Terms and conditions of sale
1. Definitions
‘Seller’ shall mean Aliaxis UK Ltd, registered in England under number 1698059. ‘Buyer’ shall mean any company, organisation or individual to whom a quotation is offered, or whose order is accepted by the Seller.
2. Conditions
All offers, quotations, estimates, acceptances and contracts are subject to these Terms & Conditions of Sale and any terms or conditions which any other person shall seek to impose or make part of any contract shall, so far as is inconsistent with these Terms & Conditions of Sale, not apply unless expressly agreed by the Seller in writing. It is expressly agreed that any terms and conditions contained in the Buyer's order (including but not limited to the Buyer’s general terms of purchase) or otherwise stipulated will be deemed for the Buyer’s internal use only and will not be binding on the Seller.
The headings in these Terms & Conditions of Sale are for convenience only and shall not affect their interpretation.
3. Quotations, price variations, and made-to-order goods
a) Any quotation given by the Seller is an invitation to the Buyer to make an offer only and no order of the Buyer placed with the Seller in pursuance of a quotation or otherwise shall be binding on the Seller unless and until it is accepted in writing by the Seller. Once accepted by the Seller, orders cannot be cancelled or modified by the Buyer, except with the Seller’s written consent and upon terms which provide for indemnification of the Seller for the costs and expenses incurred.
b) Unless stated otherwise, all quotations and published price lists are Ex Works (Seller’s location – Incoterms 2010), exclusive of VAT and shall remain valid for 30 days or such period as may be quoted but, nevertheless, the Seller may amend or withdraw any quotation by written or oral notice. Quotations may be varied if the Buyer makes variations in his specifications.
c) Published prices are subject to change without notice until orders are accepted by the Seller, whereupon prices will remain firm for those shipments that take place within the 30-day period following the date of the order confirmation.
d) Certain products are denoted ‘MTO’ in the Seller’s published price lists. These products are Made to Order Goods and the Seller manufactures or procures these goods on a bespoke basis only. Where a Buyer has placed an order for “MTO” products that the Seller has accepted in writing, the Buyer forfeits their right to cancel or amend their order unless the Seller confirms in writing that it will accept the cancellation or amendment of the order by the Buyer. Where the Seller does not provide written confirmation of the Buyer’s cancellation, the Buyer remains liable for the full contractual value of all ‘MTO’ products.
4. Statements or representations to the buyer
If any statement or representation has been made to the Buyer upon which the Buyer relies other than in the documents enclosed with the Seller's quotation, the Buyer must set out that statement or representation in a document to be attached to or endorsed on the order in which case the Seller may submit a new quotation.
5. Delivery - time
a) Any period for delivery given at any time and in any manner by the Seller is an estimate only and is not binding on the Seller. Delivery periods are normally calculated from the later of:
i) acceptance of order; or
ii) where applicable, the receipt by the Seller of a detailed specification or drawings.
b) Time shall not be deemed to be of the essence of the contract. Failure by the Seller to meet any quoted delivery period for any part or the whole of the order shall not entitle the Buyer to rescind the contract or to claim damages of any nature.
c) The Seller will endeavour to comply with reasonable requests by the Buyer for postponement of delivery but shall be under no obligation to do so. Where delivery is postponed otherwise than due to default by the Seller, the Buyer shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby and an extra charge for split delivery if applicable.
d) The Buyer will receive delivery of any consignment between the hours of 8.00am and 4.00pm Monday to Friday inclusive, unless otherwise agreed in writing. Cost incurred by the Seller arising from the Buyer's refusal to accept consignments within the agreed hours shall be borne by the Buyer.
6. Delivery and risk
a) Except where stated to the contrary in the contract, delivery shall be made as follows:
i) where the Buyer provides the transport, delivery shall be made Ex Works (Seller’s location – Incoterms 2010);
ii) where the Seller provides the transport, delivery shall be made to the premises of the Buyer, or the premises of the Buyer's customer or works site if the Buyer has requested delivery to be so made but where the Buyer has made such a request the Seller will make a first delivery to the Buyer's customer or works site as so much of the goods as is available for that delivery but subsequent deliveries will be made to the premises of the Buyer.
b) The Seller may at its discretion make partial delivery of orders and invoice the same.
c) Risk in the goods shall pass on delivery.
d) Where goods are sent FOB (Incoterms 2010), the Seller's responsibility shall cease when the goods are placed on board ship or aircraft without the need for the Seller to give notice to the Buyer and the provisions of Section 32(3) of the Sale of Goods Act 1979 shall not apply.
e) In case the Buyer exports the goods outside of the United Kingdom, it shall be responsible for complying with all laws applicable to the export/import of the goods to the country of destination.
7. Ownership of goods
a) The goods shall remain the sole and absolute property of the Seller as legal and equitable owner until such time as the Buyer shall have paid to the Seller the contract price together with the full price of any other goods the subject of any contract between the Seller and the Buyer.
b) The Buyer acknowledges that until such time as the property in the goods passes to the Buyer he is in possession of the goods as a bailee and fiduciary agent for the Seller and the Purchaser shall store the goods in such a manner that they are clearly identifiable as the property of the Seller.
c) Until payment due under all contracts between the Buyer and the Seller had been made in full, in the event of sale of the goods by the Buyer:
i) the Seller shall be entitled to trace all proceeds of sale received by the Buyer through any bank or other account maintained by the Buyer; and
ii) the Buyer shall if requested by the Seller in writing to so assign its rights to recover the selling price of the goods from the third parties concerned. Such monies to be held separately by the Buyer as agent on behalf of the Seller.
d) The Seller may for the purpose of recovery of its goods enter upon any premises where they are stored or where they are reasonably thought to be stored and may repossess the same.
8. Terms of payment
Unless if otherwise agreed to in writing by the Seller, the Buyer shall pay the price for the goods at the latest by the end of the month following the month of despatch of the goods. In the event of default in payment within the payment term, the Seller shall be entitled, without prior notice and without prejudice to any other right or remedy, to suspend all further deliveries and to charge interest on any amount outstanding at the rate of 2% per month until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
9. Shortages and defects apparent on delivery
a) It shall be the responsibility of the Buyer to inspect or arrange for an inspection of the goods on delivery whether the goods are delivered to the Buyer's premises or to the premises of the Buyer's customer or to a works site. If no such inspection is made the Buyer shall be deemed to have accepted the goods.
b) The Buyer shall have no claim for shortages or defects apparent on inspection unless:
i) a written complaint is made to the Seller within three days of receipt of the goods specifying the shortage or defect; and
ii) the Seller is within seven days of receipt of the complaint given an opportunity to inspect the goods and investigate the complaint before any use is made of the goods.
c) If a complaint is not made to the Seller as herein provided then in respect of such shortages or defects the goods shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to pay for the same accordingly.
10. Claims for defects not apparent on inspection
a) The Buyer shall have no claim for defects not apparent on inspection unless the Seller is notified of defective workmanship or materials within twelve months from delivery of the goods. The Seller will, at its option, replace the goods or refund the net invoiced price in respect of the goods which have been shown to be defective. If the Seller does so supply substitute goods, the Buyer shall be bound to accept such substituted goods in full satisfaction of the obligations of the Seller under the contract. In any case, the Buyer shall have no claim for:
i) defects due to improper use, storage, transport or, handling of the goods;
ii) goods not installed, used or maintained according to the Seller’s latest technical documentation, instructions and/or guidelines available at the time of installation, or in violation of good industry practices, or the state-of-the-art practices;
iii) goods which have been disassembled, repaired or modified;
iv) defects caused totally or partially by abnormal mechanical, environmental or working conditions or by an act or an omission of the Buyer, the end-user, or any third party; or
v) defects caused by any event or circumstances not under the control of the Seller.
b) The Buyer shall in any event have no claim or set-off in respect of defects unless a written complaint is sent to the Seller as soon as the defect is noticed and no use is made of the goods thereafter or alteration made thereto by the Buyer before the Seller is given an opportunity to inspect the goods.
c) The Buyer is responsible for ensuring that the goods are fit for any particular purpose, and no warranty or condition of fitness for any particular purpose is to be implied into the contract.
11. Liability
Save as stated in Conditions 9 and 10 (and save in respect of death or personal injury resulting from the negligence of the Seller, its servants or agents), the Seller shall not be liable for any claim or claims for (i) punitive, special, incidental and consequential injury, loss or damages (ii) indirect injury, loss or damages, (iii) removal and reinstallation costs (iv) loss of use, loss of (anticipated) profit, loss of contract, overhead costs, cost of business interruption, (v) loss of reputation, etc. made by the Buyer against the Seller whether in contract or in tort (including negligence on the part of the Seller, its servants or agents) arising out of or in connection with any defect in the goods or their fitness or otherwise for any particular purpose or any act omission neglect or default of the Seller its servants or agents in the performance of the contract.
If the Seller should be held liable for damages to the Buyer for any cause arising out of a breach of its obligations or warranties under the contract (whether in contract, tort, negligence or otherwise), its liability shall be limited to the amount of the price paid by the Buyer for the goods concerned.
12. Force majeure
Notwithstanding anything herein contained, neither the Buyer nor the Seller shall be liable for any delay or failure to perform / carry out its obligations (except payment obligations) if such delay is due to a Force Majeure Event. If a delay or failure of a party to perform its obligations is caused due to a Force Majeure Event, the performance of that party’s obligations (except payment obligations) will be suspended and it shall be granted an extension of time for performance equal to the period of such Force Majeure Event.
For the purposes of this Condition, “Force Majeure Event” means any external circumstance/event, unpredictable, invincible and beyond any control of a party and which results in the party being unable to observe or perform on time an obligation. Such circumstances include but are not limited to acts of God, governmental actions by any government whether British or foreign, lightning strikes, earthquakes, floods, storms, epidemics, pandemics, explosions, fires and any natural disaster, acts of war, embargoes, blockades, legal restrictions, terrorism, civil commotion, malicious damage, sabotage, strikes, lockouts, labour disputes, delays by sub-contractors or suppliers and material(s) becoming unavailable or irreplaceable (whether at all or at commercially acceptable prices).
13. Sub-contracting
The Seller reserves the right to sub-contract the fulfilment of any order or any part thereof.
14. Insolvency and breach of contract
In the event that:
a) the Buyer commits any breach of the contract and fails to remedy such breach (if capable of remedy) within a period of thirty days from receipt of a notice in writing from the Seller requesting such remedy; or
b) any distress or execution is levied upon any of the goods or property of the Buyer; or
c) the Buyer offers to make any arrangements with or for the benefit of its creditors or (if an individual) becomes subject to a petition for a bankruptcy order or (being a limited company) has a receiver appointed of the whole or any part of its undertaking property or assets; or
d) an order is made or a resolution is passed or analogous proceedings are taken for the winding up of the Buyer (save for the purpose of reconstruction or amalgamation with insolvency and previously approved in writing by the Seller),
the Seller shall thereupon be entitled without prejudice to its other rights hereunder forthwith to suspend all further deliveries until the default has been made good or to terminate the contract and any unfulfilled part thereof or, at the Seller's option, to make partial deliveries. Notwithstanding any such termination, the Buyer shall pay to the Seller at the contract rate for all the goods delivered up to and including the date of termination.
15. Compliance
The Buyer undertakes to establish procedures and controls to ensure compliance with customs, export control laws and sanctions laws and agrees to provide the Seller with any information necessary to comply with such regulations. In addition, the Buyer undertakes that it will not directly or indirectly sell, transfer, trans-ship or otherwise dispose in any way of the goods to (i) individuals and/or entities targeted by financial or economic sanctions administered under applicable export control and/or sanction laws; and/or (ii) with knowledge or reason to believe that the goods will be used in connection with armaments, missiles or nuclear, biological or chemical weapons, if and to the extent such use is subject to prohibition or authorization, unless required authorization is provided.
The Buyer warrants that it will conduct its business in an ethical and responsible manner and will comply with all applicable anti-bribery and anti-corruption laws (including but not limited to the OECD convention on combating bribery of foreign officials in international business transactions).
16. Industrial property rights
All drawings, designs, specifications, samples and other information provided by the Seller are confidential and all related intellectual property rights shall remain the exclusive property of the Seller.
If goods supplied by the Seller to the Buyer are based on the Buyer's design or specifications infringe or are alleged to infringe any patent or registered design right or copyright, the Buyer will indemnify the Seller against all damages, costs and expenses incurred by the Seller as a result of the infringement or allegation. The Buyer will give the Seller all possible help in meeting any infringement claim brought against the Seller.
17. Changes to products
The Seller reserves the right to make any change or improvement to its goods without assuming any further obligation.
18. Buyer's error in ordering
In the event the Buyer orders incorrectly, the Seller will be under no obligation to the Buyer to rectify or assist in rectifying the error.
19. Miscellaneous
No delay, failure, change or waiver by the Seller to exercise any one or more of its rights under these Terms & Conditions of Sale shall be construed or shall operate to be a waiver thereof or a continuing waiver of such terms and conditions.
If any of the provisions of these Terms & Conditions of Sale shall be considered unlawful or otherwise ineffective by any court of competent jurisdiction, the remaining parts of these Terms & Conditions of Sale shall not be affected thereof and shall remain in full force.
20. Law and jurisdiction
The contract shall be subject in all respects to English Law and to the jurisdiction of the English Courts. The United Nations Convention on the International Sale of Goods (CISG) shall not apply.