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Terms and Conditions of Purchase

These Terms and Conditions of Purchase (these “Conditions”) (and the documents referenced below) are the only terms that govern the purchase of goods, including any labels, instructions or handbooks relating to the goods (“Goods”) by ONFAB Limited (Company Registered No: 06825238) (“Seller”) to Buyer (“Buyer”) named in the confirmation of sale (the “Sales Confirmation“) that incorporates these Conditions by reference.

1. APPLICABILITY. Unless the parties have a separate written supply agreement or other similar agreement (in which case such agreement shall be part of this Contract), these Conditions, and the Sales Confirmation with Buyer (collectively, this “Contract”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of a conflict between or among these Conditions and the Sales Confirmation, the provisions of the Sales Confirmation shall govern. By placing an order (a “Purchase Order”) with Seller, Buyer accepts and agrees to be bound and abide by these Conditions. This Contract prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Purchase Order or such other terms. Fulfillment of Buyer’s Purchase Order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend the Contract. Notwithstanding anything herein to the contrary, if there is a written supply or similar agreement that is signed by both parties and that covers the sale of the Goods and that specifically states that it controls in the event of a conflict with these Conditions, the terms and conditions of said agreement shall prevail to the extent they are inconsistent with these Conditions.

2. PURCHASE ORDER ACCEPTANCE. A quotation for the Goods given by Seller shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue. Buyer agrees that Buyer’s Purchase Order is an offer to buy, under these Conditions, all Goods listed in Buyer’s Purchase Order. Buyer is responsible for ensuring that the terms of the Order and any applicable specification submitted by Buyer are complete and accurate. Seller will not be obligated to sell the Goods to Buyer, and Seller may choose not to accept Purchase Orders at its sole discretion. The Purchase Order shall only be deemed to be accepted when Seller issues a written Sales Confirmation, which shall constitute the sole basis of acceptance of the Purchase Order, at which point and on which date the Contract shall come into existence. Seller may discontinue any Goods sold hereunder at any time unless Buyer and Seller have otherwise agreed in writing. Any samples, drawings or advertising produced by Seller and any illustrations contained in Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force. This is not a sale by sample.

3. SHIPPING TERMS. The Goods shall be delivered “Ex Works” from the Seller’s production facility, or such location if moved, to such other location as Seller notifies to Buyer in writing (“Seller’s Point of Delivery”). The term “Ex Works” as used in this Contract refers to such term as defined by Incoterms 2020. The Goods will be available for shipping within a reasonable time after the receipt of Buyer’s Purchase Order, subject to availability of finished Goods. Buyer assumes all risks and liabilities arising out of unloading, discharge, storage, handling and use of the Goods, or arising out of compliance or non-compliance with the laws and regulations governing or controlling such activity. Seller has no liability for the failure of discharge or unloading equipment or materials used by Buyer, whether or not supplied by Seller.

4. TITLE & RISK OF LOSS. Title and risk of loss to the Goods shall pass to Buyer at Seller’s Point of Delivery on the delivery date set forth in the Purchase Order, at which point delivery shall be deemed to have been completed. If Buyer fails to take delivery of the Goods, Seller shall store the Goods until actual delivery takes place, and charge Buyer for all related costs and expenses (including insurance). Seller shall not be liable for any delays, loss, or damage in transit.

5. AMENDMENT OF CONDITIONS. Neither party shall be bound by any variation, waiver or addition to these conditions except as agreed by the parties in writing and signed on their behalf by their duly authorized officers.

6. SPECIFICATION, DESCRIPTION, SAMPLE AND STANDARD

6.1. Subject to Clause 6.2, the Goods shall conform in all material respects with:

  • (a) The provisions of the Contract and in particular with the specifications, descriptions contained or referred to in the Contract; and
  • (b) Any standards specified in the Contract and where no standard is specified with the relevant British Standards. British Standards means those standards and specifications approved by the British Standards Institution.

6.2. Seller shall not be liable for the Goods’ failure to comply with the warranty set out in Clause 6.1 in any of the following events:

  • (a) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
  • (b) the defect arises as a result of Seller following any drawing, design or Specification supplied by Buyer;
  • (c) Buyer alters or repairs such Goods without the written consent of Seller;
  • (d) the defect arises as a result of fair wear and tear, willful damage, negligence, or abnormal storage, transit or working conditions; or
  • (e) the Goods differ from the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

7. QUALITY, LIMITED WARRANTY.

7.1. The Goods shall be of satisfactory quality as that expression is defined in the Sale and Supply of Goods Act 1994 including all the aspects of quality as listed in s.14 (2-B) of the said Act.

7.2. Seller warrants to Buyer, upon delivery, good and free title in the Goods, and that the Goods will materially conform to the terms of Clause 6.1. Seller has based any recommendations to Buyer for the use of the Goods upon information that Seller considers reliable, but Seller makes no warranty as to any results Buyer might obtain in Buyer’s use(s) for the Goods. These warranties extend only to Buyer. Except as provided in this Clause 7, Seller shall have no liability to Buyer in respect of the Goods’ failure to comply with the warranty set out in Clause 6.1. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract. Seller makes no other warranties extending beyond the description of the Goods, whether used alone or in combination with any other substance or in any process. Goods manufactured or Goods altered by a third party (“Third Party Product”) are not covered by the warranty set forth above. This Contract shall apply to any repaired or replacement Goods supplied by Seller.

8. CONTRACT PRICE. The term “Contract Price” shall mean the sum stated in the Purchase Order to be paid by Buyer to Seller for the supply of the Goods. Unless otherwise specifically stated in the Purchase Order, the price for the Goods shall be fixed and firm.

9. PAYMENT TERMS

9.1. Seller shall be entitled to submit an invoice for the Goods as soon as Seller has made Goods available for delivery. Except as set forth in this Clause 9, invoices shall be submitted in the manner described in the Purchase Order, quoting the Purchase Order number and being submitted to accounts payable or as otherwise set forth in the Purchase Order.

9.2. Payment shall be made by Buyer within 30 days of the date of the invoice, of an invoice properly prepared unless by the time when payment due Buyer has rejected the Goods or any of them under Clause 10.

9.3. If Buyer has rejected the Goods or any of them without having made payment and such rejected Goods are thereafter replaced by Seller with Goods which conform to the Contract then payment shall be made by Buyer for the Goods within the agreed payment terms on receipt of a properly prepared invoice for the same.

9.4. Payment will only be made in respect of the Goods described in the Purchase Order which have been delivered in accordance with the Contract including acceptance to the specification by Buyer.

9.5. If payment is not made on time, interest at the rate of 8% over the Bank of England base rate will apply from the due date to the date of payment in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and compensation arising out of late payment would also be due pursuant to the aforementioned act.

10. REJECTION

10.1. If any of the Goods do not comply with Clause 6.1 or Clause 7, Buyer may reject them after delivery in accordance with Clause 11.1 below, and irrespective of whether such goods have been accepted or paid for and section 15A of the Sale of Goods Act 1979 shall not apply.

10.2. If Buyer timely provides a rejection notice in accordance with Clause 11.1, and Seller determines such Goods to be damaged (through no fault of Buyer), defective and/or non-conforming, Seller shall, in its sole discretion, (i) replace such Goods with conforming Goods, or (ii) allow Buyer to retain such damaged Goods and cancel the Contract for such Goods (to the extent payment has already been made therefor by Buyer, then Seller shall in such instance, credit or refund the price for such Goods, together with any reasonable shipping expenses incurred by Buyer in connection therewith). If Seller elects to proceed under Clause 10.2(i), then upon Seller’s instructions, Buyer shall ship, at its expense and risk of loss, any such Goods to the facility designated by Seller. If Seller exercises its option to replace Goods, Seller shall, after receiving Buyer’s shipment of Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the original delivery location. Except as provided in the preceding paragraph, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Contract to Seller.

11. INSPECTION

11.1. Buyer will examine Goods promptly after receipt for damage, defects, and non-conformance. Buyer must give Seller written notice of the existence of each claim involving the Goods (whether based in contract, tort (including negligence) misrepresentation, restitution or otherwise) within the earlier of thirty (30) days after delivery of the quantity of Goods forming the basis for the claim or applicable shelf-life expiration1, if any. A failure by Buyer to give such notice within the applicable time constraint will constitute an absolute and unconditional waiver of all such claims.

11.2. Subject to Clause 11.1 above, Buyer may reject any of the Goods or parts thereof which are not in accordance with this Contract.

12. LIMITATION OF LIABILITY

12.1. References to liability in this Clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

12.2. Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

  • (a) death or personal injury caused by negligence;
  • (b) fraud or fraudulent misrepresentation;
  • (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; and
  • (d) defective products under the Consumer Protection Act 1987.

12.3. Subject to Clause 12.2, Seller’s total liability to Buyer shall not exceed the total amounts paid to Seller under the Purchase Order for the Goods giving rise to such liability claim.

12.4. Subject to Clause 12.2, the following types of loss are wholly excluded:

  • (a) loss of profits;
  • (b) loss of sales or business;
  • (c) loss of agreements or contracts;
  • (d) loss of anticipated savings;
  • (e) loss of use or corruption of software, data or information;
  • (f) loss of or damage to goodwill; and
  • (g) indirect or consequential loss.

12.5. Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

13. DELAYED DELIVERY. Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. If Seller is delayed in the performance of the Contract by any act or default of Buyer or any circumstance of Force Majeure as defined in Clause 14 below Buyer shall grant Seller such extension of date for delivery of the Goods as may be reasonable in Seller’s sole discretion. Notwithstanding the granting of any such extension Seller shall use commercially reasonable endeavors to deliver the Goods by the date for delivery.

14. FORCE MAJEURE. Seller shall not be liable, nor be deemed to have defaulted, for any delay in or failure of performance if the failure to perform arises out of causes beyond the reasonable control of Seller, including acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, earthquakes, explosions, epidemics, pandemics, quarantine restrictions, moratoriums, wars, invasions, hostilities (whether war is declared or not), terrorist threats or acts, riot, civil unrest, government order, law or actions, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns, or other disturbances, freight embargoes, shortage of adequate power or transportation facilities, unusually severe weather, or other events beyond the control of Seller. The time for performance of any of its obligations shall be extended accordingly.

15. ASSIGNMENT. Buyer may assign/transfer rights and/or delegate duties/obligations hereunder only with the prior written consent of Seller, which shall not be unreasonably withheld, and any such assignment, transfer or delegation in violation of this provision shall be void. Seller may assign the Contract and/or rights and delegate obligations under the Contract without the consent of Buyer. Seller shall be responsible for all work done and goods supplied by the sub-contractors as if the work had been done or the Goods supplied by itself.

16. INSOLVENCY AND BANKRUPTCY. If either party of the Contract becomes insolvent or bankrupt or (being a company) makes an arrangement with its creditors or has an administrative receiver or administrator appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction) the other party may, without prejudice to any of its rights, terminate the contract forthwith by notice to the affected party or to any person in whom the contract may have become vested.

17. CONFIDENTIALITY. Subject to any legal requirement of disclosure, each party shall keep confidential and not disclose to any other person or publish any confidential information relating to the other party’s business, the Contract or the work being performed by the Contract except in so far as disclosure to any subcontractor may be necessary for the performance by the subcontractor of this Contract and then only under like conditions of confidentiality or in connection with either party exercising rights and performing obligations hereunder.

18. NOTICE. All notices and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Sales Confirmation or to such other address that may be designated by the receiving party in writing from time to time. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email, or Royal Mail special delivery post. Any Notice shall be deemed to have been received: (i) if delivered personally, at the time the Notice is left at the proper address; (ii) if delivered by nationally recognized overnight courier or Royal Mail special delivery post, at 9.00 am on the second business day after posting; or (iii) if sent by email, at the time of transmission (or if this time falls outside business hours, when business hours resume. For the purpose of this Clause 18, “business hours” means the period from 9am to 5pm on any business day). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Clause. This Clause 18 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

19. SAFETY & HEALTH INDEMNITY. Buyer will comply with all laws and regulations in relation to the Contract and the use and disposal of the Goods. Buyer acknowledges that Seller has furnished to Buyer material data sheets, which include warnings together with safety and health information concerning the Goods and/or the containers for such Goods. Buyer will disseminate such information so as to give warning of possible hazards to persons whom Buyer can reasonably foresee may receive exposure to such hazards, including, but not limited to, Buyer’s employees, agents, contractors and customers. Buyer will indemnify, defend and save Seller harmless against any and all liability arising out of or in any way connected with Buyer’s failure to comply with this Clause, including without limitation, liability for injury, sickness, death and property damage, damage to the environment, and costs of investigation, litigation and reasonable attorney’s fees.

20. TERMINATION

20.1. Without prejudice to any other power of termination, Buyer may give notice in writing to terminate this contract with immediate effect for any of the following reasons:

  • (a) breach by Seller of any of the conditions of this contract, or any other material breach of contract, and, in either such case, Seller fails to cure such breach within 30 days from Buyer’s written notice regarding such breach;
  • (b) Seller ceases or proposes to cease to carry on Seller’s business.

20.2. In addition to any remedies that may be provided under this Contract, Seller may terminate any Purchase Order and Seller’s obligations under this Contract with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Contract or any other agreement or contract between Seller and Buyer; (b) has a financial position that deteriorates so far as to reasonably justify Seller’s opinion that Buyer’s ability to perform its contractual obligations is in jeopardy; (c) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or (d) has not otherwise performed or complied with any provision of this Contract, in whole or in part.

21. WAIVER. No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

22. SEVERANCE. If any provision or part-provision of this Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Contract. If any provision of the Contract is deemed deleted under this Clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

23. RELATIONSHIP OF THE PARTIES. Nothing in this Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

24. THIRD PARTY RIGHTS. This Contract does not give rise to any rights under this Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract. The rights of the parties to rescind or vary this Contract are not subject to the consent of any other person.

25. LAW, JURISDICTION. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall in all respects be governed by and interpreted in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.

Document No. ONFAB 0026 : Last Modified April 2024