Unless expressly agreed in writing by the Seller, these Conditions and any Special Conditions shall apply to the Contract to the exclusion of all other terms and conditions and the Contract may only be varied by written agreement between the Purchaser and the Seller, duly signed by authorised officers of the respective parties.
i) “The Contract” means these Conditions, any Special Conditions, the Quotation together with any specifications referred to within.
ii) “The Goods” means the material to be supplied under the Contract as set out in the Quotation.
iii) “The Contract Price” means the total sum payable in accordance with the Contract in respect of the Goods and any other services to be undertaken by the Seller as set out in the Quotation.
iv) “Purchaser” means the purchaser named on the Quotation overleaf.
v) “Quotation” means the quotation, specification and other information supplied by the Seller and provided to the Purchaser in writing in respect of the purchase of Goods. vi) “Seller” means F2 Chemicals Limited (company number 02680159) whose registered office is at Lea Lane, Lea Town, Preston PR4 0RZ.
vii) “Special Conditions” means any additional terms agreed in writing between the Purchaser and Seller apply to a Contract.
3. Period For Acceptance
Unless previously withdrawn by the Seller, the Quotation shall be open for acceptance in writing, by the Purchaser for a period of thirty days immediately following the date of the Quotation. Subject to clause 4 below, acceptance shall only be made on these Conditions and the Contract between Seller and Purchaser is made on the date the Seller receives such written acceptance of the Quotation.
4. Provision of Information
The Purchaser shall provide the Seller with any information required by the Seller for it to perform its obligations under the Contract prior to or upon the acceptance date of the Quotation or at any other date mutually agreed. If this information is not provided by the Purchaser on such date then at the sole discretion of the Seller:
i) The Contract may be treated as null and void; or
ii) The Contract Price may be increased by any amount necessary to recover additional costs incurred by the Seller to perform the Contract as a result of the non-provision of requested information.
5. Despatch and Delivery
i) The Seller shall give the Purchaser reasonable advance notice of the date on which the Goods (or such part as may be agreed) will be ready for despatch (“Despatch Date”). The Seller shall use its reasonable endeavours to provide a Despatch Date within the timescale agreed, however, the Seller accepts no responsibility for any loss to the Purchaser arising from late delivery. Unless otherwise defined, the interpretation of terms used in any correspondence is as shown in INCOTERMS 2000 and the method and location for delivery is as set out in the Quotation. Time for delivery shall not be of the essence.
ii) In the event of any delay to the delivery of the Goods, the Seller reserves the right to deliver the Goods in instalments. In such a case, or where delivery by instalments is agreed in writing between the Purchaser and the Seller each delivery shall constitute a separate Contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
iii) If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller's reasonable control or the Purchaser's fault, and the Purchaser is entitled to terminate the Contract such that the Seller is accordingly liable to the Purchaser and discharged from the obligation to deliver any or any further Goods, the Seller's liability shall be limited to the price of those Goods not delivered.
6. Passing of Property and Risk
i) Risk of damage to or loss of the Goods shall pass to the Purchaser:
(a) in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Purchaser that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of delivery or, if the Purchaser wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
ii) It shall be the responsibility of the Purchaser to insure the Goods from the time when the Seller notifies the Purchaser that the Goods are available for collection.
iii) Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Purchaser until the Seller has received in cash or other cleared funds payment in full of the Contract Price of the Goods and all other Goods or services sold or supplied or agreed to be sold or supplied by the Seller to the Purchaser for which payment is then due.
iv) Until such time as the property in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Purchaser and third parties and properly stored, protected and insured and identified as the Seller's property, but the Purchaser may resell or use the Goods in the ordinary course of its business.
v) In the event that the Purchaser resells the Goods in the ordinary course of its business before property in the Goods passes to the Purchaser (in accordance with clause 6
(vi) above), the Purchaser shall hold the proceeds of sale on trust for the Seller for the purpose of paying sums owing from the Purchaser to the Seller and it shall be entitled to require the Purchaser to restrict the proceeds of sale by requesting the Purchaser to transfer the proceeds of sale into a designated bank account.
vi) Until such time as the property in the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Purchaser to deliver up the Goods to the Seller and, if the Purchaser fails to do so forthwith, enter on any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods.
vii) The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Purchaser does so all moneys owing by the Purchaser to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
7. Price and Payment
i) The price of the Goods shall be the Contract Price, or, where no Contract Price has been given (or a quoted price is no longer valid), the price listed in the Seller's published price list current at the date of the Contract.
ii) The Seller reserves the right, by giving written notice to the Purchaser at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any changes in delivery dates, quantities or specifications for the Goods which are requested by the Purchaser, or any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Seller adequate information or instructions.
iii) Unless agreed in writing to the contrary, payment of the Contract Price should be made to the Seller within 30 days of the invoice date. Payment should be made in sterling unless agreed otherwise in writing, free of any deductions to: F2 Chemicals Limited, Lea Lane, Lea Town, Preston PR4 0RZ, or by telegraphic transfer to account number 00317071, sort code 01-10-01, at the National Westminster Bank, 11 Spring Gardens, Manchester, M60 2DB or to such other account as may be notified to the Purchaser in writing. The Seller's VAT code is GB 759 308 793.
iv) If the Purchaser fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
(a) cancel the Contract or suspend any further deliveries to the Purchaser;
(b) appropriate any payment made by the Purchaser to such of the Goods (or the Goods supplied under any other contract between the Purchaser and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Purchaser); and
(c) charge the Purchaser interest (both before and after any judgment) on the amount unpaid, at the rate provided for under the Late Payment of Commercial Debts (Interest) Act 1998. The Seller shall also be entitled to recover all fees and charges available to it under the Late Payment of Commercial Debts (Interest) Act 1998.
If the Seller has not received delivery instructions by the Despatch Date it may arrange for the Goods to by stored and the Purchaser shall indemnify the Seller against all storage charges incurred.
Unless specifically identified in the Quotation, all packaging material is non-returnable. Where packaging material is identified by the Quotation as on loan, the Purchaser must return the loaned packaging material within the period set out in the Quotation or where no time frame is specified, within 60 days of the Despatch Date. Any items not returned to the agreed timescale, or returned in an unusable condition will be charged to the Purchaser at the replacement cost. Packaging received by the Purchaser in a damaged condition must be reported to the Seller within 1 week of receipt
i) Subject to paragraph 15, the Goods shall accord with the specification set out in the Quotation or where there is no specification, the Goods shall be within normal limits of industrial quality.
ii) In the event that the Goods received by the Purchaser are not in accordance with the specification set out in paragraph 10(i) above, the Purchaser shall within 7 days from the date of delivery, or in the case of a latent defect within 14 days of such time as the defect ought reasonably to have been discovered by the Purchaser, notify the Seller in writing, and shall, unless otherwise agreed, return the Goods to the Seller (at the Seller's cost) for inspection.
iii) If the Goods are confirmed by the Seller as not in accordance with paragraph 10(i) above, the Seller shall at its own discretion undertake to either replace those Goods free of charge or provide a full refund of any payment made against those Goods plus the cost of returning the Goods to the Seller.
In the event of the Purchaser receiving a shortage of Goods from the quantity set out in the Quotation, he must notify the Seller in writing within 7 days of receipt of the Goods. No claim for shortage shall be made for amounts of 0.5% or less of the amount set out in the Quotation for that delivery of Goods.
i) Any recommendation or suggestion relating to the use of Goods made by any representative of the Seller either in technical literature or by response to specific enquiry will be made in good faith however it is for the Purchaser to satisfy himself of the suitability of the Goods for his particular purpose of which the Seller has no knowledge and accordingly the Seller gives no warranty as to the fitness for purpose of any Goods.
ii) The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Purchaser acknowledges that it does not rely on any such representations which are not so confirmed, but nothing in these Conditions affects the liability of either party for fraudulent misrepresentation.
iii) Any advice or recommendation given by the Seller or its employees or agents to the Purchaser or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted on entirely at the Purchaser's own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
iv) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
v) The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or E.U. requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
13. Intellectual Property
i) Where the Seller supplies Goods according to a specification provided by the Purchaser, the Purchaser warrants that such supply will not cause the Seller to infringe any registered designs, patents, trade names, trade marks or other intellectual property in the performance of the Contract. In the event of any alleged infringement the Purchaser shall fully indemnify the Seller against any action, claim, demand costs, charges or expenses arising from such alleged infringement.
ii) These Conditions and the purchase of the Goods by the Purchaser do not entitle the Purchaser to any right, interest, title or permission to use the intellectual property rights owned by the Seller.
iii) These Conditions and the sale of the Goods by the Seller does not entitle the Seller to any right interest, title or permission to use the intellectual property owned by the Purchaser, except to the extent that the Seller is implied to have the permission to use any intellectual property contained within the specification provided by the Purchaser to the Seller to ensure that the specification is met.
The Purchaser shall hold the Seller and all servants or agents harmless and indemnified against all actions, claims and demands which may be commenced in respect of injury (including death) or damage occasioned to any person whosoever or any property or right caused by or arising out of the handling, storage, transport or use of the Goods otherwise than by the Seller or its servants or agents provided that the Purchaser shall not be under such liability to the extent that he is able to show that such damage or injury was caused by or contributed to as a direct result of strict compliance with any precautionary measure recommended by the Seller.
15. Warranties and liability
i) The warranty given by the Seller in paragraph 10
(i) above is given subject to the following conditions:
a) the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Purchaser;
b) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller's approval, or by the incorrect storage of the Goods in the wrong environment (whether any package is opened or unopened);
c) the Seller shall be under no liability under paragraph 10 above (or any other warranty, condition or guarantee) if the Contract Price for the Goods has not been paid by the due date for payment;
d) the warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Purchaser shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
ii) Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
iii) A claim by the Purchaser which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification (including as to quantity) shall (whether or not delivery is refused by the Purchaser) be notified in writing to the Seller within seven (7) days from the date of delivery or attempted delivery and such notification shall include a detailed description of the defect in quality or condition with sample evidence. If delivery is not refused, and the Purchaser does not notify the Seller accordingly, the Purchaser shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Purchaser shall be bound to pay the Contract Price as if the Goods had been delivered in accordance with the Contract.
iv) Where a valid claim in respect of any of the Goods based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller's sole discretion, refund to the Purchaser the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Purchaser.
v) Where a valid claim in respect of the quantity of Goods delivered is notified to the Seller in accordance with these Conditions, the Seller may at the Seller's sole discretion either refund to the Purchaser the price of the Goods referable to the Goods not delivered or, at the Seller's sole discretion, deliver further Goods as a separate instalment such that in either case the Seller shall have no further liability to the Purchaser.
vi) Except in respect of death or personal injury caused by the Seller's negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Purchaser by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Purchaser, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Conditions.
vii) The Seller shall not be liable to the Purchaser or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller's obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control:
a) act of God, explosion, flood, tempest, fire or accident;
b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
d) import or export regulations or embargoes;
e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
f) difficulties in obtaining raw materials, labour, fuel, parts or machinery; g) power failure or breakdown in machinery.
16. Taxes and Duties
Unless agreed to the contrary, all prices quoted including the Contract Price are exclusive of VAT and all taxes and duties arising from any supply of Goods and such sums shall be payable by the Purchaser in addition to the Contract Price.
The Purchaser agrees to ensure the prompt discharge, turn-around and re-despatch of all vehicles (of whatever type) used for the carriage of any Goods and to hold the Seller, its servants and agents harmless from all loss whatsoever arising or resulting from any delay in such turn-around.
i) This clause applies if:
a) the Purchaser makes a composition or voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) enters administration or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction), or a moratorium comes into force in respect of the Purchaser (within the meaning of the Insolvency Act 1986); or
b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or
c) the Purchaser ceases, or threatens to cease, to carry on business; or
d) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
ii) If this clause applies, without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Purchaser, and if the Goods have been delivered but not paid for the Contract Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
No Contract may be cancelled by the Purchaser except with the agreement in writing of the Seller and on terms that the Purchaser shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
20. Law and Jurisdiction
This Contract shall be governed in all respects by the laws of England and the Purchaser agrees to submit to the non-exclusive jurisdiction of the English courts.
i) The Seller may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of its group.
ii) A notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
iii) No waiver by the Seller of any breach of the Contract by the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision.
iv) If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
v) It is the intention of the parties that no person not a party to the Contract shall have any rights in relation to it under the Contracts (Rights of Third Parties) Act 1999.
vi) The parties are not partners or joint venturers nor is either party able to act as agent of the other save as authorised by this Agreement.
vii) The Contract sets out the entire agreement between the parties in connection with its subject matter and neither party has entered into the Contract in reliance on any warranty, representation of statement made by the other which is not set out in the Contract. Nothing in these Conditions purports to exclude liability for any fraudulent statement or act.