- Definitions
a. “The Quotation” means the Seller’s written quotation sent to the Buyer and constituting the Seller’s offer to contract. The quotation is only valid if signed by an authorised signatory on behalf of the seller.
b. “Authorised Signatory” means any one of the persons mentioned on the Seller’s current list of Authorised Signatories delivered by the Buyer.
c. “The Seller” means Blackfast Chemicals Ltd or such associated or subsidiary company thereof as shall be named in the Quotation as the supplier of the goods.
d. “The Buyer” means the person, who has ordered the Goods and to whom the Seller has sold or agreed to sell the Goods
e. “The Goods” means the particular goods which the Buyer has bought or agreed to buy under any one Contract with the Seller.
f. “The Contract” means the contract for the sale of the Goods by the Seller to the Buyer incorporating the Conditions.
g. “The Conditions” means these printed conditions which are the Seller’s standard trading conditions and the only conditions on which the Seller does business.
h. “The Price” means the price for Goods stated in the Quotation plus, where appropriate, all increases, interest charges, costs and charges for work done and materials supplied of which the Seller shall be entitled to require payment by the Buyer under the Contract.
2. Incorporation of the conditions in the contract
a. The Contract and all future contracts between the Seller and the Buyer shall incorporate the Conditions (or, in the case of a future contract, any replacement or variation thereof which shall have been notified to the Buyer before the conclusion of such contract) which shall override any other terms referred to by the Buyer in his order or otherwise. The Conditions are the only conditions upon which the Seller sells the Goods and embody the entire agreement between the Buyer and the Seller.
3. Variation or waiver
a. The Seller’s employees below the rank of director have no authority to vary or waive any of the Conditions and the same can only be varied or waived by writing signed by a director of the Seller. Any such variation or waiver shall affect only the specific transaction to which it relates.
4. The price
a. The Seller shall not be bound by the prices stated on any price list which it may have supplied to the Buyer. Subject to increase as hereinafter provided, the price payable for the Goods by the Buyer shall be the price stated on the Quotation, or, if no price has been so stated, the Seller’s prevailing price at the date of despatch for goods of the description sold. Where between the date of the Quotation and the date of despatch of the Goods there have been increases in the costs of raw materials, manufacture, labour, transport, freight, insurance, or any element of the cost to the Seller of producing or supplying the Goods, the Seller may increase the price stated on the Quotation to take account of the said additional costs and the Buyer shall be contractually bound to pay the increased price.
5. Delivery
a. Delivery of Goods to the Buyer shall be deemed to have taken place either (where the Seller’s own transport or a carrier engaged by the Seller is used) when the Goods are unloaded at the Buyer’s premises or any premises to which the Buyer has requested the Goods should be delivered or (where the Goods are transported by the Buyer or a carrier engaged by the Buyer) when the Goods are collected from the Seller.
6. Passing of risk & ownership in the Goods, resale of the Goods and use of the Goods by the Buyer before payment of the price in full. Title to proceeds of sale of the Goods
a. Risk in the Goods shall pass to the Buyer on delivery, but property in the Goods shall not pass to the Buyer until payment in full of the price of the Goods and the price of any other goods which the Seller may have delivered to the Buyer under any other contract.
b. At all times before property in the Goods has passed to the Buyer:
i. The Seller shall remain absolute legal and beneficial owner of the Goods and the Buyer shall hold the same as bailee for the Seller,
ii. If the Buyer shall;
1. Fail to pay the price, or the price due to the Seller under any other contract, in full by the due date; and/or
2. Otherwise be in breach of the contract, and/or
3. Enter into any agreement or composition with creditors, or suffer a receiver to be appointed by a creditor, or being a corporation be
wound up or being an individual commit an act of bankruptcy; and/or
4. Suffer any distraint or execution to be levied on his or its goods; and/or
5. Cease or threaten to cease to trade normally or to pay his or its debts promptly as they fall due;
the Seller may without prejudice to its other remedies take possession of the Goods or any part thereof and if necessary enter onto the
Buyer’s premises to remove the same;
iii. If none of the events listed in subparagraph (ii) herein shall have occurred the Buyer may in the usual course of business mix the Goods with other goods for manufacturing purposes or (as bailee for the Seller) sell the Goods (which shall include supplying them under a contract for work and materials) at their full market value, but any use or disposal of the Goods not hereby expressly permitted shall be an unlawful conversion of the Goods;
iv. Unless and until the Buyer mixes or sells the Goods as permitted by subparagraph (iii) herein the Buyer shall store the Goods (or the unmixed and unsold part thereof) so that the same are readily identifiable and separate from other goods not the Seller’s, and shall comply with any further directions the Seller may give as to storage and identification;
v. The Seller shall be entitled on demand to inspect and copy the Buyer’s account books and documents relating to the Buyer’s dealings with the Seller, the Goods and the proceeds of sale of Goods;
vi. The Buyer shall maintain adequate insurance of the Goods against loss or damage however caused and shall on demand produce the policy to the Seller;
vii. The proceeds of any sale of the goods, any monies received in respect of the Goods under contracts for work and materials, and any insurance monies received in respect of loss of or damage to the Goods, shall belong to the Seller and shall be held by the Buyer as trustee for the Seller in a separate designated bank account;
viii. The Seller shall have the right to trace any such monies as are referred to in subparagraph (vii) herein into any account or fund whether they are mixed with other monies or not.
c. Nothing in this condition shall give the Buyer the right to return the Goods or be released from any obligation owed to the Seller under the contract.
7. Termination of the contract by the Seller
a. On the occurrence of any of the events described in subparagraph (b) (ii) of Condition 6 herein the Seller may without prejudice to its other rights forthwith and without prior notice to the Buyer terminate the contract and upon suck termination;
i. The Seller’s obligations to the Buyer under the contract shall cease; and
ii. The Seller shall have all the rights and remedies of a seller of goods who has rescinded the contract following a wrongful repudiation by the Buyer;
iii. Without prejudice to the foregoing the Seller may take possession of the Goods or any part thereof and if necessary enter onto the Buyer’s premises in order to remove the same
8. Force majeure
a. In the event that the performance by the Seller of any of its obligations here under shall be prevented, delayed, hindered or rendered uneconomic, directly or indirectly by war, national emergency, act of government or other competent authority, breakdowns of plant or machinery, strikes, lockouts, riots, shortage of labour or materials, fire, explosion, tempest, Act of God, flood, drought, inclement weather or any other exceptional or unexpected cause whatsoever beyond the control of the Seller, the Seller may cancel the Contract (or any part thereof remaining to be performed), or postpone or suspend deliveries under the Contract until such cause shall have ceased to operate.
The Seller shall incur no liability to the Buyer by reason of any such cancellation, postponement or suspension as aforesaid and nor where
deliveries are postponed or suspended shall the Buyer be relieved of any of his or its obligations under the Contract. Where in the exercise of its
rights under this condition the Seller cancels the Contract at a time when it has been partly performed by the Seller, the Seller shall be entitled to
payment by the Buyer for the goods delivered on a pro rata basis.
9. Time of delivery
a. Any delivery date quoted by the Seller is given in good faith and the Seller will use its best endeavours to comply with it, but the time of delivery of the Goods shall not be of the essence of the Contract and if having used its best endeavours the Seller fails to deliver on the quoted date the Seller shall incur no liability to the Buyer for any loss or damage whatsoever arising howsoever from the delay in delivery.
10. Terms of payment
a. All prices are strictly net cash and (subject to any special arrangement between the Seller and the Buyer whereby extended credit terms are granted or payment is required on or in advance of delivery) the Price (or any part thereof which may be referred to in the relevant invoice) shall be payable within 30 days of the date of the Seller’s invoice to the Buyer.
11. Interest
a. In the event that the Buyer shall fail to pay the Price or any part thereof by the due date, then, without prejudice to the Buyer’s other remedies arising under the general law and the Conditions, interest shall be payable by the Buyer on the amount outstanding at the rate of one and a half percent per month from the date when payment became due to the date of actual payment. If the Seller shall sue the Buyer to judgement interest shall continue to be payable after judgement on the outstanding debt at the same rate as before judgement and the debt shall for this purpose be deemed not to have merged in the judgement.
12. Description of goods, warranty and limitations of seller’s liability
a. The Goods will comply with their description (if any) stated on the Quotation
b. The Seller gives the following warranties as to the quality of the Goods
i. Where the Goods are not manufactured or produced by the Seller the same shall comply with any warranty given by the manufacturer or the Seller’s supplier;
ii. In any other case the Goods will comply with any statements as to their quality contained in the Quotation or any promotional literature delivered by the Seller to the Buyer before the conclusion of the contract and will be of merchantable quality.
c. The Seller’s employees and agents have no authority to make any representations with reference to the Goods, their description, quality
or fitness for any purpose, further to the undertakings set out in paragraph (a) and (b) herein, and the Seller shall not be bound by any such
representations and shall not be liable for any loss or damage howsoever arising suffered by the Buyer in consequence of reliance on such
representations and nor shall the Buyer be entitled by reason of such representations to rescind the contract.
d. Provided that a claim is made by the Buyer in the manner and within the time stipulated in Condition 13 herein the Seller will replace any goods which do not comply with their description stated on the Quotation.
e. Provided that a claim is made by the Buyer in the manner and within the time stipulated in Condition 13 herein the Seller will, if the Goods are not in compliance with the warranties set out in paragraph (b) herein;
i. Where the Goods are not manufactured or produced by the Seller, afford to the buyers whatever remedies, whether by replacement of defective parts or otherwise, as may be provided for in the manufacturer’s or supplier’s warranty (if any) subject to the conditions contained in such warranty;
ii. In any other case, replace the Goods or such of them as may be defective or, at its option, refund or remit the Price or such proportionate part thereof as relates to the defective goods.
f. Subject to Section 2 (1) and (where the Buyer “deals as consumer”) Section 6 (2) of the Unfair Contract Terms Act 1977 the Seller’s liability for defective or unsuitable goods shall be strictly limited to the foregoing and;
i. All warranties, conditions, undertakings and representations express or implied arising from statute common law custom or otherwise as to the description or quality of the Goods or their fitness for any purpose (known to the Seller or not) are hereby excluded, save as expressly provided by paragraphs (a) and (b) herein;
ii. The Seller shall not be liable to the Buyer for any loss or damage, direct or consequential, howsoever arising, resulting from the sale of defective or unsuitable goods to the Buyer, and the Seller’s liability to the Buyer shall be limited to that stated in paragraphs (d) and (e) herein.
13. Notification of claims by the buyer
All claims by the Buyer in respect of defective, unsuitable, damaged, or missing goods shall be notified to the Seller by the Buyer in writing;
a. In the case of loss of a part of a consignment, within 7 days of the date for delivery of such consignment by the Seller to the Buyer as define in Condition 5 herein.
b. In the case of loss of a whole consignment, within 7 days of the date for delivery of the same quoted by the Seller and/or arranged between the Seller and the Buyer;
c. In any other case:
i. Where the matter of complaint is reasonably discoverable on visual examination, after removal of packaging, of the relevant consignment of the Goods, within 7 days of the delivery of such consignment by the Seller to the Buyer as defined in Condition 5 herein;
ii. Where the matter of complaint is not so discoverable, within 7 days of its actual first discovery by the Buyer;
In default of notification with the time limits (which shall be of the essence) prescribed in paragraphs (a) (b) and (c) herein, it shall be presumed conclusively against the Buyer that the Goods are in compliance with the contract and have been delivered complete and undamaged to the Buyer.
14. Subcontracting & assignment
a. The Seller shall be at liberty to sub-contract the performance of the Contract in whole or in part to any of its subordinate or associated companies;
b. The Buyer many not without the prior written consent of the Seller assign the benefit of the Contract.
15. Indemnity against infringement of trademarks etc.
a. The Buyer shall indemnify the Seller in full against all losses, costs and expenses incurred by the Seller in consequence of claims arising out of any actual or alleged infringement of trademarks, registered designs, copyrights, patents or other rights of third parties resulting from compliance by the Seller with the Buyer’s instructions.
16. Safety instructions
a. The Buyer shall be presumed to be aware of any inherent risks or dangers associated with the Goods or their use and of all necessary precautions and procedures for the safe handling and storage of the Goods. The Seller will, if expressly requested by the Buyer, use its best endeavours to inform and instruct the Buyer to ask for such advice from the Seller if it is required. The Buyer undertakes to comply with, and to instruct his servants, agents and sub-purchasers to comply with, any instructions for safe handling of the Goods, or safety precautions with regard to the Goods, which are in fact notified by the Seller to the Buyer.
17. Costs of claims by the seller
a. In the event that the Buyer shall fail to pay the Price to the Seller in full within the time stipulated in Condition 10, and the Seller shall instruct its solicitor to take steps to recover payment from the Buyer, the Buyer shall pay on an indemnity basis the Seller’s legal costs thereby incurred, whether or not the Seller shall have brought legal proceedings, such costs to be paid by the Buyer to the Seller within 30 days of the delivery to the Buyer of the Seller’s solicitor’s bill for the said costs of (whichever is the later) within 30 days of the completion of any taxation of the said bill which the Buyer may demand and be legally entitled to demand.
18. Jurisdiction and proper law
a. Wheresoever and between whomsoever the Contract may be concluded on behalf of the Seller and the Buyer, the Law of England shall be the proper law of the Contract, which shall in all respects be subject to and construed by reference to the Law of England. All disputes between the Seller and the Buyer with reference to the Contract or the Goods or any matter in any way related thereto shall be referred to the English courts.