Monarch Chemicals Limited
CONDITIONS OF SALE
In these Conditions of Sale:
1.1 'the Seller' means any Monarch Chemicals Group Company or its successors, assignees, sub-contractors and agents.
1.2 'the Buyer' means any person or persons, firm or firms, company or companies, authority or authorities who shall order or buy the Goods or Services.
1.3 'the Goods' means the goods and/or materials supplied or sold by the Seller to the Buyer in accordance with the terms of any individual contract.
l.4 'the Services' means any services provided by the Setter in accordance with the terms of any individual contract.
1.5 'Order' means an order placed for the Goods or the Services.
1.6 'the contract' means the particular individual contract for the sale or supply of the Goods and/or the Services by the Seller to the Buyer;
1.7 'point of delivery' means the time specified in Clause 6 in relation to any normal contract.
1.8 Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted.
1.9 Reference to any clause is to a clause of these Conditions of Sale.
2. Applicability of terms
2.1 Unless otherwise expressly agreed in writing by an authorised representative of the Seller every contract shall be governed in all respects by these Conditions of Sale.
2.2 No contract shall take effect unless and until an order is accepted by an authorised representative of the Seller.
2.3 The Seller is prepared to receive the Buyer's Order by telephone but will accept no responsibility whatsoever for any error or omission arising there from.
2.4 By placing an Order subsequent to its receipt or its referral to these Conditions of Sale, the Buyer acknowledges that these Conditions of Sale shall prevail over any qualification or condition purported to be imposed by the Buyer and any previous course of dealing between the Buyer and the Seller.
3.1 Save as otherwise agreed in writing by an authorised representative of the Seller all Goods and Services must be charged at prices current at the point of delivery. All prices of Goods shall be stated as a price per tonne.
3.2 Save as expressly stated otherwise by the Seller in writing prices quoted for Goods and Services are exclusive of VAT.
3.3 Prices indicated in the Seller's quotations, catalogues, price lists and other advertising material shall not be binding on the Seller.
4.1 Until the Buyer has paid in full for the Goods, the Goods shall remain the sole and absolute property of the Seller as legal and equitable owner,
4.2 In the event of any collection or delivery of the Goods prior to the passing of title in them, the Buyer shall be in possession of the Goods solely as bailee and fiduciary agent for the Seller until such time as title in them has passed pursuant to Clause 4.5.
4.3 The Buyer shall insure to their full value any Goods wherein the risk but not the title has passed to it, and shall indemnify the Seller for loss, damage to or destruction of any such Goods, and shall hold any insurance monies payable in respect of such Goods in trust for the Seller.
4.4 Until title to the Goods shall pass pursuant to Clause 4.5.
4:4.1 the Buyer shall where possible store and label the Goods in such manner that they shall at all times remain separate from the other goods in the Buyers possession and be readily identifiable as the Seller's Goods;
4.4.2 the Buyer shall be bound at the request of the Seller to deliver up the Goods to the Seller on request and for such purpose the Seller may at any time (and whether or not the Buyer shall be in default in making payment under a contract) in its absolute discretion recover from the Buyer those Goods being in the Buyer's possession and, for the purpose of such recovery, the Sellers servants and agents may enter upon Land or buildings upon or in which the Goods are situated;
4.4.3 the Seller agrees to permit the Buyer as fiduciary agent of the Seller to dispose of the Goods in the course of the Buyer's business and to pass good title to the Goods to its own customer (being a bona fide purchaser for value without notice of the Seller's rights);
4.4.4 in the case of all disposals of Goods pursuant to Clause 4.4.3, such disposal shall be by the Buyer as principal in relation to its own customer, and the Buyer shall have no right to commit the Seller to any contractual relationship with or liability to any such customer,
4.4.5 the permission contained in Clause 4.4.3 may be revoked as any time by notice by the Seller and shall automatically and without notice be revoked upon the commencement of liquidation proceedings (compulsory or voluntary) of the Buyer or the appointment of a Receiver, Administrator, Administrative Receiver or Judicial Administrator over any part of the Buyer's assets;
4.4.6 in the event of a disposal of the Goods pursuant 10 Clause 4.4.3, the Buyer shall hold the proceeds of sale thereof on trust for the Seller (to be kept separately from the Buyer's own monies and those of third parties in a separate bank account in which a credit balance shall be at all times maintained and shall account so the Seller forthwith for the proceeds of sale as fiduciary owner thereof notwithstanding that the period of credit allowed to the Buyer hereunder may not have expired and the Seller shall have the right to trace the proceeds of sale thereof.
4.5 Notwithstanding any purported appropriation by the Buyer so the contrary, the Seller shall be entitled to
appropriate payment or payments for Goods made by the Buyer to the Seller to such Goods and accounts as it shall deem fit.
4.6.1 The provision of this clause 4 shall apply notwithstanding that the Goods shall have been added to or incorporated in any goods of the buyer. Provided that the Goods remain identifiable as discrete goods and that the process by which they have been added to or incorporated in the Buyers goods is reversible.
4.6.2 The provisions of this Clause 4 shall apply notwithstanding that the Goods shall have been added to or incorporated in my goods of any third party, provided that the Goods remain identifiable as discrete goods and that the process by which they have been added so or incorporated in the third party's goods is reversible.
4.7 if the buyer has not received payment for any disposal under Clause 4.4.3 then the Buyer shall upon notice in writing by the Seller assign to the Seller all its rights against its customer in respect of that disposal, and shall do or cause to be done all things required to be done by statute or otherwise to ensure that such assignment is fully effective.
4.8 In the event that the Seller exercises its right of ownership so as to recover possession of the Goods or any of them, the risk in the Goods retaken shall revert to the Seller on possession being retaken by the Seller, its servants or agents and the Seller shall have full and unencumbered right to dispose of the goods free of any rights whatsoever on the part of the Buyer to the Goods or the proceeds of sale thereof.
4.9 The Buyer shall utilise or dispose of the Goods insofar as the Orders it receives for the Goods allow on a first-in first-out basis.
4.10 The Seller shall have a general lien against the Buyer of any goods of the Buyer for the time being in the possession of the Seller for amounts overdue under any contract. If any lien is not satisfied within 3 months of any payment aforesaid becoming overdue the Seller may sell such goods as agent for the Buyer and apply the proceeds towards the monies due and the expenses of the sale and shall upon accounting to the Buyer for the balance remaining (if any) be discharged from all liability whatsoever to respect of such goods.
5.1The Seller shall be entitled to submit an invoice to the Buyer for the Goods and/or Services at any time on or after the point of delivery.
5.2 The Buyer shall pay for the Goods and/or Services in full by the 20th day of the month following the point of delivery or sooner as provided in Clause 4.4.6 (if applicable).
5.3 Notwithstanding the provisions of Clauses 5.2 and 5.2, the Seller reserves the right to require payment in full for the Goods on or before the point of delivery.
5.4 In the event of any delay in payment beyond the date payment is due, the Buyer shall pay the Seller interest, on a daily basis, at the rate of 3% over the base lending rate of Lloyds Bank plc. from time to time, for the period that payment is overdue,
5.5 The Buyer shall make no deduction from the invoice price of Goods and/or Services on account of any set-offs or claim unless both the validity and the amount thereof have been admitted by an authorised representative of the Seller in writing.
6.1 Where the Buyer states a specified delivery date the Seller shall if it accepts the Order pursuant to Clause 2.2 above use all reasonable endeavours to comply but shall be under no obligation to make delivery at any specified time. Time shall not be of the essence with respect only to the Seller's delivery obligations and there shall be no liability on the Seller in respect of any loss incurred by the Buyer arising from any delay in delivery of the Goods or performance of the Services or any part thereof.
6.2 Where the Goods are delivered by road tanker the point of delivery shall be when the Goods past the final flange on the road tanker.
6.3 Where the Goods are delivered by drum or other container the point of delivery shall be when the Goods are removed from the transporting vehicle.
6.4 Where the Goods are collected from the Seller's stores tank the point of delivery shall be when the Goods pass out of the delivery line in such storage sank.
6.5 Where the Goods are delivered by road tanker or discharged into the Buyer's tank from other containers, the point of delivery shall be when the Goods pass the final flange on the road tanker or other container.
7. Passing of risk
Risk in the Goods shall pass to the Buyer at the point of delivery as specified in Clause 6.
8. Delivery by instalments
8.1 The Seller shall he entitled to deliver the Goods by instalments. Each instalment shall be treated as if it constituted a separate and distinct contract between the Seller and the Buyer,
8.2 Any failure, suspension or delay by the Seller in respect of any part delivery of the Goods or the discovery of any defect in any of the Goods so delivered shall not entitle the Buyer to cancel the remainder of the contract and shall not affect the obligation of the Buyer to pay the price of the goods.
9. Force Majeure
The Seller shall not be under any liability to the Buyer in respect of any failure to perform or delay in performing any of its contractual obligations to the Buyer attributable to any cause of whatsoever nature beyond the Seller's reasonable control and no such failure or delay shall be deemed for any purpose to constitute a breach of contract.
10. Suitability of storage and offloading facilities
The Seller reserves the right at any time to refuse to make delivery of the goods or any of them if in its sole opinion the storage and offloading facilities proposed by the Buyer are inadequate for the Goods. All reasonable costs incurred by the Seller in attempting to make delivery shall be for the account of the Buyer. Where any of the Goods are delivered by the Seller or the Seller's agent such delivery shall in no way constitute a commitment or representation by the Seller as to the suitability of the Buyer's storage or offloading facilities so that the Seller shall be under no liability in respect of the storage or offloading facilities used by the Buyer.
11. Failure to accept delivery when tendered
If for any reason the Buyer fails to take delivery of the goods or permit performance of the Services when tendered by the Seller without giving 10 days' notice to the Seller then in addition to and without prejudice to the Sellers' other rights and remedies the Buyer shall reimburse the Seller, on demand all costs and expenses it may have incurred in such attempt to make delivery of the Goods or perform the Services.
12.1 All terms, conditions, warranties, statements or representations whatsoever whether express or implied statutory or otherwise and all other obligations and liabilities whatsoever of the Seller (save as provided in Clauses 12.2 and 12.4) relating to the quality, merchantability fitness for purpose, suitability or other properties of the Goods are hereby expressly excluded.
12.2 In the event of any claim, (except as provided in Section 16 of the Unfair Contract Terms Act 1977) the Sellers liability shall be totally and exclusively limited to the replacement of the Goods or, at the option of the Seller, so the refund of any purchase price received in respect thereof, and, in no event shall the Seller be liable for any special consequential or incidental loss or damage to the Buyer under any contract or these Conditions of Sale or connected in any way with the Goods or any use of them by the Buyer or any third party or the Services (including but not limited to economic loss, loss of profits or revenue or costs arising from the use of the Goods) whether such liability arises in contract or in tort (including by reason of any negligence of the Seller) or otherwise,
12.3 Notwithstanding the foregoing the Seller shall be under no liability whatsoever to the Buyer after the point of delivery.
12.4 The exclusion of liability referred to in this Clause 12 does not apply so as to exclude or restrict the Seller's liability for:
12.4.1 death or personal injury resulting from the negligence of the Seller, its servant or agents; or
12.4.2 breach of the Seller's implied undertaking as to title to the Goods contained in Section 12 Sale of Goods Act 1979.
13. Variation in specification
All information detailed in the Seller's containers, bottles and packaging are intended to be and may be construed only as of a generally informative nature and shall not be deemed to import any, warranty as to the dimension or quality of the Goods or any of them.
14. Variation in quantity
The Seller reserves the right to deliver to the Buyer' against any Order an excess or deficiency of up to ten percent (10%) of the weight or volume ordered and the price to be paid by the Buyer shall reflect such variation.
15. Variation In price
The Seller reserves the right at any time to vary the price of any of the Goods or the Services.
16.1 Except where the Goods are specifically ordered against samples supplied by the Seller, any and all samples supplied by she Seller are supplied for information only.
16.2 Except where specifically agreed in writing by the Seller (and in all cases subject to the limitation of liability in Clause 12) the provision of a sample by the Seller shall in no way be taken to imply any warranty or condition as to the quality, merchantability, fitness for purpose, suitability or other properties of the Goods.
17.1 The value of all chargeable Containers/Pallets used in connection with the delivery of the Goods will be shown as a separate item on the Seller's sales invoice for the Goods and shall be paid for in full by the Buyer when payment for the Goods is due.
17.2 All such empty Containers/pallets returned, at the Buyer's expense, to the, Seller in good and complete condition within three months of receipt by the Buyer maybe repurchased at the seller's discretion at such rate as maybe determined by the Seller from time to time.
The supply of any of the Goods by the Seller shall not give the Buyer any rights whatsoever in respect of any of the Seller's trademarks.
The Buyer shall inspect the Goods as soon as is practicable after the point of delivery and shall give to the Seller and the Carrier in writing within three (3) days of delivery notice of any claim for any shortages or damage or loss to the Goods whilst in transit (and the delivery note must be endorsed accordingly). Falling which the Goods shall he conclusively presumed so have been received and accepted by the Buyer.
The Seller shall be entitled without any liability to the Buyer whatsoever to withhold or suspend delivery of the Goods or performance of the Services or any part thereof if the Buyers' accounts with the Seller are outstanding to an extent which the Seller considers unreasonable or if the Seller considers that the Buyer will fail to make payment or will fail to perform any other obligation undertaken by it in terms of the contract.
21. Health and Safety at Work
The Goods supplied by the Seller may under certain circumstances give rise to risk to health and safety. Technical literature on goods supplied giving information on toxological, fire or handling hazards is available on request from the Seller. The Seller shall be under no liability whatsoever for any action taken or refrained by the Buyer in relation to such information.
Goods are exported from the United Kingdom subject to the International Chamber of Commerce Incoterms 2000
No contract is assignable without the prior written consent of the Seller save that the Buyer and the Seller may assign the benefit and burden undertaken by them to a subsidiary of their respective ultimate holding company on the condition that such subsidiary remains associated with the assigning party.
Any failure on the part of the Seller to take any action for enforcement of a contract in consequence of any breach of the Buyer shall not operate as a continuing waiver of the breach in question or prevent the Seller from subsequently enforcing its rights in respect of any continuing or like breach.
Every contract to which these Conditions of Sale apply shall be construed and take effect in accordance with the laws of England and the parties shall accept the non-exclusive jurisdiction of the English Courts.