1.1 These conditions supersede all prior representations or arrangements and contain the entire agreement between the parties in connection with the products (unless otherwise stated on Seller’s order confirmation). All other terms and conditions, express or implied, are excluded. None of Seller’s employees or agents has authority to modify or supplement these conditions or to accept any order except on Seller’s official sales forms.
1.2 Nothing in these conditions shall restrict the statutory rights of a buyer who deals as a consumer.
1.3 References to the products include their packaging. If Seller has not issued an order confirmation, (“Seller’s order confirmation” means any document issued by Seller indicating the terms on which the products are supplied), then an order shall not be deemed to have been accepted by the Seller.
1.4 Unless specified otherwise, terms defined in the 2000 Edition of Incoterms have the same meaning when used in these conditions.
2.1 Delivery or despatch dates quoted or requested, or dates when the products will be ready for shipment, are given or accepted by Seller in good faith but are not guaranteed. Time for delivery shall not be of the essence of the contract.
2.2 Delivery shall be made to the place(s) and by the method(s) specified on Seller’s order confirmation or, if none, EXW (ex works Seller's premises) for UK sales and FCA (Free carrier to the point specified in the Seller’s order confirmation) for export sales. Buyer is responsible for unloading. Buyer or its carrier’s receipt shall be conclusive evidence of delivery.
2.3 Packaging is included in the price and is not returnable unless otherwise stated on Seller's order confirmation.
2.4 Unless otherwise specifically agreed on Seller’s order confirmation, Buyer shall accept manufacturing tolerances accepted in the trade and weights or quantities varying by not more than 10% from the contract weight or quantity and shall pay pro-rata for the actual weight or quantity delivered. The weight or quantity stated on Seller’s despatch note shall be conclusive evidence of the amount delivered except in cases of manifest error.
2.5 Save for the purposes of Clause 3.5, 6.2 and 7, each delivery shall be treated as a separate contract and partial deliveries are permitted unless otherwise stated on Seller’s order confirmation. Accordingly, failure to make any particular delivery or any breach of contract by Seller relating thereto shall not affect any remaining deliveries.
2.6 Buyer shall take delivery of the products by any date quoted by Seller or requested by Buyer or (if none) within a reasonable time. Seller may deliver early where reasonable. Buyer shall be responsible for all storage, insurance and other costs relating to Buyer’s failure to comply with the contract.
2.7 Buyer shall promptly supply all information and assistance required for Seller to execute Buyer’s order.
2.8 Where the products are supplied under any internationally recognised trading terms as specified in Incoterms 2000, the provision by Seller of the usual transport document(s) or other evidence of delivery consistent with the relevant trading terms will be conclusive evidence of delivery by Seller.
2.9 If Seller or its carrier is unable for any reason to place the products on board ship upon their arrival at the port of delivery, a warehouse receipt for the products shall be treated as sufficient delivery.
2.10 Other than for sales ex-works Seller undertakes to obtain any UK licence(s) required for the export of the products from the UK by Seller. Buyer undertakes to comply with any such licence(s) and to obtain and comply with all other necessary licences, permits and consents (including all other export/import licences).
3.1 Unless otherwise stated on Seller’s order confirmation, prices are EXW or FCA (in accordance with clause 2.2) and exclusive of VAT and all other duties, fees or taxes. All sums due to Seller shall be paid in the currency and to the address stated on Seller’s order confirmation or such other address as Seller may require.
3.2 Unless otherwise stated on Seller’s order confirmation payment for the products is due on the last working day of the month following the month in which the products are delivered (“Due Date”). Seller may require security for payment before despatch in the circumstances described in Clause 6.3. Where discount is granted under the said payment terms, such discount will only be allowed upon payment being made before the due date (or earlier date stated on Seller’s order confirmation for the purpose of obtaining discount) and payment by such date is a condition precedent to the allowance of discount.
3.3 Where prices are quoted in currencies other than sterling, Buyer shall compensate Seller for any currency losses suffered by Seller as a result of Buyer’s failure to pay for the products on the due date for payment.
3.4 Unless prices are stated to be fixed on Seller’s order confirmation, Seller may increase prices in accordance with increases in Seller’s costs and/or general price list increases occurring after the date of Seller’s order confirmation but before delivery. Buyer shall pay for any increases in delivery costs after the date of Seller’s order confirmation.
3.5 In the circumstances described in Clause 6.3, all unpaid balances owing to Seller from Buyer shall become a debt immediately due and payable to Seller, irrespective of whether property in the products has passed to Buyer.
3.6 Time of payment is of the essence of the contract. Seller may charge interest at 4% above Barclays Bank plc’s base rate per annum for the time being (to accrue from day to day) on any sum owed to Seller under the contract which is not paid to the Seller on the due date, after as well as before any judgement. Buyer may not withhold payment or make any set-off on any account.
3.7 Seller may appropriate sums received from Buyer against any debt due to Seller from Buyer (under this or any other contract), irrespective of any purported appropriation by Buyer.
4. Seller’s Warranty
4.1 Seller’s warrants that upon delivery the products:-
(i) are sold with good title; and
(ii) comply with Seller’s current published product data sheets (or, where there are none, comply with any specification appearing on Seller’s order confirmation and are made with sound materials and workmanship to normal standards accepted in the industry), in all material respects (“Seller’s Warranty”).
SELLER DOES NOT WARRANT THAT THE PRODUCTS ARE OF SATISFACTORY QUALITY OR FIT FOR ANY PARTICULAR PURPOSE OR INTENDED USE BY BUYER AND IT IS FOR BUYER TO SATISFY ITSELF THAT PRODUCTS ARE SO FIT.
4.2 The Seller shall have no liability under the Warranties at clause 4.1(i) and 4.1(ii) if any instructions given by the Seller relating to the products are not strictly complied with by the Buyer OR the price for the products is not paid by the Buyer to the Seller in cleared funds by the Due Date.
4.3 Buyer shall examine the products as soon as reasonably practicable after delivery. Buyer shall immediately notify Seller of any incomplete or failed delivery, loss or damage during carriage or if the products fail to comply with Seller’s Warranty. Unless Buyer so notifies Seller within 30 days after the date when Buyer became or ought reasonably to have become aware of any of the above, and in any event before the earlier of:
(i) 60 days from the date of despatch by Seller; or
(ii) 30 days after the products have been used or put into process,
Buyer shall (subject to Clauses 4.6 and 8.1) be treated as having waived all claims connected with the matter which should have been notified.
4.4 Subject to notification within the period required by Clause 4.3, if it is shown to Seller’s reasonable satisfaction that the products fail materially to comply with Seller’s Warranty, Seller shall be given a reasonable opportunity to correct such failure and, if Seller does not or is unable to do so, Seller will at Buyer’s option either refund the contract price (or, if the products have depreciated for reasons other than Seller’s default or have been used or put into process, a reasonable part of the contract price) or replace the products (if reasonably practicable) within a reasonable time free of charge. SUCH CORRECTION, REFUND OR REPLACEMENT SHALL, SUBJECT TO CLAUSE 4.6 AND 8.1, BE SELLER’S SOLE LIABILITY IN RELATION TO ANY SUCH FAILURE. Replacement products are covered by these conditions, including Seller’s Warranty. Products which are alleged not to comply with the contract shall as far as possible be preserved for inspection by Seller and if replaced or if a refund is made shall be returned to Seller (at Seller’s cost) if Seller reasonably so requests.
4.5 Clause 4.1(ii) does not apply to seconds, remainder stock or samples or to goods sold as obsolete or sub-standard.
4.6 Seller does not exclude any liability which cannot be excluded as between Buyer and Seller under any UK Legislation.
5. Force Majeure
5.1 Seller shall not be liable for any failure to comply with the contract related to any circumstances whatever (whether or not involving Seller’s negligence) which are beyond Seller’s reasonable control and which prevent or restrict Seller from complying with the contract (including but not limited to a failure of a government or relevant authority to grant, or to a delay in the grant of, any licence(s) required for the export of the products from the UK).
5.2 Seller may where reasonable in all the circumstances (whether or not involving Seller’s negligence) without liability suspend or terminate (in whole or in part) its obligations under the contract if Seller’s ability to manufacture, supply, deliver or acquire materials for the production of the products by Seller’s normal means is materially impaired.
6. Termination and Suspension
6.1 Except where Buyer has caused or contributed to any delay, Buyer may (as Buyer’s sole remedy, without affecting the balance of the contract quantity) terminate the contract by notice to Seller in respect of any instalment of products which is not despatched within 60 days after any date quoted on Seller’s order confirmation (unless the products have been specially manufactured or adapted for Buyer).
6.2 Seller may (without prejudice to its other rights or remedies) terminate or suspend Seller’s performance of the whole or any outstanding part of the contract in the circumstances described in Clause 6.3. Seller may also suspend deliveries while investigating any claim relating to prior shipments (under any contract) of products.
6.3 Relevant circumstances are if:
(i) Buyer fails to take delivery of the products by the date required under Clause 2.6 or fails to pay for the products by the due date or breaches any other term of the contract; or
(ii) Buyer becomes bankrupt or insolvent or if a receiver or encumbrancer takes possession of any material part of Buyer’s assets, or Buyer suffers any foreign equivalence of the foregoing; or
(iii) Seller has reasonable grounds for suspecting that an event in Clause 6.3(ii) has occurred or will occur or that Buyer will not pay for the products on the due date and so notifies Buyer.
6.4 In addition, Seller shall have the right by notifying Buyer to suspend deliveries under this and/or any other contract Seller may have with Buyer (even though Buyer is not in arrears with any payment) if Seller considers that the amount outstanding in the account of Buyer (whether actually due for payment or not) has reached the limit to which the Seller is prepared to allow credit to Buyer, whether or not such limit has been notified to Buyer.
6.5 If Buyer provides Seller with security for the contract price reasonably acceptance to Seller within 3 working days after a notice has been given under Clause 6.3(iii) or 6.4, Seller shall withdraw the notice.
7. Risk and Title
7.1 Risk in the products shall pass to Buyer upon delivery.
7.2 However, Seller shall retain ownership of the products until:
(i) Seller has received payment in full in cleared funds of all sums due to it from the Buyer for all products supplied and of any other sums which are or which become due to Seller from Buyer on any account, including VAT; or
(ii) subject to Clause 7.3, Buyer mixes or processes the products so that they lose their identity or are irrecoverably incorporated in or mixed with other goods, or
(iii) Buyer sells them at arm’s length in good faith to an unrelated third party.
7.3 As a separate and independent condition, Buyer agrees that in the circumstances described in Clause 7.2(ii), the resulting product (“the Downstream Product”) shall be Seller’s property until the conditions in Clause 7.2(i) or 7.2(iii) have been met, unless the value of the other goods (as measured by the price charged to the Buyer or, if none, the direct factory cost to the Buyer of their manufacture) exceeds the invoice value for the products.
7.4 Until ownership of the products or Downstream Products passes to Buyer, Buyer shall:-
(i) hold the products and Downstream Products as Seller's bailee;
(ii) maintain them in satisfactory condition insured on Seller's behalf against all usual risks to full replacement value;
(iii) hold the proceeds of the insurance referred to in clause 7.4
(iii) on trust for Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account;
(iv) sell, use or part with possession of them (to the extent not prohibited by this contract) only in the ordinary course of trading;
(v) store the products separately from all other goods of Buyer or any third party in such a way that they remain readily identifiable as Seller’s property; and (vi) not destroy, deface or obscure any identifying mark or packaging on or in relation to the products.
7.5 In the circumstances described in Clause 6.3, Buyer’s right to sell, use or part with possession of the products or Downstream Products shall terminate immediately and Seller may recover and/or sell the products or Downstream Products and Buyer grants Seller, its agents and employees an irrevocable licence at any time to enter Buyer's premises for that purpose or to inspect the products, without prejudice to Seller's other remedies. If Seller recovers and/or sells the Downstream Products any excess of the value of the Downstream Products (as reasonably estimated by Seller) over any amounts due to Seller under the contract plus Seller’s costs of recovery and disposal shall be paid to Buyer. This obligation shall survive termination of the contract.
7.6 Until ownership of the products or Downstream Products passes to Buyer, Buyer shall not pledge or subject the products or any them to any lien or encumbrance or in any way charge by way of security for any indebtedness any of the products which are the property of Seller.
8. Intellectual Property and Third Party Claims
8.1 Seller will defend Buyer against any third party claim made against Buyer in the United Kingdom alleging that the products as such, in the original state sold by Seller, infringe any patent, registered design, trademark, tradename or copyright effective in the United Kingdom, and Seller will pay any damages and costs finally awarded against Buyer in the United Kingdom in respect of such a claim. Seller may modify the products so that they cease to infringe so long as Buyer is not substantially prejudiced by the modification.
8.2 Clause 8.1 shall not apply to the extent that the products are manufactured to Buyer’s specification (or as provided in Clause 8.4(i)) or in respect of any use of the products not contemplated by Seller at the date of Seller’s order confirmation.
8.3 Buyer shall not use any trademarks or tradenames applied to or used by Seller in relation to the products in any manner not approved by Seller.
8.4 Buyer shall indemnify seller against any liability incurred by seller:
(i) as a result of incorporating property of buyer in the products or applying any trademark, tradename or design to the products on buyer’s instructions, or complying with any other instructions of buyer relating to the products; and
(ii) in relation to any third party claims arising from the use made of or dealing by buyer in the products (irrespective of whether they involve the negligence of seller, its agents or employees), except as provided in clause 8.1 or if arising from seller’s wilful default. 8.5 The indemnified party shall notify the other of any relevant claim, shall comply with the other’s reasonable requirements to minimise liability and/or avoid further liability and shall allow the other conduct of any action and/or settlement negotiations on reasonable terms.
9. Advice and Assistance
Seller shall not be liable, in contract, tort or otherwise, and irrespective of the negligence of seller, its agents or employees, for any representations, advice or assistance given (under this contract or otherwise, and whether before or after the date of the contract) by or on behalf of seller in connection with the products or the contract, unless and then only to the extent that seller has made such representations and/or agreed to provide such advice or assistance for a fee under a separate written contract with buyer.
10. Limitation of Liability
10.1 Without prejudice to any other limitation of seller’s liability (whether effective or not):
(i) In no circumstances whatever shall seller be liable (in contract tort or otherwise, and irrespective of any negligence or other act, default or omission of seller or its employees or agents) for any loss of profits or use, loss of goodwill, business or anticipated savings or (subject to clause 8.1) any third party claims or any indirect or consequential losses which arise out of or in connection with the products or the contract.
(ii) Except as provided under clause 8.1, seller’s total aggregate liability in connection with the products or the contract (in contract, tort or otherwise and whether or not related to any negligence or other act, default or omission of seller or its employees or agents), is limited to the contract price ex-works, and ex vat.
10.2 Without prejudice to seller’s warranty, buyer’s sole remedy shall be in damages.
10.3 Seller’s warranty and buyer’s remedies under clause 8.1 are in substitution for any other warranties, obligations, representations, liabilities, terms or conditions (whether they are express or implied, or arise in contract, tort or otherwise, and irrespective of the negligence of seller, its employees or agents) in connection with the products (including, without limitation, any relating to satisfactory quality, fitness for purpose, conformity with description or sample care and skill or compliance with representations, but excluding implied statutory warranties relating to title), and all such warranties, obligations, representations, liabilities, terms or conditions are hereby expressly excluded.
10.4 Without prejudice to clause 4.3, no action may be brought against seller in connection with the products or the contract unless proceedings are issued against seller within two years after buyer became or ought to have become aware of the circumstances given rise thereto.
10.5 This clause 10 applies notwithstanding any fundamental breach or breach of a fundamental term of the contract by seller.
11. Health and Safety
11.1 Buyer shall ensure that all products are safely and lawfully received, stored, maintained, used or applied by Buyer and that Buyer obtains relevant information in Seller’s possession relating thereto.
11.2 The application, use and processing of the products is the absolute responsibility of Buyer and Buyer shall be responsible for all testing of the products to ensure suitability for their intended purpose and application.
11.3 Buyer shall ensure that all appropriate safety information (whether supplied by Seller, Buyer or others) is distributed and drawn to the attention of customers and all others (including Buyer’s employees) who require it for the safe handling or use of the products.
12.1 The contract may not be assigned by Buyer without Seller’s prior written consent.
12.2 Notices must be in writing to Seller’s or Buyer’s address and are deemed delivered on the first working day after sending by hand or (subject to confirmation of transmission) by telex or facsimile, or, within the UK, on the third working day after being placed prepaid in the first class post to Buyer’s or Seller’s U.K. address. Qualified acceptances by Buyer on delivery notes shall not constitute notice of any claim or acceptance by Seller of any such qualification.
12.3 No failure by Seller to enforce any provision of this contract shall be construed as a release of its rights relating thereto or to sanction any further breach.
12.4 If any provision of the contract is found to be invalid or unenforceable it shall have effect to the maximum extent permitted by law, or, if not so permitted, shall be deemed deleted. #
This contract shall be governed by and construed in accordance with English law and Buyer hereby agrees, for Seller’s exclusive benefit, that the English courts shall have exclusive jurisdiction to hear all claims or proceedings connected with the products or the contract. Seller may nevertheless bring claims in any other courts of competent jurisdiction.