BOFA Purchase Conditions
In these Terms:
1.1 ‘BOFA’ means BOFA International Ltd (company number 02122653) and any of its appointed agents and representatives;
1.2. ‘Business Day’ means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
1.3. ‘Contract’ means the agreement between You and BOFA for the supply of Goods and/or Services in accordance with these Terms comprised of the Order;
1.4. ‘Commencement Date’ has the meaning set out in condition 2.2;
1.5. ‘Customer Materials’ has the meaning given to it in condition 5.3.9;
1.6. ‘Delivery Date’ means the date specified in the Order, or if none is specified, within 7 days of the date of the Order;
1.7. ‘Deliverables’ all documents, products and materials developed by You or Your agents, contractors and employees as part of or in relation to the Services in any form or media, including without limitation drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts);
1.8. ‘Delivery Location’ has the meaning set out in condition 4.2.2;
1.9. ‘Force Majeure Event’ has the meaning given to it in condition 15;
1.10. ‘Goods’ means the goods (or any part of them) including but not limited to any equipment and/or ancillary equipment set out in the Order;
1.11. ‘Goods Specification’ any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by You and BOFA;
1.12. ‘Improvement’ means any amendment or improvement to the Goods;
1.13. ‘Intellectual Property Rights’ means patents, registered designs, trademarks, service marks, applications for any of the foregoing, copyrights, design rights, semiconductor topography rights, database rights, rights in software, know-how, trade secrets and confidential information and all other forms of Intellectual Property Rights having equivalent or similar effect to any of the foregoing which may exist anywhere in the world;
1.14. ‘Order’ means BOFA’s order for the supply of Goods and/or Services, as set out in BOFA’s purchase order form, a copy of which is attached to these Terms;
1.15. ‘Parties’ means the parties to the Contract and ‘Party’ shall be construed accordingly;
1.16. ‘Price’ means the price for the Goods and/or the Services as set out in condition 8;
1.17. ‘Prototype’ means any prototype of Goods whether supplied, manufactured or designed by You or by BOFA;
1.18. ‘Services’ means the services, including without limitation any Deliverables, to be provided by You under the Contract as set out in the Service Specification;
1.19. ‘Service Specification’ means the description or specification for the Services agreed in writing by BOFA and You;
1.20. ‘Terms’ means these terms and conditions as amended from time to time in accordance with clause 17.9.
1.21. ‘Warranty Period’ has the meaning given to it in condition 3.1.3;
1.22. ‘You’ means person, sole trader, firm or company from whom BOFA purchases the Goods and/or Services and whose full details are set out in Your acceptance of BOFA’s Order.
1.23. ‘writing’ or ‘written’ includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by BOFA to purchase Goods and/or Services from You in accordance with these Terms.
2.2. The Order shall be deemed to be accepted on the earlier of:
2.2.1. You issuing written acceptance of the Order; or
2.2.2. any act by You consistent with fulfilling the Order, at which point and on which date the Contract shall come into existence (“Commencement Date”).
2.3. These Terms apply to the Contract to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4. All of these Terms shall apply to the supply of both Goods and Services except where the application to one or the other is specified.
3. SUPPLY OF GOODS
4. DELIVERY OF GOODS
4.1 You shall ensure that:
4.1.1. the Goods are properly packed and secured in such manner as to enable them to reach their destination in good condition;
4.1.2. 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; and
4.1.3. if You require BOFA to return any packaging material for the Goods to You, that fact is clearly stated on the delivery note. Any such packaging material shall only be returned to You at Your cost.
4.2. You shall deliver the Goods:
4.2.1. on the date specified in the Order or, if no such date is specified, then within 7 days of the date of the Order. Time shall be of the essence for the delivery of the Goods; 4.2.2. to BOFA’s premises at Creekmoor Industrial Estate, 21-22 Balena Cl, Poole, BH17 7DX, United Kingdom or such other location as is set out in the Order or as instructed by BOFA in writing before delivery (“Delivery Location”);
4.2.3. during BOFA’s normal hours of business on a Business Day, or as instructed by BOFA.
4.3. Delivery of the Goods shall be completed on the completion of the unloading of the Goods at the Delivery Location.
4.4. If You:
4.4.1. deliver less than 95 per cent of the quantity of Goods ordered, BOFA may reject the Goods; or
4.4.2. deliver more than 105 per cent of the quantity of Goods ordered, BOFA may at its sole discretion reject the Goods or the excess Goods;
and any rejected Goods shall be returnable at Your risk and expense. If You deliver more or less than the quantity of Goods ordered, and BOFA accepts the delivery, a pro rata adjustment shall be made to the invoice for the Goods.
4.5. You shall not deliver the Goods in instalments without BOFA’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by You to deliver any one instalment on time or at all or any defect in an instalment shall entitle BOFA to the remedies set out in clause 6.1.
4.6. Title and risk in the Goods shall pass to BOFA on completion of delivery.
5. SUPPLY OF SERVICES
5.3.11 pay in full all taxes that are properly due from you in respect of the Services, and shall not criminally facilitate the evasion of any taxes in respect of the Services by any party.
6. CUSTOMER REMEDIES
6.1 If You fail to deliver the Goods and/or perform the Services by the applicable date, BOFA shall, without limiting its other rights or remedies, have one or more of the following rights:
6.1.1. to terminate the Contract with immediate effect by giving written notice to You;
6.1.2. to refuse to accept any subsequent performance of the Services and/or delivery of the Goods which You attempt to make;
6.1.3. to recover from You any costs incurred by BOFA in obtaining substitute goods and/or services from a third party;
6.1.4. where BOFA has paid in advance for Services that have not been provided by You and/or Goods which have not been delivered by You, to have such sums refunded by You; and
6.1.5. to claim damages for any additional costs, loss or expenses incurred by BOFA which are in any way attributable to Your failure to meet such dates.
6.2. If the Goods are not delivered by the applicable date, BOFA may, at its option, claim or deduct 5% per cent of the price of the Goods for each week’s delay in delivery by way of liquidated damages, up to a maximum of 25% per cent of the total price of the Goods. If BOFA exercises its rights under this clause 6.2 it shall not be entitled to any of the remedies set out in clause 6.1 in respect of the Goods’ late delivery.
6.3. If You have delivered Goods that do not comply with the undertakings set out in clause 3.1, then, without limiting its other rights or remedies, BOFA shall have one or more of the following rights, whether or not it has accepted the Goods:
6.3.1. to reject the Goods (in whole or in part) whether or not title has passed and to return them to You at Your own risk and expense;
6.3.2. to terminate the Contract with immediate effect by giving written notice to You;
6.3.3. to require You to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods;
6.3.4. to refuse to accept any subsequent delivery of the Goods which You attempt to make;
6.3.5. to recover from You any expenditure incurred by BOFA in obtaining substitute goods from a third party; and
6.3.6. to claim damages for any additional costs, loss or expenses incurred by BOFA arising from Your failure to supply Goods in accordance with clause 3.1.
6.4. These Terms shall extend to any substituted or remedial services and/or repaired or replacement goods supplied by You.
6.5. BOFA’s rights under this Contract are in addition to its rights and remedies implied by statute and common law.
7. CUSTOMER’S OBLIGATIONS
7.1 7.1. BOFA shall:
7.1.1. provide You with reasonable access at reasonable times to BOFA’s premises for the purpose of providing the Services; and
7.1.2. provide such information as You may reasonably request for the provision of the Services and BOFA considers reasonably necessary for the purpose of providing the Services.
8. CHARGES AND PAYMENT
8.1 The price for the Goods:
8.1.1. shall be the price set out in the Order, or if no price is quoted, the price set out in Your published price list in force at the Commencement Date;
8.1.2. no variation of the price shall be valid unless agreed in writing by You and BOFA and if BOFA; and
8.1.3. shall be inclusive of the costs of packaging, insurance and carriage of the Goods, unless otherwise agreed in writing by BOFA. No extra charges shall be effective unless agreed in writing and signed by BOFA’s duly authorised representative.
8.2. The charges for the Services shall be set out in the Order, and shall be the full and exclusive remuneration of You in respect of the performance of the Services. Unless otherwise agreed in writing by BOFA, the charges shall include every cost and expense of You directly or indirectly incurred in connection with the performance of the Services.
8.3. In respect of Goods, You shall invoice BOFA on or at any time after completion of delivery. In respect of Services, You shall invoice BOFA on completion of the Services. Each invoice shall include such supporting information required by BOFA to verify the accuracy of the invoice, including but not limited to the relevant purchase order number.
8.4. In consideration of the supply of Goods and/or Services by You, BOFA shall pay to a bank account nominated in writing by You, the invoiced amounts within 90 days of the month end following the date upon which a correctly rendered invoice is received by BOFA. Time shall not be of the essence for payment unless specifically agreed in writing in advance.
8.5. In the event that BOFA shall dispute any invoice, it shall notify You in writing within 30 days of the date on which BOFA would in the ordinary course of business receive the invoice of the sums in dispute and the reasons for the dispute and in the event that BOFA does so, it shall be entitled to withhold any disputed sums until such dispute is resolved in accordance with condition 17.
8.6. All amounts payable by BOFA under the Contract are exclusive of amounts in respect of valued added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by You to BOFA, BOFA shall, on receipt of a valid VAT invoice from You, pay to You such additional amounts in respect of VAT as are chargeable on the supply of the Goods and/or Services at the same time as payment is due for the supply of the Goods and/or Services.
8.7. You shall maintain complete and accurate records of the time spent and materials used by You in providing the Services, and You shall allow BOFA to inspect such records at all reasonable times on request.
8.8. BOFA may at any time, without limiting any of its other rights or remedies, set off any liability of You to BOFA against any liability of BOFA to You, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under the Contract.
9. INTELLECTUAL PROPERTY RIGHTS
9.1 In respect of the Goods and any goods that are transferred to BOFA as part of the Services under this Contract, including without limitation the Deliverables or any part of them, You warrant that You have full clear and unencumbered title to all such items, and that at the date of delivery of such items to BOFA, You will have full and unrestricted rights to sell and transfer all such items to BOFA.
9.2. You assign to BOFA, with full title guarantee and free from all third party rights, all Intellectual Property Rights in the products of the Services, including for the avoidance of doubt the Deliverables, any Improvement and any Prototype.
9.3. You shall obtain waivers of all moral rights in the products, including for the avoidance of doubt the Deliverables, of the Services to which any individual is now or may be at any future time entitled under Chapter IV of Part I of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction.
9.4. You shall, promptly at BOFA’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as BOFA may from time to time require for the purpose of securing for BOFA the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to BOFA in accordance with clause 9.2.
9.5. All Customer Materials are the exclusive property of BOFA.
10.1 You shall keep BOFA indemnified against all liabilities, costs, expenses, damages and losses (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 incurred by BOFA as a result of or in connection with:
10.2. any claim made against BOFA for actual or alleged infringement of a third party’s intellectual property rights arising out of, or in connection with, the manufacture, supply or use of the Goods, or receipt, use or supply of the Services, to the extent that the claim is attributable to the acts or omissions of You, Your employees, agents or subcontractors;
10.3. any claim made against BOFA by a third party for death, personal injury or damage to property arising out of, or in connection with, defects in Goods, to the extent that the defects in the Goods are attributable to the acts or omissions of You, Your employees, agents or subcontractors; and
10.4. any claim made against BOFA by a third party arising out of or in connection with the supply of the Goods or the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of the Contract by You, Your employees, agents or subcontractors.
10.5. This clause 10 shall survive termination of the Contract.
During the term of the Contract and for a period of 5 years thereafter, You shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with the Contract, and shall, on BOFA’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
12.1 You shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, initiatives, manufacturing techniques, engineering data, specifications of materials and other information which may be necessary to enable You to design or manufacture the Goods which are of a confidential nature and have been disclosed to You by BOFA, its employees, agents or subcontractors, and any other confidential information concerning BOFA’s business, its products and services which You may obtain. You shall only disclose such confidential information to those of Your employees, agents and subcontractors who need to know it for the purpose of discharging Your obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. You may also disclose such of BOFA’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
12.2. This clause 12 shall survive termination of the Contract.
13.1 Without limiting its other rights or remedies, BOFA may terminate the Contract:
13.1.1. in respect of the supply of Services, by giving You 1 month’s written notice; and
13.1.2. in respect of the supply of Goods, in whole or in part at any time before delivery with immediate effect by giving written notice to You, whereupon You shall discontinue all work on the Contract. BOFA shall pay You 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.
13.2. You shall not terminate the Contract unless BOFA provides its prior consent in writing and You shall be liable to indemnify BOFA against all costs and claims arising from any termination which is in breach of this condition 13.2.
13.3. In any of the circumstances in these Terms in which a party may terminate the Contract, where both Goods and Services are supplied, that party may terminate the Contract in respect of the Goods, or in respect of the Services, and the Contract shall continue in respect of the remaining supply.
13.4. Without limiting its other rights or remedies, BOFA may terminate the Contract with immediate effect by giving written notice to You if:
13.4.1. You commit a material breach of the terms of the Contract and (if such a breach is remediable) fail to remedy that breach within 7 days of receipt of notice in writing to do so;
13.4.2. You repeatedly breach any of the terms of the Contract in such a manner as to reasonably justify the opinion that Your conduct is inconsistent with You having the intention or ability to give effect to the terms of the Contract;
13.4.3. You suspend, or threaten to suspend, payment of Your debts or are unable to pay Your debts as they fall due or admit inability to pay Your debts or (being a company or limited liability partnership) are deemed unable to pay Your debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) are deemed either unable to pay Your debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) have any partner to whom any of the foregoing apply;
13.4.4. You commence negotiations with all or any class of Your creditors with a view to rescheduling any of Your debts, or make a proposal for or enter into any compromise or arrangement with Your creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of You with one or more other companies or Your solvent reconstruction;
13.4.5. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with Your winding up (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of You with one or more other companies or Your solvent reconstruction;
13.4.6. You (being an individual) are the subject of a bankruptcy petition or order;
13.4.7. a creditor or encumbrancer of You attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of Your assets and such attachment or process is not discharged within 14 days;
13.4.8. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over You (being a company);
13.4.9. the holder of a floating charge over Your assets (being a company) has become entitled to appoint or has appointed an administrative receiver;
13.4.10. a person becomes entitled to appoint a receiver over Your assets or a receiver is appointed over Your assets;
13.4.11. any event occurs, or proceeding is taken, with respect to You in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.4.3 to clause 13.4.10 (inclusive);
13.4.12. You suspend or cease, or threaten to suspend, or cease, to carry on all or a substantial part of Your business; or
13.4.13. You (being an individual) die or, by reason of illness or incapacity (whether mental or physical), are incapable of managing Your own affairs or become a patient under any mental health legislation.
13.5. Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination.
13.6. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
14. CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason, You shall immediately deliver to BOFA all Deliverables whether or not then complete, and return all Customer Materials. If You fail to do so, then BOFA may enter Your premises and take possession of them. Until they have been returned or delivered, You shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.
15. FORCE MAJEURE
15.1. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under it if such a delay or failure result from an event, circumstances or cause beyond its reasonable control (“Force Majeure Event”).
15.2. You shall use all reasonable endeavours to mitigate the effect of a Force Majeure Event on the performance of Your obligations.
15.3. If a Force Majeure Event prevents, hinders or delays Your performance of Your obligations for a continuous period of more than 14 Business Days, BOFA may terminate the Contract immediately by giving written notice to You.
16. DISPUTE RESOLUTION
In the event of a dispute arising, the parties shall request the president of the Law Society to appoint a member of the legal profession (solicitor/ barrister) of at least 7 years of post-qualification experience to act as an expert, not an arbitrator to resolve any such dispute. Such expert shall be entitled to regulate the proceedings applicable to such dispute resolution process as he sees fit. The decision of such an expert shall be binding and final on both parties and the parties agree to bear the costs of such an expert in the proportions determined by the expert.
17.1. Assignment and other dealings.
17.1.1. BOFA may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.1.2. You may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of BOFA.
17.2.1. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed 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 clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or fax and/or email.
17.2.2. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 17.2.1; 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 fax, one Business Day after transmission.
17.2.3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
17.3. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. 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.
BOFA may at any time, without notice to You, set off any liability of You to BOFA against any liability of BOFA to You, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this agreement. Any exercise by BOFA of its rights under this clause shall not limit or affect any other rights or remedies available to it under this agreement or otherwise.
17.6. No partnership or agency.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
17.7. Third parties.
A person who is not a party to the Contract shall not have any rights to enforce its terms.
In the event of any conflict between these Terms and the Order, these Terms shall prevail.
Except as set out in these Terms, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by BOFA.
17.10. Governing law.
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).