INTERPRETATION
1 DEFINITIONS
In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Buyer: as specified in the Order.
Buyer Specification: specific Buyer requirements included in or appended to the
Order: an Order / instruction /delivery of goods from the contract
Contract: the contract between the Seller and the Buyer for the supply of Goods(as applicable) in accordance with these Conditions.
Contract Price: the price of the Goods, in accordance with clause9.1,9.2, and 9.3 (as applicable).
Credit Note: a receipt given by the Seller to the Buyer in respect of returned Goods which can be offset against the cost of future purchases of Goods by the Buyer but which, for the avoidance of doubt, cannot be converted into a payment from the Seller to the Buyer.
Data Protection Legislation: all relevant legislation, regulations and other legal requirements governing the processing of personal data in the United Kingdom.
Force Majeure Event: has the meaning given to it in clause 14.1.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order Acknowledgment: written confirmation of the contents of the Order issued to the Buyer by the Seller.
Seller: Environmental Enzymes Limited, its successors or assigns.
Seller’s Catalogue: a document or digital document prepared by or on behalf of the Seller which is in the public domain with the permission and consent of the Seller describing the Goods which the Seller in the ordinary course of the Seller’s business can supply.
Business Day: a day (other than a Saturday, Sunday or a public holiday) when banks in London are open for business.
Buyer: as specified in the Order.
Buyer Specification: specific Buyer requirements included in or appended to the
Order: an Order / instruction /delivery of goods from the contract
Contract: the contract between the Seller and the Buyer for the supply of Goods(as applicable) in accordance with these Conditions.
Contract Price: the price of the Goods, in accordance with clause9.1,9.2, and 9.3 (as applicable).
Credit Note: a receipt given by the Seller to the Buyer in respect of returned Goods which can be offset against the cost of future purchases of Goods by the Buyer but which, for the avoidance of doubt, cannot be converted into a payment from the Seller to the Buyer.
Data Protection Legislation: all relevant legislation, regulations and other legal requirements governing the processing of personal data in the United Kingdom.
Force Majeure Event: has the meaning given to it in clause 14.1.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order Acknowledgment: written confirmation of the contents of the Order issued to the Buyer by the Seller.
Seller: Environmental Enzymes Limited, its successors or assigns.
Seller’s Catalogue: a document or digital document prepared by or on behalf of the Seller which is in the public domain with the permission and consent of the Seller describing the Goods which the Seller in the ordinary course of the Seller’s business can supply.
2 BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Buyer to purchase Goods, in accordance with these Conditions.
2.2 The Contract shall only be formed when the Seller issues an Order Acknowledgement at which point and on which date the Contract shall come into existence.
2.3 Where there is a discrepancy or divergence between the Order and the Order Acknowledgement, the Order Acknowledgement shall prevail.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
2.5 Subject to clause 3.1 and save where the Seller has provided the Buyer with any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods contained in the Seller’s Catalogue are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and the Seller’s Catalogue shall not form part of the Contract.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract shall only be formed when the Seller issues an Order Acknowledgement at which point and on which date the Contract shall come into existence.
2.3 Where there is a discrepancy or divergence between the Order and the Order Acknowledgement, the Order Acknowledgement shall prevail.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
2.5 Subject to clause 3.1 and save where the Seller has provided the Buyer with any samples, drawings, descriptive matter or advertising issued by the Seller and any descriptions of the Goods contained in the Seller’s Catalogue are issued or published for the sole purpose of giving an approximate idea of the Goods described in them and the Seller’s Catalogue shall not form part of the Contract.
2.6 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3 GOODS
3.1 The Goods are described in the Seller’s catalogue as modified by any applicable specification.
3.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. The Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
3.3 The Seller is unable to advise the Buyer on the fitness of the Goods for any particular purpose, their storage or application. Unless the Seller gives written advice or a written recommendation, the Buyer is entirely responsible for satisfying itself that the Goods are fit for the intended use either by relying on their own expertise or by obtaining professional advice.
3.4 The Seller reserves the right to amend any specification of the Goods if required by any applicable statutory or regulatory requirements, codes of practice or industry best practice provided always that the Seller shall have no liability for any failure to amend any Buyer Specification. Dimensions and other physical properties of the Goods are subject to reasonable manufacturing tolerances.
3.5 The Seller shall with the Buyer’s consent (such consent not to be unreasonably withheld or delayed) be permitted to substitute any Goods with goods of similar standard and quality where the Goods are no longer available following placement of the Order or where the Seller’s Catalogue has been updated to include alternative goods to those contained within the Order at no additional cost to the Buyer.
3.6 Where the Buyer does not provide its consent in accordance with clause 3.6, in breach of clause 3.6 or otherwise, the Seller shall be entitled to terminate the Contract and shall (if the Buyer has paid for the Goods) issue the Buyer with a Credit Note within a reasonable period of time commensurate with the value of the Goods which will not be supplied under the Order and this shall be the Buyer’s sole remedy in relation to such cancellation.
3.7 Orders issued to the seller must include 50% of the contract price as a deposit, where supply prices have been guaranteed for the duration of a contract. Any variation from this must be confirmed in writing by a Director of the company
3.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. The Buyer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
3.3 The Seller is unable to advise the Buyer on the fitness of the Goods for any particular purpose, their storage or application. Unless the Seller gives written advice or a written recommendation, the Buyer is entirely responsible for satisfying itself that the Goods are fit for the intended use either by relying on their own expertise or by obtaining professional advice.
3.4 The Seller reserves the right to amend any specification of the Goods if required by any applicable statutory or regulatory requirements, codes of practice or industry best practice provided always that the Seller shall have no liability for any failure to amend any Buyer Specification. Dimensions and other physical properties of the Goods are subject to reasonable manufacturing tolerances.
3.5 The Seller shall with the Buyer’s consent (such consent not to be unreasonably withheld or delayed) be permitted to substitute any Goods with goods of similar standard and quality where the Goods are no longer available following placement of the Order or where the Seller’s Catalogue has been updated to include alternative goods to those contained within the Order at no additional cost to the Buyer.
3.6 Where the Buyer does not provide its consent in accordance with clause 3.6, in breach of clause 3.6 or otherwise, the Seller shall be entitled to terminate the Contract and shall (if the Buyer has paid for the Goods) issue the Buyer with a Credit Note within a reasonable period of time commensurate with the value of the Goods which will not be supplied under the Order and this shall be the Buyer’s sole remedy in relation to such cancellation.
3.7 Orders issued to the seller must include 50% of the contract price as a deposit, where supply prices have been guaranteed for the duration of a contract. Any variation from this must be confirmed in writing by a Director of the company
4 DELIVERY OF GOODS
4.1 The Seller shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note; and
4.1.2 if the Seller requires the Buyer to return any packaging material to the Seller, that fact is clearly stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such times as the Seller shall reasonably request. Returns of packaging materials shall be at the Seller’s expense.
4.2 The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Seller notifies the Buyer that the Goods are ready for delivery. Delivery shall be as near as possible to the Delivery Location where the Seller believes that such place is suitable for unloading during the normal working hours of the Seller on a Business Day.
4.3 Where the Goods are delivered by the Seller, delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. The Buyer shall be solely responsible for the unloading of the Goods and the Seller shall not be liable for any damage that occurs (whether to the Goods, property (personal or otherwise) or adjacent land) during such unloading. In the event that the same exceeds a period of one hour then demurrage may be charged by the Seller to the Buyer.
4.4 Where the Goods are collected by the Buyer then delivery of the Goods shall be completed upon completion of the loading of the Goods. The Seller shall not be liable for any damage that occurs during the loading or unloading of the Goods (whether to the Goods, property (personal or otherwise) or adjacent land).
4.5 Any claims by the Buyer in respect of alleged shortage or damage to the Goods or loss of Goods in transit must be notified to the Seller within 24 hours of delivery and confirmed in writing within 3 calendar days of delivery taking place. Any evident damage to external packaging must be the subject of an endorsement on the Seller’s delivery note at the time of delivery. No claim can be made by the Buyer if the delivery note relating to the Goods has been signed by the Buyer or his agent or employee without reference to the alleged damage, shortage or loss in transit.
4.6 Any dates quoted for delivery of the Goods are approximate only and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods
4.7 If the Seller fails to deliver the Goods its liability shall be limited to the costs and reasonable expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Buyer’s failure to provide the Seller with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.8 If for any reason the Customer fails to accept a delivery vehicle, or the Company is unable to deliver the Goods because the Customer has not provided appropriate instructions, documents, licences or authorisations, or because the Site is not fully accessible or is not properly prepared, or is in any way obstructed or otherwise unsuitable, the Company will charge the Customer an abortive delivery charge. The Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance).
4.9 If the Customer is unable or unwilling to take delivery of the Goods, once they are available for despatch, the Company reserves the right to invoice the Customer in full for the Goods a and the Customer shall be liable for all related costs or expenses for the ongoing storage of these materials until delivery can be made.
4.10 The Seller may deliver the Goods by instalments. These Conditions shall apply to each instalment as if each instalment constituted a separate contract incorporating these Conditions notwithstanding that they are delivered pursuant to a single Order and each instalment shall be invoiced and paid for separately in accordance with these Conditions. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.11 The Seller shall be under no obligation to make any delivery of Goods to the Buyer if the Buyer is in breach of any of these Conditions.
4.12 The quantity of any consignment of Goods as recorded by the Company on despatch from either the Company’s place of business or from any other location, shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
4.1.1 each delivery of the Goods is accompanied by a delivery note; and
4.1.2 if the Seller requires the Buyer to return any packaging material to the Seller, that fact is clearly stated on the delivery note. The Buyer shall make any such packaging materials available for collection at such times as the Seller shall reasonably request. Returns of packaging materials shall be at the Seller’s expense.
4.2 The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at any time after the Seller notifies the Buyer that the Goods are ready for delivery. Delivery shall be as near as possible to the Delivery Location where the Seller believes that such place is suitable for unloading during the normal working hours of the Seller on a Business Day.
4.3 Where the Goods are delivered by the Seller, delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location. The Buyer shall be solely responsible for the unloading of the Goods and the Seller shall not be liable for any damage that occurs (whether to the Goods, property (personal or otherwise) or adjacent land) during such unloading. In the event that the same exceeds a period of one hour then demurrage may be charged by the Seller to the Buyer.
4.4 Where the Goods are collected by the Buyer then delivery of the Goods shall be completed upon completion of the loading of the Goods. The Seller shall not be liable for any damage that occurs during the loading or unloading of the Goods (whether to the Goods, property (personal or otherwise) or adjacent land).
4.5 Any claims by the Buyer in respect of alleged shortage or damage to the Goods or loss of Goods in transit must be notified to the Seller within 24 hours of delivery and confirmed in writing within 3 calendar days of delivery taking place. Any evident damage to external packaging must be the subject of an endorsement on the Seller’s delivery note at the time of delivery. No claim can be made by the Buyer if the delivery note relating to the Goods has been signed by the Buyer or his agent or employee without reference to the alleged damage, shortage or loss in transit.
4.6 Any dates quoted for delivery of the Goods are approximate only and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods
4.7 If the Seller fails to deliver the Goods its liability shall be limited to the costs and reasonable expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event, the Buyer’s failure to provide the Seller with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.
4.8 If for any reason the Customer fails to accept a delivery vehicle, or the Company is unable to deliver the Goods because the Customer has not provided appropriate instructions, documents, licences or authorisations, or because the Site is not fully accessible or is not properly prepared, or is in any way obstructed or otherwise unsuitable, the Company will charge the Customer an abortive delivery charge. The Company may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including storage and insurance).
4.9 If the Customer is unable or unwilling to take delivery of the Goods, once they are available for despatch, the Company reserves the right to invoice the Customer in full for the Goods a and the Customer shall be liable for all related costs or expenses for the ongoing storage of these materials until delivery can be made.
4.10 The Seller may deliver the Goods by instalments. These Conditions shall apply to each instalment as if each instalment constituted a separate contract incorporating these Conditions notwithstanding that they are delivered pursuant to a single Order and each instalment shall be invoiced and paid for separately in accordance with these Conditions. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
4.11 The Seller shall be under no obligation to make any delivery of Goods to the Buyer if the Buyer is in breach of any of these Conditions.
4.12 The quantity of any consignment of Goods as recorded by the Company on despatch from either the Company’s place of business or from any other location, shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
5 QUALITY OF GOODS
5.1 The Seller warrants that on delivery, and for a period of 12 calendar months from the date of delivery the Goods shall: (a) be free from material defects and (b) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979). Subject to the goods being stored in accordance with the instructions stated on the packaging label
5.2 Subject to clause 5.3 if: (a) the Buyer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; (b) the Seller is given a reasonable opportunity of examining such Goods; and (c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost, then the Seller shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if: (a) the Buyer makes any further use of such Goods after giving a notice in accordance with clause 5.2; (b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage of the Goods or good trade practice; (c) the Buyer alters or repairs such Goods without the written consent of the Seller; (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or (e) the Buyer has not paid in full for the Goods.
5.4 Except as provided in this clause5.4, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1. This clause 5 shall apply to any repaired or replacement Goods supplied by the Seller under clause 5.2.
5.2 Subject to clause 5.3 if: (a) the Buyer gives notice in writing during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; (b) the Seller is given a reasonable opportunity of examining such Goods; and (c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost, then the Seller shall, at its option, replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if: (a) the Buyer makes any further use of such Goods after giving a notice in accordance with clause 5.2; (b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage of the Goods or good trade practice; (c) the Buyer alters or repairs such Goods without the written consent of the Seller; (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or (e) the Buyer has not paid in full for the Goods.
5.4 Except as provided in this clause5.4, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1. This clause 5 shall apply to any repaired or replacement Goods supplied by the Seller under clause 5.2.
6 RETURNS
6.1 All returns must be sanctioned by the Seller prior to Goods being returned.
6.2 Subject to clause 6.1, the Seller shall issue a Credit Note in respect of Goods returned.
6.3 Goods returned at the Buyer’s request not on the Seller’s own vehicle shall be at the Buyer’s risk regarding insurance for a value not less than the full invoice price.
6.4 Non-stock Items cannot be returned by the Buyer.
6.5 Costs of collection and re-delivery of replacement items to the Delivery Location will be met by the Buyer unless attributable to a breach by the Seller of the Contract. Subject to clause 7.3, only Goods returned in saleable condition can be accepted for a Credit Note. The Seller reserves the right to levy a re-stocking and handling charge.
6.2 Subject to clause 6.1, the Seller shall issue a Credit Note in respect of Goods returned.
6.3 Goods returned at the Buyer’s request not on the Seller’s own vehicle shall be at the Buyer’s risk regarding insurance for a value not less than the full invoice price.
6.4 Non-stock Items cannot be returned by the Buyer.
6.5 Costs of collection and re-delivery of replacement items to the Delivery Location will be met by the Buyer unless attributable to a breach by the Seller of the Contract. Subject to clause 7.3, only Goods returned in saleable condition can be accepted for a Credit Note. The Seller reserves the right to levy a re-stocking and handling charge.
7 TITLE AND RISK
7.1 Title to the Goods shall not pass to the Buyer until the Seller has received payment in full (in cash or cleared funds) for: (a) the Goods; and (b) any other goods that the Seller has supplied to the Buyer.
7.2 Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the seller until the seller has received payment of the full price of (a) all goods and/or services the subject of the contract and (b) all other goods and /or services supplied by the seller to the buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and buyer.
7.3 Until title to the Goods has passed to the Buyer, the Buyer shall: (a) hold the Goods on
a fiduciary basis as the Seller’s bailee; (b) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to
the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Seller’s behalf from the date of delivery; (e) notify the Seller immediately if it becomes subject to any of the events listed in clause 12.1; and (f) give the Seller such information relating to the Goods as the Seller may require from time to time, but the Buyer may resell or use the Goods in the ordinary course of its business provided that any such sale of the Goods shall take place as the Seller’s bailee and that the entire proceeds of sale are held in trust for the Seller and shall not be mingled with other monies or paid into any overdrawn bank account.
7.4 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 12.1, or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of
the Buyer or of any third party where the Goods are stored in order to recover them.
7.2 Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the seller until the seller has received payment of the full price of (a) all goods and/or services the subject of the contract and (b) all other goods and /or services supplied by the seller to the buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and buyer.
7.3 Until title to the Goods has passed to the Buyer, the Buyer shall: (a) hold the Goods on
a fiduciary basis as the Seller’s bailee; (b) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (c) not remove, deface or obscure any identifying mark or packaging on or relating to
the Goods; (d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Seller’s behalf from the date of delivery; (e) notify the Seller immediately if it becomes subject to any of the events listed in clause 12.1; and (f) give the Seller such information relating to the Goods as the Seller may require from time to time, but the Buyer may resell or use the Goods in the ordinary course of its business provided that any such sale of the Goods shall take place as the Seller’s bailee and that the entire proceeds of sale are held in trust for the Seller and shall not be mingled with other monies or paid into any overdrawn bank account.
7.4 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 12.1, or the Seller reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of
the Buyer or of any third party where the Goods are stored in order to recover them.
8 BUYER’S OBLIGATIONS
8.1 The Buyer shall:
8.1.1 ensure that the terms of the Order and Buyer’s Specification are complete and accurate;
8.1.2 subject to clause 4.5, in the event that the Goods do not accord with the Order and/or the Buyer’s Specification, the Buyer must notify the Seller within 24 hours from the date of delivery and be confirmed in writing to the Seller within 7 calendar days, failing which the Buyer will be deemed to have accepted the Goods; and
8.1.3 satisfy itself that any manufacturers information (including, but not limited to, data sheets) provided by the Seller is accurate and up to date and ensure that it remains up to date with the specifications of all Goods and requirements for their use.
8.2 Where the order requires supply of Goods and the Buyer is located outside of the United Kingdom the Buyer shall:
8.2.1 obtain all import permits or licences required for any part of the Goods in a reasonable time having regard to any agreed delivery dates between the Buyer and the Seller. The Buyer shall pay or reimburse the Seller all customs and import duties arising upon the importation of Goods;
8.2.2 satisfy itself that the Goods meet all local legislation, regulation and other requirements in the country in which it is intended that they are used or installed and the Seller shall have no liability to the Buyer or any third party in the event that the Goods do not comply with any such local requirements (whether legally binding or otherwise); and
8.2.3 indemnify the Seller for any costs, claims, damages, losses and/or expenses incurred by the Seller as a result of the Buyer’s failure to comply with the above provisions clause 11.3.
8.1.1 ensure that the terms of the Order and Buyer’s Specification are complete and accurate;
8.1.2 subject to clause 4.5, in the event that the Goods do not accord with the Order and/or the Buyer’s Specification, the Buyer must notify the Seller within 24 hours from the date of delivery and be confirmed in writing to the Seller within 7 calendar days, failing which the Buyer will be deemed to have accepted the Goods; and
8.1.3 satisfy itself that any manufacturers information (including, but not limited to, data sheets) provided by the Seller is accurate and up to date and ensure that it remains up to date with the specifications of all Goods and requirements for their use.
8.2 Where the order requires supply of Goods and the Buyer is located outside of the United Kingdom the Buyer shall:
8.2.1 obtain all import permits or licences required for any part of the Goods in a reasonable time having regard to any agreed delivery dates between the Buyer and the Seller. The Buyer shall pay or reimburse the Seller all customs and import duties arising upon the importation of Goods;
8.2.2 satisfy itself that the Goods meet all local legislation, regulation and other requirements in the country in which it is intended that they are used or installed and the Seller shall have no liability to the Buyer or any third party in the event that the Goods do not comply with any such local requirements (whether legally binding or otherwise); and
8.2.3 indemnify the Seller for any costs, claims, damages, losses and/or expenses incurred by the Seller as a result of the Buyer’s failure to comply with the above provisions clause 11.3.
9 PRICE OF THE GOODS
9.1 The Price for Goods shall be the price set out in the Order or, if no price is stated, the price set out in the Seller’s published price list as at the date of delivery. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods which shall be paid by the Buyer when it pays for the Goods.
9.2 Without prejudice to the provisions of clause 9.1 and unless a fixed price has been agreed in writing by a Director or authorised person of the Seller, the Contract Price for Goods under a Call-off Order shall be the price set out in the Seller’s published price list for such Goods as at the date of the Contract plus any increase in the cost of any labour, material and transport cost incurred by the Seller since such date.
9.3 The Seller reserves the right to increase the price of the Goods by giving notice to the Buyer at any time before delivery to reflect any increase in the cost of the Goods to the Seller that is due to: (a) any factor beyond the control of the Seller (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Buyer to change the delivery date(s), the number of deliveries, quantities or types of Goods ordered, or any specification, including the Buyer’s Specification; or (c) any delay caused by any instructions of the Buyer in respect of the Goods or failure of the Buyer to give the Seller adequate or accurate information or instructions in respect of the Goods.
9.4 The Seller shall invoice the Buyer on or at the delivery of the Goods. The Seller shall have the right to invoice the Buyer by e-mail. Where invoices are sent out using e-mail they will be deemed to have been received by the Buyer on the date when it was sent provided that the e-mail is transmitted between the hours of 9.00am and 5.00pm on a Business Day. If the invoice is sent by e-mail from the Seller to the Buyer outside of the above times then the Buyer will be deemed to have received the invoice on the next Business Day.
9.5 The Buyer shall pay a deposit of 50% of the contract price upon placement of the order. An invoice submitted by the Seller for this deposit amount in cleared funds to a bank account nominated in writing by the Seller, and time for payment shall be of the essence of the Contract.
9.6. The buyer shall pay the remaining 50% of the contract price before goods are released or dispatched for delivery
9.7 Without limiting any other right or remedy of the Seller, if the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment
9.7.1The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may, without limiting its other rights or remedies, set off any amount owing to it by the Buyer under any agreement between the Seller and the Buyer against any amount payable by the Seller to the Buyer under this agreement.
9.7.2 Failure by the Buyer to pay all outstanding amounts under this Contract by the due date shall entitle the Seller to demand payment of all outstanding balances under the Contract or any other contract or agreement between the parties whether due or not and to cancel forthwith any outstanding orders and credit facilities without prejudice to all other rights the Seller may have.
9.7.3 The Buyer must pay to the Seller all and any reasonable expenses and legal costs incurred by the Seller in taking any steps, including Court action but excluding adjudication, to enforce the Buyer’s obligations under the Contract for the payment of any monies owed by the Buyer to the Seller.
9.8 All amounts payable by the Buyer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Seller to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the same.
9.2 Without prejudice to the provisions of clause 9.1 and unless a fixed price has been agreed in writing by a Director or authorised person of the Seller, the Contract Price for Goods under a Call-off Order shall be the price set out in the Seller’s published price list for such Goods as at the date of the Contract plus any increase in the cost of any labour, material and transport cost incurred by the Seller since such date.
9.3 The Seller reserves the right to increase the price of the Goods by giving notice to the Buyer at any time before delivery to reflect any increase in the cost of the Goods to the Seller that is due to: (a) any factor beyond the control of the Seller (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); (b) any request by the Buyer to change the delivery date(s), the number of deliveries, quantities or types of Goods ordered, or any specification, including the Buyer’s Specification; or (c) any delay caused by any instructions of the Buyer in respect of the Goods or failure of the Buyer to give the Seller adequate or accurate information or instructions in respect of the Goods.
9.4 The Seller shall invoice the Buyer on or at the delivery of the Goods. The Seller shall have the right to invoice the Buyer by e-mail. Where invoices are sent out using e-mail they will be deemed to have been received by the Buyer on the date when it was sent provided that the e-mail is transmitted between the hours of 9.00am and 5.00pm on a Business Day. If the invoice is sent by e-mail from the Seller to the Buyer outside of the above times then the Buyer will be deemed to have received the invoice on the next Business Day.
9.5 The Buyer shall pay a deposit of 50% of the contract price upon placement of the order. An invoice submitted by the Seller for this deposit amount in cleared funds to a bank account nominated in writing by the Seller, and time for payment shall be of the essence of the Contract.
9.6. The buyer shall pay the remaining 50% of the contract price before goods are released or dispatched for delivery
9.7 Without limiting any other right or remedy of the Seller, if the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment
9.7.1The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount in whole or in part. The Seller may, without limiting its other rights or remedies, set off any amount owing to it by the Buyer under any agreement between the Seller and the Buyer against any amount payable by the Seller to the Buyer under this agreement.
9.7.2 Failure by the Buyer to pay all outstanding amounts under this Contract by the due date shall entitle the Seller to demand payment of all outstanding balances under the Contract or any other contract or agreement between the parties whether due or not and to cancel forthwith any outstanding orders and credit facilities without prejudice to all other rights the Seller may have.
9.7.3 The Buyer must pay to the Seller all and any reasonable expenses and legal costs incurred by the Seller in taking any steps, including Court action but excluding adjudication, to enforce the Buyer’s obligations under the Contract for the payment of any monies owed by the Buyer to the Seller.
9.8 All amounts payable by the Buyer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (“VAT”). Where any taxable supply for VAT purposes is made under the Contract by the Seller to the Buyer, the Buyer shall, on receipt of a valid VAT invoice from the Seller, pay to the Seller such additional amounts in respect of VAT as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the same.
10 CONFIDENTIAL INFORMATION
Neither party shall during and after termination of this Contract, without the prior written consent of the other party use or disclose to any other party any information of the other party which is identified as confidential or which is confidential by its nature. This clause 10 shall survive termination of the Contract.
11 LIMITATION OF LIABILITY: THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
11.1 Nothing in this Contract shall limit or exclude the Seller’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); (e) defective products under the Consumer Protection Act 1987; (f) any other liability which cannot be excluded as a matter of law.
11.2 Subject to clause11.1:
11.2.1 the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any;
(a) loss of profit,
(b) loss of chance;
(c) loss of business;
(d) loss of goodwill; or
(e) any indirect or consequential loss arising under or in connection with the Contract, and
11.2.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 10% of the Contract Price.11.3 Except as set out in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
11.2 Subject to clause11.1:
11.2.1 the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any;
(a) loss of profit,
(b) loss of chance;
(c) loss of business;
(d) loss of goodwill; or
(e) any indirect or consequential loss arising under or in connection with the Contract, and
11.2.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 10% of the Contract Price.11.3 Except as set out in the Contract, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12 CONSEQUENCES OF TERMINATION
On termination of the Contract for any reason: (a) the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest; (b) the accrued rights and remedies of the Seller as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and (c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
13 GENERAL
13.1 Force majeure:
13.1.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or by any failure of the Seller’s subcontractors to supply the Seller.
13.1.2 The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.1.3 If the Force Majeure Event prevents the Seller from providing any of the Goods for more than 14 calendar days, the Seller shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
13.2 Assignment and subcontracting:
13.2.1 The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
13.2.2 The Buyer shall not, without the prior written consent of the Seller (such consent at the Seller’s discretion), assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 Data and Data Protection:
13.3.1 The Seller may use any information that the Buyer has provided to the Seller to enable a search to be made with credit reference agencies to assess the creditworthiness of the Buyer and to search against any personal credit records of all directors and/or proprietors of the Buyer (in respect of which the Buyer confirms that all necessary consents from the individuals have been obtained) where the Buyer has sought or has entered into credit terms with the Seller. Such searches may include a search against current or previous addresses in the last three years
13.3.2 For the purposes of credit referencing, fraud prevention and any money laundering regulations that may apply, the Seller may share the account information and trade history with other lenders and credit reference agencies. The Seller may from time to time review the account of the Buyer, and further searches of credit reference agencies and/or personal credit record searches may be undertaken by the Seller.
13.3.3 Each party shall, in relation to any personal data provided to it by the other process such personal data in accordance with Data Protection Legislation
13.4 Waiver and cumulative remedies:
13.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by the Seller in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.5 Severance:
13.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.5.2 Subject to clause
13.5.3, if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.5.3 Without prejudice to clause 14.5.1 and clause 14.5.2, in the event that clause 11.2.2 is found to be Invalid, illegal or unenforceable by a court or other competent authority clause 11.2.2 shall be deemed deleted from the Contract and replaced by the following new clause 11.2.2:
13.6 No partnership
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 Third partiesA person who is not a party to the Contract shall not have any rights under or in connection with it. 14.8 Variation
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Seller.
13.8 Governing law and jurisdiction
This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
13.1.1 For the purposes of this Contract, “Force Majeure Event” means an event beyond the reasonable control of the Seller including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the party or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or by any failure of the Seller’s subcontractors to supply the Seller.
13.1.2 The Seller shall not be liable to the Buyer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
13.1.3 If the Force Majeure Event prevents the Seller from providing any of the Goods for more than 14 calendar days, the Seller shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Buyer.
13.2 Assignment and subcontracting:
13.2.1 The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
13.2.2 The Buyer shall not, without the prior written consent of the Seller (such consent at the Seller’s discretion), assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.3 Data and Data Protection:
13.3.1 The Seller may use any information that the Buyer has provided to the Seller to enable a search to be made with credit reference agencies to assess the creditworthiness of the Buyer and to search against any personal credit records of all directors and/or proprietors of the Buyer (in respect of which the Buyer confirms that all necessary consents from the individuals have been obtained) where the Buyer has sought or has entered into credit terms with the Seller. Such searches may include a search against current or previous addresses in the last three years
13.3.2 For the purposes of credit referencing, fraud prevention and any money laundering regulations that may apply, the Seller may share the account information and trade history with other lenders and credit reference agencies. The Seller may from time to time review the account of the Buyer, and further searches of credit reference agencies and/or personal credit record searches may be undertaken by the Seller.
13.3.3 Each party shall, in relation to any personal data provided to it by the other process such personal data in accordance with Data Protection Legislation
13.4 Waiver and cumulative remedies:
13.4.1 A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by the Seller in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.4.2 Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.
13.5 Severance:
13.5.1 If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.5.2 Subject to clause
13.5.3, if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.5.3 Without prejudice to clause 14.5.1 and clause 14.5.2, in the event that clause 11.2.2 is found to be Invalid, illegal or unenforceable by a court or other competent authority clause 11.2.2 shall be deemed deleted from the Contract and replaced by the following new clause 11.2.2:
13.6 No partnership
Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13.7 Third partiesA person who is not a party to the Contract shall not have any rights under or in connection with it. 14.8 Variation
Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract shall only be binding when agreed in writing and signed by the Seller.
13.8 Governing law and jurisdiction
This 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, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
Date 31/7/24