'Amendment' shall mean any authorised variation to the Contract confirmed by the Buyer to the Seller in writing.
'Buyer' shall mean HFD Group Ltd, any agent of HFD Group Ltd or any wholly owned or associated company so named at the address stated on the Buyer's Authorised Purchase Order Form.
‘Buyer's Authorised Purchase Order Form’ shall mean the Buyer’s order for the supply of Goods and/or Services, as set out in the Buyer’s purchase order form and signed by the person(s) either named or whose status is shown on the face of the purchase order form.
‘Conditions’ shall mean these terms and conditions as amended from time to time in accordance with Clause 7.
'Contract' shall mean the contract between the Seller and the Buyer for the supply of Goods and/or Services in accordance with these Conditions and which shall come into existence in terms of Clause 2.
'Delivered' shall mean Goods and/or Services have been satisfactorily received at the address for delivery stated on the Contract, or at the registered office if not stated and ‘Delivery’ shall be construed accordingly.
'Firm and Fixed' shall mean no variation of price nor reconciliation of costs is permitted.
'Goods’ shall mean the goods (or any part of them) set out in the Buyer's Authorised Purchase Order Form.
‘Intellectual Property Rights’ shall mean patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
'Packaging' includes, but is not limited to, bags, cases, cardboard boxes, cylinder, drums, pallets, tank wagons and other containers.
‘Premises’ shall mean any location used by the Buyer in the conduct of its business.
'Seller' shall mean the person, firm or company to whom the Contract is awarded and/or from whom the Buyer purchases the Goods and/or Services, and their successors as required.
‘Services' shall mean the services supplied by the Seller to the Buyer as set out in the Buyer's Authorised Purchase Order Form.
‘UK Data Protection Legislation’ shall mean any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
2. General/Basis of Contract
2.1 These Conditions apply in preference to and supersede any terms and conditions referred to, offered, implied or relied on by the Seller at any stage in the dealings between the Buyer and Seller, with reference to the Goods and/or Services to which the Contract relates.
2.2 The Buyer's Authorised Purchase Order Form constitutes an offer by the Buyer to purchase the Goods and/or Services in accordance with these Conditions and shall be demmed to be accepted on the earlier of: (i) the Seller issuing a written acceptance of the Buyer's Authorised Purchase Order Form; and (ii) the Seller doing any act consistent with fulfilling the Buyer's Authorised Purchase Order Form, at which point the Contract shall come into existence.
2.3 Without prejudice to the generality of the aforementioned, the Buyer will not be bound by any standard or printed terms referred to, or furnished by the Seller in any of its documents, unless the Seller specifically states in writing, separately from such terms, that such terms are required to apply, and the Buyer acknowledges this in writing. In this context, quotations referred to in the Contract are referenced only for price, delivery and quality.
2.4 The Seller waives any right it might otherwise have to rely on any terms endorsed upon, delivered with or contained in any documents of the Seller that is inconsistent with these Conditions.
2.5 Nothing in this clasue shall invalidate any separate guarantee from the Seller to the Buyer in respect of the Goods and/or Services which has been agreed in writing between the Buyer and the Seller (as referred to in Clause 17.2)
3. Confidentiality/Data Protection
The Seller shall keep confidential any information, data or process given to them by the Buyer in connection with the Contract. The Seller shall not advertise or make any statement relating to the existence or performance of the Contract without the Buyer’s prior written consent. The Seller undertakes not to breach any terms of UK Data Protection Legislation with regard to the performance of the Contract.
4. Assignment and Sub Contracting
4.1 The Seller shall not assign or sub-contract any of its rights or duties under the Contract without prior written permission of the Buyer.
4.2 Where prior written authority is given to assign or sub-contract, the Seller shall remain responsible for the performance of the Contract, and ensuring that any sub-contractor or assignee complies with the requirements of the Contract. When requested by the Buyer, a copy of sub-contract or assignation details shall be provided at no charge to the Buyer.
5. Intellectual Property Rights
5.1 It is a condition of the Contract that, except to the extent that the Goods and/or Services are made up in accordance with designs furnished by the Buyer, none of the Goods and/or Services will infringe any Intellectual Property Rights of any third party and the Seller shall indemnify the Buyer against all actions, suits, claims, demands, losses, charges, costs, legal expenses and all other expenses which the Buyer may suffer or incur as a result of or in connection with any breach of this clause.
5.2 All Intellectual Property Rights furnished to or made available to the Seller by the Buyer pursuant to the Contract shall vest solely in the Buyer. On completion, cancellation or termination for any reason the Seller shall return or dispose of such in accordance with the Buyer's written instructions.
5.3 Where development forms part of this Contract the ownership of any Intellectual Property Rights arising from such development shall be transferred to the Buyer and the Seller shall co-operate in any measure necessary to make such transfer effective as soon as any such right arises.
The Goods and/or Services will be supplied using suitably experienced personnel who will carry out their duties with due diligence using materials of good construction and adequate strength which are free of defects in design, materials and workmanship. Notwithstanding the aforementioned, Goods and/or Services supplied must comply with the express terms of the Contract and implied conditions, warranties and terms contained in the Sale of Goods Act 1979, any related statutes or statutory re-enactment(s) or modifications, orders, regulations or bye-laws from time to time in force, as well as with any specification of the British Standards Institution (or equivalent) which is relevant to the Goods and/or Services at the time of Contract.
The Seller shall not alter any of the Goods and/or Services, except as directed in writing by the Buyer. The Buyer shall have the right, from time to time during the execution of the Contract, by Amendment to the Contract to direct the Seller to add to or omit, or otherwise vary, the Goods and/or Services, 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 Contract.
8. Delivery, Packaging and Marking
8.1 All Goods supplied against the Contract must be adequately protected against damage and deterioration in transit and Delivered carriage paid. Any information relating to the handling of goods upon receipt is to be clearly marked on the exterior Packaging and accompanying paperwork. The Seller shall free of charge and as quickly as possible either repair or replace (as the Buyer shall elect) such of the Goods as may either be damaged in transit or having been placed in transit fail to be Delivered to the Buyer provided that in the case of damage to such Goods in transit the Buyer shall within 30 days of Delivery give notice to the Seller that the Goods have been damaged.
8.2 Unless otherwise provided in the Contract, the Seller shall be considered responsible for the collection and disposal of all returnable Packaging at no cost to the Buyer.
8.3 The Goods shall be Delivered to the place named in the Contract. Any access to the Premises and any labour and equipment that may be provided by the Buyer in connection with Delivery shall be provided without acceptance by the Buyer of any liability whatsoever and the Seller shall indemnify the Buyer in respect of any actions, suits, claims, demands losses, charges, costs and expenses which the Buyer may suffer or incur as a result of or in connection with any damage or injury (whether fatal or otherwise) occurring in the course of Delivery or installation to the extent that any such damage or injury is attributable to any act or omission of the Seller or any of his sub-contractors.
8.4 If the Goods or any part of them are not Delivered by the time or times specified in the Contract (or failing a time being specified in the Contract, within 7 days) then the Buyer may by written notice cancel any undelivered balance of the Goods. The Buyer may also return for full credit and at the Seller’s full expense any Goods that in the opinion of the Buyer cannot be utilised owing to this cancellation. In the case of Services the Buyer may have the work performed by alternative means and any costs reasonably so incurred shall be at the Seller’s expense. This shall not effect any other rights the Buyer may have.
9. Progress and Inspection
9.1 The Seller shall at the Seller’s expense provide any programmes of manufacture and Delivery that the Buyer may reasonably require.
9.2 The Seller shall notify the Buyer immediately by e-mail, letter or phone if the Seller’s progress falls or may fall behind any of these programmes.
9.3 The Buyer shall have the right to inspect progress at the Seller’s premises, or the premises of any sub-contractor’s engaged by the Seller in delivering the Contract, at all reasonable times in order to inspect and to reject Goods which do not comply with the Contract. The Seller’s sub-contractors shall reserve such right for the Buyer.
9.4 Any inspection or approval shall not relieve the Seller from the Seller’s obligations under this Contract.
10. Work on Premises
If the Contract involves any work on the Premises then the Seller shall ensure that the Seller and the Seller’s employees, the Seller’s sub-contractors and their employees and any other person(s) associated with the Seller are made aware of and comply with any statutory requirements and any regulations which the Buyer issues the Seller in writing regarding rules of conduct for contractors working on any of the Premises (including, but not limited to, in relation to Permit to Work, Risk Assesments and Method Statements).
11. Property and Risk
Property and risk in the subject matters of the Contract shall pass to the Buyer immediately after Delivery has been satisfactorily effected, provided that such passing shall not prejudice either the Buyer's right to reject for non-conformity with specification or any other rights that the Buyer may have under the Contract, provided that where advance or progress payments are made title but not risk shall pass to the Buyer as soon as items are allocated to the Contract. All items so allocated shall be adequately marked and recorded as being the property of the Buyer.
12.1 In accordance with the requirements of the Health & Safety at Work Act 1974, any re-enactment or amendment thereof and any other safety related statutory requirements, any safety precautions required for the handling of the material covered by the Contract are to be clearly indicated on each consignment.
12.2 Hazardous goods must be marked in accordance with Classification, Packaging and Labelling of Dangerous Substances Regulations 1984 and subsequent amendments. Risk and Safety Phrases must be in English.
12.3 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 U.K. and International Agreements relating to the packing, labelling and carriage of hazardous goods.
12.4 Hazard data sheets must be supplied with the Delivery for all hazardous materials, and the information contained in the data sheets must meet the legal requirements of the Health & Safety at Work Act 1974 and the Health and Safety Executive guidance.
13. National Living Wage
The Seller warrants that it pays and will continue to pay its employees not less than the National Living Wage or equivalent and that it shall ensure that the Seller’s sub-contractors and their employees and any other person(s) associated with the Seller in respect of the Contract also pay and will continue to pay their employees not less than the National Living Wage or equivalent.
Unless specifically agreed in writing, all prices shall be in pounds sterling, Firm and Fixed for the duration of the contract, inclusive of carriage, Packaging and certification (where required), but exclusive of VAT.
15.1 Provided Goods and/or Services have been Delivered and comply with the requirements of the Contract, unless otherwise agreed, payment shall be made within 30 days of end of month from (a) receipt of invoice, or (b) the Goods and/or Services are Delivered, whichever is the later.
15.2 Value Added Tax, where applicable, must be shown separately on all invoices.
15.3 Payment may be delayed but no prompt discount shall be forfeited by the Buyer, if the Seller fails to mark the Buyer's Authorised Purchase Order Form number on the consignment, package, packing or advice notes, invoices, monthly statements and all other correspondence.
15.4 Any payment made shall be without prejudice to the Buyers rights, should the Goods and/or Services prove unsatisfactory or not in accordance with the Contract.
16.1 Without prejudice to any rights that the Buyer may have by Statute, Common Law or otherwise, the Seller shall, where necessary, supply and fit, free of charge, within the warranty period, any spare parts.
16.2 In connection with this condition, the Seller is obligated to ensure that adequate instruction is given to ensure proper use and storage requirements, and that the life expectancy of any item, in storage and in use, is notified to the Buyer. The Buyer's rights will not be prejudiced simply by the Seller's specification of a supposed life expectancy of any item.
17. Rejection and Guarantee
17.1 The Buyer shall have the right to reject the Goods and/or Services in whole or in part whether or not paid for in full or in part within a reasonable time of Delivery if they do not conform with the requirements of the Contract. It is agreed that the Buyer may exercise the right of rejection notwithstanding any provision in section 15B or section 30 (subsection 2D) of the Sales of Goods Act 1979. Further, where the Buyer receives Goods and/or Services as unexamined the Buyer's rights to subsequently reject them if any latent defect is found shall not be prejudiced nor shall any right of claim for shortage be prejudiced. Where Goods and/or Serrvices are rejected, the Buyer will afford the Seller reasonable opportunity to replace rejected Goods and/or Services with Goods and/or Services which conform in all respects to the requirements specified in the Contract. If the Seller fails for whatever reason to meet the aforementioned requirement then the Buyer shall have the right to cancel the Contract and purchase the nearest equivalent Goods and/or Services elsewhere without prejudice to any other rights which the Buyer may have against the Seller. The Seller must collect all rejected Goods within a reasonable time of rejection (being no later than 5 days) or the Buyer will be entitled to return the Goods at the Seller’s risk and expense.
17.2 The guarantee period applicable to the Goods and/or Services shall be 12 months from putting into service or 18 months from Delivery whichever shall be the shorter (subject to any alternative guarantee arrangements agreed in writing between the Buyer and the Seller).
17.3 The making of payment shall not prejudice the Buyer's right of rejection.
Any time or period for Delivery, dispatch or completion shall be of the essence. The Buyer shall also be entitled to cancel the Contract or any part thereof and/or claim reimbursement for all losses and expenses suffered in the event that:
In the event of cancellation for any of the foregoing reasons the Buyer shall not be liable for any unfulfilled commitment.
In addition to the rights referred to in Clause 18, the Buyer shall be entitled to terminate this Contract by giving to the other party reasonable written notice to that effect.
In circumstances where no timescale for completion or Delivery date is provided on a Buyer's Authorised Purchase Order Form, the Contract will be deemed to automatically expire six months from last active instruction.
Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses that expressly or by implication survive termination of the Contract shall continue in full force and effect.
In the event of any interruption of the Buyer's business due to circumstances beyond the Buyer's control such as but not limited to any dispute, fire, explosion, flood or accident which would prevent or hinder the use of Goods and/or Services which are the subject of the Contract, the Buyer shall have the right to suspend the Contract until such circumstances have ceased.
21. Recovery of Sums Due
Whenever under the Contract any sums of money shall be recoverable from or payable by the Seller, any such money shall be deducted from any sums then due, or which at any later time may become due to the Seller under this Contract or any other contract the Seller may have with the Buyer.
22. Indemnity and Insurance
22.1 Without prejudice to any rights or remedies of the Buyer, the Seller shall indemnify the Buyer against all actions, suits, claims, demands, losses, charges, costs and expenses which the Buyer may suffer or incur as a result of or in connection with any damage to the Buyer's and third parties' properties or in respect of any injury (whether fatal or otherwise) to any person which may result directly or indirectly from any defect in the Goods and/or Services or the negligent or wrongful act or omission of the Seller.
22.2 The Seller shall effect with a reputable insurance company a policy or policies of insurance covering all the matters which are the subject of indemnities under these conditions and shall at the request of the Buyer produce the relevant policy or policies together with receipts or other evidence of payment of the latest premium due thereunder.
(a) 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, or sent by pre-paid first class post or other next working day delivery service or commercial courier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 23(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.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action, or other method of dispute resolution.
24. Interpretation and Validity
The construction, validity and performance of this Contract will be governed only by Scots Law, and the Scottish court shall have exclusive jurisdiction. The submission to such jurisdiction shall not (and shall not be construed so as to) limit the right of the Buyer to take proceedings against the Seller in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
The interpretation of any clause or sub-clause will not in any way be limited or restricted by reference to or inference from any other clause or sub-clause. The invalidity or unenforceability for any reason of any part of this Contract shall not prejudice or affect the validity or enforceability of the remainder.