Fujichem Sonneborn Limited
TERMS & CONDITIONS OF SALE
- These terms and conditions (the "Terms") govern the sale of Goods sold by Fujichem Sonneborn Limited of Jaxa Works, 91/95 Peregrine Road, Hainault, Essex, IG6 3XH, company registration number 00437672 (the “Supplier” or “us” or “we”) to the Customer (collectively, the "parties" and each a "party") to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
- All Orders are accepted on the terms, conditions and exclusions herein contained. These terms, conditions and exclusions shall not be varied except as agreed by us in writing.
- "Agreement" means the agreement between the parties for the sale and purchase of the Goods which shall include the Order and these Terms and any other supplementary terms expressly referred to in the Order.
- "Business Day" means a day (other than a Saturday, Sunday or public holiday in England) when the banks in London are ordinarily open for business.
- "Business Hours" means 9.00 am to 5.30 pm, UK time, on a Business Day.
- “Confidential Information” means any information, which by its nature is confidential, concerning the business, affairs, customers, or suppliers of the other party or of any member of the group of companies to which the other party belongs.
- "Customer" means the business, organisation, or person who purchases the Goods from the Supplier as set out in the Order.
- "Goods" means the goods (or any part of them) as set out in the Order.
- “Order" means the order acknowledgement issued by the Supplier under which the Supplier agrees to supply to the Customer the Goods and which reference these Terms and any other supplementary terms.
- “Specification” means the specification documentation provided to the Customer as part of the Order.
3. BASIS OF AGREEMENT
- Any purchase order issued by the Customer shall constitute an offer by the Customer to purchase the Goods. The Agreement shall come into existence upon the issuing by Supplier of the Order. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
- Any samples, drawings, descriptive matter or advertising produced by Supplier and any descriptions or illustrations contained in Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Agreement or have any contractual force
4. TERMS OF DELIVERY
- Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- Where the Customer’s Order specifies Goods are to be delivered in instalments each delivery shall constitute a separate contract and the Customer shall not be entitled to refuse to take delivery of or refuse to pay for any instalments on the grounds that a previous instalment was defective or otherwise.
- The Supplier shall have the right to despatch any portion of the Goods ordered and invoice the Customer for such despatched portion so that for the purposes of payment each portion shall be deemed to be a separate Agreement and may be invoiced separately.
- Should the Customer notify the Supplier of their inability to receive or store Goods ordered or should the Customer fail to give us adequate delivery instructions when required or fail to collect Goods sold ex-works, the Goods will be stored at the customer’s risk and expense.
- The Supplier is entitled to manufacture the Goods immediately upon issuing confirmation of the Order to the Customer or as soon thereafter as the Supplier thinks fit irrespective of any date which may be specified for delivery thereof.
- The cost of delivery of Goods will be charged to the Customer at the Supplier’s discretion.
- The Supplier may deliver against any Order an excess or deficiency of up to 10% of the quantity ordered provided that the amount charged for the Goods delivered will be adjusted proportionately.
5. DELIVERY, PASSING OF RISK AND RETENTION OF PROPERTY
- Delivery shall be deemed to be effected and risk in the Goods shall pass to Customers as follows: -
- In all cases where the Goods are to be delivered to an address in the UK.
- The terms under which the Goods are delivered will be confirmed in the Order.
- In all cases where the Goods are to be collected by the Customer – when the Goods have been collected by the Customer from the address nominated by the Supplier or by anyone acting on their behalf.
- In spite of delivery having been made, title in the Goods shall not pass from the Supplier until:
- the Customer shall have paid the Price plus VAT in full: and
- no other sums whatever shall be due from the Customer to the Supplier.
- Until title in the Goods passes to the Customer in accordance with clause 5(b) the Customer shall hold the Goods and each of them on trust for the Supplier. The Customer shall store the Goods (at no cost to the Supplier) separately from all other Goods in its possession and marked in such a way that they are clearly identified as the Supplier’s property.
- Notwithstanding that the Goods (or any of them) remain the property of the Supplier the Customer may sell or use the Goods in the ordinary course of the Customer’s business at full market value for the account of the Supplier. Any such sale or dealing shall be a sale or use of the Supplier’s property by the Customer on the Customer’s own behalf and the Customer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Supplier the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Supplier and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Supplier’s money.
- The Supplier shall be entitled to recover the sums due to it (plus VAT) notwithstanding that property in any of the Goods has not passed from the Supplier.
- Until property in the Goods passes from the Supplier to the Customer, the Customer shall upon the Supplier’s written request deliver up such of the Goods as have not ceased to be in existence or resold to the Supplier. If the Customer fails to do so the Supplier may enter upon any premises owned occupied or controlled by the Customer where the Goods are situated and repossess the Goods. On the making of such request the rights of the Customer under clause 5(d) shall cease.
- In the event the Customer becomes subject to any of the events listed in clause 9(a)ii the Supplier may enter upon any premises owned occupied or controlled by the Customer where the Goods are situated and repossess the Goods without prior warning.
- The Customer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Supplier. Without prejudice to the other rights of the Supplier, if the Customer does so all sums whatever owing by the Customer to the Supplier shall forthwith become due and payable.
- The Customer shall insure and keep insured the Goods to the full Price against ‘all risks’ to the reasonable satisfaction of the Supplier until the date that property in Goods passes from the Supplier, and shall whenever requested by the Supplier produce a copy of the policy of insurance. Without prejudice to the other rights of the Supplier, if the Customer fails to do so all sums whatever owing by the Customer to the Supplier shall forthwith become due and payable.
- Returnable containers and pallets remain the Supplier’s property at all times and may be charged on invoice. If so charged the Customer will be given full credit if such returnable containers or pallets are promptly returned (consigned carriage paid) to us at the point from which they were originally despatched in good condition to the Supplier’s satisfaction.
6. NOTIFICATION OF LOSS OF, DAMAGE TO, OR NON DELIVERY OF GOODS
- Claims for damage to or loss of Goods in transit must be submitted in writing both to us and to the carrier (if appropriate) as follows: -
- In the case of non-delivery of the whole of any consignment or of any separate packing forming part of a consignment – within 14 days of the delivery date shown on the invoice , advice note or Order (whichever is the earlier).
- In the case of damage to or partial loss of the Goods or shortages from packages – within three Business Days from the date of delivery. The Goods received must have been signed for as damaged or incomplete. Failing which the Supplier will decline to entertain any claims and the Goods shall be deemed to have been delivered in accordance with the contract complete and in a satisfactory condition.
- The Supplier’s liability may extend to repairing or replacing free of charge any Goods damaged or lost in transit but in no event will it exceed the invoice price of the Goods in respect of which a claim is made.
7. PRICE AND PAYMENT
- Prices quoted are those ruling at the date of the quotation and shall be subject to revision if increases in costs or other circumstances arising before delivery of the Goods render such action necessary. Prices quoted exclude Value Added Tax, Sales Taxes or any similar taxes which will be charged additionally to the Customer.
- Unless otherwise agreed in writing payment shall be made at the net invoice value without any deductions by the last day of the month following the month in which the Goods were despatched or in which (if ex-works) the Goods were ready for collection.
- If the Customer fails to make any payment due to the Supplier under the Agreement by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per month and deliveries will be suspended. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
- Without limiting its other rights or remedies, the Supplier may terminate the Agreement with immediate effect by giving notice to the Customer if:
- the Customer commits a material breach of any of term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of the Customer being notified in writing to do so; or
- the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
- The Supplier may terminate the Agreement with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Agreement on the due date for payment.
- Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Agreement or any other contract between the Customer and the Supplier if:
- the Customer becomes subject to any of the events listed in clause 9.a)ii or the Supplier reasonably believes that the Customer is about to become subject to any of them; or
- if the Customer fails to pay any amount due under the Agreement on the due date for payment.
- On termination of the Agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
- Termination of the Agreement shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Agreement that existed at or before the date of termination.
- Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
9. THE GOODS, WARRANTY AND EXCLUSIONS
- The Customer shall not disassemble, decompile, reverse engineer or convert the whole or any part of the Goods.
- The Supplier warrants that the Goods delivered to the Customer will materially comply with the Specification (if applicable) and be of normal industrial quality. Save as aforesaid any warranty or conditions, statutory or otherwise express or implied, whether oral or written as to quality of the Goods or their fitness for a particular purpose are excluded.
- Provided he Customer gives notice in writing to the Supplier within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 9.b) and gives the Supplier a reasonable opportunity of examining such Goods, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
- The application and use of the Goods is the absolute responsibility of the Customer. Any technical and other advice, information and data provided by us, whether verbally, in writing or by way of trials or tests, is given without warranty and the Customer shall be deemed to have carried out its own tests to ensure the suitability of the Goods for their intended purposes and applications.
- Nothing in these Terms shall exclude or limit either Party's liability for:
- fraud or fraudulent misrepresentation;
- death or personal injury caused by negligence; or
- any other liability that, by law, cannot be excluded or limited.
- Subject always to clause 10.a), the Supplier shall not be liable whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
- any loss of profits; loss of business; loss of revenue; loss of contract; loss or depletion of goodwill and/or business opportunity; loss of anticipated earnings or savings or like loss; wasted management, operational or other time;
- loss or corruption of data or information; or
- any special, indirect or consequential loss, costs, damages, charges or expenses however arising under the Agreement.
- Subject always to clause 10.a), Supplier's total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Agreement shall be limited to £1,000,000 of the price of the goods delivered under the Order relating to the claim.
- The Customer must give the Supplier immediate written notice containing full particulars of any claim that the Goods are not of stated quality to enable us to investigate the complaint before the remainder of the consignment of Goods are used or returned to us.
11. FORCE MAJEURE
- Neither party shall be liable for any failure or delay in performing its obligations under the Agreement to the extent that such failure or delay is caused by any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors (each a "Force Majeure Event").
- Each party undertakes that it shall not at any time during this Agreement, and for a period of three years after termination of this Agreement, disclose to any person any Confidential Information, except as permitted by clause 12(b).
- Each party may disclose the other party's Confidential information:
- to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this Agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 12;
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Agreement.
- A waiver of any right under the Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
- If any provision of the Agreement (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
- This Agreement and any documents referred to in it constitute the whole agreement between the parties and supersede any previous arrangement, understanding or contract between them relating to the subject matter of the Agreement. Each party acknowledges that, in entering into the Agreement and the documents referred to in it, it does not rely on any statement, representation (whether innocent or negligent), assurance or warranty of any person (whether a party to the Agreement or not) other than as expressly set out in the Agreement or those documents. Nothing in the Agreement shall limit or exclude any liability for fraud.
- Save as expressly provided in the Agreement, no amendment or variation of the Agreement shall be effective unless in writing and signed by a duly authorized representative of each of the parties to it.
- Neither party may assign, transfer, charge or subcontract its rights or obligations under the Agreement without the written consent of the other.
- Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership, agency or joint venture between any of the parties, constitute any party the agent of another party, nor authorize any party to make or enter into any commitments for or on behalf of any other party.
- g) This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns, and is not intended to benefit, or be enforceable by, anyone else.
- Any notice under the Agreement must be in writing and must be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement or such other address as may have been notified by that party for such purposes. A notice delivered by hand will be deemed to have been received when delivered (or if delivery is not in normal Business Hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post will be deemed to have been received at the time at which it would have been delivered in the normal course of post. For the purposes of this clause 13.i), “writing” does not include email.
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with the Agreement, its subject matter or its formation (including non-contractual disputes or claims).