PURCHASE ORDER TERMS & CONDITIONS
1. APPLICABILITY
1.1 Applicability. These terms and conditions (these “Terms”) apply to and govern the sale of the goods specified on the face of the purchase order (the “Products”) by R.A.D Future Limited (“Seller”) to the party placing the order (“Buyer”). These Terms, together with the terms and conditions on the face of the purchase order (collectively, the “PO”), and any documents incorporated by reference, constitute the sole and entire agreement of the parties with respect to the PO, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the PO. Any purchase of Products by Buyer shall be governed by the PO. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Buyer’s general terms and conditions of sale or any other document issued by Buyer in connection with the PO. Any terms appearing in any acknowledgement of the PO that are in addition to or conflict with the terms set forth in the PO are null and void, not a rejection and counteroffer, and any acknowledgement absent those terms constitutes acceptance of the PO. Seller may revise the PO to add or delete Products upon 30 days prior written notice to Buyer. A revision will apply to all orders accepted after the effective date of the revision. Seller may, in its sole discretion, discontinue or limit its production of any Product; allocate, terminate, or limit deliveries of any Product in time of shortage; or modify the design of, specifications for, or construction of any Product.
2. Accepted Orders for Products
2.1 Fulfillment of Product Orders. Seller will use reasonable efforts to provide the Products in accordance with the terms of this PO. Seller will notify Buyer promptly in writing if the delivery of any Products will be delayed until after the shipment date specified in the PO.
2.2 Product Shipment Terms. All Products delivered pursuant to this PO will be suitably packed for shipment in Seller’s standard shipping cartons, marked for shipment to Buyer’s address above or to an address specified in writing by Buyer, and delivered to Buyer or its carrier agent EXW Seller’s facility or the facility of its contract manufacturer, at which time risk of loss and title will pass to Buyer. Any requests for non-standard shipping or packaging preparations may be subject to additional charges at Seller’s discretion. Unless otherwise instructed in writing by Buyer, Seller will select the carrier. Buyer will pay all freight, insurance, and other shipping and handling expenses, as well as any special packing expense. Buyer will also bear all applicable taxes, duties, and similar charges that may be assessed against the Products after the Products are made available to the carrier at Seller’s facilities. As used in this PO, the term EXW will be construed in accordance with the International Chamber of Commerce “Incoterms.”
2.3 Product Returns; Replacements. Seller will accept returns of any Products if the amount shipped by Seller exceeds the amount stated on the face of the PO. Products supplied on a sale or return basis. Unsold Products may be returned within 60 days in resalable condition at which point full ownership and title will return to Seller. If any Product is returned is unsalable condition, Buyer will reimburse Seller at cost price for such Product. Buyer agrees to inspect all Products upon delivery. If the Products contain material manufacturing defects upon delivery to Buyer and Buyer notifies Seller within five business days of receipt of such Products, Buyer may return such Products to Seller. If Seller agrees that the Products contain a material manufacturing defect, Seller will reimburse Buyer for the costs of returning such Products and will either, at its election, refund the Purchase Price (as defined below) for such Products or replace such Products with non-defective Products.
3. Payment AND TAXES
3.1 Payment. The purchase price for Products (“Purchase Price”) will be as set forth in on the face of the PO. Buyer will pay all invoices no later than 60 days after the date of the invoice.
3.2 Currency and Late Payment. All Purchases Prices are set forth in, and payments must be made in, GBP. Late payments will accrue interest at the lesser of 5% per month and the highest rate allowed by applicable law.
3.3 Taxes. Unless otherwise stated on the face of the PO, Purchase Prices do not include, and are net of, any foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, or distribution of the Products, including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties. Buyer will be responsible for, and will pay in a timely manner, all such taxes and charges levied against Seller, excluding taxes on the income of Seller. When Seller has the legal obligation to pay or collect such taxes, the appropriate amount will be invoiced to Buyer, excluding taxes on the income of Seller, and paid by Buyer within 30 days of the date of invoice unless Buyer provides Seller with a valid tax exemption certificate authorized by the appropriate taxing authority. All payments by Buyer will be made free and clear of, and without reduction for, any withholding taxes. Any such taxes that are otherwise imposed on payments to Seller will be the sole responsibility of Buyer. Buyer will provide Seller with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Seller to establish that such taxes have been paid.
4. Term and Termination
4.1 Termination. Seller may terminate this PO without cause upon 30 days prior written notice to Buyer. If Seller fails to perform any of its material obligations under this PO, Buyer may terminate this PO by giving 30 days prior written notice, provided that the matters set forth in such notice are not cured by Seller within the 30-day period.
4.2 Effect of Termination or Expiration. Termination or expiration of this PO will not release either party from making payments due to the other party under the terms of this PO.
5. EXPORT
Buyer will not directly or indirectly import, export, or re-export the Products outside of England without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of England and the foreign territory.
6. Disclaimer
6.1 Limited Warranty. Seller makes no warranties or representations regarding the Products under this PO.
6.2 WARRANTY DISCLAIMER. Seller makes no additional representation or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. Seller expressly disclaims all implied warranties of merchantability, fitness for a particular purpose, quality, accuracy, and title. Seller does not warrant against interference with the enjoyment of the Products or against infringement. Seller does not warrant that the Products are error-free or that operation of the Products will be secure or uninterrupted. Buyer and will not have the right to make or pass on any representation or warranty on behalf of seller to any distributor, end user, or other third party.
7. Limitations of Liability
7.1 Disclaimer of Damages. Notwithstanding anything to the contrary contained in this PO, to the maximum extent permitted by applicable law, Seller will not, under any circumstances, be liable to Buyer or any third party for consequential, incidental, special, punitive, or exemplary damages arising out of or related to the transaction contemplated under this po, including but not limited to lost profits or loss of business, even if seller is apprised of the likelihood of such damages occurring.
7.2 Cap on Liability.
(a) Nothing in these Terms excludes the liability of Seller: (i) for death or personal injury caused by the Seller’s negligence; or (ii) for fraud or fraudulent misrepresentation.
(b) Subject to Clause 7.2(a):
(i) Seller shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under a PO or these Terms; and
(ii) Seller’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance under a PO shall be limited to the total fees paid under the applicable PO.
8. General Provisions
8.1 Assignment. Buyer may not transfer or assign this PO, in whole or in part, without the written consent of Seller, which consent will not be unreasonably withheld. Any attempt by Buyer to transfer or assign this PO without consent will be null and void. Seller may transfer or assign this PO upon notice, but without Buyer’s consent, to an affiliate or a successor of all or substantially all of its business pertaining to this PO, whether by merger, consolidation, transfer or sale of all or substantially all of its business, assets, or equity.
8.2 Governing Law and Jurisdiction. This PO will be governed by and construed in accordance with the laws of England and Wales without regard or giving effect to its principles of conflicts of laws or to the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising out of this Agreement will be brought, and Seller and Buyer submit to and hereby irrevocably waive any objection to the exclusive personal jurisdiction of, any federal or state court in Wilmington, Delaware.
8.3 Notices. Any notice, request, demand, or other communication required or permitted in this PO will be in writing, will reference this PO, and will be effective: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) four business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two business days after deposit with an express courier, with written confirmation of receipt. All notices will be sent to the address set forth below or other address for a party as specified in writing by that party.
8.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this PO invalid or unenforceable, that provision of the PO will be enforced to the maximum extent permissible and the other provisions of this PO will remain in full force and effect.
8.5 Waiver. No failure of either party to exercise or enforce any of its rights under this PO will act as a waiver of these rights.
8.6 Relationship between the Parties. Seller is an independent contractor under this PO. Nothing in this PO creates a partnership, joint, venture, or agency relationship between the parties.
8.7 Force Majeure. Seller is not responsible for delays or failures to perform its responsibilities under this PO due to causes beyond its reasonable control. If the performance of Seller is interfered with for reasons beyond its reasonable control, Seller, upon prompt written notice to Buyer, will be excused from performance to the extent of the interference. Seller will take all reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.
8.8 Entire Agreement. This PO is the complete and exclusive agreement between the parties with respect to the subject matter of this PO, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding this subject matter. This PO will also supersede the conflicting terms of any purchase order or any other Buyer document. Seller hereby expressly rejects terms and conditions preprinted on any Buyer document. Any terms in any other order, release, contract, or other communication that are additional to, different from, or inconsistent with the provisions of this PO will be deemed to be void and of no effect. This PO may only be modified, or any rights under it waived, by a written document executed by both parties.
8.9 No Third Party Beneficiaries. Nothing in this PO, express or implied, is intended to confer, nor will anything contained in this PO confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities pursuant to the Contracts (Rights of Third Parties) Act 1999.