2. Interpretation
2.1. Definitions. In this Agreement, the following definitions apply:
2.2. ‘Acceptance Conditions’ has the meaning given in Clause 17.
2.3. ‘The Buyer’ means Azego TS Ltd the registered office of which is at Unit 7, Ely Road, Theale Commercial Park, Theale, Reading, RG7 4BQ, its servants, agents, employees and sub-contractors (registered in England and Wales with company number 3220592).
2.4. ‘Delivery Date’ means the date for delivery specified in the Order.
2.5. ‘Goods’ means the goods (or any part of them) set out in the Order.
2.6. ‘Order’ means the Buyer's order for the Goods, as set out in the Buyer's purchase order form OR in the Buyer’s written acceptance of the Seller's quotation.
2.7. ‘Price’ means the price stated in the Order.
2.8. ‘The Seller’ means the person or firm from which the Buyer is purchasing the Goods.
2.9. ‘Seller’s Provisions’ has the meaning given in Clause 3.1. ‘Quotation’ means the Seller’s quote to provide the Goods.
3. Order
3.1. The Buyer orders, and the Seller agrees to sell, the Goods at the Price for delivery by the Delivery Date.
3.2. The Order shall only be deemed to be made when the Buyer issues an acceptance of the Quotation, at which point the Agreement shall come into existence.
3.3. The quantity and description of the Goods are set out in the Purchase Order and must comply in all aspects with the specified manufacturer’s specification and any specification agreed by the Parties in writing.
4. Conditions applicable
4.1. The provisions of this Agreement shall apply to the sale of the Goods by the Seller to the Buyer. Any other provisions, including those of the Seller which the Seller applies or purports to apply, shall not be the terms and conditions concerning the sale of the Goods by the Seller to the Buyer, however such provisions are introduced (including but not limited to provisions included on quotations, estimates, conformations of order, delivery notes or similar documents) (‘Seller’s Provisions’). For the avoidance of doubt, the Seller acknowledges and agrees that the Buyer shall not be bound by any of the Seller’s Provisions.
4.2. The Quotation shall be deemed to be an offer by the Seller to sell and supply the Goods pursuant to the provisions of this Agreement.
4.3. Any act to fulfil the Order for the Goods by the Seller shall be deemed conclusive evidence of the Seller’s acceptance of this Agreement.
4.4. Any variation of the provisions of this Agreement (including any special terms and conditions agreed between the Parties) shall be inapplicable unless agreed in writing by the Buyer.
5. Quality of the Goods to be supplied
5.1. The Seller warrants, represents, undertakes and guarantees that the Goods supplied under this Agreement will:
5.2. be free from defects (manifest or latent), in materials and workmanship;
5.3. conform with the specifications, the exact manufactures part numbers, drawings, descriptions given in quotations, estimates, brochures, sales, marketing and technical literature or material (in whatever format made available by the Seller or the manufacturer) supplied by, or on behalf of, the Seller or the manufacturer of the Goods;
5.4. be free from design defects;
5.5. prevent the use of suspected unapproved, unapproved, and counterfeit parts;
5.6. not be counterfeit;
5.7. comply with the date code requirement for each line. Where no date line code is specified it must be no older than 2 years from the date of order;
5.8. be new\unused, un-programmed and in the manufacturer’s original packaging; and
5.9. be suitable, in every aspect, for the purposes intended by the Buyer of which the Seller acknowledges that it has been notified.
5.10. The Seller acknowledges and agrees that the approval by the Buyer of any designs provided by the Seller will not relieve the Seller of any of its obligations under this Clause.
5.11. The Seller further warrants, represents, undertakes and guarantees in relation to the Goods to: -
5.12. notify the Buyer of any nonconforming products;
5.13. notify the Buyer of any changes to the manufacturer’s specification and/or the agreed specification;
5.14. keep fully traceable records for the products supplied;
5.15. give the Buyer and/or their representative including the Buyer’s customers and/or regulatory authorities the right of access to applicable areas of all facilities, at any level of the supply chain, involved in the supply of the Goods and to all applicable records;
5.16. provide Certificate of Conformity, test reports and/or Airworthiness Certificate upon request;
5.17. utilise, where appropriate, recognised statistical techniques for product acceptance;
5.18. perform the supply with all due skill, care and diligence including, but not limited to, ethical, conformity and safety in line with industry best practice;
5.19. ensure the product / services shall at all times be supplied by appropriately supervised, experienced, qualified, trained and competent personnel;
5.20. have in place a suitable implemented quality management system; and
5.21. ensuring that persons are aware of:
- their contribution to product or service conformity;
- their contribution to product safety;
- the importance of ethical behavior.
6. Price
6.1. The Buyer shall pay the Price for the Goods as stated in the Order which cannot be increased without the prior written authorisation of the Buyer, signed by an authorised representative of the Buyer.
7. Payment
7.1. Payment for the goods shall be made within 60 days of delivery or as agreed in writing between the parties.
7.2. All amounts stated are exclusive of VAT and/or any other applicable taxes or levy, which shall be charged in addition at the rate in force at the date any payment is required from the Buyer.
7.3. If a payment is not made by the Buyer by the due date, then the Buyer shall pay the Seller interest at a rate which shall compensate for such loss as has been directly caused by the late payment. The interest rate shall not be at a rate higher than the interest rate specified in the Late Payment of Commercial Debts (Interest) Act 1998.
7.4. The time for payment for any sum due under this Agreement shall not be of the essence.
8. Packaging
8.1. The Seller shall comply with the handling, packing, packaging and labelling instructions such handling, packing packaging and labelling instructions as the Buyer shall specify.
8.2. Subject to 6.1, the Seller will ship the Goods using the freight account provided. Where no shipping method is specified the Seller will ship on their account.
8.3. Subject to 6.1, if no specific instructions are provided the Seller will ship the Goods in an appropriate and reasonably sized box. The Seller indemnifies the Buyer for any costs incurred due to Goods being packed in oversized boxes.
9. Cancellation
9.1. The Buyer shall have the right to cancel the order for the Goods (or any part of the Goods) which have not yet been delivered to the Buyer. The cancellation shall be made in writing. Without prejudice to the generality of the foregoing, the Buyer shall pay the Price (or where applicable, that part of the Price) for Goods which have been delivered to the Buyer or at the date of the notice of cancellation are in transit.
10. Delivery
10.1. The Goods shall be delivered (carriage paid) to the location specified by the Buyer or at the direction of the Buyer by the Delivery Date (or) such other date(s) as may be agreed by the Parties in writing. The Delivery Date or any other date and time agreed for delivery of the Goods shall be of the essence of the Agreement.
10.2. The Seller shall not deliver the Goods in instalments. Where the Parties have agreed in writing that the Seller shall deliver in instalments (or the Buyer agrees to accept instalments for the delivery of the Goods), a breach concerning any instalment (however caused or of whatsoever nature) shall entitle the Buyer to terminate the Agreement and to claim damages, without prejudice to the Buyer’s other remedies.
10.3. The Seller shall ensure all goods shipped from outside the EU/ECC have the given tariff code on all export documents, including invoice and airway bill. Failure to do so will incur duty charges which the Buyer shall be entitled to deduct from the Price.
10.4. The Seller shall advise the Buyer immediately if any Goods to be shipped are subject to US export regulations e.g. ITAR (International Traffic In Arms Regulations) or EAR (Export Administration Regulations). Should the Seller fail to provide timely notice the Buyer shall be entitled to deduct any costs incurred as a result from the Price.
11. Non-delivery
11.1. Where the Seller fails to deliver the Goods by the Delivery Date or the time(s) agreed by the Parties in writing, the Buyer shall be entitled:
11.2. to terminate the Agreement;
11.3. to buy the same or similar Goods from another Seller;
11.4. to recover the element of the cost of buying the Goods from another Seller which exceeds the Price.
These remedies are without prejudice to Clause 11 and any or all other rights that the Buyer has.
12. Consequential loss
12.1. Without prejudice to Clause 10 and the other rights that the Buyer has, in addition, the Seller shall be liable for all direct, indirect and consequential loss arising from any breach of the provisions of this Agreement.
13. Property
13.1. The property in the Goods shall pass to the Buyer when the Goods are unconditionally appropriated (by either party, or by or with the consent of either party) to the contract or on delivery to the Buyer, whichever event occurs first.
14. Guarantee of title
14.1. The Seller warrants that:
14.2. it has full clear and unencumbered title to all the Goods;
14.3. at the date of delivery of any of the Goods it shall hold such title in the Goods as mentioned in Clause 13.2
14.4. at the date of delivery of any of the Goods it will have full and unrestricted right, power and authority to sell, transfer and deliver all of the Goods to the Buyer. From that date the Buyer shall acquire a valid and unencumbered title to the Goods.
15. Risk
15.1. The Goods will be at the Seller’s risk until:
15.2. the Goods are delivered to the Buyer (or are delivered at the Buyer’s direction); and
15.3. the Goods are found by the Buyer to be in accordance with the provisions and the specifications, etc of this Agreement.
16. Deterioration in the Goods
16.1. Without prejudice to the generality of the foregoing, the Seller accepts the risk of deterioration of the Goods which is necessarily incident to the course of transit.
17. Insurance
17.1. The Seller shall have in place a contract of insurance over the Goods. The Seller shall assign to the Buyer the benefit of the contract of insurance on the request of the Buyer.
18. Acceptance of the Goods
18.1. The Buyer shall not have accepted, or be deemed to have accepted, the Goods until Acceptance Conditions are fulfilled. The ‘Acceptance Conditions’ are:
18.2. the Goods have been delivered to the location specified; and
18.3. the Buyer has notified the Seller in writing that the Goods are in complete compliance with the provisions and the specifications, etc of this Agreement.
Although the Acceptance Conditions have been fulfilled, the Buyer may still reject the goods and make a claim for damages where the Goods are not in complete compliance with the provisions and the specifications, etc of this Agreement within 12 months of the notice given under Clause 17.2.
19. Indemnity
19.1. The Seller shall indemnify, and keep indemnified, the Buyer against all claims, costs and expenses that the Buyer may incur and that arise, directly or indirectly from the Seller’s breach of any of its obligations under this Agreement. This clause shall survive termination of the Contract
20. Assignment and sub-contracting
20.1. The Seller shall not assign, transfer, charge or otherwise deal with this Agreement or any obligation under this Agreement without the prior written consent of the Buyer. Without prejudice to the generality of the foregoing, the Seller shall not sub- contract the design, manufacture, production, or supply of the Goods or any right, liability or obligation without the prior written consent of the Buyer.
21. Termination
21.1. Without prejudice to any other right or remedy it might have, either party may terminate this Agreement at any time by notice in writing to the other party (‘Other Party’), such notice to take effect as specified in the notice:
21.2. if the Other Party is in breach of this Agreement and, in the case of a breach capable of remedy within 10 days, the breach is not remedied within 10 days of the
Other Party receiving notice specifying the breach and requiring it to be remedied; or
21.3. if the Other Party becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
22. General
22.1. Force majeure
22.1.1. Neither Party shall have any liability under or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement that result from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If such circumstances continue for a continuous period of more than six months, either Party may terminate this Agreement by written notice to the other Party.
22.2. Amendments
22.2.1. This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
22.3. Entire agreement
22.3.1. This Agreement contains the whole agreement between the parties in respect of purchase of the Goods and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such Goods. The parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement. Nothing in this Agreement excludes liability for fraud.
22.4. Waiver
22.4.1. No failure or delay by the Buyer in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
22.5 Agency, partnership etc
22.5.1 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement. Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
22.6. Further assurance
22.6.1. Each Party to this Agreement shall at the request and expense of the other or any of them execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
22.7. Severance
22.7.1. If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
22.8. Announcements
22.8.1. No Party shall issue or make any public announcement or disclose any information regarding this agreement unless prior to such public announcement or disclosure it furnishes all the Parties with a copy of such announcement or information and obtains the approval of such persons to its terms. However, no Party shall be prohibited from issuing or making any such public announcement or disclosing such information if it is necessary to do so to comply with any applicable law or the regulations of a recognised stock exchange.
22.9. Interpretation
22.9.1. In this Agreement unless the context otherwise requires:
22.9.2. words importing any gender include every gender;
22.9.3. words importing the singular number include the plural number and vice versa;
22.9.4. words importing persons include firms, companies and corporations and vice versa;
22.9.5. references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
22.9.6. reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
22.9.7. any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
22.9.8. the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
22.9.9. any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
22.9.10. where the word ‘including’ is used in this Agreement, it shall be understood as meaning ‘including without limitation’.
22.10. Notices
22.10.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax.
22.10.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 11.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax, one Business Day after transmission.
22.10.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
22.11. Law and jurisdiction
22.11.1. The validity, construction and performance of this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit.
22.12. Third parties
22.12.1. For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of this Agreement this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.