Background
The Customer is a customer of AFC and purchases goods and/or services from AFC on a regular basis (and such supplies/purchases are dealt with on standard terms and conditions of business which are already in place between the Customer and AFC). However, from time to time the Customer may ask AFC to purchase specific identified goods on its behalf which are outside AFC’s normal course of business and which are intended to be dealt with outside the normal standard sale and purchase arrangements between them (and which shall be referred to between them as ‘Non-Standard Goods’). Where AFC agrees to order and supply such non-standard goods, the parties agree that the terms of this Master Agreement shall apply in relation to any such Non-Standard Goods (to the exclusion of any other terms and conditions).
Interpretation
In this Agreement:
- Delivery Location: means the address for delivery and/or collection of the Non-Standard Goods, as set out in the relevant Order.
- Force Majeure Event: means events, circumstances or causes beyond AFC’s reasonable control.
- Non-Standard Goods: means the goods (or any part of them), as set out in the relevant Order (and which shall include any specification for the same).
- Mark-Up: means % of the Supplier’s sale price for the relevant Non-Standard Goods to AFC (or such other percentage or amount as the parties may agree from time to time or in relation to any specific Non-Standard Goods).
- Order: means an order for the relevant Non-Standard Goods submitted by the Customer and accepted by AFC which shall be in the form (or substantially in the form) of the Schedule to this Agreement (Order Form) and in relation to which both the Customer and AFC accept are and will be outside the normal standard terms of business between them.
- Price: means the price for the relevant Non-Standard Goods, as set out in the relevant Order (which shall include the Mark-Up).
- Supplier: means the supplier of the Non-Standard Goods to AFC as detailed in the relevant Order.
- VAT: means value added tax or any equivalent tax chargeable in the UK or elsewhere.
Commencement and term
This Master Agreement shall commence on the date hereof and shall continue until either party gives to the other not less than three months’ prior written notice of termination.
Orders for Non-Standard Goods
- The Customer may from time to time place Orders for Non-Standard Goods with AFC using the Order Form. All such Orders for Non-Standard Goods shall be deemed to incorporate the terms of this Master Agreement and shall exclude any other terms and conditions sought to be introduced or applied by either party (and in particular shall not include the standard terms of business in place between the Customer and AFC which relate to goods and/or services that are not Non-Standard Goods).
- Orders for Non-Standard Goods shall be given in writing. AFC may accept or decline such Orders at its absolute discretion.
- After confirming an Order for Non-Standard Goods, AFC shall as soon as practicable inform the Customer of the Supplier’s estimated delivery date of the relevant Non-Standard Goods.
- The Customer is responsible for ensuring that all Orders for Non-Standard Goods are complete and accurate. The Customer shall give AFC all necessary information that AFC reasonably requires to fulfil each Order for Non-Standard Goods and to place its own order for the same with the Supplier.
The Non-Standard Goods
- The Customer acknowledges and agrees that it is responsible for choosing the Non-Standard Goods (including any model or other specification thereof) and/or the identity of the Supplier of the same to AFC. The Customer acknowledges that AFC will not choose the Non-Standard Goods and may have no knowledge in or expertise of any Non-Standard Goods (nor will AFC inspect or test any of the Non-Standard Goods). The Customer therefore acknowledges and accepts that AFC will not provide any advice, assurance or representation about the Non-Standard Goods, their quality or suitability for the Customer’s needs or purposes.
- The Customer acknowledges and agrees that it shall take the sole risk of the Non-Standard Goods not being or a satisfactory quality or not being fit for the purposes for which the Customer intends to use the Non-Standard Goods.
Delivery
- AFC shall endeavour to deliver the Non-Standard Goods to the Delivery Location or (where the Delivery Location is at AFC’s premises, have the Non-Standard Goods ready for collection by the Customer at the Delivery Location) as soon as reasonably possible after the relevant Non-Standard Goods have been delivered to AFC. Where the Non-Standard Goods are to be collected by the Customer from AFC’s premises the Customer shall collect them from such premises within three business days of AFC notifying the Customer that they are ready for collection.
- The Customer shall take the risk of any damage to or loss of the Non-Standard Goods during any unloading or loading of the same at the Delivery Location.
- Any stated delivery or collection dates are approximate only, and the time of delivery or availability for collection is not of the essence. AFC shall not be liable for any delay in delivery of any Non-Standard Goods that is caused by:
- a Force Majeure Event; or
- the Customer’s failure to provide AFC with adequate delivery instructions or any other instructions that are relevant to the supply of the relevant Non-Standard Goods.
- If 10 business days after the day on which AFC attempts to make delivery of the Non-Standard Goods or (where the Delivery Location is at AFC’s premises) notified the Customer that the Non-Standard Goods were ready for collection the Customer has not taken delivery of or collected those Non-Standard Goods (as the case may be), AFC may resell or otherwise dispose of the relevant Non-Standard Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the Price of the Non-Standard Goods, or charge the Customer for any shortfall below the Price of the Non-Standard Goods.
Title and risk
- Risk in the Non-Standard Goods shall pass to the Customer on the commencement of loading (where the relevant Non-Standard Goods are to be collected from AFC’s premises) or unloading of the Non-Standard Goods at the Delivery Location.
- Title to the Non-Standard Goods shall only pass to the Customer once AFC receives payment in full (in cash or cleared funds) for them.
- AFC may re-possess any Non-Standard Goods in which title has not passed to the Customer. The Customer irrevocably licenses AFC and its agents, to enter any premises of the Customer (including with vehicles), in order to re-possess any Non-Standard Goods in which title has not passed to the Customer.
Price and payment
- The Customer shall pay for Non-Standard Goods in accordance with this clause 7. The Customer acknowledges and agrees that AFC will charge the Mark-Up on the price at which AFC itself purchased the Non-Standard Goods from the Supplier.
- The Price excludes:
- the costs of packaging, insurance and transport of the Non-Standard Goods, which shall be invoiced to the Customer in addition to the Price; and
- amounts in respect of VAT, which the Customer shall additionally be liable to pay to AFC at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.
- AFC may invoice the Customer for the price of Non-Standard Goods (including the Mark-Up) plus VAT at the prevailing rate (if applicable) on or at any time after delivery (or attempted delivery) or (where the Delivery Location is at AFC’s premises) after AFC has informed the Customer that the Non-Standard Goods are ready for collection.
- The Customer shall pay invoices in full in cleared funds by the end of the month following the month of invoice. Payment shall be made to the bank account nominated in writing by AFC.
- If the Customer fails to make any payment due to AFC by the due date for payment, then, without limiting AFC other remedies:
- the Customer shall 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%.
- AFC may suspend all further deliveries of Non-Standard Goods until payment has been made in full.
- All amounts due under this Master Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
Limitation of liability
- The limits and exclusions in this clause reflect the insurance cover AFC has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess liability.
- Nothing in this Master Agreement shall limit or exclude AFC’s liability for any matter in respect of which it would be unlawful for it to exclude or restrict liability. Subject as aforesaid, the Customer acknowledges and agrees that all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Master Agreement and the supply of any Non-Standard Goods by AFC hereunder.
- Subject to clause 8.2:
- AFC shall 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 this Master Agreement and/or the supply of any Non-Standard Goods; and
- AFC’s total liability to the Customer for all other losses arising under or in connection with the supply of the relevant Non-Standard Goods, whether in contract, tort (including negligence), misrepresentation, restitution or otherwise, shall not exceed the Price for the same.
- Where and to the extent that it is legally able to do so (and at the Customer’s expense) AFC agrees to assign to the Customer the benefit of any warranties or representations that it may have from the Supplier of the relevant Non-Standard Goods together with any other rights of recourse it may have against such Supplier in relation to same (where it is able to pass the same to the Customer or under the Contracts (Rights of Third Parties) Act 1999).
Force majeure
AFC shall not be in breach of this Master Agreement nor liable for delay in performing, or failure to perform, any of its obligations hereunder if such delay or failure result from a Force Majeure Event.