Terms & Conditions
1. Interpretation
1.1 In those conditions:
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or
whose order for the Goods is accepted by the seller.
“Goods” means the goods (including any installment of the goods or any part for them) which the
Seller is to supply in accordance with these conditions.
“Seller” means Specialised Aerosols Company Limited.
“Conditions” means the standard terms and conditions of sale set out in this document and
(unless the context otherwise requires) includes any special terms and conditions agreed in writing
between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods
“Writing” includes telex, cable, facsimile transmission and comparable means of communication.
1.2 The heading in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation
of the Seller which is accepted by the Buyer, or any written order of the Buyer which is
accepted by the Seller, subject in either case to these Conditions, which shall govern the
Contract to the exclusion of any other terms and conditions subject to which any such quotation
is accepted or purported to be accepted, or any such order is made or purported to be made, by
the Buyer.
2.2 No variation to these Conditions shall be binding unless in Writing between the authorised representatives
of the Buyer and the Seller. The Seller’s Agents, Salesmen or Representatives
have no authority to agree or accept any alteration or addition to these Conditions.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning
the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer
acknowledges that it does not rely on, and waives any claim for breach of, any such representations
which are not so confirmed.
3. Quotations Orders and specifications
3.1 In the event of there being a quotation in writing or order then the quantity, quality and description
of the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the
Buyers order (if accepted by the Seller).
3.2 No order which has been accepted by the Seller may be cancelled by the Buyer except with the
agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full
against all loss (including loss of profit), costs (including loss of all labour and materials used),
damages, charges and expenses incurred by the Seller as a result of cancellation including all
legal fees on an indemnity basis.
4. Price of the goods
4.1 Notwithstanding any offer, quotation, tender or price list orders can only be accepted subject to
the condition that Goods will be invoiced at the Seller’s prices in force at the date of dispatch of
the Goods.
4.2 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally
liable to pay to the Seller.
5. Terms of payment
5.1 Unless Goods are supplied on credit the Seller will not dispatch Goods to the Buyer until payment
in full has been made in respect of the Goods.
5.2 In the case of Goods supplied on credit, all invoices shall become due forthwith.
5.3 Where a settlement discount is shown on the face of the invoice, the Buyer may deduct the settlement
discount from his payment, provided that payment in full (unless the settlement discount)
is received by the due date.
5.4 Where the Buyer fails to make payment on the due date and whether or not credit facilities have
been made available to the Buyer and without prejudice to any other legal rights which the Seller
may have with regard to non-payment, the following provisions shall apply:-
5.4.1 the Seller shall be entitled to charge interest on the overdue invoice at the rate of 3.5%
per calendar month calculated from day to day and compounded on a calendar monthly
basis from the date the payment becomes due until the date the Seller receives payment
in full.
5.4.2 the Seller shall be entitled to treat any or all other contracts or agreements between the
Seller and the Buyer as repudiated without prejudice to any other remedies which the
Seller may have with regard to non-payment by the Buyer.
5.4.3 the Seller may refuse to supply any further Goods until such time as all payments due or
deemed due pursuant to this Clause, including all interest accrued under Clause 5.4.1
have been satisfied in full.
5.5 The Buyer shall not be entitled:-
5.5.1 to withhold payment of any amount payable under the Contract because of any disputed
claim of the Buyer in respect of defective goods or any other alleged breach of contract;
or
5.5.2 to set off against any amounts payable pursuant to the Contract any monies which are not
presently payable by the Seller or for which the Seller disputes liability.
5.6 in the case of Goods supplied by installments, the Seller shall be entitled to render interim invoices
to the Buyer upon delivery of each installment. Each interim invoice rendered pursuant to this
sub-clause shall be treated as a final invoice and the provisions for payment set out in this
Clause shall apply as if the interim invoice were a final invoice.
5.7 the Seller reserves the right to withdraw credit facilities at any time without giving the Buyer reasons
for withdrawing the same. Thereafter, the payment provisions set out in Clause 5.1 shall
apply.
6. Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises
at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if
some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that
place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be
liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of
the essence unless previously agreed by the Seller in writing. The Goods may be delivered by
the Seller in advance of the quoted delivery date upon giving notice to the Buyer.
6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate
contract and failure by the Seller to deliver any one or more of the installments in accordance
with these Conditions or any claim by the Buyer in respect of any one or more installments shall
not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s
reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the
Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest
available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate instructions at
the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable
control of by reason of the Seller’s fault) then, without prejudice to any other right or remedy
available to the Seller, the Seller may;
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable cost (including
insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage
and selling expenses) account to the Buyer for the excess over the price under the
Contract or charge the buyer for any shortfall below the price under the Contract.
6.6 The Buyer shall be required to provide free of charge the labour required to off-load the Goods
at the delivery point and all necessary lifting equipment.
6.7 The Seller has sole choice of the carrier or carriers employed to deliver the Goods unless otherwise
specifically agreed in writing.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Sellers premises, at the time when the Seller
notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time
of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, at the time when
the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these
Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in
cash or cleared funds payment in full of the price of the Goods, and all other goods agreed to be
sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods
as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the
Buyer and third parties and properly stored, protected and insured and identified as the Seller’s
property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary
course of its business, but shall account to the Seller for the proceeds of the sale or otherwise
of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all
such proceeds separate from any moneys or property of the Buyer and third parties and, in the
case of tangible proceeds, property stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are
still in existence and have not been resold) the Seller shall be at any time entitled to require the
Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon
any premises of the Buyer or any third party where the Goods are stored and repossess the
Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness
any of the Goods which remain the property of the Seller, but if the Buyer does so all
moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of
the Seller) forthwith become due and payable.
8. Warranties and liability
8.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a
person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all
warranties, conditions or other terms implied by statute or common law are excluded to the fullest
extent permitted by the law.
8.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer
Transactions (Restrictions on Statement) Order 1976 the statutory rights of the Buyer are not
affected by these Conditions.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or
their failure to correspond with specification shall (whether or not delivery is refused by the
Buyer) be notified to the Seller within 7 days from the date of delivery of (where the defect or failure
was not apparent on reasonable inspection) within a reasonable time after discovery of the
defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly,
the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such
defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered
in accordance with the Contract.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in the quality
or condition of the Goods or their failure to meet any specification is notified to the Seller in
accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part
in question) free of charge or, at the Seller’s sole discretion refund to the Buyer the price of the
Goods (or a proportionate part of the price, but the Seller shall have no further liability to the
Buyer.
8.5 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall
not be liable to the Buyer by reason of any representation, or any implied warranty, condition or
other term, or any duty at common law, or under the express terms of the Contract, for any consequential
loss or damage (whether for loss of profit or otherwise), costs, expenses, or other
claims for consequential compensation whatsoever (and whether caused by the negligence of
the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply
of the Goods or their use or resale by the Buyer except as expressly provided in these
Conditions.
8.6 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason
of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation
to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable
control. Without prejudice to the generality of the forgoing, the following shall be regarded as
causes beyond the Seller’s reasonable control:
8.6.1 Act of God, explosion, flood, tempest, fire or accident;
8.6.2 war of threat of war, sabotage, insurrection, civil disturbance or requisition;
8.6.3 acts, restrictions, regulations, bylaws, prohibitions or measures of any kind on the part of
any governmental parliamentary or local authority;
8.6.4 import of expert regulations or embargoes;
8.6.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees
of the Seller or of a third party);
8.6.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.6.7 power failure or breakdown in machinery.
9. Indemnity
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes
the patent, copyright, design, trade mark, or other industrial or intellectual property rights of any
other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses
awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to
be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings
or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or
compromise any such proceedings without the consent of the Seller (which shall not be
unreasonably withheld);
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance cover
which the Buyer may have in relation to such infringement, and this indemnity shall not
apply to the extent that the Buyer recovers any sums under any such policy or cover
(which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the
Seller for all damages and costs (if any) awarded in favour of the Buyer which are payable
by or agreed with the consent of the Buyer (which shall not be unreasonably withheld) to
be paid by any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law the Seller shall be entitled to
require the Buyer to take such steps as the Seller may reasonably require to mitigate or
reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify
the Buyer under this clause.
10. Insolvency of buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an
administration order or (being an individual or firm) becomes bankrupt or (being a company)
goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction);
or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or
assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to
occur in relation to the Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller,
the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the
Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for
the price shall become immediately due and payable notwithstanding any previous agreement
or arrangement to the contrary.
11. General
11.1 Any notice required or permitted to be given by either party to the other under these conditions
shall be in Writing addressed to that other party at its registered office or principal place of business
or such other address as may at the relevant time have been notified pursuant to this provision
to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver
of any subsequent breach of the same or any other provision.
11.3 If any provision of these conditions is held by any competent authority to be invalid or unenforceable,
in whole or in part, the validity of the other provisions of these conditions and the
remainder of the provision in question shall not be affected thereby.
11.4 Any dispute arising under or in connection with these conditions or the sale of the Goods shall
be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated
on the application of either party by the President of the time being of Dewsbury and District Law
Society.
11.5 The Contract shall be governed by the Laws of England.
Standard Terms and Conditions of Sale
of Products Supplied by Specialised Aerosols Co Ltd.
85526 Invoice:128 lpi 15/10/08 12:51 pm Page 1
