Purchase Order Terms and Conditions
The following Terms and Conditions shall apply to all Lifoam Industry Purchase Orders for goods or services, unless expressly agreed in whole or in part to the contrary in a †writing signed by an authorized Lifoam Industries Office or Branch Manager.
1.1 In these terms and conditions, the following definitions shall apply:
1.1.1††† "Conditions" means the standard conditions for purchase of Goods or Services set out in this document and includes any special terms and conditions agreed in writing between Lifoam and the Seller.
1.1.2††† "Contract" means the contract for the sale and purchase of the Goods and the supply and acquisition of the Services as identified in the Order.
1.1.3††† "Delivery Address" means the address of the Lifoam facility or other Lifoam-designated location stated on the Order.
1.1.4††† "Goods" means the goods (including any instalment of the Goods or any part of them) described in the Order.
1.1.5††† "Order" means Lifoam's purchase order to which these Conditions apply.
1.1.6††† "Price" means the price of the Goods and/or the charge for the Services.
1.1.7††† "Seller" means the person so described in the Order, and any parent entity thereto.
1.1.8††† "Services" means the services (if any) described in the Order.
1.1.9††† "Specification" means the specification(s) described in the Order and includes any plans, drawings, data or other information relating to the Goods or Services.
1.1.10† "Successful Commissioning" means all the Goods operating in accordance with the Specification for a continuous period of fourteen days at Lifoam's premises.
1.1.11† "Warranty Period" means the period of twelve months immediately following the Successful Commissioning or such longer period of warranty as Seller customarily provides.
1.1.12† "Writing" includes telex, cable, facsimile transmission and comparable means of communication.
1.2†††††† Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statute or provision as amended, re-enacted or extended at the relevant time.
1.3†††††† The headings in these Conditions are for convenience only and shall not affect their interpretation.
2.†††††††† Basis of Purchase
2.1†††††† The Order constitutes an offer by Lifoam to acquire the Goods and Services subject only to these Conditions.
2.2†††††† These Conditions shall apply to the Contract to the exclusion of any other terms and conditions on which any quotation has been given to Lifoam or subject to which the Order is accepted or purported to be accepted by the Seller.† Without prejudice to the generality of the foregoing Lifoam will not take up nor be bound by any standard or printed terms furnished by the Seller in any of its documents unless the Seller states specifically in Writing separate from such terms that it intends such terms to apply and Lifoam acknowledges and accepts such notification in Writing.
2.3†††††† No variation to the Order or these Conditions shall be binding unless agreed in Writing between the authorised representatives of Lifoam and the Seller.
3.†††††††† Specification and Confidentiality
3.1†††††† The quantity, quality, performance and description of the Goods and Services shall as provided in these Conditions be as specified in the Order and/or in any applicable Specification supplied by Lifoam to the Seller or as otherwise agreed in Writing by Lifoam.
3.2†††††† Any Specification supplied by Lifoam to the Seller or specifically produced by the Seller uniquely for Lifoam in connection with the Contract together with the Lifoam-unique copyright, design rights or any other Lifoam-unique intellectual property rights in the Specification shall be the exclusive property of Lifoam.† The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller or as required for the purpose of the Contract.
3.3†††††† Without prejudice to the provisions of Section 3.2 hereof if Lifoam supplies to the Seller whether prior to the Order or subsequent thereto, information which is confidential to Lifoam, the Seller shall not disclose such information to any party without the prior written consent of Lifoam and upon demand from Lifoam shall return all such information to Lifoam (or as it may direct) without keeping copies thereof.† Such information shall remain the exclusive property of Lifoam.†
3.4†††††† The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services.
3.5†††††† The Seller shall not unreasonably refuse any request by Lifoam to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to shipment and the Seller shall provide Lifoam with all facilities reasonably required for inspection and testing.
3.6†††††† If as a result of inspection or testing Lifoam is not satisfied that the Goods will conform in all respects to the Contract, Lifoam shall inform the Seller that the Goods are unacceptable and the Seller shall make sure the Goods conform fully to the Contract within seven days from Lifoam so informing the Seller, failing which Lifoam may, at is election and without Seller recourse, cancel the Contract.
3.7†††††† The Goods shall be marked in accordance with Lifoam's instructions and any applicable regulations or requirements of the carrier and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.
4.1†††††† The Price for the Goods and Services shall be as stated in the Order and unless otherwise stated shall be exclusive of any applicable sales tax for which Lifoam may be separately invoiced by the Seller, and inclusive of all charges for packaging, packing, shipping, insurance and delivery of the Goods to, and installation at, the Delivery Address. All charges for packaging, packing, shipping, insurance and delivery shall be itemized on the invoice.
4.2†††††† No increase in the Price may be made for any reason without the prior consent of Lifoam in Writing.
4.3†††††† Lifoam shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller whether or not shown in or on Lifoam's Order.
5.†††††††† Terms of Payment
5.1†††††† Unless otherwise stated in the Order, Lifoam shall pay the Price for the Goods and Services in the Order within 60 days from date of vendor invoice, net of receipt by Lifoam of a proper invoice which may be issued by the Seller following the later of either a) acceptance of the Goods or Services in question by Lifoam, or b) Successful Commissioning.† Lifoam reserves the right to return any incorrect invoices.
5.2†††††† Lifoam shall be entitled to set off against the Price any sums owed to Lifoam by the Seller.
5.3†††††† Lifoam will receive a 2% discount of the invoiced amount for all invoices that are received later than 60 days following acceptance or Successful Commissioning.
6.1†††††† All Goods shall be delivered to and the Services performed at the Delivery Address on the date or within the period stated in the Order and in either case, during Lifoam's usual business hours.
6.2†††††† The time of delivery of the Goods and of performance of the Services is of the essence of the Contract.
6.3†††††† Each delivery of Ordered Goods must include a packing note indicating the Order number, and the quantity and description of each item (listed by Lifoam item number if applicable) prominently displayed.
6.4†††††† If the Goods are to be delivered or the Services are to be performed by instalments, the Contract will be treated as a single contract and not severable.† Unless otherwise agreed, Lifoam shall be entitled to refuse to accept delivery by instalments.
6.5†††††† Lifoam shall be entitled to reject any Goods which are not delivered in accordance with the Contract and shall not be deemed to have accepted any Goods until Lifoam has had a reasonable time to inspect them following delivery or if later within a reasonable time after any latent defect has become apparent.
6.6†††††† The Seller shall supply Lifoam with any instructions or other information required in sufficient time to enable Lifoam to accept the Goods and/or the Services.
6.7†††††† Lifoam shall not be obliged to return to the Seller any packaging or packing materials for the Goods whether or not any Goods are accepted by Lifoam.
6.8†††††† If the Goods are not delivered or the Services are not performed on the due date then without prejudice to any other remedy Lifoam shall be entitled to deduct from the Price or (if Lifoam has already paid the Price) to claim from the Seller, all direct and consequential damages arising out of or relating to the failed or delayed delivery.
7.†††††††† Risk and Title
7.1†††††† Risk of damage to or loss of the Goods shall only pass to Lifoam upon delivery to the Delivery Address.
7.2†††††† Title in the Goods shall pass to Lifoam upon delivery unless payment for the Goods is made prior to delivery when it shall pass to Lifoam once payment has been made and the Goods have been identified to the Contract whereupon the Seller shall promptly label conspicuously the Goods with a declaration that they are the property of Lifoam.
7.3†††††† If the Delivery Address is not a Lifoam facility, Seller shall take commercially reasonable efforts to properly pack and ship the Goods, via reputable common carriers for timely delivery.
8.†††††††† Warranties and Liability
8.1†††††† The Seller warrants to Lifoam that:
8.1.1††† The Goods will be, and will remain so for at least the Warranty period, of merchantable quality and fit for any of the normal and appropriate uses of the Goods;
8.1.2††† The Goods will be free from defects in design material and workmanship and will remain so for at least the Warranty Period;
8.1.3††† The Goods will conform to any relevant Specification or sample;
8.1.4††† The Goods will comply with all statutory requirements and regulations relating to the sale of the Goods;
8.1.5††† The sale of the Goods does not infringe upon any rights of any third party, and expressly does not infringe upon the intellectual property rights of any third party; and
8.1.5††† The title in the Goods is vested absolutely in the Seller immediately before the transfer to Lifoam pursuant to Section 7.2 hereof.
8.2†††††† The Seller warrants to Lifoam that the Services will be performed by appropriately qualified and trained personnel with due care and diligence and to such high standard or quality as it is reasonable for Lifoam to expect in all the circumstances.
8.3†††††† Without prejudice to any other remedy if any Goods or Services are not supplied or performed in accordance with the Contract then Lifoam may at its election:
8.3.1††† Require the Seller within seven days of notice by Lifoam, to repair the Goods at the Seller's cost or to supply replacement Goods or Services which fully conform to the Contract and if the Seller repairs the Goods or any part of the Goods during the Warranty Period and such Goods or parts fail again the Seller shall promptly at its cost replace the Goods (or relevant part(s)) with brand new goods and such replacement(s) shall have the benefit of a new Warranty Period commencing on the date the replacement(s) begin to function satisfactorily for Lifoam, or
8.3.2††† Cancel the Contract for the Seller's breach and if the Goods or Services have failed during the Warranty Period, the entire Price for any defective goods shall thereupon be returned by the Seller to Lifoam, without limitation upon any other legal or equitable damages available to Lifoam.
8.4†††††† The Seller shall indemnify Lifoam in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by Lifoam as a result of or in connection with:
8.4.1††† Breach of any warranty given by the Seller in relation to the Goods or Services;
8.4.2††† Any claim that the Goods infringe or their importation use or resale infringes the patent, copyright, design right, trademark or other intellectual property rights of any other person except to the extent that the claim arises from compliance with any Specification supplied by Lifoam;
8.4.3††† Any negligent act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering or installing the Goods, and;
8.4.4††† Any negligent act or omission of the Seller or its employees, agents or sub-contractors in connection with the performance of the Services.
8.5†††††† Neither the Seller nor Lifoam shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of its obligations in relation to the Services if the delay or failure was beyond the party's reasonable control.† Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond either party's reasonable control:
8.5.1††† Act of God, explosion, flood, natural disaster, tempest, fire or accident;
8.5.2††† War or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.5.3††† Acts, restrictions, regulations, laws, prohibitions or measures of any kind on the part of any governmental authority, and;
8.5.4††† Import or export regulations or embargoes.
8.6†††††† If the Goods include software the Seller shall throughout the Warranty Period supply to Lifoam at no extra cost all revisions and updates relating thereto.† Seller shall be liable for any damage arising from or relating to injury to any Lifoam computer system adversely impacted by the use of Sellerís software.
8.7†††††† Seller warrants that it will make spare parts, or will provide maintenance and repair services, for at least five years after the Order for Goods or services, respectively.
9.†††††††† Owner Supplied Materials
9.1†††††† Any materials supplied by Lifoam to the Seller in connection with the Contract to work upon or as components to be assembled with the Goods the Seller is supplying shall be insured for their full replacement value by the Seller against loss or damage by any cause until such time as they are received back or otherwise delivered to Lifoam's order.† Any such materials supplied by Lifoam and lost or damaged or rendered useless by reason of bad workmanship or error on the Seller's part or which shall fail within twelve months from Successful Commissioning due to defective workmanship shall be replaced by the Seller at its own cost.† All such materials supplied by Lifoam to the Seller shall remain Lifoam's property, shall remain appropriately labelled to so indicate, shall be held free from lien and shall be used solely for the purpose of the Contract.
10.†††††† Hazardous Goods
10.1†††† If the receipt, handling, use or possession of any of the Goods under this Contract involves any hazard to health and/or safety the Seller shall give all information necessary to warn of such hazard and details of all precautions to be taken against such hazard by means of:
10.1.1† A material safety data sheet sent to Lifoam's purchasing department to arrive before the delivery of the Goods;
10.1.2† A material safety data sheet sent with each delivery of the Goods, and;
10.1.3† Whenever practicable, visible markings and labelling on the Goods or on the packages containing the same.
11.1†††† Without prejudice to any of its other rights or remedies Lifoam shall be entitled to cancel the Contract in respect of all or part only of the Goods and/or Services by giving notice to the Seller if the Seller commits a material breach of the Contract.
11.2†††† Lifoam shall be entitled to cancel the Contract, without liability, by giving notice to the Seller at any time if:
11.2.1† Lifoam, after requesting reasonable performance assurances and failing to receive such assurances from the Seller, deems itself insecure in the Contract;
11.2.2† The Seller shall generally not pay, or shall be unable to pay, or shall admit in writing its inability to pay its debts as such debts become due;
11.2.3† The Seller shall make an assignment for the benefit of its creditors, or petition or apply to any tribunal for the appointment of a custodian, receiver or trustee for its or a substantial part of its assets;
11.2.4† The Seller shall commence any proceeding under any bankruptcy, reorganisation, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect;
11.2.5† The Seller shall have had any such petition or application filed against it in which an order for relief or is entered or an adjudication or appointment is made, and which remains undismissed for a period of sixty days or more;
11.2.6† The Seller shall indicate, by any act or omission, its consent to, approval of, or acquiescence in, any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for all or any substantial part of its properties or assets; or to suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of sixty days or more;
11.2.7† A lien holder takes possession or a receiver is appointed of any of the property or assets of the Seller;
11.2.8† The Seller ceases or threatens to cease to carry on business, or;
11.2.9† Lifoam reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
11.3†††† At any time prior to Delivery of the Goods or Services, Lifoam may cancel any Order, provided that Lifoam shall pay to the Seller its actual costs incurred in Sellerís performance, or preparation for performance through the date of Order termination. In the event of termination under this Section 11.3, recovery of actual costs shall be the sole and exclusive remedy available to Seller: Seller shall not be entitled to, nor shall Seller claim or seek to claim, any consequential damages or lost profits.
12.1†††† Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract without the consent of Lifoam in Writing.
12.2†††† Any notice required or permitted to be given by either party to the other shall be in Writing and shall be addressed to that other party at the address contained in the Contract, by certified mail, return receipt requested.
12.3†††† No waiver by Lifoam of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.4†††† If any provision of the Contract is held by a court of competent jurisdiction to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected thereby.
12.5†††† If Seller breaches this Agreement, Lifoam shall have all the remedies available at law or equity. Sellers sole remedy in the event of breach of this Agreement shall be the actual costs incurred by Seller in performing or preparing to perform under this Agreement, and not lost profits or consequential damages.
12.6†††† IN NO EVENT WILL LIFOAM BE LIABLE TO SELLER, OR ANY THIRD PARTY, FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT.
Contract shall be governed by and construed in accordance with the laws of the