It is agreed and understood that these General Terms and Conditions of Sale and Supply of Goods, constitute the legal contractual conditions applying to the sale and supply of goods by any YKK operating company within the region of Europe, Middle East and Africa (EMEA) (“Supplier”) and each customer of the Supplier (“Customer”) to which the Supplier supplies Goods (as defined below), applying severally to each Order and Contract (as defined below), to the extent permitted by applicable law.
1.- Definitions and Interpretation
1.1 In these Conditions the following terms will be deemed to have the following meanings:
“Clause” means a clause of these Conditions;
“Commencement Date” means the date the Order placed by the Customer is accepted in writing by the Supplier;
“Conditions” means these contractual terms and conditions;
“Contract” means a contract between the Supplier and the Customer for the sale and purchase of relevant Goods in accordance with each respective Order under these Conditions;
“Delivery Date” means the estimated date specified for delivery of an Order under Clause 4 as stated by the Supplier when accepting the Order or otherwise agreed between the parties;
“Delivery Location” means the address for delivery of the Goods, as set out in the Order;
“Force Majeure Event” means events or circumstances beyond a party’s reasonable control;
“Goods” means goods, manufactured by the Supplier to the Specification, set out in the Order;
“Order” means an order for Goods submitted by the Customer to the Supplier under clause 4;
“Price” means the price for the Goods, stated in the Order or otherwise the parties;
“Specification” means the standard technical specification for the relevant Goods and to which the relevant Goods are manufactured by the Supplier, as published by the Supplier, which will be deemed to be the agreed specification for the purposes of the Contract;
“VAT” means value added tax or any equivalent tax chargeable in the in the jurisdiction in which the Supplier is incorporated or elsewhere.
1.2 Unless the context otherwise requires, words in the singular include the plural and vice versa and a reference to writing or written includes email.
1.3 Clause headings will not affect interpretation in these Conditions. The Order and Specification form part of and are incorporated into these Conditions and any reference to these Conditions includes the Order and Specification. In the event of a conflict between these Conditions, the Order and/ or the Specification, the provisions of these Conditions prevail.
1.4 Subject to any amendment under clause 13.1, these Conditions form part of and apply to the Contract to the exclusion of all other terms and conditions (including any terms or conditions that the Customer purports to impose under any Order, order confirmation, statement, request or other document) or which are implied by law, trade custom, practice or course of dealing.
1.5 These Conditions will be binding on, and be for the benefit of, the parties and their respective successors and assigns, and references to a party will include that party’s successors and assigns.
2.- Basis of Contract
2.1 Each Order constitutes an offer by the Customer to purchase the Goods referred to in the Order in accordance with and subject to these Conditions. The Customer is responsible for ensuring that the terms of their Order are complete, accurate and appropriate for their needs.
2.2 Each Order will only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point, and on which date, the Contract relevant to that Order will come into existence and commence. Each Order that is validly accepted by the Supplier in accordance with this Clause will be deemed to be and treated as a separate and standalone Contract, unconnected to and unaffected by any other Contract that comes into existence under this Clause.
2.3 Any samples, drawings, statements about the Goods outside of the Specification or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures or elsewhere will not form part of the Contract nor have any contractual force and are produced for the sole purpose of giving an approximate idea of the Goods.
2.4 A quotation for Goods given by the Supplier will not constitute an offer. A quotation will only be valid for a period set out in the quotation or 20 days from its issue date, whichever is shorter.
2.5 Each Contract will commence on the relevant Commencement Date and will continue, unless earlier terminated in accordance with its terms, until the Customer has made payment in full of the relevant Price for the Order in accordance with these Conditions, when it will terminate automatically without notice.
3.- Orders
3.1 Orders will be given in writing using such form and format as required by the Supplier from time to time. The Supplier may accept or decline Orders in its absolute discretion. The Supplier may, in its discretion, accept an amendment to an Order by the Customer.
3.2 The Supplier will assign an order number to each Order it accepts and notify the order number to the Customer. Each party will use the order number in all correspondence relating to the Order.
3.3 After confirming an Order, the Supplier will inform the Customer as soon as reasonably practicable of the Supplier’s estimated delivery date for the Order.
3.4 The Customer is responsible for ensuring that Orders are complete and accurate, and fit for the Customer’s intended purpose for the Goods (bearing in mind the Specification for the Goods ordered and all applicable laws and regulations). The Customer will give the Supplier all necessary information that the Supplier reasonably requires to fulfil each Order.
3.5 The Goods are not sold with any end-use, end-product or end-market that the Customer may intend for the Goods in mind. Accordingly, it is the Customer’s sole responsibility to ensure that the Goods it orders (based on their Specification), are compliant with all regulations and legal requirements for such end-products and jurisdictions in which they are sold, including all restricted or hazardous substances regulations. Customers should undertake their own material, substances and quality testing of the Goods (and the end-products into which the Goods are incorporated) to ensure they meet their responsibilities under this provision.
4.- Delivery
4.1 The Supplier will provide a delivery note in the Supplier’s format with each delivery of Goods noting the order number, type and quantity of Goods. It is the Customer’s responsibility to check the Goods delivered and relevant delivery note upon delivery.
4.2 If the Supplier requires the Customer to return any packaging materials to the Supplier, that fact will be stated on the delivery note. In such case, the Customer will make any such packaging materials available for collection at such times as the Supplier reasonably requests. Returns of any packaging materials so specified will be at the Supplier’s expense.
4.3 The Supplier will endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date. Delivery is completed once the Goods are unloaded at the Delivery Location.
4.4 In the absence of any specific delivery specifications in the relevant Order, delivery will be FOB/FCA in accordance with the latest version of Incoterms.
4.5 Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier will not be liable for any delay in delivery of, or failure to deliver, any Goods that is caused by a Force Majeure Event; or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Supplier fails to deliver Goods by the relevant Delivery Date, to the extent liability arises for such failure, its liability will be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the Price of the Goods.
4.7 If 14 days after the day the Supplier attempted to make delivery of Goods the Customer has not taken delivery of those Goods, the Supplier may resell or otherwise dispose of the Goods.
4.8 If the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment will be made to the Order invoice.
4.9 The Supplier may deliver Orders by instalments, which will be invoiced and paid for separately. The Customer may not cancel an instalment due to a delay or defect in another instalment.
5.- Quality and Fitness for Purpose
5.1 The Supplier warrants that, for 12 months from the Delivery Date (“Warranty Period”), the Goods will:
(a) conform in all material respects with the Specification; and
(b) be free from material defects in design, material and workmanship. For the avoidance of doubt, variations to raw material components, chemical composition and trace element substances (whether exceeding thresholds stated in Supplier or other quality standards or declarations or not), that do not materially change the performance, quality or safety of the product are deemed free from material defects under the Contract.
5.2 Subject to clause 5.3, if:
(a) the Customer gives written notice to the Supplier during the Warranty Period, promptly after discovery that any Goods do not comply with the warranties in clause 5.1;
(b) the Supplier is given a reasonable opportunity to inspect and analyse such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier will, at its option, repair or replace any Goods that are found to be defective or refund the Price of such defective Goods in full.
5.3 The Supplier will not be liable for Goods’ failure to comply with the warranties in clause 5.1 if:
(a) the Customer makes use of such Goods after giving notice of defects under clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, use or maintenance of the Goods or good trade practice regarding the same, or the Customer uses the Goods in violation of law;
(c) the Customer alters or repairs such Goods, including in the process of incorporating the Goods into the Customer’s products;
(d) the defect arises because of fair wear and tear, wilful damage, negligence or abnormal storage or working or manufacturing conditions; or
(e) the Goods differ from the Specification because of changes made to ensure compliance with applicable statutory or regulatory requirements.
5.4 The Supplier’s only liability to the Customer if the Goods fail to comply with the above warranties is as set out in this clause 5.
5.5 Terms implied by law are, to the fullest extent permitted by law, excluded from the Contract.
5.6 The terms of the Contract will apply to any repaired or replaced Goods supplied by the Supplier.
6.- Title and Risk
6.1 Risk in the Goods will pass to the Customer upon unloading the Goods at the Delivery Location.
6.2 Title to Goods will only pass to the Customer once the Supplier receives payment in full (in cleared funds) for them.
6.3 Until title to the Goods has passed to the Customer, the Customer will:
(a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the Delivery Date;
(d) notify the Supplier immediately if it becomes subject to any events listed in clause 11.1;
(e) give the Supplier such information as it may reasonably require relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Customer.
6.4 The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its employees and agents, to enter the Customer’s premises (including with vehicles), to satisfy itself of the Customer’s compliance with this clause, and to recover any Goods in which property has not passed to the Customer.
6.5 The Supplier may at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer will immediately pay the Price to the Seller.
7.- Product Recall
7.1 If the Customer is the subject of a request, court order or other directive of a governmental authority of competent authority to withdraw/ recall any Goods (or products incorporating the Goods) from the market (“Recall Notice”) it will immediately notify the Supplier in writing enclosing a copy of the Recall Notice.
7.2 Unless required by law, in circumstances where the Customer claims a withdrawal/ recall is caused by a defect or other issue with the Goods, the Customer may not recall or withdraw the Goods (or products incorporating the Goods) without the written permission of the Supplier and only then in compliance with the Supplier’s instructions as to implementing the withdrawal/ recall and using all reasonable endeavours to mitigate damage/ cost to the Supplier.
8.- Price and payment
8.1 The Customer will pay for Goods in accordance with this clause 8.
8.2 The Price excludes amounts in respect of VAT (or equivalent value added or consumption tax), which the Customer will additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT (or equivalent) invoice.
8.3 The Supplier may invoice the Customer for the Price of Goods plus VAT (or equivalent value added or consumption tax) at the prevailing rate (if applicable) on or at any time after the Supplier accepts and confirms the relevant Order. The Supplier will ensure that the invoice includes the date of the Order, the order/ invoice numbers, the Supplier’s VAT number (or equivalent) and all supporting documentation that the Customer may reasonably require.
8.4 The Customer will pay each valid Supplier invoice in full in cleared funds within 30 days of the invoice date. Payment will be made to the bank account nominated in writing by the Supplier.
8.5 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s other remedies under these Conditions:
(a) the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
(b) the Supplier may suspend all further deliveries of Goods until payment is made in full.
8.6 All amounts due under these Conditions from the Customer to the Supplier will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by applicable law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer, including under different Contracts.
9.- Limitation of Liability
9.1 Nothing in these Conditions will limit or exclude the Supplier’s liability for any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
9.2 Subject to clause 9.1:
(a) the Supplier will not be liable to the Customer, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, will not exceed the total sums paid and/or payable by the Customer for Goods under the Contract.
10.- Compliance with Relevant Laws And Anti-Bribery
10.1 In performing its obligations under the Contract, the parties will comply with all applicable law and regulation from time to time in force provided and the Supplier will not be liable under these Conditions if, because of such compliance, it is in breach of any of its obligations hereunder.
10.2 In entering into the Contract, the Customer undertakes to comply with all applicable laws relating to bribery and/or corruption (“Anti-Corruption Laws”) including that it will not directly or indirectly offer or accept undue money or anything of value to or from any government official or private party, to obtain an improper advantage, secure the misuse of that person’s position, facilitate or expedite government action, or provide unlawful reward.
10.3 The Customer may immediately terminate the Contract for breach of this clause by the Supplier.
11.- Termination
11.1 Without limiting its other rights or remedies, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of the Contract and (if remediable) fails to remedy it within 14 days of that party being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to these Conditions is in jeopardy.
11.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default for 30 days or more after being notified in writing to make payment.
11.3 Termination of the Contract will not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination. Each contract formed under and in accordance with these Conditions may be terminated separately from each other, and termination of one Contract will not automatically affect the termination of another Contract.
11.4 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination will remain in full force and effect.
12.- Confidentiality and Data Protection
12.1 Each party undertakes that it will not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 12.2(b). For the purposes of this clause, group means, in relation to a party, that party, any subsidiary or holding company of that party, and any subsidiary of a holding company of that party.
12.2 Each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement; and
(b) as may be required by law, a court or governmental authority of competent jurisdiction.
12.3 No party will use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under the Contract.
12.4 In the framework of the Contract, the parties may be required to process Personal Data (defined as any information related to an identified or identifiable natural person) of any of the representatives of the other party as provided under the Contract. Each party will comply with the applicable requirements of the EU General Data Protection Regulation (2016/679) (GDPR) in relation to its processing of Personal Data under the Contract.
13.- General
13.1 No amendment of the Contract will be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.2 In relation to each Contract, each party agrees that:
(a) these Conditions constitute the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to that Contract; and
(b) it will have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Conditions. Each party agrees that it will have no claim for innocent or negligent misrepresentation based on any statement in these Conditions.
13.3 Neither party will be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. If such period of delay or non-performance continues for 8 weeks, the party not affected may terminate this Contract by giving immediate written notice to the affected party.
13.4 The Customer will not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all its rights or obligations under the Contract without the prior written consent of the Supplier.
13.5 The Supplier may at any time assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all its rights under the Contract.
13.6 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law will constitute a waiver of that or any other right or remedy, nor will 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 will prevent or restrict the further exercise of that or any other right or remedy.
13.7 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it will be deemed modified as necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision will be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause will not affect the validity or enforceability of the rest of the Contract.
13.8 No one other than a party to this Contract will have any right to enforce any of its terms.
14.- Notices
14.1 Any notice or other communication given to a party under or in connection with the Contract will be in writing, addressed to that party at its registered office or such other address as that party may have specified to the other party in writing in accordance with this clause, and will be delivered personally, or sent by pre-paid first class mail or other next working day delivery service, commercial courier or email.
14.2 A notice or other communication will be deemed to have been received: if delivered by hand, when left at the address referred to in clause 14.1, 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; or, if sent by email, one business day after transmission.
15.- Governing law
15.1 The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or the Contract’s subject matter or formation will be governed by, and construed in accordance with, the law of the jurisdiction in which the Supplier entity is incorporated.
15.2 Each party irrevocably agrees that the courts of the jurisdiction in which the Supplier entity is incorporated will have exclusive jurisdiction to settle any dispute or claim (including noncontractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.