Purchase of Goods by Frugalpac

Frugalpac Limited: terms and conditions for the purchase of goods by Frugalpac
Last updated date: September 2020

1. Definitions and interpretation

1.1 Definitions:
Business Day: a day, other than a Saturday or Sunday, when banks are open for general business in England & Wales.
Conditions: the terms and conditions set out in this document, as amended from time to time pursuant to Condition 12.4 below.
Contract: the contract between the Customer and the Supplier for the sale and purchase of the Goods in accordance with these Conditions.
Customer: Frugalpac Limited, a company incorporated in England and Wales with company number 7600690 and with its registered office at Frugal House, 30 Wharfedale Road, Ipswich, Suffolk, IP1 4JP.
Customer IP: any Intellectual Property Rights subsisting in the Goods and the method of their manufacture which are owned by the Customer and any additional Intellectual Property Rights in any Customer Material.
Customer Material: defined in Condition 8.1 below.
Delivery Date(s): the date(s) specified in the Order as the required date(s) for the delivery of the Goods to the Delivery Location.
Delivery Location: the address for delivery of the Goods set out in the Order.
Goods: the goods (or any part of them) described in the Order.
Incoterm: one of the rules set out in the Incoterms Rules 2010, published by the International Chamber of Commerce.
Intellectual Property Rights: all inventions, patents, utility models, designs (both registered or unregistered), database rights, copyright and related rights, trade marks (both registered and unregistered), rights in relation to get up and confidential information (including trade secrets), together with all rights in or to the same (including rights to the grant of and applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature).
Order: the Customer’s order for the Goods which is set out in the Customer’s purchase order form.
Specification: any specification for the Goods, including any related plans and drawings, factory and site testing, agreed in writing by the Customer and the Supplier.
Supplier: the person or firm from whom the Customer purchases the Goods.

1.2 Interpretation:

(a) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re- enacted.

(b) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

(c) A reference to writing or written includes emails.

2. Application of Conditions

2.1 These Conditions apply to every Order made by the Customer, unless specifically agreed in writing. Please note, these Conditions can change from time to time, and it is up to the Supplier to check the latest version of these Conditions displayed on the Frugalpac.com website before accepting an Order for Goods in case there are any changes. The Conditions displayed on the Frugalpac.com website at the time when the Customer submits an Order (which are identified by the “Last Updated Date” at the top of these Conditions) will apply to the Contract between the Customer and the Supplier.

2.2 These Conditions apply to the Contract to the exclusion of any other terms that the Supplier seeks to impose or incorporate by reference or which are implied by trade, custom, practice or a course of dealing.

2.3 The Order constitutes an offer by the Customer to purchase the Goods from the Supplier in accordance with these Conditions.

2.4 The Order shall be deemed to be accepted by the Supplier on the earliest to occur of:

(a) the Supplier issuing an invoice for the Goods;
(b) the Supplier issuing a written acceptance of the Order; and
(c) the Supplier performing any act consistent with fulfilling the Order,
at which point the Contract shall come into existence.

2.5 The Supplier waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Supplier that is inconsistent with these Conditions.

3. Supplier undertakings and the Goods

3.1 The Supplier shall ensure, as a condition of the Contract, that the Goods:

(a) correspond with their description and any applicable Specification;
(b) are of satisfactory quality (within the meaning of the Sale of Goods Act 1979) and fit for any purpose made known to the Supplier by the Customer expressly or by implication, and in this respect the Customer relies on the Supplier’s skill and judgement;
(c) where they are manufactured products, are free from defects in material and workmanship;
(d) comply with all applicable UK and, where applicable, EU statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods; and
(e) if so required by applicable law, have the appropriate CE Marking for machines and/or guards on them.

3.2 The Supplier shall ensure that at all times it has and maintains all certifications, licences, permissions, authorisations, consents and permits that it needs to perform its obligations under the Contract. The Supplier shall promptly notify the Customer if the Supplier ceases to hold any certification, licence, permission, authorisation, consent or permit required by it.

3.3 The Customer may inspect the Goods at any time before delivery. The Supplier shall remain fully responsible for the Goods despite any such inspection and any such inspection shall not reduce or otherwise affect the Supplier’s obligations under the Contract.

3.4 If, following such inspection, the Customer considers that the Goods do not conform or are unlikely to comply with the conditions set out in Condition 3.1 above, the Customer shall inform the Supplier and the Supplier shall immediately take such remedial action as is necessary to ensure compliance.

3.5 The Customer may conduct further inspections and tests after the Supplier has carried out its remedial actions.

3.6 The Supplier confirms that it has created and maintains an effective traceability system and can trace all of the original raw materials which are incorporated into the Goods. Within five Business Days of receipt of a written request from the Customer, the Supplier shall supply to the Customer a detailed description of the Goods’ supply chain.

4. Delivery

4.1 The Supplier shall ensure that:

(a) the Goods are properly packed and secured in such manner as to enable them to reach the Delivery Location in good condition; and
(b) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the Order number (if any), the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

4.2 The Supplier shall deliver the Goods:

(a) no later than the applicable Delivery Date;
(b) at the Delivery Location; and
(c) during the Customer’s normal business hours or as instructed by the Customer.

4.3 Delivery of the Goods shall be completed in accordance with the applicable Incoterm set out in the Order or, where none is stated, on completion of the unloading of the Goods at the Delivery Location.

4.4 The Supplier shall not deliver the Goods in instalments without the Customer’s prior written consent. Where it is agreed that the Goods are to be delivered by instalments, they may be invoiced and paid for separately. However, failure by the Supplier to deliver any one instalment on time or at all or any defect in an instalment shall entitle the Customer to the remedies set out in Condition 5.

4.5 The Supplier shall be responsible for preparing all forms necessary for, and shall obtain all export, import, customs and other permits and licences necessary to achieve delivery at the Delivery Location, at no charge to the Customer.

5. Remedies

5.1 If the Goods are not delivered on the applicable Delivery Date or do not comply with the conditions set out in Condition 3.1 above, then, without limiting any of its other rights or remedies, and whether or not it has accepted the Goods, the Customer may exercise any one or more of the following remedies:

(a) to terminate the Contract;
(b) to reject the Goods (in whole or in part) and return them to the Supplier at the Supplier’s own risk and expense;
(c) to require the Supplier to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) to refuse to accept any subsequent delivery of the Goods which the Supplier attempts to make;
(e) to recover from the Supplier any costs incurred by the Customer in obtaining substitute goods from a third party; and
(f) to claim damages for any other costs, loss or expenses incurred by the Customer which are in any way attributable to the Supplier’s failure to perform its obligations under the Contract.

5.2 If the Goods are not available on the Delivery Date, the Customer may, at its option, claim or deduct 5% of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 10% of the total price of the Goods. If the Customer exercises its rights under this Condition 5.2, it shall not be entitled to any of the remedies set out in Condition 5.1 in respect of the Goods’ late delivery (but such remedies shall be available in respect of the Goods’ condition).

5.3 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.

5.4 The Customer’s rights and remedies under these Conditions are in addition to its rights and remedies implied by statute and common law.

6. Title and risk

Title to the Goods shall pass to the Customer when the price for such Goods has been received by the Supplier and risk in the Goods shall pass to the Customer on completion of Delivery.

7. Price and payment

7.1 The price of the Goods shall be the price set out in the Order.

7.2 The price of the Goods:

(a) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice;
(b) includes the costs of packaging the Goods; and
(c) includes the costs of carriage and insurance of the Goods up to the point of Delivery and all and any import or export duties, tariffs and charges.

7.3 No extra charges shall be payable by the Customer unless agreed in writing by the Customer.

7.4 The Supplier may invoice the Customer for the price of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the Customer’s order number, the Supplier’s VAT registration number and any supporting documents that the Customer may reasonably require.

7.5 The Customer shall pay correctly rendered invoices within 45 days of receipt of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier.

7.6 If a party fails to make any payment due to the other under the Contract by the due date for payment, then the defaulting party shall pay interest on the overdue amount at the rate of 3% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The defaulting party shall pay the interest together with the overdue amount. This paragraph shall not apply to payments which the defaulting party disputes in good faith.

7.7 The Customer may at any time, without limiting any of its other rights or remedies, set off any liability of the Supplier to the Customer against any liability of the Customer to the Supplier.

8. Customer Materials

8.1 The Supplier acknowledges that all materials, equipment and tools, drawings, Specifications and data supplied by the Customer to the Supplier (Customer Materials) and all rights in the Customer Materials are and shall remain the exclusive property of the Customer. The Supplier shall keep the Customer Materials in safe custody at its own risk, maintain them in good condition until returned to the Customer and not dispose or use the same other than in accordance with the Customer’s written instructions or authorisation.

8.2 The Supplier may only use Customer Materials for the purpose of performing its obligations under the Contract. All rights in the Customer IP are reserved by the Customer absolutely and, except for the foregoing permission, nothing in these Conditions or the Contract confers any licence or grants any rights to the Supplier in relation to any Customer IP.

9. Liability

9.1 The Supplier shall indemnify the Customer against all loss, damages, costs and expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by the Customer as a result of or in connection with:

(a) any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the supply or use of the Goods, to the extent that the claim is attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors;

(b) any claim made against the Customer by a third party for death, personal injury or damage to property arising out of or in connection with any defects in the Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of the Supplier, its employees, agents or subcontractors; and

(c) any claim made against the Customer by a third party arising out of or in connection with the supply of the Goods, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by the Supplier, its employees, agents or subcontractors.

9.3 This Condition 9 shall survive termination of the Contract.

10. Termination

10.1 The Customer may terminate the Contract in whole or in part at any time before delivery of the Goods with immediate effect by giving the Supplier written notice, whereupon the Supplier shall discontinue all work on the Contract. The Customer shall pay the Supplier fair and reasonable compensation for any work in progress on the Goods at the time of termination, but such compensation shall not include loss of anticipated profits or any consequential loss.

10.2 Without limiting its other rights or remedies, the Customer may terminate the Contract with immediate effect by giving written notice to the Supplier if:

(a) the Supplier commits a breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;
(b) the Supplier is unable or admits its inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of any actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness;
(c) any corporate action, legal proceeding or other procedure or step is taken in relation to (i) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Supplier, (ii) a composition, compromise, assignment or arrangement with any creditor of the Supplier, (ii) the appointment of a liquidator, receiver, administrative receiver, administrator, compulsory manager or any similar officer in respect of the Supplier or any of its assets, (iv) the enforcement of any security over any assets of the Supplier or (v) any analogous procedure or step is taken in any jurisdiction in respect of the Supplier;
(d) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Supplier’s financial position deteriorates to such an extent that in the Customer’s opinion the Supplier’s ability to perform its obligations under the Contract has been materially and adversely affected.

10.3 Termination of the Contract, however arising, shall not affect any of the parties’ accrued rights and obligations.

10.4 Conditions that expressly or by implication survive termination of the Contract shall continue in full force and effect.

11. Force majeure

The Supplier shall not be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such delay or failure results from an event, circumstance or cause beyond its reasonable control, such as, for example, any strike, lock-out or other form of industrial action, failure of any utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any new law or regulation or government order, accident, breakdown of plant or machinery, fire, flood or storm, or pandemic. If the period of delay or non-performance continues for more than 30 days, the Customer may terminate the Contract by giving 60 days’ written notice to the Supplier.

12. General

12.1 Assignment and other dealings

(a) The Customer may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with any or all of its rights or obligations under the Contract.

(b) The Supplier may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Customer.

12.2 Subcontracting. The Supplier may not subcontract any or all of its rights or obligations under the Contract without the prior written consent of the Customer. If the Customer consents to any subcontracting by the Supplier, the Supplier shall remain responsible for all the acts and omissions of its subcontractors as if they were its own.

12.3 Entire agreement. The Contract, together with the applicable Order, contains the entire agreement between the parties and supersedes any previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to the sale of the Goods by the Supplier to the Customer.

12.4 Amendment. No amendment of the Contract shall be effective unless it is agreed in writing and signed by or on behalf of each of the parties.

12.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.6 Severance. If any provision of the Contract is or becomes invalid, illegal or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.

12.7 Notices.

(a) Any notice to be given in connection with this Contract shall be in writing in English and shall either be delivered by hand or sent by first class post, email or other electronic means 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 paragraph.

(b) A notice sent according to paragraph (a) above shall be deemed to have been received (i) if delivered by hand, at the time of delivery, (ii) if sent by pre-paid first class post, the second day after posting or (iii) if sent by email or other electronic form, at the time of completion of transmission, except that, if a communication is received between 5.30pm on a Business Day and 9.30am on the next Business Day, it shall be deemed to be received at 9.30am on the second of such Business Days.

(c) This Condition does not apply to the service of any proceedings or other documents in any legal action or other method of dispute resolution.

12.8 Third party rights. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of, or enjoy the benefit under, this Contract.
12.9 Governing law. The Contract and any non-contractual obligations arising out of or in connection with the Contract shall be governed by English law.

12.10 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation. Each party agrees that the courts of England are the most appropriate and convenient courts to settle such disputes or claims and accordingly no party will argue to the contrary. Each party irrevocably consents to any process in any legal action or proceedings being served on it in accordance with the provisions of these Conditions relating to service of notices. Nothing in these Conditions shall affect the right to serve process in any other manner permitted by law. Nothing shall limit the right of the Customer to take proceedings against the Supplier in any other court of competent jurisdiction nor shall the taking of proceedings in any one or more jurisdictions preclude the Customer from taking proceedings in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.