Toolfix Terms and Conditions of Purchase - Oct 2022
Toolfix Joinery & Construction Supplies Ltd
Terms and Conditions of Purchase
1. INTERPRETATION
In these Conditions: -
1.1 "Toolfix" means Toolfix Joinery & Construction Supplies Ltd.
1.2 "the Purchase Order" means the agreement concluded between Toolfix and the Seller for the supply of goods and/or services (including all specifications, patterns, samples, plans, drawings and other documentation which are referred to therein) which, however made, shall be deemed to be made subject to these Conditions.
1.3 "the Seller" means the organisation, company or person who under the Purchase Order undertakes to supply the Goods to Toolfix.
1.4 "the Goods" means all goods, materials, articles or services which the Seller is required under the Purchase Order to supply.
1.5 "the Price" means the price payable to the Seller by Toolfix under the Purchase Order for the full and proper performance by the Seller of its obligations pursuant to the Purchase Order.
2. FORMATION OF PURCHASE ORDER
2.1 All sales to Toolfix are made subject to these Conditions which shall be the sole terms and conditions of any purchases by Toolfix from the Seller. Terms and conditions on the Seller's acceptance of order form, invoice or other documents shall not be binding on Toolfix.
2.2 The Seller will ensure that the prices, quantities and delivery times and all drawings, photographs, illustrations, performance data, dimensions, weights and other technical information and particulars of the Goods given by the Seller are accurate and as stated in any quotations in the event a Purchase Order is concluded on the basis of them.
2.3 No amendment or addition to the Purchase Order or these Conditions shall be deemed to have been accepted unless accepted in writing by a duly authorised representative of Toolfix.
3. DELIVERY
3.1 The date and address for the delivery of the Goods shall be specified in the Purchase Order. If no date for delivery is specified therein, delivery shall be made within 28 days of receipt by the Seller of a purchase order from Toolfix.
3.2 The time of delivery shall be of the essence and the Seller shall be liable to Toolfix for any loss or damage (whether direct, indirect, or consequential) suffered or incurred by Toolfix as a result of the Seller’s failing to deliver the Goods (in whole or in part), on the due date of delivery.
3.3 Delivery will be made by the method specified in the Purchase Order and Toolfix shall not be obliged to accept delivery in instalments, unless otherwise agreed in writing.
4. PASSING OF PROPERTY AND RISK TO TOOLFIX
The property and risk in the Goods shall remain with the Seller until they are delivered to the point specified in the Purchase Order. Title to the Goods shall pass to Toolfix forthwith on completion of such delivery. In the case of a missing item, or a dispute regarding delivery, Toolfix can request whatever evidence it deems suitable from the Seller to prove that all of the Goods were delivered. Toolfix may inform the Seller from time to time as to the type of evidence it shall require to prove the Goods have been delivered.
5. PRICE AND PAYMENT
5.1 The Price shall be "net", that is after deduction of all agreed discounts. It shall include the cost of packaging, packing materials, addressing, labelling, loading and delivery and any duties and taxes (except Value Added Tax, where applicable) to the addresses named in the Purchase Order. The amount of any Value Added Tax (together with the Seller's registration number) and discounts shall be shown separately in the Purchase Order.
5.2 Toolfix shall pay the Price for the Goods to the Seller 30 days from when an invoice is received by Toolfix or the Goods are delivered (subject to any differing terms on the Purchase Order) whichever is the later, subject to:
5.2.1 delivery of the Goods without subsequent rejection of them in accordance with the Purchase Order;
5.2.2 Toolfix's purchase order number being quoted on the Seller's invoices and delivery documents; and
5.2.3 an invoice bearing the date and price being received by Toolfix.
5.3 No variation in the Price or the method of payment specified in the Purchase Order will be accepted without the prior written approval of Toolfix.
5.4 Whenever under the Purchase Order any sum of money shall be recoverable from or payable by the Seller, the same may be deducted from any sum then due, or which at any time thereafter may become due, to the Seller under the Purchase Order or under any other Purchase Order with Toolfix.
6. LOSS OR DAMAGE IN TRANSIT
6.1 Toolfix will advise the Seller in writing or via telephone of any loss or damage to the Goods discovered by Toolfix:
6.1.1 Partial loss, damage, defects or non-delivery of any separate part of a consignment shall be advised within a reasonable time of the delivery of the consignment or part consignment.
6.1.2 Non-delivery of the whole of any consignment shall be advised within a reasonable time of the despatch notice being received by Toolfix.
6.2 The Seller shall forthwith make good free of charge to Toolfix any loss of or damage to or defect in the Goods at the request of Toolfix.
7. SELLER'S WARRANTIES
7.1 The Seller warrants that the Goods:
7.1.1 will conform in all respects to the specifications provided by Toolfix or previously supplied by the Seller to Toolfix (if any); and
7.1.2 are of satisfactory quality and are fit for the purpose which Toolfix has made known to the Seller or, where Toolfix does not make any purpose known to the Seller, for the Purpose for which the Goods are normally used.
7.2 The Seller also warrants that: -
7.2.1 all reasonable care and skill has been used in manufacturing the Goods and that the Goods will be free from all defects in materials and workmanship; and
7.2.2 the Seller has free and unencumbered title and right to sell the Goods to Toolfix and that they are sold free from all charges, liens or other encumbrances.
7.3 The Supplier undertakes, warrants and represents that it does not breach any local or international anti trafficking and anti-slavery legislation and it shall notify Toolfix immediately in writing if it becomes aware or has reason to believe that it, or any of its personnel, subcontractors or any other member of its supply chain have breached or potentially breached any of the Seller’s obligations in this regard.
7.4 The Seller shall comply, and shall ensure that any third parties performing activities on its behalf comply, with all applicable foreign and domestic laws (including without limitation export laws), governmental regulations and judicial orders. The Seller will comply with all sanction programs administered by all local and international bodies and the Seller will not directly or indirectly export, re-export, or transfer the Goods to prohibited countries or individuals or permit use of or work on the Products by prohibited countries or individuals.
8. ACCEPTANCE
8.1 Toolfix shall have the right to reject Goods which are faulty in quality or manufacture or which are not fit for the purpose for which they are supplied or which do not conform to the specifications given in the Purchase Order. Inspection of the Goods will normally take place within 30 days of delivery and Toolfix will in no circumstances be deemed to have accepted the Goods prior to inspection. Inspection of, or failure to inspect, or payment for the Goods by Toolfix shall not affect its right to reject any Goods which are subject to hidden defects or its right to claim for any breach of Purchase Order.
8.2 Toolfix shall give the Seller notice of its rejection of the Goods by email or via telephone and immediately from that time the Goods shall be deemed to be at the Seller's risk. Rejected Goods may be returned by Toolfix to the Seller at the Seller's expense or, at Toolfix's option, may be kept at Toolfix's premises until collected by the Seller. The Seller will reimburse Toolfix for the cost of any storage or other expenses incurred.
8.3 On rejection of the Goods, Toolfix shall have the option of requiring the Seller either to replace the rejected Goods or to credit or reimburse Toolfix in full for the cost of such Goods and any other expenses incurred by Toolfix as described above.
8.4 Any rejection by Toolfix or any acceptance of credit, reimbursement or replacement by Toolfix shall be without any liability whatsoever to the Seller and without prejudice to Toolfix's other rights in respect of the defect or other failure of the Goods to comply with the requirements of the Purchase Order.
9. VARIATIONS
9.1 The Seller shall not vary any of the terms of the Purchase Order, except as directed in writing by Toolfix but Toolfix shall have the right, from time to time during the execution of the Purchase Order, by notice in writing or via telephone to direct the Seller to add to or to omit, or otherwise vary, the terms of the Purchase Order and the 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 Purchase Order.
9.2 Where the Seller is notified of any variation to the Purchase Order by Toolfix which would occasion an amendment to the Price the Seller shall, within 7 days of receipt of such notification, advise Toolfix in writing of the amount of any such amendment to the Price, such amendments to be ascertained and determined in the same manner in which the Price was ascertained and determined.
9.3 If, in the opinion of the Seller, any such variation is likely to prevent the Seller from fulfilling any of his obligations under the Purchase Order he shall so notify Toolfix and Toolfix shall decide as soon as reasonably practicable whether or not the same shall be carried out and shall confirm its
instructions in writing or via telephone and modify the said obligations to such an extent as Toolfix considers may be justified. Until Toolfix so confirms its instructions they shall be deemed not to have been given.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Seller warrants that the sale or use of the Goods for any purpose whatsoever by Toolfix will not infringe any UK or foreign patent, copyright, trade name, trade mark, design right (whether registered or unregistered) or any other intellectual property right whatsoever ("Intellectual Property") of any third party and the Seller further agrees to fully and effectively indemnify Toolfix and hold it harmless against any actions, proceedings, costs, claims, demands, loss, damage, or expense (whether direct, indirect or consequential and whether foreseeable or not) suffered or incurred by Toolfix as a result of any claim for any such infringement or alleged infringement.
10.2 Any and all Intellectual Property arising or resulting from any work carried out or materials produced by the Seller in execution of the Purchase Order shall belong to and vest exclusively in Toolfix and the Seller as legal and beneficial owner hereby assigns all such Intellectual Property that shall be copyright or design right and agrees to assign all other such Intellectual Property to Toolfix absolutely. In the event that the Seller is unable to effect the foregoing assignment, the Seller hereby grants to Toolfix an irrevocable, non-exclusive, royalty-free, worldwide licence to use such work and or materials for any purpose whatsoever.
10.3 The Seller undertakes at the request and expense of Toolfix to do all acts and execute all documents which may be necessary to confirm the title of Toolfix to the Intellectual Property assigned, whether in connection with any registration of title or otherwise.
10.4 The Seller agrees to maintain secret and confidential all technical and other information received or obtained by it pursuant to the Purchase Order and prior to and in contemplation of it and all other information that it may acquire; and to respect Toolfix's proprietary rights therein, to use the same exclusively for the purposes of Toolfix and to disclose the same only to those of its employees and authorised sub-sellers to whom and to the extent that such disclosure is reasonably necessary for the purposes of supplying the Goods.
10.5 Any documents, specifications, plans, drawings, process information, patterns, designs or any other information supplied by Toolfix to or otherwise obtained by the Seller in connection with the Purchase Order or Toolfix shall remain the property of Toolfix (including, without prejudice to the generality of the foregoing, all Intellectual Property therein).
11. FORCE MAJEURE
Toolfix shall not be liable for any delay or failure to take delivery of or pay for the Goods caused by any event beyond its control including but not limited to any act of God, epidemic, fire, act of government or state, war, civil commotion, insurrection, embargo and labour disputes of whatever nature.
12. ASSIGNMENT AND SUB-CONTRACTING
12.1 The Purchase Order shall not be assigned or sub-contracted by the Seller without Toolfix's prior written consent.
12.2 In any case where the Purchase Order is sub-contracted in accordance with such written consent, the Seller will ensure that the sub-seller agrees to be bound by all applicable terms of the Purchase Order and any such sub-contract shall in no way limit or affect the obligations of the Seller who shall remain responsible for all Goods supplied under, and the full performance of its obligations under, the terms of the Purchase Order.
12.3 Copies of any such sub-contract shall forthwith be delivered to Toolfix.
13. FREE-ISSUE MATERIALS
Where Toolfix for the purpose of the Purchase Order issues materials "free of charge" to the Seller such materials shall be and remain the property of Toolfix. The Seller shall maintain all such materials in good order and condition subject, in the case of tooling, patterns and the like, to fair wear and tear. The Seller shall use such materials solely in connection with the Purchase Order. Any surplus materials shall be disposed of at Toolfix's direction. Waste of such materials arising from bad workmanship or negligence of the Seller shall be made good at the Seller' expense. Without prejudice to any other of the rights of Toolfix, the Seller shall deliver up such materials whether further processed or not to Toolfix on demand.
14. LIABILITY
14.1 The Seller shall be liable for any indirect, special or consequential loss (including loss of anticipated profit) howsoever arising either from breach or non-performance of any of its obligations under the Purchase Order or from the supply, use or intended use of the Goods.
14.2 The Seller shall fully indemnify and keep fully indemnified Toolfix against all claims, actions, costs, loss, damages or expenses or other matters (whether foreseeable or not) suffered or incurred by Toolfix and/or in connection with the Goods or the supply, use or intended use of them. Such indemnity shall cover all consequential and indirect losses suffered by Toolfix.
15. LABELLING AND REGULATIONS
15.1 Hazardous goods must be marked by the Seller with International Danger Symbol(s) and display the name of the material in English. Transport and other documents must include declaration of the hazard and name of the material in English. Goods must be accompanied by emergency information in English in the form of written instructions, labels or markings. The Seller shall observe the requirements of UK and international agreements relating to the packing, labelling and carriage of hazardous goods. All information held by, or reasonably available to, the Seller regarding any potential hazards known or believed to exist in the transport, handling or use of the Goods supplied shall be promptly communicated to Toolfix.
15.2 The Seller shall be responsible for compliance with all relevant laws and regulations, including those of any country where the Goods are to be delivered or, to the knowledge of the Seller, ultimately resold or used, and for obtaining and maintaining at its expense any necessary import or export licences, customs clearance, exchange control consents or other authorisations and permits whatsoever and the Seller shall ensure that the Goods when delivered to Toolfix are labelled and packaged in such a way as to ensure the safety which a person is entitled to expect from the Goods.
16. PACKAGES
16.1 The Seller will package and protect the Goods with appropriate non-returnable packaging so as to avoid damage, destruction or theft in transit.
16.2 Where Toolfix has an option to return packages and does so, Toolfix will return such packages empty in good order and condition (consigned "carriage paid" unless otherwise agreed) to the Seller's supplying works or depot indicated by the Seller, and will advise the Seller of the date of despatch.
16.3 Packages returned promptly in the manner aforesaid shall be subject to an allowance at the Seller's standard rate operating at the time of delivery to Toolfix.
16.4 Where Goods are delivered by road vehicle, available empty packages may be returned by the same vehicle.
17. WARRANTY AND INDEMNITY
The Seller shall forthwith repair or replace all Goods which are or become defective during the period of 36 months from putting into service or five years from delivery, whichever shall be the longer, where such defects occur under proper usage and are due to:
17.1 faulty design;
17.2 the Seller's erroneous instructions as to use or erroneous use data;
17.3 inadequate or faulty materials or workmanship; or
17.4 any other breach of the Seller's warranties, expressed or implied. Repairs and replacements shall themselves be subject to the foregoing obligations for a period of 36 months from the date of delivery, reinstallation or passing of tests (if any) whichever is appropriate after repair or replacement.
18. TERMINATION
18.1 If the Seller is in breach of any of the terms hereof (including, but not limited to, its delivery obligations), Toolfix may without any liability whatsoever to the Seller terminate the Purchase Order in whole or in part by notice in writing or via telephone to the Seller.
18.2 If the Seller becomes bankrupt or (being a company) becomes insolvent, makes an arrangement with its creditors or has a receiver, administrative receiver, or trustee or administrator appointed or commences to be wound up (other than for the purposes of amalgamation or reconstruction), is unable to pay its debts as they become due or Toolfix considers that to be the case, Toolfix may, without prejudice to any other of its rights, terminate the Purchase Order forthwith by notice to the Seller or any person in whom the Seller may have become vested.
19. WAIVER
The failure of Toolfix to insist upon the strict performance of any terms and conditions of the Purchase Order shall not be construed as a waiver of any such term or condition and shall in no way affect Toolfix's right to enforce such provision later.
20. SEVERABILITY
If any of the terms and conditions of the Purchase Order (or part thereof) shall be found to be invalid, ineffective or unenforceable, the invalidity, ineffectiveness or unenforceability of such term or condition (or part thereof) shall not affect any other term or condition (or the other part of the term or condition of which such invalid, ineffective or unenforceable part forms part) and all terms and conditions (or parts thereof) not affected by such invalidity, ineffectiveness or unenforceability shall remain in full force and effect.
21. LAW
The construction, validity and performance of the Purchase Order shall be governed by the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the English courts.
