1 Interpretation

1.1 The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).

Buyer: the person, firm or company who purchases product and services (together the Goods) from the Company.

Company: TFS Export Limited

Contract: the purchase offer confirmation issued by the Company to the Seller as written instruction to supply the Goods, incorporating these Conditions

Goods: any goods and services agreed in the Contract to be supplied to the Company by the Seller (including any part or parts of them).

Seller: the party selling the Goods to the Company, the person, firm or company who accepts the Company Contract

Replacement Seller: any subsequent seller to the Company providing goods and services the same as or similar to the Goods.

VAT: value added tax chargeable under English law for the time being and any similar additional tax.

1.2 A reference to one gender includes a reference to the other gender.

1.3 Condition headings do not affect the interpretation of these Conditions.

1.4 A person includes a natural person, a corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.

1.5 Words in the singular shall include the plural and vice versa.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.

1.7 A reference to writing or written includes faxes but not e-mail.

1.8 Where the words include(s), including or in particular are used in these Conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.

1.9 Any obligation in the Contract on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.

2 Application of terms

2.1 Subject to any variation under condition 2.4, these Conditions are the only Conditions upon which the Company is prepared to deal with the Seller and they shall govern the Contract to the entire exclusion of all other terms or conditions.

2.2 Each Contract issued by the Company to the Seller shall be deemed to be an offer by the Company to buy the Goods subject to these Conditions and no order shall be accepted until the Seller either expressly by giving notice of acceptance, or impliedly by fulfilling the Contract, in whole or in part accepts the offer.

2.3 No terms or conditions endorsed upon, delivered with or contained in the Seller’s quotation, acknowledgement or acceptance of order, specification or similar document shall form part of the Contract and the Seller waives any right which it otherwise might have to rely on such terms and conditions.

2.4 These Conditions apply to all Company’s purchases and any variation to these Conditions shall have no effect unless expressly agreed in writing and signed by a Director of the Company.

3 Commencement and Duration

3.1 The Goods supplied under the Contract shall be provided by the Seller to the Company from the date specified in the Contract.

3.2 The Goods supplied under the Contract shall continue to be supplied until the Goods are delivered in full and the services are completed in accordance with the Contract

4 Change Control

If the Company requests a change to the scope or execution of the Contract:

(a) the Seller shall, within a reasonable time (and in any event not more than five working days after receipt of Company’s request), provide a written estimate to the Company of:

(i) the likely time required to implement the change;

(ii) any necessary variations to the Seller’s charges arising from the change;

(iii) any other impact of the change on the terms of the Contract.

(b) if the Company does not wish to proceed, there shall be no change to the Contract; and

(c) if the Company wishes the Seller to proceed with the change the Seller shall do so after agreement on the necessary variations to its charges, the Goods and any other relevant terms of the Contract to take account of the change and the Contract shall be varied in accordance with condition 2.4.

5 Quality and defects of the Goods

5.1 The Goods shall be fit for purpose, of the best available design, of the best quality, material and workmanship, be without fault and conform in all respects with the Contract and specification and/or patterns supplied or advised by the Company or by the Buyer to the Seller. No change to the specification of any Goods shall be made or introduced without the Company’s agreement in writing. Any request for such change shall be made in writing and with reasonable notice.

5.2 The Company’s rights under these conditions are in addition to the statutory conditions implied in favour of the Company by the Sale of Goods Act 1979.

5.3 Without prejudice to conditions 5.1and 5.2, for a minimum period of 12 months (unless agreed otherwise in writing) from the date of delivery, the Goods shall be free of all defects, faults or contamination.

5.4 At any time prior to delivery of the Goods to the Company, the Company and the Buyer shall have the right to inspect and test the Goods at all times. The Seller shall furnish the Company with reports and details in the format and at the time required by the Company in order that the Company can verify the actual progress of work to be executed under the Contract.

5.5 If the results of such inspection or testing cause the Buyer (and henceforth the Company) to be of the opinion that the Goods do not conform or are unlikely to conform with the Contract or to any specifications and/or patterns supplied or advised by the Company to the Seller, the Company shall inform the Seller and the Seller shall immediately take such action as is necessary to ensure conformity and in addition the Company shall have the right to require and witness further testing and inspection.

5.6 Notwithstanding any such inspection or testing, the Seller shall remain fully responsible for the Goods and any such inspection or testing shall not diminish or otherwise affect the Seller’s obligations under the Contract.

5.7 Notwithstanding and without prejudice to conditions 5 and 16, in the event of a claim arising from the Buyer of the Goods, the Seller agrees that:

(a) at its own expenses it shall proactively use its best endeavours to resolve amicably with the Buyer the claim and resolve the quality concerns and to keep the Company informed at all times;

(b) If the Buyer’s claim is not fully resolved and settled in 30 days from the Buyer’s rising a complaint, the Seller shall issue a credit note to the Company for the total amount of the claim and a full refund shall be paid forthwith by the Seller to the Company; and

 (c) the Buyer opinion on the quality of the Goods and its decision to reject the Goods shall be deemed as final and binding upon the Seller and for the purpose of the Seller obligations towards the Company with respect to the provisions 5, 7, 9 and 16 herein.

5.8 If any of the Goods fail to comply with the provisions set out in condition 5 the Company shall be entitled to avail itself of any one or more remedies listed in condition 16.

5.9 The Seller undertakes that in the event of a quality complaint raised by the Buyer directly with the Seller, it shall inform the Company immediately.

6 Trading risks control Seller’s obligations

6.1 The Company shall cover the credit risk with a reputable insurer for all invoices the Company issues to Buyers of the Goods and the Seller represents, warrants and undertakes to the Company that at no cost to the Company:

(a) it shall not sell any other goods to a Buyer of the Goods, before such Buyer has paid in full all invoices due or to become due to the Company;

(b) it shall use due care and diligence as if uninsured and unpaid for the Goods sold to the Company and for which the Company is seeking payment from the Buyer; and

(c) it shall use its best endeavor to produce original copies of the sale and transport documentation as deemed necessary by the Company in claiming for a loss from the insurers and all times it shall support the Company in mitigating losses.

6.2 The Seller undertakes to inform the Company of any detrimental information about the Buyer of the Goods, such information being in the possession of the Seller prior to the Company first selling the Goods to the Buyer or acquired by the Seller’s at a future date.

6.3 The Seller shall Indemnify TFS for the delivery of Goods to a Buyer which is not the intended Buyer.

6.4 The Seller undertakes that upon request from the Company and at no cost to the Company, it shall use its best endeavors to assist the Company in recovering any losses associated with the Company purchase and sale of the Goods, including but not limited to losses arising from payments default and from transport damages.

7 Indemnity

The Seller shall keep the Company indemnified in full against all direct, indirect or consequential liabilities (all three of which terms include, without limitation, loss of profit, loss of business, depletion of goodwill and like loss), loss, damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by the Company as a result of or in connection with:

(a) defective workmanship, quality or materials relating to the Goods;

(b) any alleged or actual infringement whether or not under English law, of any third party’s intellectual property rights or other rights caused by the use or supply of the Goods;

(c) any claim made against the Company in respect of any liability, loss, damage, injury, cost or expense sustained by the Company’s employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of the terms of the Contract; and

(d)  any claim from the Buyer including also a reduced or withheld payment of an invoice the Company had issued to the Buyer for the supply of the Goods.

8 Seller Insurance

8.1 The Seller shall maintain at its own cost a comprehensive policy of insurance to cover the liability of the Seller in respect of any act, neglect or default for which it may become liable to indemnify the Company under the terms of the Contract, such policy being extended to indemnify the Company, and shall arrange that the total cover of that policy is appropriate to the Seller’s indemnity under condition 7.

8.2 Whenever required by the Company, the Seller shall produce the policies of insurance and the receipts for payment of the current premiums, or such evidence of the existence of adequate insurance arrangements as the Company may require.

8.3. Unless agreed otherwise in the Contract, the Seller shall insure the Goods for all losses and damages during transport and promptly compensate the Company for all amounts the Company has paid to the Seller for Goods which are lost or damaged during transport.

9 Delivery of Goods and provision of services

9.1 The Goods shall be delivered, to such place of delivery as is agreed in the Contract. The Seller shall off-load the Goods at its own risk as directed by the Company or the Buyer. If any employee or contractor of the Company or of the Buyer undertakes or assists in undertaking any off-loading of Goods from any vehicle, this is at the Seller’s sole risk.

9.2 The Seller shall pay for carriage and transport insurance to fulfill its obligations in accordance to the INCOTERMS specified in the Contract

9.3 The date for delivery of the Goods shall be specified in the Contract but if no such date is specified then delivery of any Goods and commencement of any services shall take place within 28 days of the date of the Contract.

9.4 The Seller shall invoice the Company upon, but separately from the dispatch of the Goods and concurrently provide to the Company the delivery note under condition 9.5 and the required shipping documentation according to industry practice and any applicable laws.

9.5 The Seller shall ensure that each delivery of Goods is accompanied by a delivery note which shows, among other things, the Company name and VAT number, the Contract number, number of packages and contents and, in the case of part delivery, the outstanding balance remaining to be delivered.

9.6 Time shall be of the essence for delivery of Goods and for completion of services in accordance with the Contract.

9.7 Unless otherwise stipulated by the Company in the Contract, deliveries shall only be accepted by the Company in the normal business hours of the ship to address and of the Buyer.

9.8 If the Goods are not delivered in accordance with the Contract without prejudice to any other provisions and other rights which it may have, the Company reserves the right to:

(a) cancel the Contract in whole or in part;

(b) request the immediate reimbursement of money paid to the Seller;

(c) refuse to accept any subsequent delivery of the Goods or any subsequent performance of services which the Seller attempts to make;

(d) recover from the Seller any expenditure reasonably incurred by the Company in obtaining the Goods or purchasing services in substitution from another seller; and

(e) claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Seller’s failure to deliver the Goods on the due date.

9.9 If the Seller requires the Company to return any packaging material to the Seller that fact must be clearly stated on any delivery note delivered to the Company and to the Buyer and any such packaging material shall only be returned to the Seller at the cost of the Seller.

9.10 Where the Company agrees in writing to accept delivery of Goods by instalments the Contract shall be construed as a single contract in respect of each instalment. Nevertheless failure by the Seller to deliver any one instalment shall entitle the Company at its option to treat the whole Contract as repudiated.

9.11 If the Goods are delivered to the Company in excess of the quantities ordered the Company shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense.

9.12 The Company shall not be deemed to have accepted the Goods until it has had 7 days to inspect them following delivery. The Company shall also have the right to reject the Goods as though they had not been accepted for 28 days after any latent defect in the Goods has become apparent.

10 Risk/property

The Goods shall remain at the risk of the Seller until delivery to the ship to address is complete (including off-loading and stacking) when ownership of the Goods shall pass to the Company.

11 Price

11.1 The price of the Goods and/or Services shall be stated in the Contract and unless otherwise agreed in writing by the Company shall be exclusive of value added tax but inclusive of all other charges.

11.2 Subject to condition 2.4 no variation in the price nor extra charges shall be accepted by the Company.

11.3 Without prejudice to the generality of condition 11.2 any request for any increase in the price of the Goods shall be made in writing and provide a minimum of 3 calendar months notice.

12 Payment

12.1 Invoices shall be prepared by the Seller in duplicate in the case of Goods after every delivery. All invoices shall be in compliance with all applicable laws and the provisions of the Contract. Invoices shall be addressed to the Company at the address specified by the Company in the Contract and shall quote the Contract number.

12.2 The Company shall pay the price of the Goods and services at a point in time as agreed in the Contract or, in the absence of such provisions, 90 days following the end of the month in which the Goods are delivered, the services are performed or the invoice is issued (whichever is the later) but time for payment shall not be of the essence of the Contract.

12.3 Payment shall be made by bank transfer. Payment of the invoice shall not affect the Company’s right to dispute in writing any unjustified charge.

12.4 Without prejudice to any other right or remedy, the Company reserves the right to set off any amount owing at any time from the Seller to the Company against any amount payable by the Company to the Seller under the Contract.

13 Confidentiality

13.1 The Seller shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Seller by the Company or its agents and any other confidential information concerning the Company’s business or its products which the Seller may obtain and the Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Seller’s obligations to the Company and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind the Seller.

13.2 The Company shall be bound to the provisions in 13.1 towards the Seller.

14 Company’s Property

Physical assets or any forms of intellectual property rights supplied by the Company to the Seller or not so supplied but used by the Seller shall at all times be and remain the exclusive property of the Company but shall be held by the Seller in safe custody at its own risk and maintained in good condition by the Seller until returned to the Company and shall not be disposed of other than in accordance with the Company’s written instructions, nor shall such items be used otherwise than as authorised by the Company in writing.

15 Termination

15.1 The Company shall have the unfettered right at any time and for any reason to terminate the Contract in whole or in part and with immediate effect upon giving notice to the Seller whereupon all work on the Contract shall be discontinued and if the Company exercises its rights under this condition 15.1 the Company shall not be under any obligation to pay to the Seller compensation for work-in-progress, Goods in transit, or any other loss at the time of termination.

15.2 The termination of the Contract, however arising, shall give the rights to the Company to request the immediate reimbursement of money paid by the Company to the Seller for the supply of Goods.

15.3 The termination of the Contract, however arising, shall be without prejudice to the rights of the Company accrued prior to termination. The conditions which expressly or impliedly have effect after termination shall continue to be enforceable notwithstanding termination.

16 Remedies

Without prejudice to any other right or remedy which the Company may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract or the Seller becomes insolvent the Company shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Company:

(a) Without prejudice to condition 15.1 to rescind the Contract;

(b) to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;

(c) at Company’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;

(d) to refuse to accept any further deliveries of the Goods;

(e) to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract;

(f) to require immediate repayment by the Seller in respect of all sums previously paid by the Company in respect of any Goods not supplied or rejected by the Company and to withhold indefinitely any money due to the Seller; and

(g) to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.

17 Assignment

17.1 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.

17.2 The Company may assign the Contract or any part of it to any person, firm or company.

18 Force majeure

Without prejudice to condition 15.1 the Company reserves the right to defer the date of delivery or payment or to cancel the Contract or reduce the volume of the Goods ordered if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, cancellation of orders by the Buyer, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

19 No Partnership or Agency

Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

20 Employees

20.1 All the Seller’s employees shall be retained by the Seller on completion or on termination of the Contract and the Seller agrees and will ensure that none of its employees nor the employees of any other party who have been involved in the provision of any of services to the Company will become the employees of the Company or any Replacement Seller on completion or on termination of the Contract by reason of the transfer of the provision of any of the Services to the Company or any Replacement Seller and/or the operation of the Transfer Regulations.

20.2 The Seller shall indemnify and keep indemnified the Company and any Replacement Seller in respect of any claims, costs, demands, liabilities, damages and awards which the Company or any Replacement Seller incurs or suffers in relation to any person whose contract of employment transfers to the Company or any Replacement Seller by reason of the operation of the Transfer Regulations including without limitation any claims arising from the dismissal of any such person by the Company or any Replacement Seller.

21 Corruption and Money Laundering

The Company operates in strict compliance with all applicable laws and also in particular with the Bribery Act 2010 and with the applicable law on money laundering contained in Part 7 of the Proceeds of Crime Act 2002.

22 Governing Law and Jurisdiction

22.1 The parties’ rights and obligations arising out of or in connection with these Standard Terms and Conditions of Purchase or any sales confirmation made by the Company shall be governed, construed, interpreted and enforced according to the laws of England, excluding principles of conflict of laws. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

22.2 The parties agree that any suits, actions or proceedings that may be instituted by any party shall be initiated exclusively before the competent courts of England without prejudice to Company right to submit the relevant case to the court which would have jurisdiction if this provision has not been incorporated in these conditions, and do hereby consent to the jurisdiction of those courts and waive any objection which they may have, now or hereafter, to venue of those suits, actions or proceedings.

23 General

23.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.

23.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall, to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

23.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

23.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Seller shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

23.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it save that a Replacement Seller shall be entitled to enforce the provisions of condition 20. The parties to the Contract may by agreement rescind or vary the Contract without the consent of any Replacement Seller notwithstanding that such rescission or variation may extinguish or alter a Replacement Seller’s entitlement under this condition 23.5.

23.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

END

ISO: QPR 7.5-SOP02/Doc.07/V.06/20.07.2020