Buyer: means the person, firm or company who purchases the Goods from the Company.
Company: means, as confirmed separately, either:-
· Alcohols Limited, company registered number 547325 and whose registered office is at Charringtons House, The Causeway, Bishop’s Stortford, Hertfordshire, CM23 2ER; or
· Trithin Products Limited, company registered number 2660699 and whose registered office is at Charringtons House, The Causeway, Bishop’s Stortford, Hertfordshire, CM23 2ER.
Conditions: means the terms and conditions set out in this document.
Contract: the contract between the Company and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Goods: the Goods (or any part of them) set out in the Order.
Order: means the Buyer’s order for the Goods.
Unless otherwise agreed in writing by the Company, each instalment of the Goods shall be deemed to be a separate contract between the Company and the Buyer.
2. PRICE INCREASES AND VAT
2.1. The price of the Goods shall, unless otherwise specifically provided, be such price as is ruling at the date of the Order in the sales lists of the Company and such price being available to the Buyer on request, the Buyer shall be deemed to know the price. However, the Company reserves the right to increase the price of the Goods by giving notice at any time before delivery or payment in full (whichever shall first occur). If the Buyer is of the opinion that any such increase in price is unreasonable the Buyer may, by written notice given within seven days of the date of receipt of the Company notice, cancel any deliveries not yet made and not in transit at the date of the Company receipt of the Buyer’s notice.
2.2. The price of the Goods is quoted exclusive of amounts in respect of value added tax which will be charged as set out in the invoice at the relevant applicable rate.
3. WEIGHT AND VOLUME OF GOODS
The weight and volume of Goods delivered shall be determined at the works or store of the Company or the Company’ agent. The weight and volume so determined and declared by the Company or the Company agent shall be deemed to be the weight and volume of the Goods delivered, unless the Buyer or the Buyer’s agent shall notify any discrepancy in accordance with Condition 13.3 below.
4. QUANTITY TOLERANCES
The Company reserves the right to deliver against any Order an excess or deficiency up to 10% of weight or volume ordered.
5. WARRANTIES AND LIABILITIES
5.1. The Company warrants that the Goods shall comply with the Company specification for the Goods in question from time to time of which further details can be obtained from the Company upon request.
5.2. Subject to Condition 5.1 above the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.3. Nothing in these Conditions shall limit or exclude the Company liability for:
5.3.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
5.3.2. fraud or fraudulent misrepresentation; and
5.3.3. any matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
5.4. Subject to Condition 5.3:
5.4.1. The Company shall under no circumstances whatever be liable to the Buyer whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
5.4.2. The Company’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the value of the Goods delivered to the Buyer and from which the loss arises.
6. FORCE MAJEURE
6.1. Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means 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.
6.2. During any period when the delivery of the Goods or any part thereof cannot be made by the Company for any such reason within three days of the date upon which delivery would have taken place had the Force Majeure Event not occurred, the Buyer shall, after giving the Company written notice of its intention to do so, be at liberty to purchase elsewhere at its own cost and risk, such quantities of the Goods as the Company may be unable to deliver. The period of this Contract shall not be extended by reason of any such circumstances, and the Company shall not be held responsible for any increase in costs or for any damages thereby resulting.
7. SUITABILITY OF STORAGE FACILITIES AND COLLECTING VEHICLES
7.1. The Company reserves the right at any time without notice to refuse to make delivery of any quantity of the Goods without incurring any liability as a result thereof, if, in the opinion of the Company, the storage tank or other installation (or any valve, filling line, pump or other equipment required to be used in connection therewith) into which such quantity of the Goods would be transferred on delivery to the Buyer is unsuitable by reason of being inaccessible to such transport, dangerous to persons or property or in contravention of any statue regulation, bye‐law or other rule having the force of law. In such event, the Company shall be entitled to recover from the Buyer all reasonable freight and other costs payable by the Company. Where, however, delivery is made by the Company of any quantity of Goods, such delivery shall not in any way be deemed an admission on the part of the Company as to the suitability of such storage tank or installation as aforesaid.
7.2. The Buyer warrants that any collection vehicle, or other container provided by the Buyer or anyone acting on the Buyer’s behalf shall comply with all relevant legislation and applicable health and safety requirements and although the Company may inspect the same for the purpose of checking suitability and safe condition, the Company shall in no circumstances be responsible for the suitability or condition thereof or liable for any damage or loss resulting therefrom.
7.3. Any advice or recommendation given by the Company, its servants or agents as to the mode of storing of applying or using the Goods is given without liability on the part of the Company its servants or agents.
8. FAILURE TO MAKE OR TAKE DELIVERY
8.1. Should the Company fail to make delivery of the Goods or any part thereof within a reasonable time of the times agreed for delivery but never the less within five working days of the agreed delivery time for any cause other than those mentioned in Conditions 6 and 7 above, then the Company’s liability in respect of such failure shall be limited to the proved excess (if any) over the price under this Contract of the cost to the Buyer of similar Goods to replace those not delivered (having used best endeavours to purchase such Goods in the cheapest available and reasonably convenient market).
8.2. Notwithstanding Condition 8.1 above, should the Buyer fail to take delivery of the Goods or any part thereof at the times stated for delivery by reason of any cause other than those mentioned in Condition 6 above, then the Company shall be entitled to cancel such delivery and all other outstanding deliveries or instalments and to charge the Buyer with all losses suffered.
9. DELIVERY AND RISK
9.1. The Buyer shall be solely responsible for the proper unloading or discharging of Goods delivered pursuant to this Contract and delivery shall be deemed to be effected and risk shall pass to the Buyer as set out in Conditions 9.2 and 9.3 below.
9.2. In all cases where the Goods are delivered by road or rail:
9.2.1. where delivery of the Goods is made in drums or other containers, when the drums or other containers have arrived at the delivery location and prior to unloading;
9.2.2. where delivery is made by road tanker or bulk container, when the Goods have passed from the tanker’s or container’s final flange or from the end of its own discharge line, whichever is the later.
9.3. Where Goods are collected by the Buyer or by anyone acting on its behalf:
9.3.1. where delivery is made in drums or other containers, when the drums or other containers have been placed on the vehicle collecting them;
9.3.2. where delivery is made from storage tanks, when the Goods have passed from the final flange of the storage tank’s discharge line or from the storage tank’s final flange connection.
10. TITLE TO GOODS
10.1. Title to the Goods to which this Contract relates shall only pass to the Buyer upon delivery where the Company has received full payment in respect thereof prior to such delivery.
10.2. In all other circumstances, title to the Goods shall remain vested in the Company and the Buyer shall hold the Goods as bailee until full payment in respect thereof has been received by the Company or the Goods have been processed or incorporated into another composition, whichever is the earlier.
10.3. So long as title to the Goods remains vested in the Company, the Buyer shall hold the Goods in store in such a manner as clearly and separately to identify the same as the Goods of the Company, or where the Goods are of necessity stored in silos or bulk tanks with other Goods of like specification, to identify the quantity therein being the property of the Company and the Company shall have the right, without prejudice to the obligation of the Buyer to purchase the Goods, to recover possession of the Goods and for that purpose to enter into any premises occupied by the Buyer.
10.4. Nothing herein shall prevent or restrict the Buyer from selling in the ordinary course of business the Goods which have been processed or compositions into which the Goods have been incorporated, but if the Goods which have been processed or incorporated as aforesaid are resold before payment in respect thereof has been received in full, the Buyer shall hold as trustee for the Company all monies recovered from the sale of such Goods.
11.1. Payment in full shall be made by the 20th day of the month following the month during which delivery takes place save where otherwise specifically provided. Time of payment is of the essence.
11.2. Without prejudice to the Company’s rights under Condition 10 above, if the Buyer has been granted credit and fails to make any payments due at the specified time pursuant to the Contract then the full amount of credit becomes immediately payable by the Buyer to the Company for all Goods received by the Buyer from the Company.
11.3. The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
11.4. If the Buyer fails to make any payment due to the Company pursuant to this Condition 11 or otherwise under the Contract by the due date for payment, then the Company reserves the right to charge interest on the overdue amount at a rate of 4% per annum above NatWest’s base rate from time to time. 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 Buyer shall pay the interest together with the overdue amount.
12.1. Without prejudice to its other rights and remedies, the Company may defer or cancel any further deliveries or instalments of Goods due if the Buyer becomes subject to any of the events listed in Condition 12.2.
12.2.1. the Buyer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
12.2.2. the Buyer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
12.2.3. (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
12.2.4. (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Buyer;
12.2.5. (being a company) the holder of a qualifying floating charge over the Buyer's assets has become entitled to appoint or has appointed an administrative receiver;
12.2.7. (being an individual) the Buyer is the subject of a bankruptcy petition or order;
12.2.8. a creditor or encumbrancer of the Buyer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
12.2.9. any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.2.1 to clause 12.2.8 (inclusive);
12.2.10. the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
12.2.11. the Buyer's financial position deteriorates to such an extent that in the Company’s opinion the Buyer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
12.2.12. (being an individual) the Buyer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
12.2.13. The Buyer is in breach of this Contract or any Conditions.
12.3. Without limiting its other rights or remedies, the Company may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in clause 12.2.1 to clause 12.2.13, or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
12.4. On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Buyer's outstanding unpaid invoices and interest.
12.5. Termination of the Contract, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
12.6. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
13.1. All claims for damage to or partial loss of Goods in transit must be submitted in writing to the carrier and the Company or the Company agent within three days of delivery and the delivery note must be endorsed accordingly.
13.2. All claims for non‐delivery of the whole of any consignment or of any separate package forming part of a consignment must be submitted in writing to the carrier and the Company or the Company agent within seven days of receipt by the Buyer or the Buyer’s agent of the Company invoice or advice note, whichever is the earlier.
13.3. Upon receipt of the Goods, the Buyer shall examine them for the purpose of ascertaining whether they conform to the Contact, and if such Goods do not conform, give written notice thereof within three days to the Company with sufficient particulars; the Buyer shall permit the Company to investigate the matters relevant to such notification before the remainder of the Goods comprised in the same consignment are used or returned to the Company.
13.4. In the absence of notification as a claim or otherwise in accordance with 13.1 – 13.3 above, the Goods shall be deemed to have been delivered and accepted in conformity with the Contract.
14.1. Any containers/pallets supplied on a returnable basis will remain the property of the Company and any charge shall be paid in full by the Buyer when payment for the Goods is due.
14.2. A pallet charge may apply from time to time as determined by the Company.
14.3. A container charge or deposit may apply from time to time as determined by the Company. All empty containers will be returned to the Company at the Buyer’s expense, unless otherwise agreed. All empty containers returned to the Company in good and complete condition within three months of receipt by the Buyer shall be credited at such rate as may be determined by the Company from time to time. A charge will be made for any container not returned within three months of receipt by the Buyer irrespective of whether a deposit has been charged.
14.4. The Company shall make an additional charge to the Buyer if the Buyer returns containers damaged or with parts missing or which have been used for unauthorised purposes.
14.5. The Company shall only supply the Goods in reconditioned containers unless the Buyer specifically requests new containers which will be charged to the Buyer at a higher price. The Company does not accept any liability for contamination to any of the Goods caused by the Company supplying the Goods in reconditioned containers.
15.2. The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
16. VARIATION OF CONDITIONS
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Company.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by the Company to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18. BASIS OF CONTRACT
18.1. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
18.2. Any order or other request for the supply of Goods from the Company constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
18.3. Any order shall only be deemed to be accepted when the Company issues an acceptance of the order from the Buyer, at which point the Contract shall come into existence.
19. TRADE MARKS AND ADAPTED GOODS
19.1. Nothing contained in this Contact, whether express or implied, shall be deemed to confer any rights upon the Buyer to apply any trade mark owned or licensed by use by the Company or any of the Company’s associated companies to any Goods supplied under this Contract.
19.2. When the Goods are made or adapted by the Company in accordance with Buyer’s specifications, the Buyer shall indemnify and hold the Company harmless from all claims and all direct, indirect or consequential liabilities (including loss of profits, loss of business, depletion of goodwill and similar losses) costs, proceedings, damages and expenses (including legal and other professional fees and expenses) awarded against, or incurred by, the Company as a result of or in connection with the adapted Goods including any infringement or alleged infringement by such adapted Goods of any patents, registered designs, trade marks or other rights belonging to third parties.
20.1. Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
20.1.1. delivered by hand or by pre-paid first-class post or other next business day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
20.1.2. sent by fax to its main fax number (in the case of the Company, at +44 (0) 1279 757613).
20.2. Any notice or communication shall be deemed to have been received:
20.2.1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
20.2.2. if sent by pre-paid first-class post or other next business day delivery services, at 9.00am on the second business day after posting or at the time recorded by the delivery service.
20.2.3. if sent by fax, at 10.00am on the next business day after transmission.
21. PROPER LAW
The construction, validity and performance of this Contract shall be governed by the law of England and Wales and each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).