-mail address: PARTY_2_ADDRESS_MULTI_LINE
For the attention of: PARTY_2_CONTACT
English language
17.3 All notices or formal communications under or in connection with this Agreement shall be in the English language or, if in any other language, accompanied by a translation into English. In the event of any conflict between the English text and the text in any other language, the English text shall prevail.
19. Confidentiality
19.1 The Seller agrees to keep confidential all the Buyer's financial, technological (Including designs, specifications, samples, know-how, materials, processes and other technical information), strategic or business information (including customer details) concerning or arising from this Agreement ("Information"). In particular, the Seller must ensure that all electronic communications are kept secure so as to prevent unauthorised access.
19.2 All Information remains the property of the Buyer and may only be used by the Seller in fulfilling its obligations under this Agreement. Otherwise, no information may be disclosed to any third party without the Buyer's written consent.
19.3 The Seller otherwise agrees not to disclose any of the terms of these this Agreement except to the extent that:
(a) disclosure is necessary to comply with these this Agreement or any other agreement between the Seller and the Buyer,
(b) the disclosure is required by law or rules of any stock exchange; or
(c) the information is in the public domain other than through a breach of this Agreement.
19.4 Where the Seller believes that it is required by law to disclose any of the terms of an Order or these this Agreement or any other confidential information of the Buyer, the Seller must immediately notify the Buyer in writing and provide assistance as reasonably required by the Buyer if the Buyer wishes to defend or resist that requirement.
19.5 The provisions of this Clause 19 shall survive any termination of the Contract.
20. Intellectual Property Rights of the Buyer
Goods bearing any registered or unregistered trademarks or any other marks, brands, logos or designs owned by or licensed to the Buyer (“Buyer Branding") must only be sold to the Buyer. Where Goods have been rejected or not taken up by the Buyer, the Seller must obtain the prior written consent of the Buyer to sell such Goods to a third party. Consent may be given on any terms specified by the Buyer. If such consent is given, then the Seller must remove art Buyer Branding and all references to the Buyer's trademarks including swing tickets, tags, badges and all other labels from those Goods before they are offered for sale to a third party.
21. Waiver
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.
22. Severance
If any provisions of this Agreement are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of this Agreement and the remainder of the provisions in question shall not be affected thereby.
23. No rights for Third Parties
A person who is not a party to the Contract shall have no right under this Agreement or other Contracts.
24. Dispute Resolution
24.1 If any dispute, controversy or claim between the parties arises out of or in connection with this Agreement, they shall use all reasonable endeavours to resolve the matter amicably. If one party gives the other notice that a material dispute has arisen and the parties are unable to resolve the dispute within a period of thirty (30) days of service of the notice, then the dispute shall be referred to the respective Chairmen / Chief Executives of the parties. Neither party shall resort to dispute resolution below against the other under this Agreement until thirty (30) days after the referral. This shall not affect a party's right, where appropriate, to seek an immediate remedy for an injunction, specific performance or similar court order to enforce the obligations of the other party.
24.2
This document is governed by and are to be construed in accordance with English Law.
All disputes controversy, difference or claim arising out of or in connection with this document, including any question regarding its existence, validity or termination, or any dispute regarding non-contractual obligations shall be finally settled under the arbitration rules of the London Court of International Arbitration by one or more arbitrators appointed in accordance with the said rules. The seat of Arbitration shall be London and proceedings shall be conducted in English.
25. Counterparts
This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument.
As witness this Agreement has been executed by or on behalf of the parties the day and year first before written.
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