ADVANCED POLYMERS LIMITED GENERAL CONDITIONS OF SALE
These conditions (“Conditions”) form an integral part of every contract or agreement for the sale of goods (“the Products”) and/or supply of services (“the Services”) by Advanced Polymers Limited (“the Seller”).
1.1 In these conditions, “Buyer” means the person(s), firm or company who purchases the Products and/or Services from the seller; “Design” means any design produced by the Seller exclusively for the Buyer during the course of performing the Services pursuant to the contract; “Intellectual Property Rights” means any copyright (whether registered or otherwise), unregistered design right, semi-conductor topography works and mask works together with any current applications for any items of the foregoing in a design.
1.2 In these Conditions: 1.2.1 reference to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced; 1.2.2 references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires; and 1.2.3 headings will not affect the construction of the Conditions.
2. APPLICATIONS OF TERMS
2.1 Subject to any variation under Condition 2.2, the Contract will be on the Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 Any variation to these Conditions and any representations about the Products and/or Services shall have no effect unless expressly agreed in writing and signed by a Director or authorised signatory of the Seller.
2.3 Any quotation issued by the seller is an invitation to treat and is not an offer of a contract. Quotations shall be valid for thirty days from date of issue. No contracts shall deem to have been effected by the acceptance by the Buyer of any quotation made by the Seller until the order constituted by such acceptance has been confirmed in writing by the Seller.
2.4 Each order for Products and/or Services by the Buyer to the Seller shall be deemed to be an offer by the Buyer to purchase Products and/or Services subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Seller and no contracts for the supply of the Products and/or Services will come into existence until a written order of acknowledgement is issued by the Seller and the Seller confirms to the Buyer a delivery date of the Products and/or performance of the Services or (if earlier) the Seller delivers the Products to the Buyer or commences performance of the Services for the Buyer.
2.6 The Seller shall assume that the Buyer has the relevant authority to place an order with the Seller, whether or not the Buyer is acting on its own instructions or as an agent on behalf of its principal. The Seller does not accept any liability where the agent does not retain the relevant authority upon which it holds itself out.
3.1 Unless otherwise agreed by the Seller in writing, the price for the Products and/or Services shall be the price set out in the Sellers official Quotation Form, or otherwise are deemed to be provisional only, and may be amended by the Seller at any time before delivery of the Products/Services under the Contract without prior notice to the Buyer, in the event of any increase before the date of despatch of the Products/Services to the Buyer in wages, material or any other costs expenses and charges incurred by the Seller.
3.2 The Seller shall have the right any time to withdraw any discount from its normal prices as listed or quoted and/or to revise prices to take into account increases in costs prior to delivery including (without limitation) costs of any goods, materials, carriage, labour or overheads, the increase or imposition of any tax, duty or other levy and any variation in exchanges rates.
4.1 Unless otherwise agreed accounts are due and become payable not later than 30 days from delivery of the Seller’s invoice.
4.2 Unless otherwise specifically stated the purchase price is deemed to exclude Value Added Tax and any other applicable taxes and duties, including but not limited to shipping and excise duties to the extent that such taxes and duties are properly chargeable on the supply to the Buyer of the Products and/or the Services. The Buyer shall pay such taxes and duties as an addition to payments otherwise due to the Seller.
4.3 Time for payment shall be of the essence.
4.4 All Payments shall be in pounds sterling unless the Seller states otherwise.
4.5 The Buyer shall not be entitled to withhold payment of an amount payable under the contract to the Seller because of any claim of the Buyer in respect of any alleged breach of the Contract, or of any other contract.
If the Buyer fails to pay the Seller any sum due under the Contract the Buyer will be liable to pay interest to the Seller on such sum from the due date for payment in accordance with the Late Payments of Commercial Debts (Interest) Act 1998.
6. SUPPLY AND DELIVERY
6.1 Delivery of the Products shall be made by the Seller delivering the Products to such place for delivery as is agreed by the Seller or, or if agreed by the Seller, by the Buyer collecting the Products at the Seller’s premises at any time after the Seller has notified the Buyer that the Products are ready for collection.
6.2 Any dates quoted for supply and delivery of Products are approximate only and the Seller shall not be liable for any delay in supply of the Product howsoever caused. Time for supply or delivery shall not be of the essence.
6.3 If for any reason the Buyer will not accept delivery of any of the Products, or the Seller is unable to deliver the Products on time because the Buyer has failed to provide appropriate instructions, documents, licence, authorisation, components or materials:
6.3.1 risk in the Products will pass to the Buyer (including for loss or damage caused by the Seller’s negligence); 6.3.2 the Products will be deemed to have been delivered; and 6.3.3 The Seller may store the Products until collected by the Buyer and the Buyer will be liable for all related costs and expenses (including without limitation, storage and insurance).
6.4 In the event of any tooling, specific to the Product which remains in the Seller’s possession for a period greater than two years from delivery of the Product, the Seller may charge the Buyer related cost and expenses for the storage of the same.
6.5 The Buyer will provide at its expense at the place of delivery adequate and appropriate equipment and manual labour for unloading the Products.
6.6 If the Seller fails to supply the Products for any reason, the liability of the Seller shall be limited to, at its discretion, replacing the Products within a reasonable time, issuing a credit note at the pro-rata Contract rate against any invoice raised for such Products or a refund of the purchase price paid.
6.7 Any liability of the Seller for non-performance of the Services shall be limited to, at its discretion, issuing a credit note at the pro-rata Contact rate against any invoice raised for such Services or a refund of the purchase price paid. 6.8 The quantity of any consignment of Products as recorded by the Seller upon despatch from the Seller’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.9 If the Seller delivers to the Buyer a quantity of the Products of up to 10% more or less that the quantity accepted by the Seller, the Buyer shall not be entitled to object or to reject the Products or any of them by reason of the surplus or shortfall and shall pay for the Products at the pro-rata Contract rate.
6.10 The Seller shall not be liable for any non-delivery of Products and/or non-performance of the Services (even if caused by the Seller’s negligence) unless written notice is given to the Seller within two days of the date when the Products would in the ordinary course of events have been received and/or the Services would have been performed.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Unless otherwise advised by the Buyer to the Seller, the Seller shall assume that all Intellectual Property Rights are the exclusive property of the Buyer.
7.2 If any claim shall arise alleging the use or other dealing with the Product infringes trade marks, trade names, Patents, copyrights, registered designs or other Intellectual Property rights of third parties the Buyer shall indemnify the Seller against any such claims arising.
8. RISK AND TITLE
8.1 It is a condition of the contract that the property in all the Products delivered by the Seller to the Buyer shall remain vested in the Seller until the Seller has received in cash or cleared funds payment in full for the Products delivered and all Products agreed to be sold by the Seller to the Buyer for which payment is then due.
8.2 Until payment due under all contracts between the Buyer and the Seller has been made in full the Buyer shall hold the Products upon trust for the Seller.
8.3 Until such time as the property in the Products passes to the Buyer, the Buyer shall hold the Products as the Seller’s fiduciary agent and bailee and shall keep the Products separate from those of the Buyer and third parties and (at its own cost) properly stored, protected and insured (on behalf of the Seller for their full price against all risks to the reasonable satisfaction of the Seller) and identify as the Seller’s property.
8.4 Notwithstanding that the property in all Products to be delivered to the Buyer by the Seller shall remain vested in the Seller until the Seller has received payment in full, the risk of damage to or loss of all or any such Products shall pass to the Buyer forthwith upon delivery or deemed delivery thereof to the Buyer and as from such date or delivery or deemed delivery the Buyer shall be liable to pay to the Seller the contract price for such products whether or not the same are damaged or lost prior to the dates that the property therein shall pass to the Buyer.
8.5 The Buyer may resell the Products before ownership has passed to it solely on the following conditions: 8.5.1 Any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and 8.5.2 Any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
8.6 The Buyer’s right to possession of the Products shall terminate immediately if: 8.6.1 The Buyer convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or involuntary) except a solvent voluntary liquidation for the purpose of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Buyer or the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer in any jurisdiction; or 8.6.2 The Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform and of his/its obligations under the Contract or any other contract between the Seller and Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or 8.6.3 The Buyer encumbers or in any way charges any of the Products; or 8.6.4 Anything analogous to the foregoing occurs in any other jurisdiction.
8.7 The Seller shall be entitled to receive payment for the Products notwithstanding that ownership of any of the Products has not passes from the Seller.
8.8 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
9.1 The Seller warrants that (subject to the other provisions of these conditions) upon delivery and for a period of 3 months from the date of delivery, the Products will: 9.1.1 Be free from defects in materials and workmanship; 9.1.2 Be of satisfactory quality within the meaning of the Sale of Goods Act 1979 (as amended); and 9.1.3 For the sake of clarity, the suitability and testing of any Product remains the sole responsibility of the Buyer. No warranty in this regard is provided by the Seller.
9.2 The Seller warrants that it will provide the Services with reasonable skill and care.
9.3 The Seller shall not be liable for a breach of any of the warranties in Condition 9.1 unless: 9.3.1 The Buyer gives written notice of the defect to the Seller, and (if the defect is as a result of damage arising during transit at the risk of the Seller) to the carrier, within 14 days of the time when the Buyer discovers or ought to have discovered the defect but within 3 months from the date of delivery; and 9.3.2 The Seller is given a reasonable opportunity after receiving the notice of examining such Products and the Buyer (if asked to do so by the Seller) returns such Products to the Seller’s place of business at the Buyer’s cost for the examination to take place there.
9.4 If any Product does not comply with the warranties set out in Condition 9.1 (“Defective Product”) the Seller shall at its cost and expense and discretion either: 9.4.1 Repair or replace the Defective Product; or 9.4.2 Give a full credit or refund for the price paid by the Buyer for such Defective Product.
9.5 The Seller shall not be liable for a breach of any warranties in Condition 9.1: 9.5.1 To the extent that it is attributed to further use of such Products after giving notice pursuant to Condition 9.3.1; or 9.5.2 If the defect arises because the Buyer failed to follow the Seller’s reasonable oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products or (in the absence of such instructions) good trade practice; 9.5.3 That are attributed to fair wear or tear, abuse, improper use or use in an environment or for a purpose for which the Product was not designed or intend use; or 9.5.4 If the Buyer alters or repairs such a Product without the written consent of the Seller; or 9.5.5 If the defect arises as a result of the Seller not following the instructions of the Buyer in respect of the Product. 9.5.6 Any defect which arises from the design and/or specifications provided by the Buyer 9.6 If the Seller complies with Condition 9.4 is shall have no further liability for a breach of any of the warranties in Condition 9.1 in respect of such Products. 9.7 The Seller shall provide the Products to the Industry tolerance ISO 3302-1 unless otherwise specially agreed in writing between the parties.
10. LIMITATION OF LIABILITY
10.1 Subject to the provisions of these Conditions, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: 10.1.1 any breach of these Conditions; and 10.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
10.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979 (as amended)) are, to the fullest extent permitted by law, excluded from the Contract. In particular, the Seller does not warrant that the Products will be fit for any purpose made know to it by the Buyer.
10.3 Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or for fraudul
10.4 The Buyer acknowledges that the price for the Goods and/or Services would be higher were the following exclusions not agreed.
10.5 Subject to Conditions 10.3, the Seller shall not be liable to the Buyer for: 10.5.1 any indirect or consequential, special or punitive loss, damage, costs or expenses; 10.5.2 loss of profit; 10.5.3 loss of business; 10.5.4 loss of revenue; or 10.5.5 depletion of goodwill.
10.6 Subject to Condition 10.3, the Seller’s total liability to the Buyer under or connected with these Conditions for: 10.6.1 Damage to the Buyer’s material property resulting directly from the Seller’s negligence or that of its employees shall not exceed £2,000,000 for any one event or series of connected events; 10.6.2 any other direct loss not covered by Condition 10.6.1, shall not exceed 125% (one hundred and twenty five per cent of the price payable for the Products. 10.6.3 The limits in Conditions 10.6.1 and 10.6.2 are based on the Seller’s insurance cover and ability to compensate.
10.7 Rubber products manufactured by the Seller are not suitable for invasive medical procedures.
11. DESCRIPTIONS AND ILLUSTRATIONS
11.1 The description of the Products and the Services shall be as set out in the Seller’s quotation (if any). 11.2 All descriptions, specifications and illustrations contained in the price lists, advertisements and similar literature of the Seller (including the Seller’s website) are intended merely to present a general idea of the products described therein and none of these descriptions, specifications and illustrations shall form part of the Contract.
12. FORCE MAJEURE A party shall not have any liability for any loss or damage if its performance of any obligations under the Contract (other than non-payment of amounts that are due and payable) is delayed, hindered or prevented by any cause beyond its reasonable control, including, without limitation, fire, storm, flood, earthquake, accident, adverse weather conditions, explosions, Acts of God, war, governmental controls, restrictions or prohibitions, strikes, lock-outs, industrial action, employment dispute, protests, traffic congestion, vandalism, interruptions in communications or power supply and mechanical breakdown, failure or malfunction of computer systems. In the event of such delay, hindrance or prevention, such party shall be entitled to postpone delivery or performance by the duration of interference plus a reasonable start-up time thereafter, or to cancel the Contract in its entirety or partially, insofar as it has not been performed without incurring any liability for non-performance.
13. TERMINATION OF CONTRACT
13.1 The Seller shall have the right to terminate the Contract at any time by giving at least seven (7) days notice to the Buyer (or immediately as provided in Condition 13.2.1) in any of the following events, which termination shall be effective upon expiry of such notice (or immediately as provided in Condition 13.1.2): 13.1.1 if the Buyer commits a material breach of any of the terms of Contract and fails to remedy the same within thirty (30) days of being notified of the breach; 13.1.2 immediately upon the occurrence of the events in Condition 8.6, or if any material or significant part of the Buyer’s undertaking, property, or assets shall be intervened in, expropriated, or confiscated by action of any government.
13.2 The Seller may terminate any Contract or suspend further deliveries (without prejudice to the foregoing right of termination) if the Buyer fails to pay any sum as it falls due, unless subject to a bona fide dispute and provided the undisputed amount has been paid.
14. CONSEQUENCES OF TERMINATION
14.1 On the termination of the Contract for any reason, the Seller shall not be obliged: 14.1.1 to supply any Products of Services ordered by the Buyer unless already paid for; and 14.1.2 all payments payable to the Seller under the Contract shall become due immediately upon termination of this Contract despite any other provision.
14.2 On termination of the Contract for any reason, the Buyer shall pay to the Seller the sums due of all Products ordered that it has not yet paid for.
14.3 For the sake of clarity, where the Buyer places any order which shall be delivered over an agreed period (“scheduled order”), or raw materials are purchased by the Seller in order to complete the Buyer’s requirements, the Buyer shall be required to pay for any such order and/or the raw materials required to complete the order, in the event that the order is cancelled.
14.4 The termination of this Contract shall not affect the respective rights and liabilities of each of the parties thereto which accrued prior to such termination nor any provisions which either expressly or impliedly are to remain in operation after termination.
The rights of the Seller shall not be prejudiced or restricted by any indulgence or forbearance extended by the Seller to the Buyer and no waiver by the Seller in respect of any breach or default by the Seller shall operate as a waiver in respect of any subsequent breach and will in no way affect the other terms of the Contract.
16. THIRD PARTIES
The parties to this contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17. ASSIGNMENT AND SUB-CONTRACTING
17.1 The Contract and these Conditions shall not assignable by either party.
17.2 The Seller shall have the right to sub-contract any of its duties or obligations under the Contract and agrees that it shall be responsible for the actions or omissions of any sub-contractor used by it in connection with any of the Products or with satisfying any of the Seller’s responsibilities under the Contract
18.1 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
18.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.1 Any notices given under the Contract shall be in writing and shall be sent by registered post, or the recorded delivery service, addressed in the case of a notice to the Seller, to the Seller’s registered office, and in the case of a notice to the Buyer, to the address of the Buyer or its representative or agent shown in the Contract.
19.2 Any notice sent by post shall be deemed conclusively to have been served: 19.2.1 in the case of a notice sent to an address inside the United Kingdom, on the day after the same shall have been posted; and 19.2.2 in the case of a notice sent to an address outside the United Kingdom after the normal postal delivery period and in all such cases, proof of posting shall be sufficient notice of service.
These Conditions shall be governed by, and construed in all respects in accordance with, English Law and the parties hereby submit to the non-exclusive jurisdiction of the Courts of England.