DATED 1st JANUARY 2015
ARNOLD ENGINEERING PLASTICS LIMITED
CONDITIONS OF SALE
(THESE APPLY TO ALL OUR DEALINGS)
TERMS AND CONDITIONS OF BUSINESS
1.1 In these Conditions the following definitions apply:
|Business Day||means a day other than Saturday, Sunday and public holidays when banks generally are open for non-automated business in London;|
|Buyer||means the person(s) or firm who purchases Goods from the Seller;|
|Conditions||means the terms and conditions set out in this document;|
|Confidential Information||means any commercial, financial or technical information, information relating to products, plans, knowhow or trade secrets which is obviously confidential or has been identified as such, or which is developed by a party in performing its obligations under, or otherwise pursuant to this Contract;|
|Contract||means the agreement between the Seller and the Buyer for the sale and purchase of Goods incorporating these Conditions which will only be binding when accepted by the Seller;|
|Force Majeure||means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under the Contract except any party’s failure to pay shall not be an event of force majeure in any event;|
|Goods||means the goods and services specified or implied in the Order and to be supplied by the Seller to the Buyer;|
|Intellectual Property Rights||means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in confidential information, rights to sue for passing off, chip topography rights, mask works, utility models, domain names and all similar rights and, in each case: (i) whether registered or not, (ii) including any applications to protect or register such rights, (iii) including all renewals and extensions of such rights or applications, (iv) whether vested, contingent or future, (v) to which the Seller is or may be entitled and (vi) in whichever part of the world existing;|
|Order||means any communication identifying the Goods and other basic provisions under which they are to be supplied under the Contract;|
|Seller||means Arnold Engineering Plastics Ltd;|
|Seller’s Products||means the Seller’s range of personal protective products or other discrete products offered by them;|
|Specification||means the description or specification of the Goods provided by the Buyer and set out in the Order;|
|Value Added Tax or VAT||means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale of the Goods.|
1.2 Unless the context otherwise requires each gender includes the others; the singular includes the plural and vice versa; references to the Contract include the Conditions, the Order and its schedule(s) (if any); references to persons include individuals, unincorporated bodies, government entities, companies and corporations; clause headings do not affect their interpretation; general words are not limited by example; and references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2 Application of these terms and conditions
2.1 These terms and conditions apply and form part of the Contract between the Seller and the Buyer. They supersede any previously issued terms and conditions of supply. No terms or conditions endorsed on, delivered with, or contained in the Buyer’s purchase order, confirmation of order, Specification or other document will form part of the Contract. No variation of these Conditions or to an Order, or to a quotation from the Seller will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Seller. Each Order by the Buyer to the Seller will be deemed to be an offer to purchase Goods and subject to the Conditions. The Seller reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
2.2 Any quotation by the Seller for the provision of Goods will be deemed to be an invitation to treat (and shall not be an offer) by the Seller to supply Goods on and subject to the Conditions; and will be valid for 28 days only from the date of issue.
2.3 A Contract will be formed upon the earlier to occur of written acceptance by the Seller of the Buyer’s Order and the execution of a specific written agreement by both the Seller and the Buyer.
3.1 The price for the Goods will be as set out in the Order or in default of such provision will be calculated in accordance with the Seller’s standard scale of charges in force on the date of formation of the Contract.
3.2 The price does not include packaging and delivery which will be charged in addition and does not include Value Added Tax.
3.3 The Seller reserves the right to increase the price for any undelivered Goods:
3.3.1 by giving one month’s written notice to the Buyer, such increase to take effect in respect of any relevant Goods delivered after the expiry of such notice; or
3.3.2 with immediate effect by written notice to the Buyer, where such increase arises as a consequence of any increase in the direct cost to the Seller of supplying the relevant Goods which is due to any factor beyond the control of the Seller.
3.4 If the Buyer does not agree with any increase in the price notified in accordance with this clause 3 then the Buyer may terminate the Contract in respect of any undelivered Goods by giving the Seller 14 days’ notice, such notice to expire no earlier than the date on which the price increase was due to take effect provided always that the Buyer shall accept delivery (and shall, where applicable pay the increased price for) any Goods referred to in clause 3.3.2 in respect of which the Seller had (at or prior to the time of receiving such notice) entered into an irrevocable commitment to purchase or subcontract from any third party.
4.1 Time of payment is of the essence. VAT will be charged by the Seller and paid by the Buyer at the then-applicable rate.
5.1 Where credit facilities have been granted the Seller will invoice the Buyer for Goods on delivery. The Buyer will pay all invoices in full, without deduction or set-off other than as required by law, in cleared funds at the end of the month following delivery to the Seller’s nominated bank account. The Seller may set and vary credit limits from time to time and withhold all further supplies if the Buyer exceeds such credit limit.
6.1 The Goods will be made available for collection by the Buyer at the Seller’s premises (ex-works) or at the risk and cost of the Buyer delivered to the Buyer’s carrier (but deemed delivered ex-works) and the Buyer shall be ready for collection when notified by the Seller and any additional expense caused to the Seller by the Buyer not being ready or not providing suitable carriage or any other cause shall forthwith be reimbursed to the Seller.
6.2 The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Buyer to cancel any other instalment.
6.3 The Seller will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence. The Buyer shall nevertheless be bound to accept the Goods when available. The Seller shall not be liable in any way in respect of late delivery howsoever caused nor shall such failure be deemed to be a breach of contract unless and until the Buyer has given written notice to the Seller making time of the essence and giving the Seller a reasonable time in which to deliver. If the Seller is not willing to accept such delivery date the Seller may without liability cancel the contract and notify the Buyer accordingly.
6.4 Any damage or shortage must be notified to the Seller within 7 days of delivery.
7 Title and risk
7.1 Risk in the Goods will pass to the Buyer on delivery ex-works and title to the Goods will pass to the Buyer once the Seller has received payment in full for the Goods.
7.2 Until title to the Goods has passed to the Buyer, the Buyer will hold the Goods as bailee for the Seller; store the Goods separately from all other material in the Buyer’s possession; take all reasonable care of the Goods and keep them in reasonable condition; insure the Goods: (i) with a reputable insurer (ii) from the date of delivery (iii) against all risks (iv) for an amount at least equal to the price (v) noting the Seller’s interest on the policy; ensure that the Goods are clearly identifiable as belonging to the Seller; not remove or alter any mark on or packaging of the Goods; inform the Seller as soon as possible if it becomes subject to any of the events set out in clause 15; and provide the Seller such information concerning the Goods as the Seller may request from time to time.
7.3 Notwithstanding clause 7.2, the Buyer may use or resell the Goods in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clause 15.1 is or is likely to occur.
7.4 If, at any time before title to the Goods has passed to the Buyer, the Buyer informs the Seller, or the Seller reasonably believes, that the Buyer has or is likely to become subject to any of the events specified in clause 15, the Seller may require the Buyer at the Buyer’s expense to redeliver the Goods to the Seller; and if the Buyer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
7.5 In this clause 7 the word “Goods” shall include (i) goods which have been sorted repackaged or otherwise re-presented and promoted (ii) goods which have been operated on in any way by the Buyer and (iii) goods to which any other material or thing whatever becomes permanently or temporarily attached either in whole or in part (such goods being deemed to have acquired that material or thing in simple accession or accretion and the resultant combination shall in consequence be identified with the Goods in every way and consequently be and remain the Seller’s property in accordance with this clause as if the same had always been the Seller’s property notwithstanding that the value thereof may have been greatly enhanced by reason of the said accession or accretion or that the same shall be a new object).
8.1 The Seller warrants that, for the period of 12 months or such other period specified in its product documentation, the Seller’s Products will conform in all material respects to their description and be free from material defects in design, material and workmanship and be of satisfactory quality within the meaning of the Sale of Goods Act 1979, as amended AND the Seller will, at its option, repair, replace or refund the price of defective Seller’s Products, provided that the Buyer informs the Seller in writing promptly on discovery that some or all of such Goods do not comply with this warranty; the Buyer gives the Seller a reasonable opportunity to examine the defective Goods; the Buyer returns the defective Goods to the Seller at the Buyer’s expense (to be reimbursed if such Goods are found to be in breach of warranty) BUT the Seller will not be liable for any failure of such Goods to comply with this warranty where such failure arises by reason of fair wear and tear; could be expected to arise in the normal course of use of such Goods; wilful damage, negligence, or abnormal working conditions and to the extent caused by the Buyer’s failure to comply with the Seller’s instructions as to: (i) storage, installation, commissioning, use or maintenance of such Goods, or (ii) good practice in relation to the storage, installation, commissioning, use or maintenance of such Goods.
8.2 Otherwise than in respect of the Seller’s Products, the Seller has no responsibility for the Specification and other design requirements or characteristics of the Goods supplied to the Buyer even if the proposed use of the Goods is made known to the Seller and the Seller accepts no liability whatsoever to the Buyer save that the Goods will reasonably comply with the Specification in accordance with the terms of the Contract and subject to these Conditions and accordingly the Seller gives no warranty in relation to such Goods and will be under no liability to the Buyer and in particular, the conditions implied by ss 13–15 of the Sale of Goods Act 1979 are expressly excluded.
9 Obligations of the Buyer
9.1 The Buyer will place all Orders on the terms of the Conditions and ensure that the contents of any Order are complete and accurate; ensure that any part of the Specification which it provides is complete and accurate and contains all information the Seller may require; co-operate fully with the Seller in relation to delivery or collection of the Goods; will comply with the Seller’s requirements for work routines and do everything necessary to permit the Seller to carry out its normal methods of work.
9.2 The Buyer shall comply with all technical sheets and recommendations of the Seller and ensure that the Goods are used in a suitable environment.
9.3 The Buyer shall pay all expenses incurred or additional work which has to be carried out by the Seller due to the failure of the Buyer to carry out its obligations hereunder which will be chargeable to the Buyer and payable on demand.
10 Liability and Limitation of Liability
10.1 The Seller does not exclude its liability for death or personal injury caused by its negligence; for breach of the terms implied by s 12 of the Sale of Goods Act 1979 and by s 2 of the Supply of Goods and Services Act 1982; for defective products under the Consumer Protection Act 1987; for fraud or fraudulent misrepresentation.
10.2 Subject to and only in accordance with clause 8 the Seller will be liable to the Buyer for direct damage to tangible property in an amount which will not exceed the price of the Goods concerned per incident or series of related incidents caused by the failure of any Goods, as supplied by the Seller to the Buyer, to comply with applicable product liability laws or regulations in force at the date of delivery.
10.3 Neither party will be liable for: loss of data or use; or any form of indirect, consequential or special loss, or any loss of or failure to realise expected profit, revenue or savings or any other form of pure economic loss, whether any such loss is direct or indirect, and, in each case, however arising.
10.4 Other than as set out above, the Seller limits its liability (however arising) in respect of or in connection with the Goods and otherwise in connection with this Contract, to the total price of Goods and if the sale is by instalments then the limit is the price of that instalment.
11 Third party Intellectual Property Rights infringement
11.1 Save in respect of the Seller’s Products the Buyer shall be solely responsible for the consequences of any patent, trademark, design, copyright or other infringement of commercial rights resulting from their specification, design or use of the Goods and the Buyer shall fully indemnify the Seller in respect of all claims, demands, liabilities, costs, charges and expenses incurred by us as a result of such infringement or alleged infringement. The Seller will defend or, at its option, settle any action brought against the Buyer arising from any claim that the use of the Seller’s Products by the Buyer in accordance with the Contract infringes any third party Intellectual Property Right, and indemnify the Buyer against all reasonable costs and expenses incurred by the Buyer in connection with such claim.
11.2 The provisions of this clause 11 set out the Seller’s entire liability and the Buyer’s sole right in respect of third party Intellectual Property Rights infringement claims.
12.1 Each party shall keep confidential all Confidential Information of the other party and will only use the other’s Confidential Information as required to perform the Contract. The provisions of this clause will not apply to:
12.1.1 any information which was in the public domain at the date of this Contract;
12.1.2 any information which comes into the public domain subsequently other than as a consequence of any breach of this Contract or any related agreement;
12.1.3 is independently developed by the other party without using information supplied by the first party; or
12.1.4 any disclosure required by law or a regulatory authority or otherwise by the provisions of this Contract.
12.2 Where original work is carried out by the Seller, the Goods are submitted by the Seller in confidence and unless otherwise agreed in writing the Intellectual Property Rights in them shall remain the property of the Seller.
12.3 Unless otherwise agreed in writing the Seller is entitled to make and retain a copy of all documentation prepared by the Seller and may use at any concepts, techniques and methods of working developed during the Contract.
12.4 The Buyer shall not disclose to a third party any document information or method of working relating to or prepared by the Seller without the Seller’s written agreement.
13 Force Majeure
13.1 A party will not be liable if delayed in or prevented from performing its obligations due to Force Majeure.
14.1 Free Issue Goods: Where the Buyer supplies special patterns, jigs, tools, gauges, dies, metal, templates, protective films or other material to the Seller they shall be supplied free of all expense to the Seller. The Buyer shall continue insurance cover on such material and the Buyer will indemnify the Seller against all liability and cost in connection with their use or supply and it is expressly agreed that the risk in such material does not pass to the Seller but remains the Buyer’s responsibility. The Seller shall not be liable in any way for any damage caused to such material howsoever the same may be caused. The Buyer shall collect such material on delivery of the Goods and any such material not collected shall be charged a storage charge and if not collected within 2 months of delivery of the Goods shall be deemed abandoned and shall be dealt with by the Seller in any way it may decide without liability of any kind. If any material is found to be defective or unusable after the Seller has started work on the Contract, the Buyer will reimburse the Seller for its wasted time, materials and other costs.
14.2 Quantities: Owing to the difficulty of producing exact quantities of Goods the Seller reserves the right to deliver up to 10% in excess of or below the quantities ordered unless special agreement has been made to the contrary and the price shall be adjusted accordingly.
14.3 Packaging: Cases will be charged at a reasonable price if not returned to our works, carriage paid, in good condition within 2 months of receipt by the Buyer.
14.4 Delivery Schedules: If and so far as work on the Goods has been necessarily commenced in advance of a “firm schedule” in order to provide, in accordance with a normal process time cycle, for deliveries indicated by a “tentative schedule” the Buyer shall be liable to accept delivery of and pay for those Goods on which work has commenced at the times and in the quantities so indicated in the “tentative schedule”.
14.5 Tolerances: Goods are supplied as specified in Buyer’s order but subject to the usual tolerances allowed in the industry with a minimum tolerance of five per cent (5%) unless otherwise stated in writing.
14.6 Samples: Any samples supplied by us must be returned within 90 days or the Buyer will pay a reasonable charge for them.
15.1 The Contract may be terminated forthwith at any time by the Seller on written notice to the Buyer if the Buyer commits a material breach, or the Buyer suspends or threatens to suspend payment of its debts, or the Seller reasonably believes the Buyer is unable to pay its debts as they fall due.
15.2 On termination of the Contract for any reason the Buyer will immediately pay all invoices of the Seller then outstanding and not disputed in good faith; will pay any further invoice submitted within a further 5 Business Days (unless the invoice is disputed in good faith); return any materials of the Seller then in its possession or control; if it fails to do so, the Seller may enter onto any premises owned by or under the control of the Buyer and take possession of such materials AND the accrued rights and liabilities of the parties will not be affected AND any clause which expressly or by implication are to survive termination will do so.
16 Export Sales
16.1 Goods for export are delivered ex-works and carriage, insurance, export documentation, certification and all like expenses are charged forward to the Buyer who is also responsible for all import, customs and other duties or taxes AND the Buyer is solely responsible for obtaining all necessary export or import licences which must be produced to the Seller on demand AND any additional packaging or other requirement necessary for export shipments will be charged to the Buyer as an additional cost.
17.1 The parties are independent businesses and not principal and agent, partners, or employer and employee.
17.2 If any part of these Conditions is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Conditions and the remaining provisions of the Conditions will otherwise remain in full force.
17.3 Notices under this Contract will be in writing and sent to the persons and addresses set out in the Order or otherwise specified. They may be given, and will be deemed received by first-class post: two Business Days after posting; by airmail: seven Business Days after posting; by hand: on delivery; by facsimile: on receipt of a successful transmission report from the correct number, and by e-mail: on receipt of a delivery or read receipt mail from the correct address. No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
17.4 The Contract is not enforceable by any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise. The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply. This Contract will bind and benefit each party’s successors and personal representatives.
17.5 This Contract will be governed by the law of England and Wales and disputes will be submitted to the exclusive jurisdiction of the courts of England and Wales.