TERMS & CONDITIONS OF SALE
In these conditions-
“the company“ means Advanced Corrosion Protection Materials Limited.
“the customer” means the purchaser of goods or services
2. Constitution of contract
2.1. The acceptance by the customer of a written quotation within thirty days (or such longer time as may be specified therein) after the date of the quotation shall constitute a contract on the terms and conditions hereinafter set out, as read with the special conditions (if any) stated or referred to in the quotation. No other conditions, whether contained in the customer’s documentation or otherwise shall be binding on the company unless the company specifically agrees to them in writing.
2.2. No variation of any written contract shall be binding upon the company unless it is in writing and signed by the company.
2.3 No statement, recommendation, figure, advice, formula, specification, illustration, diagram, price list, dimension, weight, performance estimate, drawing or any other representation given by the company to the customer shall form part of the contract or be construed as a representation inducing the contract unless contained in writing in the quotation.
3.1. The price given in the quotation shall not, unless otherwise specified, include any taxes, surcharges or other government or municipal charges or duties or any charges for special packaging requirements. If any of them are specified in the quotation and increased before delivery, the increase shall be for the customer’s account.
3.2. Prices quoted are valid for the quantities indicated in the quotation only. Changes in quantities may lead to price adjustments.
4. Rate of exchange variations
4.1. Where the price given in the quotation is subject to rate of exchange variation, the company will as soon as possible after acceptance of the customer’s order, obtain, at its own expense, forward cover for any change in the rate of exchange. The rate at which such cover is obtained will be used to calculate the final price of the goods and the customer will be advised of the final price promptly thereafter.
4.2. In making adjustments to the price in terms of this clause the company shall be obliged to disclose to the customer, only the amount subject to the variation and the rate at which forward cover was obtained. The customer shall not be entitled to receive other information relating to the cost or price analysis of the goods sold.
5. Dispute as to price variations
If the customer disputes the company’s right to increase the price of the goods or the amount of any increase then:
5.1. He shall give written notice to that effect to the company within seven days after receipt of notice of the company’s intention to increase the price. Should he fail to do so the increased price shall be binding upon him.
5.2. If the dispute cannot be resolved between the parties within seven days of the notice given in terms of clause 5.1, it shall be referred for a decision to the company’s auditors for the time being;
5.3. A certificate signed by the company’s auditors as to the amount of any increase shall be final and conclusive proof of the amount due to the company and shall be binding upon both parties.
6.1. If the company’s credit control clearance procedure results in credit being granted to the customer in respect of a particular order, then in respect of each delivery, unless otherwise specified in the company’s quotation, payment terms shall be strictly nett thirty days from date of the company’s invoice.
6.2. If the company does not extend credit to the customer, goods must be paid for in full prior to delivery.
6.3. If any amount due to the company is not paid on due date, the customer will be liable to pay interest on the overdue amount at the rate of five percent (5%) above the Base rate, published by Barclays Bank, from time to time calculated with effect from the due date of payment to final date of payment, both days inclusive.
6.4. All payments shall be made to the company as UK Sterling (unless payment in other currency is specified) and free of exchange deduction or set-off at 11A Springfield Avenue, Newport, Shropshire TF10 7HP, or at such other place or places as the company may from time to time hereafter in writing appoint.
6.5. If any amount due and payable by the customer to the company is in arrears, the company shall have the right, until such amount has been paid, to suspend any deliveries under this and/or any other contract then in force between the company and customer.
6.6. A certificate signed by the company’s financial director or credit manager specifying the amount owing by the customer to the company and also stating that the said amount is due and owing shall be prima facie proof of the amount of such indebtedness.
7.1. Unless otherwise agreed in writing, delivery shall be ex works at the company’s premises.
7.2. The company shall have the right to deliver goods forming the subject matter of orders in whatever quantities and on however many separate occasions as it may, in its discretion decide.
7.3. If the company agrees to deliver the goods at any place other than the company’s factory, the cost of delivery incurred by the company shall be paid by the customer and the risk of loss of or damage to the goods, even if caused by the negligence of the company or its employees, shall be with the customer from the time the goods leave the company’s factory.
7.4. The company does not guarantee delivery on any specific date but will endeavour to give delivery on the date stated on the quotation. Notwithstanding any time or date for delivery stipulated by the customer, the company shall not be liable for any loss of any kind arising from delay in delivery or failure to deliver for any reason whatsoever and neither shall such delay or failure entitle the customer to cancel its order.
7.5. The customer shall be obliged to take delivery of the goods forming the subject matter of orders when delivery is tendered by the company and if the customer fails to do so the company shall, in addition to any other rights that it may have, be entitled to recover from the customer its reasonable storage charges.
7.6. Any goods delivered by the company to the customer shall be deemed to conform to the description of the goods ordered by the customer, and to have been delivered in the quantity specified in the company’s delivery note without damage of any nature, unless the customer notifies the company to the contrary in writing within 7 days of the date of delivery.
8. Retention of Title
8.1. Title in the Goods forming part of the contract, shall not pass from the company to the customer, until such time that the goods have been fully paid for.
8.2. Upon delivery, the Customer shall store the Goods separately and identifiably, until they have been paid for.
8.3 Without prejudice to any other remedy it might have against the Customer, the Company shall be entitled to enter any premises where the goods are situated for the purpose of recovering the Goods, if the Customer becomes insolvent or fails to pay for the Goods by any due payment date.
8.4 Until title to the Goods has passed to the Customer, the Customer may not re-sell any of the Goods in its possession without the express permission of the Company.
8.5 The portion of the proceeds of any such re-sale of the Goods, shall belong to the Company, and be held by the Customer in a fiduciary capacity on behalf of the Company, until the customer has made payment in full, for the Goods.
9. Cancellation and returned equipment
9.1. Orders in respect of standard goods, all of the components of which are manufactured by the company, may be cancelled by the customer only by written agreement with the company, upon return of the goods in new condition if delivery has already been effected and upon payment of a charge of 25% of the nett invoice price; provided that the company, may in its discretion accept the return of goods which are not in new condition in which event there shall be added to the cancellation charge the company’s standard costs and charges for restoring the same to new condition.
9.2. Orders in respect of goods not covered by clause 9.1 may not be cancelled.
10. Limitation of Liability
10.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law.
10.2 Nothing in these conditions excludes or limits the liability of the company for death or personal injury caused by the company’s negligence or fraudulent misrepresentation.
10.3 Subject to Conditions 10.1 and 10.2
a) the company’s total aggregate liability in contract, tort (including negligence or breach of
statutory duty), misrepresentation or otherwise, arising in connection with the performance or
contemplated performance of this contract shall be limited to the contract price.
b) the company shall not be liable to the customer for any indirect or consequential loss or
damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused)
which arise out of or in connection with the contract.
11.1. For a period of one year from date of delivery of the goods described in the quotation the company warrants the goods to be free from any defect in the materials supplied by the company.
11.2. The warranty given in clause 11.1 shall, in respect of those components supplied by the company which have, in the company’s opinion, a shorter average life expectancy than twelve months, be deemed to have been given for such shorter average period.
11.3. The warranty given in clauses 11.1 and 11.2 shall not apply to defects caused by abnormal usage of or incorrect application of, or incorrect installation for normal usage of the goods or by any neglect on the part of any person other than the company. The warranty given in these conditions shall lapse and be of no force and effect if repairs to any allegedly defective goods are attempted or effected by any person not authorised thereto in writing by the company.
11.4. If the customer believes that the goods are subject to a defect covered by this warranty, the customer shall return the goods, at the customers own expense, to the company.
11.5. If there is any defect in materials or workmanship covered by this warranty, the company may either remedy such defect or reimburse the customer the nett invoice price of the goods against delivery of the goods by the customer to the company.
11.6. Should it transpire that the goods are not defective or that the defects are not covered by this warranty, the customer shall pay the company for its services rendered according to its tariff of charges for the time being.
11.7. Save as set out in these conditions of sale, no warranty or guarantee (including those imposed by law) applies in respect of the goods supplied by the company and the company’s sole liability shall be in terms of these conditions.
12. Claims against the company
Any complaint from the customer in respect of the quality, packaging, failure on delivery of the goods or damage in transit or short delivery of goods must be delivered to the company in writing within ten days of delivery of the goods to the customer. No such claim shall be considered unless the terms of this condition have been complied with.
13. Risk and ownership
13.1. Save as set out in clause 7.3 risk in the goods shall pass to the customer on delivery.
13.2. Notwithstanding anything to the contrary herein contained ownership of the goods shall not pass to the customer until the full purchase price thereof shall have been paid.
14.1. All drawings and manuals submitted to the customer for consideration shall remain the property of the company and shall be returned to the company on demand. The customer shall not make any form of copy of any of the same without the company’s prior written approval or disclose the contents thereof to any third party.
14.2. If the company supplies any drawings or manuals to the customer with any goods sold, the customer may not disclose the contents of the drawings or manuals or provide any copies thereof to any third party without the company’s prior written consent.
14.3. If the company supplies to the customer any information relating to the goods which is not generally available to the public (herein called “confidential information”) the customer undertakes not to disclose the same to any third party without the prior written consent of the company, provided that such information may be disclosed to persons purchasing the goods from the customer if the customer imposes a similar obligation upon such purchaser.
14.4. The customer shall in no circumstances acquire any patent, design, copyright or trademark rights in and to the goods (including any computer software) or any improvements modifications or accessories thereto by virtue only of the sale of the goods to him.
The company shall be entitled at any time to deal directly with any person to whom the customer has sold or ordinarily sells or hopes to sell any goods, if in the company’s absolute discretion it considers that it is necessary to do so to protect any of its rights (whether in terms of these conditions or not), including its reputation.
The customer hereby indemnifies the company against all claims, damages, costs and expenses sustained or incurred by the company through any infringement of a patent, design or copyright which takes place as a result of the company following any instructions given to it by the customer.
17. Force majeure
17.1. Subject to the following provisions of this clause, neither party shall be responsible to the other for its failure to perform any obligation under this agreement in the event and to the extent that such failure is caused by force majeure.
17.2. For the purposes of this agreement force majeure shall mean any circumstance which:
17.2.1. is beyond the reasonable control of the party giving notice of force majeure and for
which it is not responsible; and
17.2.2. is not a circumstance which the party so affected could, by the exercise of a standard level of care and skill which could reasonably be expected of that party, have avoided subject to the above. Force majeure includes but is not limited to war (whether declared or not), revolution, invasion, insurrection, riot, civil commotion, mob violence, sabotage, embargo, boycott, the exercise of military or usurped power, fire, explosion, theft, storm, flood, drought, wind, lightning or other adverse weather condition, epidemic, quarantine, accident, breakdown of machinery or facilities, strike, lockout or labour dispute, acts or restraints of government imposition, or restrictions of or embargoes on imports or exports.
17.3. Notwithstanding the provisions of clause 17.2, a labour dispute, strike or lockout which could be resolved by the company acceding to the demands made of it shall be deemed to be an event of force majeure.
17.4. The party affected by an event of force majeure shall immediately give notice thereof to the other party.
17.5. If the event of force majeure is of such a nature that it will result in impossibility of performance of the obligation in question the party not so affected shall be entitled within thirty days of receipt of notice of the force majeure event to terminate this agreement upon notice to the other party but shall not be entitled to recover any damages which it may suffer as a result of such premature termination.
17.6. In the event of force majeure is of such a nature that it will not result in impossibility of performance of the obligation in question but will merely delay the performance thereof, the party giving notice of such event of force majeure shall be entitled to such extension of time in which to perform such obligation as may be reasonable in the circumstances taking into account the interests of both parties; provided that if the force majeure situation persists for a period in excess of one hundred and eighty days the party not so affected shall be entitled upon notice to the other to terminate this agreement but shall not be entitled to recover any damages which it may suffer as a result of such premature termination.
18.1. The company shall be entitled to cancel this contract and/or any part of this contracts subsisting with the customer by written notice to the customer’s last known address and/or claim from the customer immediate payment of any monies due by the customer to the company from any cause arising notwithstanding any earlier agreement for credit if;
18.1.1. the customer fails to pay any amount due to the company under this or any other contract on due date thereof or breaches any other provision of these conditions; or
18.1.2. The customer is sequestrated or place in liquidation or under judicial management
whether provisionally or finally; or
18.1.3. The customer commits any act of insolvency; or
18.1.4. The customer enters into any compromise with his creditors; or
18.1.5. The customer fails to satisfy, take on appeal or on review any judgment granted against
him within seven days after the date of judgment.
19. Legal charges
In the event of the company instructing its attorneys to recover money or goods from the customer, the customer shall be liable for and shall pay all legal costs incurred by the company on an attorney and own client scale including collection commission and tracing agents charges.
20. No relaxation
No relaxation which the company may give at any time in regard to the carrying out of any of the customer’s obligations in terms of any contract shall prejudice or be a waiver of any of the company’s rights in terms of that or any other contract.
21. Jurisdiction and choice of Law
21.1. These conditions shall be governed by and construed in all respects in accordance with the laws of England and Wales.
21.2. The parties hereto herby irrevocably submit to the exclusive jurisdiction of the English courts.